SEYE OLADEJO v. DR. MUIZ ADEYEMI BANIRE
(2014)LCN/7642(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of December, 2014
CA/L/294/2012
RATIO
COURT: DECISION OF THE COURT; WHAT AMOUNTS TO DECISION OF THE COURT
In OGUNBADEJO V OGUNYEMI (1993) LPELR -2321 (SC) (1993) 1 NWLR (PT.271). Ogundare JSC at page 16 – 17 defined the word “decision” to be most important word in the rule reproduced above is decision and by Section 277(1) of Constitution 1999. It means in relation to a court, and determination of that court and includes judgment, decree order, conviction, Sentence or recommendation.
IKEKU V EKEUKWU (1995) 7 NWLR (PT 410) 637 where the principle was established that it is not each and every observation or remark made by the court that amounts to a decision or determination of the court at page 28 paragraph C-D.
EMORDI V IGBEKE (2011) 9 NWLR 41. The word decision is defined by Fabiyi JSC to be a judicial determination after consideration of the fact and the law especially a ruling, order, judgment, pronouncement by a court when considering or disposing of a case.
OGBORU & ANOR V UDUAGHAN & ORS (2012) LPELR – 8283, DEBAYO & SAS LTD & ORS V GOMEZ & ORS (2011) LPELR – 4028 (CA).
Jauro JCA held that:
“to amount to a decision with the within the content of Section 318 of the Constitution, there must be a determination by the court which settles a point in favour and against the parties respectively.”
See also UNITED AGRO VENTURES LTD V FCMB (1998) 4 NWLR (PT 517) 546; DIKE V ANDUBA (2000) SCNJ 41 at 48; GOVERNOR OF KWARA STATE V EYITAYO (1996) 9 NWLR (PT 451) 693 at 701.
In UNITED AGRO VENTURES LTD V FCMB LTD (1998) 4 NWLR (PT 517) at 564, per C.E the order of the court appealed against in the proceedings where no augments were preferred on the motion the direction of the trial court, as to the procedure to be followed in determining the application, because the motion is not ripe for hearing and the day was slated for hearing, the matter was part heard having filed the motion late and under the Rules it could not be heard that evidence instead of wasting the court’s time, the court cannot go against the rules of the court. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SEYE OLADEJO Appellant(s)
AND
DR. MUIZ ADEYEMI BANIRE Respondent(s)
(Delivering the Leading Judgment): This appeal is against the Ruling of OPESANWO J of the Lagos State High court delivered on the 15th February 2012, wherein the ruling was for continuation of trial witnesses being present in the court and that a filing of the interlocutory application is no automatic right to suspend trial for any reason whatsoever.
The fact of the case is as follows:
The trial had commenced with about six witnesses whose evidence had been taken in the matter of Libel in which, Claimant/Respondent by the writ of Summons and Statement of Claim dated 24th December, 2007 claimed for:
1. The sum of N50,000,000.00 (Fifty Million Naira) as damages for injurious publication by the Defendants in the 2nd Defendant’s edition of Friday, the 24th day of August, 2007 on Page 20 thereof and which publication was deliberately calculated to disparage and lower the reputation of the Claimant before the right thinking members of society.
2. Public apology to be published in conspicuous pages of two widely published Newspapers.
3. The costs of this Action”
See pages 1 to 7 of the record of appeal.
The Defendant/Appellant’s counter-claim against the Respondent is as endorsed on the 2nd Amended Statement of Defence as follows:
“The sum of N20,158,800 (Twenty Million, One Hundred and Fifty Eight Thousand, Eight Hundred Naira) being damages for assault and battery on the Counter-Claimant by the Defendant to the Counter-Claim and his servant or agents (thugs) on the 16th of December, 2007.”
While the case was part heard, the Appellant/ Defendant applied to further amend his Statement of Defence which was granted on 25/1/12, consequent upon which the Appellant filed the 2nd amended Statement of Defence and filed a motion dated 13/2/13, praying the court for the following reliefs:
(i) An order striking out the Writ of Summons and Statement of Claim in the suit herein both dated the 24th of December, 2007 on the ground that they were signed by a person whose identity is not disclosed and who is not a Legal Practitioner,
(ii) An order striking out the Claimant’s claim in the suit herein.
