AGALADUMA OLODO & ORS. V. BURTON JOSIAH IBURUKU & ORS. (2011)

AGALADUMA OLODO & ORS. V. BURTON JOSIAH IBURUKU & ORS.

(2011)LCN/4627(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of June, 2011

CA/PH/243/2006

RATIO

CROSS-APPEAL: WHEN DOES A CROSS-APPEAL ARISE

I have carefully considered the submissions of learned counsel and the processes filed. When does a cross-appeal arise? Ogbuagu, JSC in AT & ENG. CO. LTD V. MIL. GOV. OF OGUN STATE (2009) 40 WRN 1 at 47 explained it thus:- “A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals each appeal, is separate and is an independent complaint by the parties even though both appeals are heard together. See the case of CHIEF KALU IGWE & 2 ORS V. CHIEF OKUWA KALU & 2 ORS (2002) 26 WRN 58 …..” A party seeking to set aside a finding in a judgment which is crucial can only do so through a substantive cross-appeal and not on application to affirm or vary the judgment on other grounds. See BRIGGS V. BOB-MANUEL & ORS. (2003) 1 SCNJ 218 at 226 – 227. PER T.O. AWOTOYE J.C.A.

APPEAL: WHAT IS AN APPEAL

An appeal is an appeal. Neither the Court of Appeal Act 2004 (as amended) nor the Court of Appeal Rules do so. In fact Order 1 Rule 5 of the Court of Appeal Rules 2011 defines an appeal as the filing of notice of appeal. The filing of a notice of appeal gives birth to an appeal or a cross-appeal as the case may be. Both appeals are to be heard together if they are against the same judgment. See KALU IGWE V. KALU & 2 ORS (supra). See also AT & ENG. CO. LTD. v. MILITARY GOVERNOR OF OGUN STATE (supra). PER T.O. AWOTOYE J.C.A.

CROSS-APPEAL: WHAT A CROSS-APPEAL ENTAILS

A cross-appeal, by its nature from numerous authorities, is an appeal in its own right, and it does not depend for its existence or survival on the substantive appeal. And so the dismissal of the substantive appeal does not affect the cross-appeal. Accordingly, the dismissal of the substantive appeal does not make the court functus officio thereby. See OLOWU v. ABOLARE (1993) 6 SCNJ 1; (1993) 5 NWLR (Pt. 293) 1, particularly the opinion of Karibi-Whyte, JSC. Also see WILLIAMS V. DAILY TIMES (1990) 1 NWLR (Pt. 124) 1. A cross-appeal is a process filed by the respondent where he seeks to set aside a finding of the trial court that is crucial and fundamental to the case: See ADDAX PETROLEUM DEVELOPMENT (NIG.) LTD. V. IBEH (2007) ALL FWLR (Pt. 380) 1558 at 1569. A cross-appeal is akin to a counter-claim. It is not an appendage to the main appeal. See AKPAN v. BOB and Ors SC.135/2009 of 21st May 2010, per Muhammed, JSC. The situation for cross-appeal arises where two parties to a judgment are dissatisfied with it and each of them accordingly appeals. The appeal of one is the cross-appeal to the other. Though heard together, each appeal is separate and independent of the other. See IGWE V. KALU (2002) 7 S.C (Pt.2) 236 (2002) 14 NWLR (Pt. 787) 435. PER EJEMBI EKO, J.C.A.

ABUSE OF PROCESS: WHAT IS AN ABUSE OF PROCESS

What is an abuse of process? Generally, abuse of process involves the institution of multiplicity of actions between the same parties involving the same subject matter. See SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 264) 156; (1992) 11 – 12 SC, 26; HARUNA (2003) 14 NWLR (Pt. 841) 546. The abuse of process lies in the multiplicity and the manner of the exercise of the right of appeal, rather than the exercise of the right per se. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the opponent, and thereby interfere with the administration of justice,. What is material is the inconvenience involved in the purpose of the action. See OKORODUDU V. OKORODUDU (1977) 3 SC 21; HARRIMAN v, HARRIMAN (1989) 5 NWLR (Pt. 119) 6. A suit that is an abuse of process of court is vexatious. The law does not allow a man to institute suits in any court of law, which from the circumstances would be vexatious. See MORGAN v. W.A. AUTOMOBILE (1971) NMLR 219 at 221; OBIONA v. THE PRESIDENT (1981) 2 NCLR 701 AT 708; THANES KAYBCGERS v. TRINITY HOUSE (1991) 1 ALL E.R. 26 AT 32 -33. PER EJEMBI EKO, J.C.A.

