ALHAJI ABDUL-RAUF TIJANI & ORS v. FIRST BANK OF NIGERIA PLC (2014)

ALHAJI ABDUL-RAUF TIJANI & ORS v. FIRST BANK OF NIGERIA PLC

(2014)LCN/7577(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of December, 2014

CA/L/457/2012

RATIO

COURT: JURISDICTION; THE JURISDICTION OF AN APPELLATE COURT, WHEN SHALL AN APPEAL LIE AS OF RIGHT OR WITH LEAVE FROM DECISIONS OF THE FEDERAL HIGH COURT, NATIONAL INDUSTRIAL COURT OR A HIGH COURT TO THE COURT OF APPEAL AND THE DEFINITION OF DECISION ACCORDING TO THE CONSTITUTION

The jurisdiction of courts in this country as far as I know, is conferred upon them by the constitution or by statutes as may be allowed by the constitution. See ADAH VS A.G. BENDEL STATE (1991) NWLR (PT 169) 525 AND UTIH VS ONOYIVWE (1991) NWLR (pt 166) 156 or (1991) 1 SCNJ 25.
It is on this basis that the Court of Appeal derive its appellate jurisdiction from Section 240 of the Constitution of the Federal Republic of Nigeria 1999 as amended. It provides thus:-
“Subject to the provisions of this constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal High Court, National Industrial Court, the High court of the Federal Capital territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a state and from decision of the court Martial or other tribunal as may be prescribed by an act of the National Assembly” Sections 241 and 242 provides for when appeal shall lie as of right or with leave from decisions of the Federal High court, National Industrial Court or a High Court to the Court of Appeal.
By the combined provision of Sections 240, 241 and 242 any appeal to this court must be from a court, a court Martial or a tribunal as may be prescribed by an act of the National Assembly. Such appeal must also of necessity, be from the decision of such courts or tribunal.
Section 318 of the Constitution which is the interpretation Section defines “Decision” as follows:- “decision means; in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
It follows therefore that any exercise of the right of appeal as guaranteed by the constitution must emanate or be identifiable with the decision of a court or tribunal and such must be within the definition of Section 318 of the Constitution. See DEDUWA VS OKORODUDU (1976) 9-10 SC (REPRINT) 207; DIKE VS ADUBA (2000) 3 NWLR (PT 647) 1. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

APPEAL: APPEAL AGAINST AN ADMINISTRATIVE ACT DONE BY THE CHIEF JUDGE; WHETHER A PARTY TO A SUIT BEFORE A TRIAL COURT CAN APPEAL AGAINST AN ADMINISTRATIVE ACT DONE BY THE CHIEF JUDGE

It seems to me therefore that a letter written by a Chief Judge from the comfort of his office refusing a request by a party to a suit for the transfer of the suit from one court to another and which request was also through a letter by that party cannot fall within the category of the decision of a court as contemplated by the Constitution. It will therefore be naive to accept that a party to a suit before a trial court can appeal against an administrative act done by the Chief Judge and not while presiding over the matter in court. As was rightly held by the Supreme Court in THE MINISTER OF PETROLEUM RESOURCES V. EXPOSHIPPING LINE (NIG) LTD (2010) 1 NWLR (PT 1208) 261.
“An appeal is substantially a complaint against the decision of a trial court.”
In the case of ALIYU VS IBRAHIM (1992) 7 NWLR (PT 253) 361 this court per Katsina-Alu JCA (as he then was held at page 373 that:-
“In the exercise of his power to transfer, the learned trial Chief Judge did not owe the appellant any duty to hear him prior to the order of transfer. He was neither acting in a judicial capacity which would have necessitated hearing both sides to the dispute. As I have already pointed out the decision of the Chief Judge to transfer the case from Keffi to Jos was a mere administrative act. The act of transfer did not dispose of the appellant’s case before the court”.
See also ALHAJI ABDUL-RAUF TIJJANI & ANOR VS FIRST BANK OF NIGERIA LTD. Judgment of this court delivered on 28TH May 2014 in appeal No CA/L/39/12. A similar situation arose in the said appeal as to whether a party can appeal against the administrative decision of the Chief Judge of Lagos wherein she refused an application by the Appellant to have two matters at different stages of trial consolidated. Interestingly, the parties in the said case are the same in the instant appeal. This court held therein per IYIZOBA JCA that:-
“Following the reasoning in this case, I am of the view that the decision of the learned Chief Judge of Lagos State in response to the application made by the Appellants herein to have their matter consolidated was an administrative decision and is therefore not appealable.”
In the same vein, I am also of the view and I so hold that the right of appeal of the Appellants does not extend to the refusal of the Chief Judge of Lagos to grant their request for the transfer of the case and such refusal have been made while acting administratively and not in a judicial capacity. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLATE COURT IS NOT UNDER OBLIGATION TO CONSIDER ALL THE OTHER ISSUES FORMULATE BY THE PARTIES WHERE IT IS OF THE VIEW THAT THE CONSIDERATION OF AN ISSUE IS ENOUGH TO DISPOSE AN APPEAL