When the suit came up before the trial court on the 15th of February, 2012 the Appellant’s aforesaid application dated the 13th of February, 2012 was brought to the attention of the court and the fact that the Respondent’s solicitors had been served with same two days earlier. The Appellant’s counsel suggested that since the Respondent’s counsel was still within time to respond to the application that the matter be adjourned for the hearing of the said application. The Respondent’s counsel objected to the Appellant’s counsel request and insisted that trial must continue notwithstanding the pendency of the Appellant’s application dated 13th of February, 2012, which challenges the competency of the suit herein and the jurisdiction of the trial court to entertain same. After listening to arguments from counsel to the Appellant and the Respondent on the propriety of hearing the Appellant’s pending application before proceeding with further trial, the learned trial judge by virtue of a ruling delivered on the 15th of February, 2012 held that trial must continue on the said date since the motion was not ripe. The trial court also ordered continuation of cross-examination of the Respondent by the Appellant’s counsel. As a result of the aforesaid the Appellant’s counsel concluded his cross-examination of the Respondent on the 15th of February, 2012 while the trial court adjourned for continuation of hearing or any pending motion.
The Appellant being dissatisfied with the ruling filed a Notice of Appeal dated 27th of February, 2012. The sole ground of appeal reads thus:
“The learned trial judge erred in law when she refused to adjourn the suit for the hearing of the 1st Defendant’s pending preliminary objection to the Claimant’s Claim dated the 13th day of February, 2012 and ordered continuation of trial.”
In line with the rules of court, Appellant filed a brief dated and filed on 13th June 2012 and a Reply brief dated and filed on 11/11/14 same was settled by ROTIMI SERIKI ESQ.
The Respondent’s Brief is dated and filed 18/1/13 but deemed properly filed on 3/2/14, it was settled by KEMI PINHERO SAN, DR MUIZ BANIRE, RASHEED ADEGOKE, BIMBO FEMI-OPADARE (MRS), BAYO BADMUS AND CHUKWU ENEBELI ESQ.
The Respondent had filed a notice of preliminary objection dated 18/5/2012 and raised same in his brief in Clause 2.00-2.01 of the Respondent’s brief thus:
NOTICE OF PRELIMINARY OBJECTION
“TAKE NOTICE that at or before the hearing of this appeal the Respondent shall raise an objection preliminarily praying the Honourable Court for the following orders:
1. AN ORDER dismissing and/or striking out this appeal.
AND TAKE NOTICE that the grounds upon which the objection is premised are:
a. No appealable decision exists in this Appeal.
b. A direction as to the future course of proceedings does not constitute a decision within the provisions of Section 240, 243 and 318 of the Constitution of the Federal Republic of Nigeria 1999.
c. The Appeal constitutes a gross abuse of the judicial process
d. The Appeal is tenaciously academic and an apparent waste of judicial time.
e. The ground of appeal in the Notice of Appeal involves question of mixed law and fact but the Appellant did not obtain leave of Court as required by section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria.
f. In the premises this Honourable Court lacks the requisite jurisdiction to entertain this appeal.”
The Appellant narrowed down a sole issue for determination thus:
“Whether the learned trial judge was right in ordering continuation of trial and actually continuing with the trial of the suit without first hearing and determining the Appellant’s preliminary objection dated 13th of February, 2012, challenging the competency of the suit?”
Rotimi Seriki Esq. as counsel to the Appellant submitted, that it is trite law that the issue of jurisdiction been radically and fundamentally important to adjudication can be raised at any time of the proceedings, even for the first time on appeal by any of the parties or by the court suo moto.
He stated that its also trite that the court resolves the issue of jurisdiction or competency of the suit first before taking any further step in the proceedings, he relied on the following:
OLATUNJI V OLAKUNADE (2012) 1 NWLR (PT.1280) PG.133, ORHIONWON LOCAL GOVT & ORS V. OGIEVA (1993) 4 NWLR (PT.288) PG.469 AT PG.480, ENIGBOKAN VS. BARUWA (1998) 8 NWLR (PT 580) PG 98 AT PG. 107 TO 108.
Finally, the Appellants counsel asked for the following reliefs:
(i) Setting aside the ruling delivered by the trial court in the suit herein on the 15th of February, 2012
(ii) Setting aside the proceedings of the trial court of 15th of February, 2012 as it relates to continuation of trial, specifically further cross-examination of the Respondent.
