CHIEF SHITTU BANJOKO & ORS v. JIMMY AJIBOLA ALAYANDE (2014)

CHIEF SHITTU BANJOKO & ORS v. JIMMY AJIBOLA ALAYANDE

(2014)LCN/7593(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/I/275/2013

RATIO

APPEAL: APPEAL AGAINST INTERLOCUTORY DECISION AND FINAL DECISION; THE PROCESS OF APPEALING AGAINST AN INTERLOCUTORY DECISION AND FINAL DECISION

In A. N. Mohammed Petroleum Ltd. v. Afribank (Nig.) Plc, which is a decision of this court, My Lord, Sanusi, JCA cited the case of Onwe v. Oke (supra) to hold at page 100-101 paragraphs G-B that:
“The ground of appeal is simply saying that the documents tendered by the lower court at the trial court were not admissible in evidence. The substance of the ground of appeal therefore pertains to wrongful admission of the said documents. The law is settled and it is rightly stated by the Respondent’s counsel, where a party intends to appeal against an interlocutory decision in the notice of appeal against a final judgment, he must apply for extension of time to seek leave to appeal against the interlocutory decision. See… Let me however point out, that an Appellant against an interlocutory decision of a court may include same in the appeal against such final judgment of the lower court as this would avoid unnecessary delay in the proceeding and in the determination of the main issues joined by the parties in the case. An Appellant who wishes to adopt this procedure must seek leave of the court. However, if an Appellant seeks to appeal against a ruling/decision of a lower court against wrongful admission or rejection of evidence he does not require such leave as such ruling/decision is not regarded as an Interlocutory decision. See Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) p.179; Okeke v. Petmag Nig. Ltd (supra).”

The above considered authorities aside, I have been able to make some further research of my own. From my research, all the authorities I came across appear to be ad idem, that a person dissatisfied with a decision of a court in an interlocutory Ruling or decision, needs not bother himself appealing at that interlocutory stage, as such an appeal could conveniently be taken along an appeal against the final or ultimate judgment or decision in the matter. That is so, in order to save time and for the matter to be expeditiously disposed of. In other words, a party or Appellant can include in his appeal, grounds of appeal against a Ruling and judgment in one exercise in order to avoid unnecessary delay by appealing separately; provided that where such appeals are out of the time specified by Section 25(4) of the Court of Appeal Act, 2004, the proper procedure is complied with, in order to meet the unavoidable technicalities involved.
See Captain E. C. C. Amadi v. N.N.P.C. (2000) 6 S.C.N.J. p.20; Ogigie & 3 Ors v. A. I. Obiyan (1997) 10 S.C.N.J. p.1 at 15 and Olatunji v. Waheed (2012) 7 NWLR (Pt. 1298) p.24.

I however find from the authorities that where the complaint of the Appellant is that, the ruling is concerned with the wrongful admission or evidence wrongful rejection of evidence, an Appellant seeking to appeal does not need the leave of court before he can appeal. That, the ground of appeal against such ruling can then be included when appealing against the final judgment of the trial court. The reasoning behind this is that:
“A decision made by the trial court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision; unless a special case has been made in respect of the case.”

In such cases therefore, a party who wishes to appeal against the final judgment of the trial court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted or admissible evidence has been rejected. See Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) p.297 at 332-333; Jinadu v. Esurombi-Aro (2005) 14 NWLR (Pt. 944) p.142; Okobia v. Mamodu Ajanya & Anor (1998) 6 NWLR (Pt. 554) p.348; Owena Bank (Nig.) Plc v. N.S.E. Ltd (1997) 8 NWLR (Pt. 515) p.1. One other reason for that procedure is that, though courts admit evidence in the course of trial, the use of same abides the conclusion of hearing and is made at the time the court writes its final judgment in the matter. This then explains why in the course of writing judgments, courts have the power to expunge such evidence that had been wrongly admitted in the course of trial; when the court decides finally on the admissibility of the evidence as well as the weight to attain to such evidence. See Ajayi v. A-G Ogun State (2009) 7 NWLR (Pt. 1141) p.443. per. HARUNA SIMON TSAMMANI, J.C.A.