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

AGALADUMA OLODO – 13TH DEFENDANT/APPELLANT/RESPONDENT

AND

1. SYLVESTER ALABO WARIPAMO
2. WARRI KURU
3. AGGREY ONUNU
– APPELLANTS
(For themselves and on behalf of Igbeinbiri Family) Appellant(s)

AND

4. BURTON JOSIAH IBURUKU
5. MESHACH JOSHUA IBURUKU
6. PIUS NATHAN EBIKEDERI
7. NNAMDI JOHNSON ABAS
8. OKPOTOLYON EBEREBA
– RESPONDENTS/CROSS-APPELLANTS/APPLICANT
For themselves and on behalf of Izifa Family
in Akenfa in the Yenagoa LGA of Bayelsa State).

AND
– RESPONDENTS
9. REGINALD OKORO
(For himself and on behalf of Akerewari
family of Ogboloma).
10. OKOLOBA APINAOWEI
11. INIKI IGODO
12. LARSBURY OTUOGHA Respondent(s)

T.O. AWOTOYE J.C.A. (Delivering the Lead Ruling): This is the ruling on the application of the respondent/cross-applicants for:
(i) Leave to apply for extension of time to file cross-appeal.
(ii) Extension of time to file their cross-appeal
(iii) an order deeming the Notice of cross-appeal (Exhibit A) and the cross-appellant brief of argument (Exhibit B) as duly filed and relevant fees having been paid.
The grounds for the application are as follows:
“(a) since filing the Notice of Appeal on 7/7/2005 and their Brief of argument on 22/9/2006 the applicants herein believed and have been following up this appeal as 1st set of appellants.
(b) On 12/1/2010 this Honourable court ruled that the Applicants cannot properly fit in as 1st set of Respondent but can only be 2nd set of Respondents in view of the Records before it.
(c) It has become imperative to reach all the processes earlier filed to reflect this, order of the honorable court.
The motion was supported by 6 paragraph affidavit and another 4 paragraph further and better affidavit and a written address.
The plaintiffs/respondents opposed the application with 8 paragraph counter-affidavit and a written address.
The 4th appellant also opposed the application and filed a written address on 15/11/2010.
The appellant/respondents’ counsel in his written address to oppose the application submitted that the application was an abuse of court process.
On relief No. 1 in the application he submitted that no leave was needed.
On relief (2) he submitted that an appeal had already been filed and granting this application would generate two appeals by the same party.
He urged the court to dismiss the application he cited
(i) JIMOH V. STARCO (1998) 7 NWLR (PT 558) 523 at 529 – 536
(ii) ESIRI V. IDIKA (1987) 9 – 11 SC 170 at 181
He posited further that the applicant did not pursue the appeal filed on 7/7/2005. Nothing was done to ensure completion and transmission of record of appeal, he added.
The 1st – 3rd respondent also filed written address to oppose the application.
Learned counsel for the 1st – 3rd respondents in the written address submitted that the application was an abuse of court process and urged the court to dismiss the application. He submitted that the applicants shared common interest with the appellants in the case now on an appeal and should not have cross-appealed. He stated that both appellants and the applicants were defendants at the lower court and shared common interest. He defined who an appellant was an cited WILLIAMS V. DAILY TIMES (1990) 1 NWLR (Pt.124) 1 page 8.
He submitted that an appellant was a plaintiff who wanted a complete reversal of the decision of the lower court. He cited SONMONU V. ASHOROTA (1975) 1 NMLR 16. He stated further that a cross-appeal arose where two parties to a judgment were dissatisfied with it and each party accordingly appealed. He cited IGWE V. KALU (2002) 14 NWLR (PT.78) 435 at 442.
He contended that the applicants were mere nominal respondents and that a defendant could not cross-appeal against the appeal of a co-defendant.
He submitted that the Notice of Appeal and the brief Exhibits A and B were not properly before the court and urged the court to dismiss the application.
Counsel for the applicants in his reply on points of law submitted that the application was not an abuse of court process. He referred to EKPUK V. OKON (2002) 5 NWLR (PT. 760) page 445 at 475 – 476.
He urged the court not to allow technicality to defeat justice. He urged that the application be granted.
I have carefully considered the submissions of learned counsel and the processes filed.
When does a cross-appeal arise? Ogbuagu, JSC in AT & ENG. CO. LTD V. MIL. GOV. OF OGUN STATE (2009) 40 WRN 1 at 47 explained it thus:-
“A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals each appeal, is separate and is an independent complaint by the parties even though both appeals are heard together. See the case of CHIEF KALU IGWE & 2 ORS V. CHIEF OKUWA KALU & 2 ORS (2002) 26 WRN 58 …..”
A party seeking to set aside a finding in a judgment which is crucial can only do so through a substantive cross-appeal and not on application to affirm or vary the judgment on other grounds. See BRIGGS V. BOB-MANUEL & ORS. (2003) 1 SCNJ 218 at 226 – 227.
Can the applicant in this application cross-appeal?
The applicants had earlier filed an appeal against the judgment of the lower court on 7/7/2005. The applicants were the 1st set of defendants at the court below. The applicants and the appellants are from Izifa family in Akenfa.
It was on the application of the appellant that he was granted leave to be represented by a counsel of his own choice and to defend for himself and on behalf of Tombo family.
By a motion on notice filed on 18/9/2000 the appellant sought and obtained leave of court for the follows prayers.
“(i) 3rd defendant be represented by a counsel of his own choice rather than by Chief Malla Sasime.
(ii) the suit be defended by the 3rd defendant/applicant for himself and on behalf of Tombo family while the rest of Zifa group of families continue with the services of Chief Malla Sasime (if they so desire) in defending the suit for themselves and in a representative capacity and to the exclusion of Tombo family.
(iii) time be extended for the 3rd defendant/applicant to file his appropriate and separate statement of defence for himself and on behalf of Tombo family and
(iv) the hearing be accelerated”
The reasons for the application are contained in paragraphs 2 – 9 of the supporting affidavit to the application as follows
