ALUKO AND OYEBODE v. MR. GOLDEN LESON AWI
(2011)LCN/4671(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of July, 2011
CA/PH/261/2009
RATIO
INTERPRETATION OF STATUTE: THE PROVISIONS OF SECTIONS 241 AND 242 OF THE 1999 CONSTITUTION AS TO WHETHER THE LEAVE OF THE COURT IS REQUIRED TO BE OBTAINED BEFORE APPEALING AGAINST AN INTERLOCUTORY DECISION OF THE LOWER COURT WHICH INVOLVES THE QUESTION OF LAW ALONE
Section 241 of the Constitution which provides for appeals as of right from the decision of the Federal High court or a High court to this court state: “241(1) an appeal shall lie from decisions of the Federal High Court or o High Court to the Court of Appeal as of right in the following cases- (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instances; (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal Proceedings; (c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application to the Constitution; (d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this constitution has been, is being or is likely to be, contravened in relation to any person; (e) Decisions in any criminal proceedings in which the Federal High Court or a State High Court has imposed a sentence of death; (f) Decisions made or given by the Federal High Court or a High Court- (i) Where the liberty of a Person or the custody of an infant is concerned, (ii) Where on injunction or the appointment or a receiver is granted or refused, (iii) In the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in on admiralty action determining liability, and (v) in such other cases as may be prescribed by an Act of the National Assembly. 2. Nothing in this section shall confer any right of appeal- (a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action; (b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and (c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only. Section 242 provides for Appeals with leave thus: “242. (1) subject to the provisions of section 241 of this constitution, an appeal shall lie from decisions of the Federal High court to the court of Appeal with the leave of the Federal High court or the Court of Appeal- (2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of justice do not require an oral hearing of the application.” Learned respondent counsel submits, and rightly too that where any ground of appeal in an appellant’s Notice involves questions of law alone such an appeal is as of right even if against an interlocutory decision of the trial court. By virtue of section 241(1) (b) of the 1999 constitution reproduced above, an appeal against an interlocutory decision of a High court certainly lies as of right if the grounds of appeal involve questions of law alone. It is only where the grounds of appeal involve questions other than pure law that leave of either the High court or the court of Appeal must be obtained otherwise the appeal would be incompetent. However, where one of the several grounds raises pure questions of law that ground shall be sufficient to sustain the appeal. See: Leaders & Co. Ltd v. Kasamotu (2004) 4 NWLR (PT. 804) 519 and Dairo v. UBN Plc. (supra). PER M. DATTIJO MUHAMMAD, J.C.A.(OFR)
JUSTICES
HON. JUSTICE M. DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
HON. JUSTICE E. EKO Justice of The Court of Appeal of Nigeria
HON. JUSTICE T.O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ALUKO AND OYEBODE Appellant(s)
AND
MR. GOLDEN LESON AWI Respondent(s)
M. DATTIJO MUHAMMAD, J.C.A.(OFR) (Delivering the Lead Ruling): By his Notice of motion filed on 25th February, 2010, the applicant seeks the order of this court to dismiss the appeal initiated by the respondent. The application is predicated on the grounds that the appellant/respondent has failed to obtain leave of either the lower court, the Rivers State High Court, or this court before appealing against the interlocutory decision of the former delivered on 26th day of February, 2009 in suit No PHC/1914/2008. The failure to obtain leave before filing the appeal violates section 242 of the 1999 constitution and section 24 of the Court of Appeal Act. Having so appealed, respondent has further failed to diligently prosecute the appeal by refusing to file his brief of argument within the time provided for by order 17 rule 2 of the Court of Appeal rules 2007.
The applicant relies on an eleven paragraph affidavit he deposed to and filed in support of his application. The facts which inform the application are brief and are as contained in the supporting affidavit. I shall attempt a summary at once.