(iii) Ordering the trial court to immediately hear and determine the Appellant’s pending preliminary objection to the suit dated 13th of February, 2012.
He contended that the preliminary Objection to the suit of 13/2/2012 constitute a challenge to the jurisdiction of the trial court and its competency to hear and determine the suit therein.
That the trial court ought to have heard and determined the Appellants pending preliminary objection.
He submitted that the trial judge abdicated her duty and ignored the pending application to proceed with further trial and there by pre-empting the outcome of the preliminary objection.
In conclusion, he asked that the appeal be allowed and the ruling and proceedings of 15/2/2012 in the trial court be set aside the trial court immediately hear and determine the Application pending the preliminary objection.
Muiz Banire Esq. who appeared for himself submitted that an appeal is an invitation to a high court or judicial tribunal to review the decision in order to find out whether on a proper consideration of facts placed before it and the applicable law the lower court arrived at a court judicial decision. He relied on OREDOYIN V AROWOLO (1939) 4 NWLR (PT 114) AT 174 , MPMR & ORS V EXPO-SHIPPING LINE (2010) LPELR SC.35/2011, CHIEDOZIE V OMOSOWAN (1998) LPELR CA/E/42/17, OGUNYADE V OSHUNKEYE (2007) 12 MJSC 157, UDO VS JACKSON DEVOS LTD (2011) LPELR CA/C/163/2009.
That it’s not every statement made in the course of judicial proceedings that is appealable. He referred to section 240 and 243 of the constitution and the definition of decision in line with section 318 of the constitution.
See TOMTEE (NIG) LTD V FHA (2009) 18 NWLR (PT 1173), 358. OMONUWA V. OSHODIN (1985) NWLR (PT.10) 924.
He referred to black’s law dictionary 8th edition on the determination to mean a “: final decision by a court or administrative agency” .That the ground of appeal is based on the refusal of the trial judge to adjourn proceedings for the hearing of an application for the hearing an application which has not been ripe for hearing and that it was a directive as to manner of proceedings for the hearing of the application on merit of the case.
That the appeal is a gross abuse of court process, he relied:
ACN V PDP (2011) CA/C/NAEA/228/2011.
He submitted that at close of the proceedings the matter was adjourned to 3rd April 2012 thus:
“…if there is no pending application” and that the application is still pending bellow, the request directing the trial judge to hear the application is superfluous.
MAMMAN V SALUDEEN (2005) 18 NWLR (PT 959) 478, UBA V BTL INDUSTRIES (2004) 18 NWLR (PT 904) 180, NWOKOCHA V GOVT OF ANAMBRA STATE (1984) 1 SCNLR 634, GOBAL TRANS OCEANIC SA V FREE ENT NIG LTD (2001) 5 NWLR (PT 706), PAICO (PRESS BOOKS) LTD V CBN (2001) 3 NWLR (PT 700) 347, OKUNLATE V AWOSANYA (2002) 2 NWLR (PT 64 30).
He urged the court to dismiss the appeal.
Secondly he contended that the ground of appeal in the Notice of appeal involves questions of facts and by section 242, of 1999 constitution he ought to have obtained leave and that at best its mixed law and facts. He submitted that refusal involved a discretion of court he relied on:
OLORUNLEKE V. ADIGUN 2012 6 NWLR (PT.1297) 407, NITEL PLC VS. MAYAKI (2007) 4 NWLR (PT.1023) 179, OFFODILE V. EGWATU (2006) 1 NWLR (PT.961) 421. AISTHOM V. SARAKI (2005) 3 NWLR (PT.911) 207, CONSTRUCTION VS AYOKU 2003 5 NWLR (PT.813) 272, NSIRIM V. NSIRIM (1990) 3 NWLR (PT. 138) PAM V. GWON (1998) 2 NWLR (PT.538) 479 AT 476 PARA D-E.
He contended that the application could not be taken on 25/2/12 as it was against the rules, he cited: EZEKILE HART V EZIKELE HART (1990) 1 NWLR (PT.126), IKIMI V. OMAMULI (1995) 3 NWLR (PT 385) 355, IBRAHIM V. EMENI (1996) 2 NWLR (432) ODU V. JOLAOSO (2003) 8 NWLR (PT.823) 527, NKIRUKA VS JOSEPH (2009) 5.
