ADEBOWALE v. OLUMIDE
(2020)LCN/14635(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, September 25, 2020
CA/L/632/2018
RATIO
PLEADINGS: SUIT – MEANING AND MODE OF COMMENCEMENT. By the provisions of Section 2 of the High Court Law of Lagos State, a suit is defined to include an action; and an action as meaning a civil proceeding commenced by a writ of summons or in such other manner as may be prescribed by rules of Court, but does not include a criminal proceeding. See also AKUNNIA vs. A-G ANAMBRA STATE (1977) LPELR (394) 1 at 11, C.O.P. vs. OBASI (1976) LPELR (888) 1 at 10 and KANO STATE OIL AND ALLIED PRODUCTS LTD vs. KOFA TRADING CO LTD (1996) LPELR (1658) 1 at 7. A motion for stay of execution pending appeal is not an originating process. It is not used to commence a civil proceeding. So in the eyes of the law, it is not a Suit and it could not have been the suit that was struck out by the Ikeja Division of the lower Court.
By the provisions of Order 3 Rule 1 (1) of the High Court of Lagos State (Appeals) Rules, an appeal is commenced by a Notice of Appeal; so the originating process which commences an appeal in civil proceedings is the Notice of Appeal, it is therefore a suit in the eyes of the law. So the order of the Ikeja Division striking out the suit made on 18th April, 2012 can only be an order striking out the appeal, since the motion for stay of execution which the Appellant forcefully argues was the process struck out is not a suit. The law as I know it, is that a party must be consistent in stating his case and proving the case and not make legal summersaults and volte face like the law of nature. See AJIDE vs. KELANI (1985) 3 NWLR (PT. 12) 248 at 269, NYAKO vs. ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR (41822) 1 at 70-72 and OLIYIDE & SONS LTD vs. OAU, ILE-IFE (2018) LPELR (43711) 1 at 15. Therefore, the Appellant, having by the steps he took conceded that it was the appeal that was struck out and tried unsuccessfully to relist it, cannot turn around to prosecute the appeal when it had not been relisted. An action or suit which has been struck out can only be brought back to the hearing cause list, if and only if, it is relisted: PANALPINA WORLD TRANSPORT NIG LTD vs. J.B. OLADEEN INTERNATIONAL (2010) 19 NWLR (PT. 1226) 1 at 20, AJIJOLA vs. RASAKI (2019) LPELR SC 271/2018 – SC 272/2018 (CONSOLIDATED) 1 at 8-13 and 17-18 and ABEY vs. ALEX (1999) 14 NWLR (PT. 637) 148 at 162. Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.
RATIO
PLEADINGS: ABUSE OF COURT PROCESS. I should say that from the evidence of the steps taken by the Appellant Counsel to have the appeal relisted at the Ikeja Division of the Lower Court after the “Suit” was struck out, arguing before the Lower Court, Lagos Division and bringing this appeal to contend that the appeal he unsuccessfully sought to relist, was not struck out, are clearly a specie of abuse of the Court process. In the case of Onyeabuchi vs. INEC (2002) 8 NWLR (Pt. 769) 417, it was held by the Supreme Court, at page 443 that:-
“It is an abuse use of the Court process for a plaintiff to litigate again over identical question which had been already decided against him.”
Abuse of the Court is an action or conduct which should not only be discouraged, but be deprecated and penalized appropriately as it, in addition to annoying and irritating an opponent, deliberately perverts the cause of justice and is aimed at wasting the precious time and resources of the Court. Per MOHAMMED LAWAL GARBA, J.C.A
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
WASIU ADEBOWALE APPELANT(S)
And
OLADIPO OLUMIDE RESPONDENT(S)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State in exercise of its appellate jurisdiction in SUIT NO. LD/12A/2015: WASIU ADEBOWALE vs. OLADIPO OLUMIDE. The facts of the matter are not convoluted and are amenable to a precis encapsulation.
The provenance of the matter is in the action before the Magistrates Court sitting at Ebute Metta, Lagos, for the recovery of possession of property situate at No. 24, Oyebajo Street, Fadeyi, Lagos. At the end of the trial at the Magistrates Court, judgment was entered in favour of the Respondent herein, who was the Claimant at the Magistrates Court. The Appellant herein, dissatisfied with the decision of the Magistrates Court appealed against the same to the High Court of Lagos State (the lower Court). The Appellant equally filed an application for stay of execution of the judgment of the lower Court pending appeal.