It is trite law that where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all the other issues formulated by the parties. See OKONJI V. NJOKANMA (1991) 7 NWLR (PT 202) 131; EBBA VS OGODO (1984) SCNLR 372 per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI ABDUL-RAUF TIJANI
2. TUNDOKUN INVESTMENT CO. LIMITED
3. TUNDOKUN NIG. ENTERPRISES LIMITED Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This Appeal filed by the Appellants on the 12th day of March 2012 is against the administrative decision of the Chief Judge of Lagos State through a letter dated 7th March 2012.

The said Appellants had by a writ of summons filed on 10-12-2007 brought an action against the defendant (now Respondent) claiming the following reliefs:-
(a) N5000,000,000.00 (five Billion Naira) damages for libel committed against the Claimants by the defendant on account of the words written and published concerning the Claimants at paragraph 13 of the statement of defence dated 4th July 2007 and statement on oath of Yetunde Keshinro sworn on 24th September 2007 in suit No Id/241/2007.
(b) perpetual injunction restraining the Defendant by itself, it’s servant or agent or otherwise further publishing the said or any similar libel of any concerning the Claimant.

A statement of claim was subsequently filed on 27-11-2007.
Subsequently an amended writ of summons and amended statement of claim was filed on 3-2-2011 wherein the Appellant’s as claimants claimed against the Respondent as defendant as follows:-
(1)” N5,000,000,000 (Five Billion Naira) as damages for libel committed against the claimants by the Defendant for giving inaccurate and false reference about the Claimants’ financial standing to the Unity Bank PLC
(2) An order of perpetual injunction restraining the Defendant by itself, its servants or otherwise from further publishing inaccurate and false reference about the claimant to Unity Bank PLC or other companies or persons.
(3) N100,000,000 (One hundred Million Naira) as damages (sic) breach of contract for giving reference to Unity Bank PLC without the consent of the Claimants”.

The Respondent as defendant also filed an amended statement of defence dated 17-3-2011 and filed on 22-3-2011.
A number of applications were filed by both parties for which Rulings were also delivered by the trial judge.
Processes from both parties were filed and handled in court by counsel for the parties until it got to a stage when Appellant who in the first place is not a legal practitioner opted to prosecute the matter in the lower court for himself and on behalf of the other two Appellants.

It however turned out that while the matter was pending before the lower court coram IDOWU J, the 1st Appellant on behalf of the two Appellants wrote a letter to the Hon. Chief Judge of Lagos State requesting the transfer of the suit to another court having lost confidence in His Lordship IDOWU J to continue with the hearing thereof.

The said letter is dated 19-10-2011 and I find it necessary to reproduce its content which is quite lengthy. It reads thus:
“COMPLIMENT OF:
ALHAJI A.R. TIJANI MNI OFR
7-9 OLO-OGUNDANA CRESENT AKOWONJO-LAGOS
TEL: 080-231-45994.
19TH October, 2011.
The Chief Judge of Lagos State
Hon. Justice Inumidun Akande
Lagos State Judiciary
Ikeja.