“2. That I am the head of Tombo family which is a unit in Zifa (Izifa) group of families of Akenfa.
3. That it was the plaintiffs/respondents who while instituting the instant suit that lumped me along with 1st, 2nd and 4th defendants as representing Zifa (Izifa) group of families in the writ of summons and other processes filed by them.
4. That the 1st, 2nd and 4th defendants are dead and nobody has been substituted for them.
5. That the land in dispute includes portions of land belonging to my family namely Tombo family some of which portions are subject matters of litigations between my family and the other sub-families within Zifa families. From which the 1st, 2nd and 4th defendants come/came.
6. That I and members of our family find it impossible to defend this suit along with the rest of Zifa who are making adverse claims of our portion of land without a proper amendment of pleadings to reflect portions of land that belong exclusively to Tombo family.
7. That having brought the irreconcilable and/or conflicting positions to the defence counsel Chief Malla Sasime and the fact of his refusal to see the issues from our point of view, a serious disagreement between us resulted and this led us to dispense with his services and we accordingly informed him in writing and brought a counsel to court but the said chief Malla Sasime still sent in a counsel named Azuogu Esq. who insisted on representing Izifa group of legal services aforesaid is exhibited herewith as Exhibit 1.
8. That in order not to allow Chief Malla Sasime insistence to affect us adversely, we have resolved to defend only our portions of land with the aid of a different counsel J.H. Igbikiberesima Esq. who advised and we readily believe him that the instant application is necessary especially as we have already mentioned our position to the Court and even though the said Azuogu Esq. insisted on defending the suit.
9. That we have resolved that while the other sub-families of Zifa (Izifa) namely Ishie, Biriyeghe, Usi and Abas could get along with Chief Sasime in defending this suit, we of the Tombo family should defend only our portions and for that purpose, we have engaged a new counsel namely J.H. Igbikiberesima Esq. to defend us.”
It is therefore surprising, having regards to the above, that one of the reasons for opposing this application is that the applicants and appellants share common interest in the appeal. This cannot be true.
But this does not justify an application to cross-appeal in the face of the earlier appeal filed by the applicants. There does not seem to be any statutory provision for a cross-appeal. The name cross-appeal appears to be merely descriptive. If two appellants sign the same Notice of Appeal as appellant is described as joint appeal. If an appellant as well as a respondent file two separate appeals against the same decision, the appeal of the appellants it is described as an appeal simpliciter while that of the Respondent is described as a cross-appeal.
It is the 1999 constitution that gives life to every appeal from the High Court to court of Appeal and indeed from every decision of a superior court of record to higher court. The word cross-appeal is not provided for in the Constitution.
However, section 243 of the 1999 constitution of Federal Republic of Nigeria (as amended) provides as follows:
“243 Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this constitution shall be-
(a) Exercisable in the case of civil proceedings at the instance of a party thereto , or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance if an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney- General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.
(b) Exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
A right of appeal from the decision of the Federal High Court as a High Court is exercisable in the case of Civil Proceeding at the instance of a party thereto (whether plaintiff or defendant) or with the leave of the court at the instance of any other person, having an interest in the matter. In which case, the Constitution does not distinguish between an appeal, joint-appeal or cross-appeal. An appeal is an appeal. Neither the Court of Appeal Act 2004 (as amended) nor the Court of Appeal Rules do so. In fact Order 1 Rule 5 of the Court of Appeal Rules 2011 defines an appeal as the filing of notice of appeal. The filing of a notice of appeal gives birth to an appeal or a cross-appeal as the case may be. Both appeals are to be heard together if they are against the same judgment. See KALU IGWE V. KALU & 2 ORS (supra). See also AT & ENG. CO. LTD. v. MILITARY GOVERNOR OF OGUN STATE (supra).
The applicant being the respondent in this appeal having filed a Notice of Appeal ipso facto becomes a cross-appellant whether or not he tags it notice of appeal or cross-appeal. It does not in my respectful view require a new appeal number.
Order 8 of the court of Appeal Rules provides for the compilation of records. Order 8 Rules 3 of the Rules provides for settlement of records even in the absence of parties.
After the settlement of records if the respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty under Order 8 Rules 6 of the court of Appeal Rules to compile and transmit such records within 15 days of the service on him of the records.
I have gone through the court of Appeal Rules, I am unable to see any provision that allows for two separate records of appeal in appeals that are to be heard together.
All I have endeavored to state above is that the appeal filed by the applicant on 7/7/2005 it having been filed by a respondent in respect of a decision against which there is an appeal is itself a cross-appeal which can be accommodated within this appeal. This means there is no need for the applicant to seek leave to file a cross-appeal. There is no need for the applicant to file cross-appeal. There is no need for the application filed by the applicant. It seeks to file an appeal over another subsisting appeal. It is indeed an abuse of court process and should be dismissed. See ARUBO V. AIYELERU (1993) 3 NWIR (PT. 280) 126; KODE V. YUSUFF (2001) 4 NWLR (PT.703) 392.
This application therefore fails. It is accordingly dismissed with cost of N20,000.00 in favour of each set of respondents.