The Respondent filed a preliminary objection wherein it was, inter alia, contended that the lower Court lacked jurisdiction to hear the appeal as constituted, for being an abuse of Court process. The lower Court
1
took argument on the preliminary objection and in its Ruling which was delivered on 14th January, 2018, it upheld the objection and struck out the appeal. The Appellant being dissatisfied with the said decision appealed against the same vide Notice of Appeal filed on 15th February, 2018. The scarified Ruling of the lower Court is at pages 212-216 of the Records, while the Notice of Appeal is at pages 217-221 of the Records.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument which they adopted and relied upon at the hearing. The Appellants brief of argument was filed on 17th August, 2018 and the Appellant crafted three issues for determination as follows, namely:
“1. Whether under the circumstances there is any aspect or paragraphs in the Counter Affidavit of Appellant respondent to the Affidavit of the Respondent Applicant of 18th day of November, 2016, deposed to by Levi Ezeokoli Esq., that contained any sentence admitting that suit No ID/783M/09 was Appeal not a motion for stay.
2. Whether suit No ID/783M/2009 treated by Justice Okunnu on 3rd day of March, 2014 was an Appeal and not
2
motion for stay of EXECUTION?
3. Whether the lower Court appreciated the difference between an Appeal and motion for STAY of EXECUTION of JUDGMENT when he decided to merge the two processes in suit No ID/783M/09 motion for stay and Appeal No LD12A/15 by stating in the Ruling that they relate to the same Judgment?”
The Respondent, in his brief of argument filed on 21st July, 2020 but deemed as properly filed on 7th September, 2020, did not distill any issues for determination, and he did not expressly adopt the issues formulated by the Appellant. However, the Respondent proffered his submissions and argued the three issues raised by the Appellant together.
Expectedly, the Appellant has framed the issues for determination, giving them a slant that will serve his purpose. While this should be so, a Court of law, the mediator and arbiter so to say, has a duty to examine the facts properly and take issues that will resolve the matter before it once and for all: ENEKWE vs. IMB (NIG) LTD (2006) 19 NWLR (PT 1013) 146 at 170. Put differently, the Court, is free to either adopt the issues formulated by the parties or to formulate such issues as are
3
consistent with the grounds of appeal. See LABIYI vs. ANRETIOLA (1992) 8 NWLR (PT 258) 139 at 159, DUNG vs. GYANG (1994) 8 NWLR (PT 362) 315 and ONWO vs. OKO (1999) 6 NWLR (PT 546) 584.
It is also abecedarian law that a Court can and is entitled to re-formulate issues formulated by the parties or counsel in order to make for precision and clarity. In the words of Iguh, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) LPELR (3031) 1 at 20-21:
“…it is firmly settled that issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after a consideration of those set out by the parties alongside the grounds of appeal filed. The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed out above, to reframe the issues by the parties if, in its view, such issues will not lead to a proper determination of the appeal. However, the issues framed, whether by the parties or by the Court, must at all times be related to the grounds of appeal filed.”
4
See also UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847. I will therefore take liberty to reformulate the issues. It is my considered opinion that a sole distensible issue, which encompasses the issues by the Appellant and would therefore not be an alternative to the issues but cumulative with the said issues, will suffice for the determination of this appeal: SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT. 237) 527 at 550-551 and NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 17 NSCQR 240 at 250-251.
In order to conduce to clarity, precision and brevity, the sole issue for determination on the basis of which I will presently consider the submissions of learned counsel and resolve this appeal is:
“Whether the lower Court was correct in its decision that there is no competent appeal before it.”
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that his appeal was never struck out by the Ikeja Division of the lower Court and that he did not admit in his counter affidavit that the appeal was so struck out. It was stated that what was struck out was his motion for stay of execution. Paragraphs 10,11 and 12 of the
5
Counter Affidavit at page 186 of the Records and Paragraph 16 of the Respondents’ Reply to Counter Affidavit at page 170 of the Records, as well as Section 20 of the Evidence Act on the meaning of admission were referred to. The Appellant asserted that the application before the Ikeja Division of the lower Court was the motion for stay of execution and not the substantive appeal. It was posited that the Respondent who alleged that it was the appeal did not prove the assertion as he failed to produce the proceedings of the Ikeja Division as ordered by the lower Court. The case of SOKWO vs. KPONGBO (2008) 1-2 SC 17 at 138 was relied upon and Section 167 (d) of the Evidence Act was invoked to the effect that the Respondent withheld the evidence of the proceedings before the Ikeja Division. The lower Court, it was maintained, was wrong to have speculated that what was struck out by the Ikeja Division was the appeal, when it did not see the proceedings before Ikeja Division. The law, it was argued, was that a Court must not speculate videLEKWOT vs. JUDICIAL TRIBUNAL (1997) 8 NWLR (PT. 515) 22 at 35.