My Lord,

URGENT REQUEST TO TRANSFER THE TRIAL OF SUIT NO ID/1606/2008 FROM COURT – BEFORE HON. JUSTICE IDOWU.
The trial is yet to commence and the claimants with due respect has lost confidence in his lordship based on the following obvious facts.
The trial of this case supposed to commence on the 21st Sept 2011 but due to legal year activities the court did not seat on that day. And normally, defence counsel ought to wait for the claimants counsel or their representative before a date could be fixed for the trial since is not for mention. But the defence counsel deceive the registrar of the court and fixed 2th day of Oct 2011 before 9.30 am the same day the Court of Appeal had fixed for the Hearing of the claimants Appeal against Rtd Justice L.A.G Marsh ruling delivered out of Jurisdiction of the court with the same counsel the same parties.
COURT OF APPEAL Hearing Notice to that effect is attached marked Exhibit A.

The defence counsel and Hon. Justice Idowu also aware that the 1st claimant is the one making self appearance in the court and in the Court of Appeal due to what the last S.A.N, P.O Jimoh Lasis’ that the claimant engaged to Handle this matter did;

The learned S.A.N sent one Falaiye to the 1st claimant and when the 1st claimant Honour the SAN invitation on getting to his chamber he told him in the present of the said Chief Falaiye that; I will advise you to withdrew the libel suit against the (1st Bank) the defendant and that is what killed Chief Gani Fawehinmi SAN when they ruled against him in Col. Akilu V. Fawehinmi if you withdraw the libel action the court can only award the cost and that will be better than Frustration that will erupt if the court should rule against you”.

The 1st claimant respond to SAN is, thank you where is the case file and he left and since that time, the 1st claimant has started making self appearances in all the cases claimant have against the Defendant where Adeniji is appearing for the Bank.

The only baby lawyer we retain A. A. Sobiye the defence counsel letter to her recently can speak for itself and is humbly attached for your lordship perusal. And the Court of Appeal hearing Notice dated 23rd May 2011 for hearing the Appeal on 16th June, 2011 that the Defence counsel denied at paragraph 4 of his letter to our counsel dated 30th September, 2011 are hereby attached for your lordship perusal and consideration. The documents attached Marked B & C.

The claimants Filed 2 motions: One Ex-parte date 27th Sept, 2011 for the court to reschedule the trial date that colluded with that of appeal. The learned Trial Judge vide the Registrar of the court, informed us that, his lordship ask us to notify the defence counsel and of which, the claimant did through A.A. Sobiye Esq and when the date suggested on the motion expired we approach the bench to know our faith and in an open court, the 1st claimant drew the attention of the court to the pending motion ex-parte and in his Lordship respond of anger, gave one senior lawyer present in the court at the time the letter written by our counsel notifying the defence counsel the date for possible trial to look at the name whether she is a member of the bar.

Also another motion on notice dated 6th October, 2011 challenging the Jurisdiction of court and his lordship still adjourned it to 27th October, 2011 to collude with the Court of Appeal date. With respect my lord, this is not the civilization expecting from our courts.

With due respect my Lord seeking your lordship intervention on this type of mess is embracing (sic) and it is because of Rtd Justice Marsh who started this Fraternity act with defence counsel that now turn it into a big time trade of misfortune within few benchers who share that evil act with them.

With respect my lord, the claimants is not interesting in writing petition against any misconduct of any judge. All what the claimants are begging for, is urgent transfer of the case from that court to another court but not F.O. Atilade J. Court. The matter is yet to be heard by Hon. Justice Idowu.

With respect my lord, which ever court Your Lordship deem fit to re-assign the trial of this case to, the claimants request that, your lordship should so direct that the court should dispose of the trial and the judgment of this case within two weeks from the day the trial commences on the issue of law and document. This is case that the defendant is using in hanging the rejuvenation of Nigeria Economy.