Finally he asked that it be struck out being incompetent, based on absence of leave, and the court should order a continuation of trial.
In reply, the Appellants submitted that section 318 of the constitution defined “decision” to be any determination of a court and includes judgment, act, order, conviction sentence or recommendation, and he relied on the following”
On the issue of the ground of appeal, he submitted that it was of law and relied ABIYE V FOJULE (2006) 3 NWLR (PT 968) 640, MDIDDT V OKONKWO (2001) 7 NWLR (PT.711) 206 AT 232, SHANU 7 ORS V AFRIBANK (NIG) LTD (2000) 13 NWLR (PT 684) 392. He submitted that the appeal be allowed.
On the merits, the Respondent formulated an issue.
“Whether in view of the provision of 039 1(3) of the High Court of Lagos State (civil procedure ) 2004, a trial court is bound to proceed with the fixture of the trial in a part heard matter notwithstanding the pendency of an application and filed less the number of hours to the dated fixed for further hearing”.
He submitted that court’s domins litus of its proceedings and the way and manner which the court conducts its case is seeking at discretion of the trial judge he relied on OFFOLIES V EGWATU (2006) 1 NWLR (PT 961) 421; NITEL PLC V MAYAKI (2007) 4 NWLR (PT 1023) 173; AISTHOM V SARAKI (2005) 3 NWLR (PT 911) 1, S&D CONSTRUCTION V AYOKU (2003) 5 NWLR (PT 813) 278.
He submitted that the court of appeal is reluctant to interfere with the exercise of discretion of the lower court unless conditions exist.
He referred to 039 rules 1(3) of the Lagos State High court rules that the motion of 13/2/12 could not have been taken on the 15/2/12 since it was not ripe for hearing.
In addition, despite under taking to file the said motion timeously he still failed to do so and it was caught by sec 31(3) of the professional conduct for legal practitioners act 2007, and it was to delay and stall proceedings on 5/7/12. That equity aids the and indolent, he referred to AGBRAEH V MIMA (2008) 2 NWLR (PT 1071) 378; NEWSWATCH COMM LTD V ATTA (2006) 12 NWLR (PT 993) 144, OLATUNJI V OLAKUNLE 2012 (PT 1280) 144, ORHIOMWON LOCAL GOVT V OGIEVA 1993 4 NWLR (PT 288) 469, TIZA V BEGHA (2009) 15 NWLR (PT 949), NONEYEN V AYINCHE (2005) 2 NWLR (PT.9101 AMOO V ALABI (2003) 12 NWLR (835) 537.
On the main appeal, the counsel submitted that there is no cross appeal and did not formulate issues. MKPEDEM V UDO (2000) 9 NWLR (PT 673) 631, CHRISDON IND CO LTD V AIB LTD (2002) 8 NWLR (PT 768) AT 182. He submitted that the sole issue does not arise from the Appellants ground, it goes to no issue.
He relied on the following ADEGUN V FASHOGON (2008) 17 NWLR (PT.115) 149, NEWSWATCH COMMU LTD V ATTA (2006) 12 (PT.993) 144 that, the court is obliged to exercise its discretion judicially and judiciously. He further cited the following in support that jurisdiction can be raised at any time. EMEAKAYI V COP (2004) 4 NWLR (PT 862) 158 AT 181, GOVT CRS V ASSAM (2008) 5 NWLR (PT 1081) AT 658 to the effect that if the appeal succeeds, the appropriate order is striking out and not dismissal.
Having perused the case of each party, the best approach is to resolve the preliminary objection filed by the respondent first. It’s on four folds and raises issues of jurisdiction.
a) that the Ruling of the court was a discretion and not a decision within sec 240, 243 & 318 of the constitution
b) the appeal is tenaciously academic and a waste of judicial time
c) the sole ground of appeal involves questions of law and facts and no leave was obtained
d) there is no jurisdiction to hear the appeal.