It is the further submission of the Appellant that
6
the lower Court did not appreciate the legal difference between an appeal and a motion for stay of execution, in consequence of which it merged the processes because they relate to the same judgment and held that the striking out of the motion for stay of execution was striking out of the appeal. It was maintained that the motion for stay of execution and the appeal itself were independent and that neither can terminate the lifespan of the other without accomplishing its purpose. The cases of KIGO vs. HOLMAN BROTHERS NIGERIA (1980) 5-7 SC 60, SHODEINDE vs. AHAMADIYA MOVEMENT-IN-ISLAM (1980) 12 SC 163 and VASWANI TRADING vs. SAVALAKH & CO. (1972) ALL NLR (PT. 2) 483 among other cases were cited in support.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent contends that the Appellant cannot be heard to argue that he filed a motion for stay of execution and not an appeal, since he could not have a motion for stay of execution without filing an appeal. It was maintained that the Appellant is wrong to contend that the matter before the Ikeja Division of the lower Court was a motion for stay of execution and not an appeal. It was submitted
7
that the Appellant, after the Ikeja Division struck out his matter, filed an application for his appeal to be relisted. Pages 156 and 161 of the Records were referred to as well as the cases of OREDOYIN vs. AROWOLO (1989) 4 NWLR (PT. 114) 172 at 211 and ASOGWA vs. PDP (2013) 7 NWLR (PT 1353) 207 at 254 on what constitutes an appeal.
The Respondent asserted that there is a difference between a motion for stay of execution and an appeal; and that while a motion which is struck out can be refiled, an appeal which is struck out can be relisted which is what the Appellant sought in his motions of 1st March, 2013 and 4th March, 2014, thereby clearly showing that it was the appeal that was struck out and not the motion. It was opined that the Appellant cannot approbate and reprobate by now arguing that it was the motion for stay of execution that was struck out and not the appeal. The cases of AJAYI vs. TOTAL NIG (2013) 15 NWLR (PT. 1378) 423 at 442 and IGA vs. AMAKIRI (1976) 11 & 12 SC 1 at 8 and 9 were called in aid. The Appellant, it was stated, was bound by the application filed by his counsel for the appeal to be relisted vide CAPPA LTD vs. AKINTILO (2003)
8
27 WRN 1 at 15-16 and OKONKWO vs. KPAJIE (1992) 2 NWLR (PT. 226) 639 at 655-656.
It is the further submission of the Respondent that facts admitted need no further proof, and that the Appellant having filed applications for the appeal to be relisted, required no further proof that it was the appeal and not the motion for stay of execution that was struck out. The cases of BAJODEN vs. IROMWANIMU (1995) 7 NWLR (PT 410) 655 at 699 was relied upon. The Respondent iterated that there cannot be a motion for stay of execution without an appeal, which is commenced by filing a Notice of Appeal. The cases of MARTINS vs. NICANNAR FOODS CO. LTD (1988) 2 NWLR (PT. 74) 75 at 82 and 83, NWABUEZE vs. NWOSU (1988) 4 NWLR (PT. 88) 257 at 268, Order 3 Rule 1 (1) of the High Court Law of Lagos State No. 10 of 2011, Section 72 of the Magistrates Court Law, Chapter M1, Laws of Lagos State were referred to. It was conclusively submitted that the Appellant had not been diligent as a result of which the appeal was struck out vide the order of the lower Court at pages 93, 98, 99 and 100 of the Records and the case of F.R.C.N. vs. IWUOHA (2013) 15 NWLR (PT. 1335) 211 at 222 and 223.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
9
RESOLUTION
I stated at the outset that the facts of this matter are not convoluted. The facts are simple and straightforward. The facts are neither abstruse nor esoteric. The Appellant having appealed against the decision of the Magistrates Court also filed a motion for stay of execution. The lower Court, sitting at the Ikeja Division, struck out a matter brought by the Appellant for want of diligent prosecution. The enrolled order of the lower Court is at page 93 of the Records. For purposes of clarity and ease of reference, the order is in the following terms:
“IT IS HEREBY ORDERED: that due to the absence of Counsel herein and the parties alike, the Court is compelled to presume lack of interest to prosecute this suit any further.
Accordingly, suit is struck out for want of diligent prosecution.”