May the tenure of your Lordship as a chief Judge of Lagos State stand to be one of the best in terms of positive construction and reformation of Judiciary system of the state and that of the Nation at large. And may the success story of your Lordship on the bench shall not be wasted on the pages of history of benchers in Nigeria Amen.
I remain as your Lordship pleases.
Yours
Alh. A. R. Tijani
For: The Claimants

The Hon. Chief Judge upon receipt of the said letter, directed that a copy of same be sent to the Respondent’s counsel for his Comment/Response. In another lengthy letter dated 21-12-2011 the learned counsel for the Respondent made his position known to the Chief Judge wherein he opposed the transfer of the suit to another court. I am constrained to also reproduce the content of the said letter.
It reads:-

“AO/08/2011/46
21st December, 2011.

The Hon. Chief Judge,
High Court of Lagos State
Through:

Assistant Chief Registrar (Litigation),
High Court of Lagos State
Oba Akinjobi Street,
Ikeja

Dear Sir,
RESPONSE TO LETTER DATED 19TH DECEMBER, 2011 NO. ID/2606/12/2011
RE: URGENT REQUEST TO TRANSFER THE TRIAL OF SUIT No: ID/1606/2008 FROM HON. JUSTICE IDOWU’S COURT

We are Solicitors to First Bank of Nigeria Plc, the Defendant in the above mentioned suit.
We write to respond/comment on some of the allegations raised in the Claimant’s petition received today that concerns us or our firm.
My Lord, with due respect to your office and to the Claimants, all allegations raised against our firm are all false.

It is true that trial was supposed to commence in suit No: ID/2606/2008 on the 21st of September, 2011, but the court did not sit due to the legal Year activities. However, the Registrar of the Court did not start adjourning the cases for that day until 9.00am. In fact, the cases were called numerically and our case was No. 8 on the list. When it got to our turn, the registrar gave us a date. It has never been the practice neither was there any agreement between the Claimants and the Defendant that the defence counsel will have to wait for the Claimants to come even when the matter had been called. As a matter of fact that Claimants’ former Counsel had at a time taken an adjournment while counsel from our firm was present in court for the matter, but had to step out of the court urgently. On her way back to the court, she met the Claimants’ counsel, who though they exchanged pleasantries did not even deem it fair to tell her that he took an adjournment in her absence. It is evidence that it had always been the claimants’ that are in the habit of playing fast one.

As regards the notification of a hearing date from the Court of Appeal, My Lady, I humbly refer you to a copy of the Hearing Notice from the Court of Appeal served on us on the 18th of October, 2011 (marked Exhibit 1). Our official rubber stamp on the hearing Notice corroborates this facts; which means the Hearing Notice from the Court of Appeal was served on us 27 days after Suit No: ID/1606/2008 had come up before Hon. Justice Idowu and adjourned to the 27th of October, 2011 because the Court did not sit.

With respect my Lady, another point of note is that a notification letter dated the 27th day of June, 2011 from the Chambers of Sobiye Adedoyin & Co., Solicitors to the claimant was served on us on the 25th of September, 2011, 5 days after suit before Hon. Justice Idowu had been adjourned and 3 months from the date on it. Our Rubber Stamp also corroborates this. The said letter is attached and marked Exhibit 2.

The Chambers of Sobiye Adedoyin & Co., wrote another letter to us, but this time, an insultive one, dated the 27th day of September, 2011 which was received by us on the 28th of September, 2011, 7 days after the said adjournment. Our Rubber Stamp corroborates this fact. The letter is attached and marked Exhibit 3. In the said letter, the Claimant’s counsel accused us of having prior knowledge of the date at the Court of Appeal and that we went ahead to impose an inconvenient date on the Court.

Our firm in turn wrote a letter dated 30th of September, 2011, in response, refuting all the allegations in the said letter and making it known to them that we received their letter of 27th of June, 2011 on the 26th of September, 2011, 5 days after suit before Hon. Justice Idowu had been adjourned and 3 months from the date on the letter. Our letter 30th September, 2011, received by the Claimant’s Counsel on 13th September, 2011, is attached and marked Exhibit 4.