The applicant commenced suit No. PHC/1914/2000 against the respondent at the Rivers State High court. The latter, after filing his statement of defence, raised a preliminary objection on the grounds that the originating process in the suit having been irregularly issued, the court lacked the jurisdiction to proceed. The lower court dismissed the objection. Aggrieved by the decision, the respondent appealed to this court and by 18th May, 2009 had, in compliance with order 8 rule 4 of the Court of Appeal Rules, the record of Appeal compiled and transmitted to this court. The appeal was assigned Appeal No. CA/PH/261/2009. The applicant avers more particularly in paragraphs 8, 9, 10 and 11 of the affidavit in support of his motion thus:
“(8) as at the date of deposing to this affidavit, the Appellant/Respondent has failed to file in this court a written brief in this court a written brief of argument being succinct statement of his argument on this appeal.
(9) The forty five days limited by the court of Appeal rules 2007 has since lapsed on the 5th day of July, 2009.
(10) The Appellant/Respondent never obtained the leave of the High court of Rivers state nor the leave of this Honourable court before filing the Notice of Appeal at pages 180 to 182 of the record of Appeal.
(11) That I or a legal practitioner of choice shall in moving the application for the dismissal of this appeal rely on the record of this appeal (CA/PH/261/2009).”
The affidavit containing the foregoing paragraphs deposed to by the applicant was filed on 25th February, 2009.
The respondent relies on a four paragraph counter-affidavit to oppose the application. Therein, it is averred that respondent’s appeal was filed on 12th March, 2009 while its brief of argument was filed on 23rd February, 2010 along with a motion seeking enlargement of time within which the said brief is to be filed. It is also asserted that respondent requires no leave of either the Rivers State High court or this court before filing its appeal.
Following an order of this court, parties have filed and exchanged written addresses on the Notice of motion to which this ruling relates. These have been adopted and relied upon as arguments for and against the application. In the applicant’s written address a lone issue, on the basis of which he urges the application should be determined, has been formulated. The issue reads:
“Whether the grounds of Appeal are competent” Learned applicant’s counsel contends that the decision the respondent appeals against is an interlocutory one having not finally determined the rights of the parties. By section 242 of the 1999 Constitution, it is argued; such appeals require the leave of either the trial court, or the Court of Appeal for same to be competent. Respondent’s appeal having been filed without such leave is accordingly incompetent. Relying on Onwuta & Ors. V. A.G. Anabr (2006) All FWLR (PT 333) 1775 at 1783 Olatunde v. O.A.U & Anor. (1998) 5 NWLR (PT. 549) 178 at 185; Balogun Adejobi (1995) 2 NWLR (PT 375) 131 at 161 and New Nigerian Bank Plc v. Dencleg Limited & Anor. (2002) 9-1- SC 167, learned applicant counsel urges that respondents incompetent appeal be struck out.
The issue the respondent formulated in his written address as calling for consideration in our determination of the instant application reads:
“Whether the appellant’s/respondent’s appeal as contained in the grounds of appeal is hinged on issues of pure law.”
Responding to the arguments advanced by the applicant, learned respondent counsel answers the question he asks in their written address in the affirmative. He submits that the two grounds of appeal in respondent’s Notice filed on 12th March, 2009 are all grounds of law alone and by S241 (i) (b) of the 1999 constitution require no leave. Respondent learned counsel argues that he has the unfettered constitutional right to file his appeal which is on pure law without the necessity of obtaining leave from either the trial or appellate court. Learned counsel refers to Dairo v. UBA Plc. (2007) 16 NWLR (PT. 1059) 147, Dahiru Muhammed v. Taju Mustapha (1993) 5 NWLR (PT 292) and NNB & Anor. v. IBW Enterprises Nigeria Ltd & 2 ors (1998) 5 NWLR (pt 554) 446 and urges that the application being grossly incompetent be dismissed. He stresses that respondent has since filed his brief of argument and it is the applicant rather than the respondent who continues to delay the hearing of the appeal. The former, it is argued, is yet to file its briefs of argument.
Now, respondent’s right of appeal must have been provided for either under S. 241 or S. 242 of the 1999 Constitution as amended. The two provisions are hereunder reproduced for ease of reference.Section 241 of the Constitution which provides for appeals as of right from the decision of the Federal High court or a High court to this court state:
“241(1) an appeal shall lie from decisions of the Federal High Court or o High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instances;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal Proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application to the Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a State High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court-
(i) Where the liberty of a Person or the custody of an infant is concerned,
(ii) Where on injunction or the appointment or a receiver is granted or refused,
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in on admiralty action determining liability, and
(v) in such other cases as may be prescribed by an Act of the National Assembly.