ISTIFANUS THOMAS, J.C.A.: I had the opportunity of reading in advance the ruling of my learned brother, Awotoye, JCA just delivered and I am in total agreement that the application is not meritorious.
I also dismiss the application and I abide with consequential orders including costs.

EJEMBI EKO, J.C.A.: I read before now the Ruling just delivered by my learned brother T.O. Awotoye, JCA, and I am in complete agreement with him. However, I shall add a few words in this matter.
The 1 – 3rd plaintiffs/Respondents were the plaintiffs in the suit No YHC/3/86 at the High Court of Bayelsa State. Judgment in the Suit was entered on 4th May, 2005 in their favour. The 13th Defendant in that suit filed his appeal against the decision 9th May, 2005.
The present applicants were the 4 – 8th Defendants in that suit. Through their former counsel, U.A.C. Azogu the applicants filed their joint notice of appeal against the said judgment in suit No. YHC/3/86 on 7th July, 2005. They apparently did not diligently pursue the due prosecution of that appeal by compiling, or causing to be compiled, Record for the hearing of that appeal. The consequence this in diligence as stipulated in Order 8, Rule 18 read together with Rules 4 of the 2007 Rules of this Court is dismissal of the appeal for want of diligent prosecution.
In the meantime the 13th Defendant/Appellant had caused Record of appeal for the hearing of his appeal filed on 9th May, 2005 to be transmitted to this court on 14th July, 2006. The number assigned to that appeal is CA/PH/243/2006.
In due course the 4 – 8th Defendants/Appellants, whose notice of appeal was filed on 7th July, 2005 had engaged a new counsel, I. I. Evans, Esq. on 22nd September, 2006 Mr. Evans, purporting to be acting on the Record transmitted on 14th July, 2006 in the appeal no CA/PH/243/2006, had on 22nd September, 2006 filed the brief of argument of 4 – 8th Defendants/Appellants. Mr. Igbikiberesima, a counsel for the 13th Defendant/Appellant had also filed appellant’s Brief. The 1 – 3rd plaintiffs/Respondents was thus put in a dilemma as to how to respond to these “Appellant’s Briefs”. He raised the issue on 10th October, 2007.
On 22nd October, 2007, when the appeals came up for hearing, Mr. Igbikiberesima of counsel to 13th Defendant/Appellant objected to the Appellants Brief filed by Mr. Evans, maintaining that it was not properly before the court. This court adjourned the matter sine die to enable Mr. Evans regularize his position. Counsel did nothing. The case had since been on the cause list for hearing on 4th June, 2009, 11th June 2009 and 12th January, 2010 with the same confusion trailing it. Mr. Evans did not regularize the position of the 4th – 8th Defendants/Appellants.
Mr. Evans, instead of pursuing the appeal of the 4th – 8th Defendants/Appellants filed on 7th July, 2005, has now brought this application on behalf of the same 4th – 8th Defendants/Appellants seeking extension of time within which to file cross-appeal of the same 4th – 8th Defendants/Appellants.
The appeal filed, vide notice of appeal, on 7th July, 2005 by the 4th – 8th Defendants, now cross-Appellants/Applicants, still subsists. Mr. Ayobowei of counsel to the 1 – 3rd plaintiffs/Respondents has raised the issue of whether this application is not on abuse of process. He submits that there will be an abuse of process if this application is granted and thereby two notices of appeal subsist simultaneously in one suit at the instance of 4th – 8th Defendants against the same plaintiffs and other parties. He relies on AKINWALE v. AKINWALE (2010) 31 WRN 129; SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 264) 156; PACERS MULTIDYNAMIC v. MV DANCING SISTER (2000) 3 NWLR (Pt.648) 241 and other authorities.