My Lady, I strongly believe that it was our response letter of 30th September, 2011 that informed the Claimants’ to take steps to ensure that the Hearing Notice from the Court of Appeal was served on us, which was the reason it was served very late (18th of October 2011) 27 days after the matter before Hon. Justice Idowu was adjourned. With respect My Lady, taking a look at the Hearing Notice attached to the Claimants petition as Exhibit B, the name of the addressee is the Claimants’ Solicitor, Sobiye Adedoyin, of Sobiye Adedoyin & Co., and not our own name, so it cannot be used to determine the time we were served the Hearing Notice.

I will also like to bring to your Notice My Lady that the 1st claimant is in the habit of writing petitions against the judges of this Hon. Court. It has been his practice that once a Ruling is not in his favour, he would petition against the judge that delivered the Ruling. He had at various times written petitions against Hon. Justice Onigbanjo in Suit No: ID/1445/08, Hon. Justice Marsh (rtd) in Suit No. LD/241/07, Hon. Justice Atilade in Suit No: LD/730/2003, which is the reason he wrote in his present petition that this matter should not be reassigned to her Court, and this present one against Hon. Justice Idowu in Suit No ID/1606/2008. The records are there in the various files.

Recently, the 1st Claimant even filed a motion for contempt against our Chief Ade Adeniji in Suit No: ID/241/2007, now a part-heard matter pending before Hon. Justice Oyefeso. We would not be surprised if he has written a petition against her given her recent Ruling against him.

My Lady, from the incidents explained above, it is very obvious that this Claimant (1st Claimant) is a vexatious litigant. Also he had been the one delaying this matter and other matters involving him and the Defendant as he always files motions to amend his Writ coupled with others.

My Lady, it is my humble opinion that the petition of the Claimant be ignored/dismissed and the suit remain before Hon. Justice Idowu for just adjudication, for know from the traits exhibited by the Claimant over time that he will petition against the new Judge to which the matter may be assigned once he brings one of his frivolous applications and the ruling does not go in his favour.
It is better to save the time of the Court than to waste it.
Yours faithfully,
Ayotunde Shabi (Miss)
FOR: ADENIJI & OYELOLA”

The Hon. Chief Judge in the exercise of her administrative powers subsequently caused a reply to be made to the appellants wherein His Lordship refused the request for transfer of the suit. The said letter is dated 7-3-2012 which content is herein below reproduced:-

“LAGOS STATE JUDICIARY
Deputy Chief Registrar (legal)
High Court of Lagos State
Oba Akinjobi Way
Ikeja.

7th March, 2012
Alhaji A. R. Tijani MNI, OFR,
Olo-Ogundana Crescent,
Akowonjo, Lagos.

Dear Sir,

RE: URGENT REQUEST TO TRANSFER THE TRIAL OF SUIT No: ID/1606/2008 FROM COURT – BEFORE HONOURABLE JUSTICE IDOWU
I am directed to acknowledge the receipt of your petition dated 19th October 2011 on the subject.
Having read through the petition, the proceedings and the reaction of Counsel on the other side, it is found that your petition lacks merit. Your request for transfer is accordingly refused.
Yours faithfully,
A. IPAYE-NWACHUKWU (MRS)
High Court of Lagos State
A. Ipaye-Nwachukwu (Mrs.)
Deputy Chief Registrar (Legal)

Cc:
Ayotunde Shabi (Miss)
Adeniji & Oyelola
Unity House (13th Floor)
37, Marina,
Lagos.”

I have taken pains to reproduce the relevant letters for proper appreciation of the facts and drama that engendered this enigmatic appeal.