2. Nothing in this section shall confer any right of appeal-
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute, for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
Section 242 provides for Appeals with leave thus:
“242. (1) subject to the provisions of section 241 of this constitution, an appeal shall lie from decisions of the Federal High court to the court of Appeal with the leave of the Federal High court or the Court of Appeal-
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of opinion that the interests of justice do not require an oral hearing of the application.”
Learned respondent counsel submits, and rightly too that where any ground of appeal in an appellant’s Notice involves questions of law alone such an appeal is as of right even if against an interlocutory decision of the trial court. By virtue of section 241(1) (b) of the 1999 constitution reproduced above, an appeal against an interlocutory decision of a High court certainly lies as of right if the grounds of appeal involve questions of law alone. It is only where the grounds of appeal involve questions other than pure law that leave of either the High court or the court of Appeal must be obtained otherwise the appeal would be incompetent. However, where one of the several grounds raises pure questions of law that ground shall be sufficient to sustain the appeal. See: Leaders & Co. Ltd v. Kasamotu (2004) 4 NWLR (PT. 804) 519 and Dairo v. UBN Plc. (supra).
The grounds of appeal in the instant matter are to be found at pages 180-182 of the record of appeal. They are hereunder reproduced without their particulars for ease of reference:
“GROUND 1
The Trial Court erred in law when it dismissed the Appellant’s Notice of Preliminary Objection dated and filed on 24 December, 2008 wherein it has challenged the jurisdiction of the court on the ground that the processes originating the suit were not served on the Appellant in the manner prescribed by law.
GROUND 2
The Learned Trial Judge wrongfully assumed jurisdiction and adjourned Suit No: PHC/1914/2008 for hearing without a proper determination of the issue raised by the Appellant in its Notice of Preliminary Objection filed on 24 December, 2008.”
It is beyond dispute that the foregoing are grounds of law alone. The two are complaints against the ruling of the lower court on the competence of the suit inspite of the fact that it was wrongly commenced by irregular service. The lower court has held otherwise the issues the two grounds raise being jurisdictional are questions of pure law. Appeal on the basis of such grounds even where it is against an interlocutory decision is by virtue of S. 241 (1) (b) of the constitution, of Right.
The applicant has abandoned the 2nd ground of his application relating to the consequence of respondent’s failure to file his brief of argument. Same is accordingly discountenanced. Applicant’s query over the respondent’s counter-affidavit filed on 12th October, 2010 along with the latter’s written address is also of no moment. The averments in the counter-affidavit being virtual admission of the content of the applicant’s affidavit in support of its motion have not been shown to have overreached the applicant.
In sum, the application being totally devoid of merit is accordingly dismissed. Respondent to the application is entitled to costs put at N20, 000 against the applicant.
EJEMBI EKO, J.C.A.: There is no merit whatsoever in this application. My learned brother M.D. MUHAMMAD (OFR), JCA has so decided in the Ruling just delivered and I am in complete agreement. The Said Ruling and orders made therein are hereby adopted by me.
The application, lacking in merit is hereby dismissed with costs assessed at N20, 000.00 to the appellant against the Respondent.
The appellant had subtly reminded the respondent in the substantive appeal that rather than seeking to remove the speck in the appellant’s eye, the respondent should be more concerned with the log in his own eyes first. The respondent had been told that his failure or refusal to file respondents brief is what is delaying the hearing of the appeal. I am sure the respondent heard this.
T.O. AWOTOYE, J.C.A.: I have read the draft of the ruling of my learned brother M. D. MUHAMMAD (OFR just delivered.
I am in complete agreement with it.
I agree that this application lacks merit and that it should be dismissed.
I also award N20, 000.00 cost against the applicant.
Appearances
M.E. UGBETAFor Appellant
AND
GOLDEN AWIFor Respondent