The real issue in this application is whether the application will result in an abuse of process. To further adumbrate the issue Mr. AYOBOWEI, citing various authorities sets out the definitions of cross-appeal, the cross-appellant and the purpose of cross-appeal. Mr. Evans in the Reply address says it is only when a process of court has not been used bona fide that there is an abuse of process, and that this application does not constitute abuse of process. I have read all the written addresses exchanged in the application.
A cross-appeal, by its nature from numerous authorities, is an appeal in its own right, and it does not depend for its existence or survival on the substantive appeal. And so the dismissal of the substantive appeal does not affect the cross-appeal.
Accordingly, the dismissal of the substantive appeal does not make the court functus officio thereby. See OLOWU v. ABOLARE (1993) 6 SCNJ 1; (1993) 5 NWLR (Pt. 293) 1, particularly the opinion of Karibi-Whyte, JSC. Also see WILLIAMS V. DAILY TIMES (1990) 1 NWLR (Pt. 124) 1. A cross-appeal is a process filed by the respondent where he seeks to set aside a finding of the trial court that is crucial and fundamental to the case: See ADDAX PETROLEUM DEVELOPMENT (NIG.) LTD. V. IBEH (2007) ALL FWLR (Pt. 380) 1558 at 1569. A cross-appeal is akin to a counter-claim. It is not an appendage to the main appeal. See AKPAN v. BOB and Ors SC.135/2009 of 21st May 2010, per Muhammed, JSC.
The situation for cross-appeal arises where two parties to a judgment are dissatisfied with it and each of them accordingly appeals. The appeal of one is the cross-appeal to the other. Though heard together, each appeal is separate and independent of the other. See IGWE V. KALU (2002) 7 S.C (Pt.2) 236 (2002) 14 NWLR (Pt. 787) 435.. In view of all I have said above is it therefore right in law or procedure for one party whose appeal or cross-appeal is live and subsisting to contemplate filing a cross appeal, as this application seeks to do? What is an abuse of process?
Generally, abuse of process involves the institution of multiplicity of actions between the same parties involving the same subject matter. See SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 264) 156; (1992) 11 – 12 SC, 26; HARUNA (2003) 14 NWLR (Pt. 841) 546. The abuse of process lies in the multiplicity and the manner of the exercise of the right of appeal, rather than the exercise of the right per se. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the opponent, and thereby interfere with the administration of justice,. What is material is the inconvenience involved in the purpose of the action. See OKORODUDU V. OKORODUDU (1977) 3 SC 21; HARRIMAN v, HARRIMAN (1989) 5 NWLR (Pt. 119) 6. A suit that is an abuse of process of court is vexatious. The law does not allow a man to institute suits in any court of law, which from the circumstances would be vexatious. See MORGAN v. W.A. AUTOMOBILE (1971) NMLR 219 at 221; OBIONA v. THE PRESIDENT (1981) 2 NCLR 701 AT 708; THANES KAYBCGERS v. TRINITY HOUSE (1991) 1 ALL E.R. 26 AT 32 -33.It is clear to me, therefore, from the authorities and the peculiar facts of this application that permitting the applicants to file another cross-appeal, as this application seeks to attain, will result in abuse of process. The multiplicity of appeals by the 4th – 8th defendants in the suit NO YHC/3/86 against the same parties over the same subject matter will no doubt be an abuse of process. This application is vexatious. Its purpose is merely to cause confusion and mere incontinences to the judgment creditors.
This application does not, on the merits, deserve to be granted. Accordingly it is hereby dismissed with costs at N20,000.00 to each set of parties represented by Mr. Igbikiberesima and Mr. Ayabowei.