Well the appellants apparently were not satisfied with the response received from the office of the Chief Judge vide the letter dated 7-3-2012 and consequently filed a Notice of Appeal dated and filed on 12-3-2012. It contains two grounds of appeal which shorn of their particulars reads thus:-
(i). The learned Chief Judge of Lagos State erred in law, when her Lordship turned the justice of the claimants/appellants case into a fencing game vide the directive contained in the deputy Chief Registrar (Legal) dated 7th March 2012 that the claimant/appellants urgent request since 19th October 2011 to transfer their case file from the court of Hon. Justice Idowu to another Judge for being biased and constituting herself as seen third party.
(ii). The learned Chief Judge of Lagos State with all due respect, derailed into the realm of fraternity from the rules that govern judges by compromising with the misconduct of judges that are hearing the cases of the claimants/appellants filed against the Defendant/Respondent thus redoing the credibility of the learned chief Judge that will be completely devoid of bias and sentiments in Lagos State Judiciary.

The appellants subsequently filed their brief of argument which is dated and filed on 20-7-2012. The Respondent however did not file any brief of argument; hence the appellants by a motion on notice sought the order of this court that their appeal be heard on the appellant’s brief of argument alone.
The said motion on notice was moved by the 1st Appellant on the 4-3-2014 wherein it was ordered by this court that the appeal be heard on the Appellants brief alone on a date to be communication to the parties.

At the hearing of the appeal on 23-10-2014, the Respondent though served with hearing notice did not still appear in court or file any process. The 1st Appellant thus adopted the Appellants brief of argument and urged the court to allow the appeal.

In the said Appellant’s brief of argument, four issues were formulated for determination. To wit:-
(1) Whether the Appellants constitutionally have right to seek redress in the court of appeal on the reason stated in ground one and two before unrepeatable damage could be done to the justice of their case?
(2) Whether the Court of Appeal has special jurisdiction apart from the other jurisdiction accorded to it by the 1999 Constitution of Federal Republic of Nigeria to entertain the instant Appeal and determine the finality of the case?
(3) Whether the court has competent (sic) and jurisdiction to allow the respondent/Defendant to relitigate in the instant appeal in the instant appeal, the same issue raised in its preliminary objection that the court has already adjudicated upon between the parties and their privies and dismissed?
(4) Whether the Appellate Court is competent to resolve the damages for libel claim against the respondent on the Appellant’s brief of argument and the records of appeal alone?

On issue 1, it was submitted that, by the combined effect of Section 36(2) (a & b) and Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, it is the fundamental right of the appellant’s to seek redress for the reason stated in grounds one and two of the grounds of appeal. This is because the constitution is not an academic document for abstract consideration. The case of FAWEHINMI V. AKILU (1987) 4 NWLR (PT. 67) 848 para B was referred to and this court was urged to resolve the issue in favour of the appellants and allow the appeal.

On issue 2, Section 287(1) and (2) of the 1999 Constitution was referred to as well as the case of EZEOKAFOR V. EZEILO (1999) NWLR (PT. 519) at page 524 per Achike JCA as he then was where it was held that:-
“Once the court below transmit the record of appeal to the court that will hear the appeal and the appellate court infact receives the same, the appeal is said to be entered …… that appellate court which has now received the record of appeal is said to be seized of the whole proceedings in the sense that the Rest (sic) in the appeal shall also automatically pass into the custody of the said appellate court seized of the whole proceedings. “For the purpose of rule II of Order 8 (under reference) there is no sharing of jurisdiction, over the Res, the subject matter of the appeal between the court below and the Appellate court was seized of the Appeal.”

Further reference was made to the case of AKANBI V. ALAO (1989) 3 NWLR (PT. 108) 157 para B where Oputa JSC held that:-
“On the issue of jurisdiction one has to observe that in addition to the appellate jurisdiction conferred on the Court of Appeal by Section 219 of the 1979 Constitution. Section 16 of the Court of Appeal Act No. 43 of 1976 conferred on the Court: ……. Full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part.”

It was further argued that the Appellants case borders on issue of the law that governed Banker/Customer relationship that cannot be altered or controverted by any viva voce evidence. Consequently this court was urged to allow the appeal and re-hear the case accordingly.