The Respondent has raised a jurisdictional issue which must be addressed first .The Respondent contends that ground of appeal does not flow from a decision within the meaning of Section 240, 243, 318 of the constitution 2004
In OGUNBADEJO V OGUNYEMI (1993) LPELR -2321 (SC) (1993) 1 NWLR (PT.271). Ogundare JSC at page 16 – 17 defined the word “decision” to be most important word in the rule reproduced above is decision and by Section 277(1) of Constitution 1999. It means in relation to a court, and determination of that court and includes judgment, decree order, conviction, Sentence or recommendation.
IKEKU V EKEUKWU (1995) 7 NWLR (PT 410) 637 where the principle was established that it is not each and every observation or remark made by the court that amounts to a decision or determination of the court at page 28 paragraph C-D.
EMORDI V IGBEKE (2011) 9 NWLR 41. The word decision is defined by Fabiyi JSC to be a judicial determination after consideration of the fact and the law especially a ruling, order, judgment, pronouncement by a court when considering or disposing of a case.
OGBORU & ANOR V UDUAGHAN & ORS (2012) LPELR – 8283, DEBAYO & SAS LTD & ORS V GOMEZ & ORS (2011) LPELR – 4028 (CA).
Jauro JCA held that:
“to amount to a decision with the within the content of Section 318 of the Constitution, there must be a determination by the court which settles a point in favour and against the parties respectively.”
See also UNITED AGRO VENTURES LTD V FCMB (1998) 4 NWLR (PT 517) 546; DIKE V ANDUBA (2000) SCNJ 41 at 48; GOVERNOR OF KWARA STATE V EYITAYO (1996) 9 NWLR (PT 451) 693 at 701.
In UNITED AGRO VENTURES LTD V FCMB LTD (1998) 4 NWLR (PT 517) at 564, per C.E the order of the court appealed against in the proceedings where no augments were preferred on the motion the direction of the trial court, as to the procedure to be followed in determining the application, because the motion is not ripe for hearing and the day was slated for hearing, the matter was part heard having filed the motion late and under the Rules it could not be heard that evidence instead of wasting the court’s time, the court cannot go against the rules of the court.
Therefore, the order of taking witness and adjoining the motion is not in my view a decision within the meaning of the word under Section 277(1) of the 1999 Constitution. It does not amount to an appealable decision since it did not determine in any way the rights of the parties. If the motion then succeeds and infact the court had no jurisdiction, it will be a determination of the issue and a ruling could be delivered.
I therefore agree that it is not an appellate decision within section 240, 243 and 318 of the Constitution.
The second major issue is that the ground of appeal is a question of mixed law and facts for which leave was not obtained.
The sole ground thus”
‘The order of the court is an exercise of discretion and based on facts which was placed before the trial judge and what transpired, all these cannot be answered but it goes back to exclude facts. All these are in the realm of facts and at best mixed law and facts.”
The direction of the court is an exercise of discretion of the court; it deals with how, and why are questions of facts upon which the directive was given. There has to be an eradication of facts by the lower court before the application of the law.
Therefore there is no valid ground of appeal and under the constitution leave is mandatory. There is therefore no valid nature of appeal.
In this case the sole ground is mixed law and fact and therefore the leave of the High Court is mandatory and without leave the conclusion is that there is no valid appeal filed. See OGBECHIE V ONOCHIE (1986) 2 NWLR (PT 718) 640; NWADIKE V IBEKWE (1987) 4 NWLR (PT 67) 718; IKENI V EFAMO (1997) (PT 499) 318 the Notice of Appeal is therefore 640; NWADIKE V IBEKWE (1987) 4 NWLR (PT 67) 718; IKENI V EFAMO (1997) (PT 499) 318. The Notice of Appeal is therefore incompetent. See MADUKOLU V NKEDILUM (1962) 2 SCNLR 341 to the effect that any defect in the competence of a court renders the proceeding before it a nullity, a defect of competence being extrinsic to the adjudication.
In the light of the above the preliminary objection succeeds. This court lacks Jurisdiction to hear the appeal. The Appeal is struck out with N50,000 cost awarded in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
In the light of the above, I too join my learned brother in holding that the preliminary objection succeeds, court lacks Jurisdiction to hear the appeal. The Appeal is also struck out with N50,000 awarded to the Respondent.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my lord Obaseki Adejumo (JCA).
I agree with the reasoning and conclusions. I have nothing useful to add.
Appearances
Rotimi Seriki Esq. and ElegbedeFor Appellant
AND
Dr. Muiz BanireFor Respondent