It is effulgent that the order is one striking out the suit. The Respondent seems to labour under a misconception as to the Appellant’s contention. It is not the Appellant’s argument that he did not file an appeal. The Appellant’s case is that he filed a Notice of Appeal and a motion for stay of execution pending
10
the determination of the appeal. It is his contention that what was struck out was the motion for stay of execution and not the appeal. The order made at the Ikeja Division was one striking out the Suit. So what was the Suit that was struck out? Is it the motion for stay of execution pending the determination of the appeal? Is an interlocutory motion for stay of execution a Suit? Was the suit struck out the substantive appeal? Is an appeal a suit? What is a Suit?
It seems to me that at the core of the disceptation in this matter is what a Suit, which is what was struck out, is. Let me pause and state that the Appellant’s contention that the lower Court was wrong when it stated that the Appellant admitted in his counter affidavit that the appeal was struck out is unnecessary hair-splitting. This is so because in paragraph 7 of the Appellant’s Counter Affidavit at page 187 of the Records it is deposed as follows:
“7. That the Appellant/Respondent thereafter returned to Justice Opesowo’s Court and the Court Registrar assured him that there was no cause to feel worried that the Court would not go on with the case without the
11
service of Hearing Notice, but surprisingly the case was struck out on 18/4/2012 without any service of Hearing Notice on the Appellant/Respondent or his counsel.”
So by the Appellant’s own deposition, “the case was struck out on 18/4/2012.” So the fresh question arising is; what is the case which the Appellant deposed that was struck out? Is it the motion for stay of execution or the appeal? It is pertinent to state that this appeal is not against the decision of the lower Court of 18th April, 2012 striking out the Suit. No! We would in the course of this judgment consider the steps taken by the Appellant in respect of the said order striking out the suit.
The lower Court in the course of hearing the preliminary objection identified the crux of the question for resolution when at page 208 of the Records it stated thus:
“The issue is whether he can rely on an appeal that was struck out.” This brings us back to the perduring question, what was the “Suit” that was struck out?
By the provisions of Section 2 of the High Court Law of Lagos State, a suit is defined to include an action; and an
12
action as meaning a civil proceeding commenced by a writ of summons or in such other manner as may be prescribed by rules of Court, but does not include a criminal proceeding. See also AKUNNIA vs. A-G ANAMBRA STATE (1977) LPELR (394) 1 at 11, C.O.P. vs. OBASI (1976) LPELR (888) 1 at 10 and KANO STATE OIL AND ALLIED PRODUCTS LTD vs. KOFA TRADING CO LTD (1996) LPELR (1658) 1 at 7. A motion for stay of execution pending appeal is not an originating process. It is not used to commence a civil proceeding. So in the eyes of the law, it is not a Suit and it could not have been the suit that was struck out by the Ikeja Division of the lower Court.
By the provisions of Order 3 Rule 1 (1) of the High Court of Lagos State (Appeals) Rules, an appeal is commenced by a Notice of Appeal; so the originating process which commences an appeal in civil proceedings is the Notice of Appeal, it is therefore a suit in the eyes of the law. So the order of the Ikeja Division striking out the suit made on 18th April, 2012 can only be an order striking out the appeal, since the motion for stay of execution which the Appellant forcefully argues was the process struck out is not a
13
suit. Whether the Ikeja Division of the lower Court was correct, in the diacritical circumstances to strike out the appeal cannot be ventilated in this appeal, since this appeal is not against the said decision of 18th April, 2012.
I am fortified in the view I hold, that it was the appeal that was struck out, by the steps taken by the Appellant upon the order striking out the suit. Consequent upon the said decision, the Appellant filed an application for the appeal to be relisted. It is important to underscore that the application was not for the motion for stay of execution, which the Appellant contends in this appeal was what was struck out on 18th April, 2012 to be relisted, but for the appeal to be relisted. This is a tacit acceptance by the Appellant that his appeal was indeed struck out on 18th April, 2012. The said application to relist the appeal dated 18th February, 2014 was struck out by the Ikeja Division of the lower Court on 3rd March, 2014. The enrolled order in this regard is at page 99 of the Records. The further step taken by the Appellant to revive and reactivate the appeal once again hit a brickwall, when the Ikeja Division of the lower
14
Court once again struck out the suit and all pending applications on 10th December, 2014. The enrolled order in this respect is at page 100 of the Records.