On issue 3, the appellants in their brief referred to a number of processes in the Record of Appeal, including, respondent’s list of documents to be relied upon at the lower court (at page 44) Respondent’s motion on notice dated 24-1-08 at page 64-71; Appellant’s counter affidavit to Respondent’s defence of absolute privilege (page 43); Respondent’s written address in support of the motion dated 24-1-08 (Pages 67 – 70) and the Ruling of the learned trial judge (Page 78-82). It was contended that based on the processes above itemized, there is nothing left for the Respondent to contest in the Appellants claim against it both in the lower court and this court. In which case this court should decide the matter by relying on the evidence in the Record and the appellant’s brief. The case of PAN ATLANTIC V. RHEINE MASS (1997)3 SCNJ 88 at 95 was referred to wherein it was held that “even if a statement of defence is filed, a plaintiff may still apply for summary judgment of the statement discloses no defence”. It was therefore submitted that the Respondent cannot statutorily sustain it’s defence of absolute privilege in this appeal, this court should allow it and enter final judgment on the appellant’s brief alone with the evidence adduced as contained in the Record of Appeal.

On issue 4, reference was made to Section 6(5) (b) & (6) (b) of the 1999 Constitution as amended to submit that this court has the constitutional power to resolve the claim of libel against the Respondent on the basis of the appellants’ brief and documentary evidence from the Records because an appellate court can rehear and re-evaluate the evidence from the Records Vide GAJI VS PAYE (2003) 8 NWLR page 611; UBN LTD VS SAX (1994) 8 NWLR (PT. 361) 150; ECONOMIDES V. THOMOPOLOUS (1956) NSCC?, CRNC CORP VS ONI (1995) 1 NWLR (?) (?) and MUKETE VS NIGERIA BROADCASTING CORP. (1961) NSCC (?) at page 231.

As earlier stated that Respondent did not file any brief of argument, hence this appeal is being considered based on the appellants brief alone.
Now dealing with issue 1, this appeal is against the administrative action of the Chief Judge of Lagos State wherein the appellants’ request for the transfer of the suit to another court vide a letter dated 19-10-2011 was refused.
The question then is can an appeal lie from the administrative act of the Chief Judge who in the exercise of his discretion refused the appellants, request through a letter, to transfer a matter from one court to another?

Sections 241 and 242 provides for when appeal shall lie as of right or with leave from decisions of the Federal High court, National Industrial Court or a High Court to the Court of Appeal.
By the combined provision of Sections 240, 241 and 242 any appeal to this court must be from a court, a court Martial or a tribunal as may be prescribed by an act of the National Assembly. Such appeal must also of necessity, be from the decision of such courts or tribunal.
Section 318 of the Constitution which is the interpretation Section defines “Decision” as follows:-
“decision means; in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
It follows therefore that any exercise of the right of appeal as guaranteed by the constitution must emanate or be identifiable with the decision of a court or tribunal and such must be within the definition of Section 318 of the Constitution. See DEDUWA VS OKORODUDU (1976) 9-10 SC (REPRINT) 207; DIKE VS ADUBA (2000) 3 NWLR (PT 647) 1.

In the circumstance this issue is hereby resolved against the Appellants.
Having so resolved issue 1 which forms the kernel of the two grounds of appeal and having held that the Appellants have no right to appeal in this type of administration act, the other issues raised for determination have automatically become spent, otiose and incapacitated. Proceeding to address them will amount to undue and fruitless academic exercise and this court is unfortunately bereft of the luxury to embark on such expedition.

On the whole, I hold that this appeal is absolutely unmeritorious and it is accordingly dismissed.
I make no order as to cost.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother SAMUEL CHUKWUDUMEBI OSEJI JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
On the whole, I too hold that this appeal is absolutely unmeritorious and it is accordingly dismissed.
I make no order as to cost.

TIJJANI ABUBAKAR, J.C.A.: I had a preview of the lead judgment prepared and rendered by my learned brother OSEJI, JCA.
I agree entirely with the reasoning and conclusion, and adopt the entire judgment as my own with nothing useful to add.
I therefore join in holding that the appeal is absolutely lacking in merit and it is accordingly dismissed by me.
I also make no order as to cost.

Appearances

Alhaji Abdul Rauf TijjaniFor Appellant

AND

Respondent absent.For Respondent