It is after the Nunc Dimittis had been sung for the Appellant’s efforts at the Ikeja Division of the lower Court, that the appeal suddenly materialized at the Lagos Division of the lower Court in the proceedings which culminated in this appeal, with the Appellant now contending that it was not the appeal, which he had unsuccessfully sought to relist at the Ikeja Division that was struck out, but the motion for stay of execution which as I have already held, is not a Suit. The law as I know it, is that a party must be consistent in stating his case and proving the case and not make legal summersaults and volte face like the law of nature. See AJIDE vs. KELANI (1985) 3 NWLR (PT. 12) 248 at 269, NYAKO vs. ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR (41822) 1 at 70-72 and OLIYIDE & SONS LTD vs. OAU, ILE-IFE (2018) LPELR (43711) 1 at 15. Therefore, the Appellant, having by the steps he took conceded that it was the appeal that was struck out and tried unsuccessfully to relist it, cannot turn around
15
to prosecute the appeal when it had not been relisted. An action or suit which has been struck out can only be brought back to the hearing cause list, if and only if, it is relisted: PANALPINA WORLD TRANSPORT NIG LTD vs. J.B. OLADEEN INTERNATIONAL (2010) 19 NWLR (PT. 1226) 1 at 20, AJIJOLA vs. RASAKI (2019) LPELR SC 271/2018 – SC 272/2018 (CONSOLIDATED) 1 at 8-13 and 17-18 and ABEY vs. ALEX (1999) 14 NWLR (PT. 637) 148 at 162.
In holding that there was no competent appeal before it, the lower Court reasoned and held as follows at pages 214 – 216 of the Records:
“There is a preliminary/fundamental issue that needed to be resolved… On 21/11/2016…
Thereafter, the Court reacted by saying-
‘THE COURT… The issue is whether he can rely on an appeal that was struck out.’
…Although, it appears that the subsistence of the Notice of Appeal was not strictly made an issue, the law is that a Notice of Appeal is the Originating process that invokes the jurisdiction of the Court. It is a condition precedent to the validity of an Appeal.
…On 18/4/2012, this Honourable Court struck-out the suit…
An application to
16
re-list the appeal was also struck-out on 03/03/2014.
…With the striking out of the Appeal and all the Applications filed to relist same, the options available to the Appellant are either to further apply for an order for relisting or file another Notice of Appeal, with an application for extension of time within which to appeal, the time within which to appeal having expired.
The Appellant cannot persist in relying on the Notice of Appeal dated 20/07/2009… I therefore agree with Counsel for the Applicant that there is no competent appeal before the Court. This appeal is accordingly struck out.”
I gave due consideration to the Appellant’s contention that the lower Court did not appreciate the difference between an appeal and a motion for stay of execution. However, premised on what I have already said in this judgment it is lucent that the suit struck out on 18th April, 2012 is the appeal and not the motion for stay of execution as erroneously contended by the Appellant. There can therefore be no issue as to whether the lower Court appreciated the difference between an appeal and a motion for stay of execution. The lower Court
17
did, and its decision, that the appeal having been struck out on 18th April, 2012, that the said appeal can only be pursued if it is re-listed or a fresh Notice of Appeal is properly filed, is the correct decision.
In splice, the ineluctable consequence of the totality of the foregoing is that the issue for determination as nominated by the Court is resolved against the Appellant. The decision of the lower Court that there is no competent appeal before it is the correct decision. The appeal being totally devoid of merit is hereby dismissed. The decision of the lower Court, Coram Judice: Animahun, J., delivered on 11th January, 2018 in SUIT NO. LD/12A/2015: WASIU ADEBOWALE vs. OLADIPO OLUMIDE is hereby affirmed. The parties are to bear their respective costs of this appeal.
MOHAMMED LAWAL GARBA, J.C.A.: I am in agreement with the concise, but comprehensive lead judgement written by my learned brother, Ugochukwu Anthony Ogakwu, JCA which calls for decision in this appeal, a draft of which I read before now, that the appeal is devoid of merit. I should say that from the evidence of the steps taken by the Appellant Counsel to have the appeal relisted at the
18
Ikeja Division of the Lower Court after the “Suit” was struck out, arguing before the Lower Court, Lagos Division and bringing this appeal to contend that the appeal he unsuccessfully sought to relist, was not struck out, are clearly a specie of abuse of the Court process. In the case of Onyeabuchi vs. INEC (2002) 8 NWLR (Pt. 769) 417, it was held by the Supreme Court, at page 443 that:-
“It is an abuse use of the Court process for a plaintiff to litigate again over identical question which had been already decided against him.”
Abuse of the Court is an action or conduct which should not only be discouraged, but be deprecated and penalized appropriately as it, in addition to annoying and irritating an opponent, deliberately perverts the cause of justice and is aimed at wasting the precious time and resources of the Court.
I join the lead judgement in dismissing the appeal for above and more detailed reasons set out therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in complete agreement with the succinct judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., with nothing extra to add.
19
Appearances:
S.A. Adeyemo, Esq. For Appellant(s)
Onwuka Egwu, Esq. For Respondent(s)