APPEAL: APPLICATION FOR EXTENSION OF TIME TO APPEAL; THE CONDITIONS TO BE SATISFIED IN APPLICATION FOR EXTENSION OF TIME TO APPEAL, WHETHER IT IS AT THE DISCRETION OF THE COURT TO GRANT AN APPLICATION FOR EXTENSION OF TIME TO APPEAL AND WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE DISCRETION OF THE LOWER COURT

One of the conditions to be satisfied in application for extension of time to appeal is that, the grounds of appeal must, prima facie show good cause why the appeal should be heard. This condition must co-exist with the requirement that, the Applicant must show good and substantial reasons for failure to appeal within the prescribed period. This is in satisfaction of the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, which is in pari materia with Order 3 Rule 4(1) of the Court of Appeal Rules 2002 and order 7 Rule 10(2) of the court of Appeal Rules, 2007. See also F.C.M.B. Plc v. N.LM.R. (2009) 9 NWLR (Pt. 1147) p.509; Lafia Local Government v. Gov. Nasarawa State (2012) 17 NWLR (Pt. 1328) p.94; Nigeria Laboratory Corp. v. F.M.B. Ltd. (2012) 15 NWLR (Pt. 1324) p.505 and Olatubosun v. Texaco (Nig.) Plc (2012) 14 NWLR (Pt. 1319) p.200. It should however be noted that, the decision whether or not to grant an application for extension of time to appeal, is within the discretionary powers of the court, and like all discretionary powers, it must be exercised judicially and judiciously taking into consideration, the peculiar facts and circumstances of each case. Thus, My Lord, Fabiyi, JSC in the case of Olatubosun v. Texaco (Nig.) Plc (supra) at p.218 paragraphs E-F said:
“This court will not ordinarily interfere with the exercise of discretion of the lower court except where same is not in tandem with the dictates of its rule or is capricious or inhibits the due application of substantial justice principle. There is no doubt about it that a judex must exercise his discretion not only judicially but judiciously as well. In doing so, he should be discrete and if need be, apply the sixth sense in a bid to facilitate room for the invocation of substantial justice principle. See…” per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF SHITTU BANJOKO
2. PRINCE MURAINO BANJOKO
3. CHIEF TUNDE BALOGUN
(For themselves and in behalf of SALAMI OLORUNKUN family) Appellant(s)

AND

JIMMY AJIBOLA ALAYANDE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the leading Judgment): By a Motion on Notice dated the 21/2/2014 and filed the 24/2/2014, the Applicants herein, who are the Respondents in this appeal, sought for the below stated order of this court:
“Orders of this Honourable Court:-
Extending the time within which the Respondents/Cross-Appellants may cross appeal and file their notices of cross-appeal against the rulings delivered by the High Court of Ogun State, per Justice A. O. Asenuga on 26th of October, 2010 and 25th of May, 2011 in Suit No. HCF/4/05.

The grounds upon which the application was brought are that:
(A) The lower court delivered its rulings being sought to be appealed against on 26th of October, 2010 and 25th of May, 2011.
(B) Judgment was delivered in favour of the Appellants on 5th of March, 2013.
(C) The Appellant/Cross-Respondent filed an appeal against the judgment on 12th of April, 2013.
(D) The Respondents/Cross-Appellants are dissatisfied with the aforesaid rulings and want to appeal against same for consideration by this Honourable Court.
(E) The time limited for the Respondents/Cross-Appellants to appeal has elapsed and now need the order of this Honourable Court extending the time for them to appeal and file their notice of appeal.

The Motion is supported by an affidavit of 21 paragraphs to which are attached three annextures marked as Exhibits “A”, “C” and “D” respectively. These are (a) the trial Court’s Ruling of 26/10/2010 (b) Proposed Notice of Cross-Appeal against the Ruling of 26/10/2010 and (c) Proposed Notice of Cross-Appeal against Ruling of 25/5/2011. In opposition to the application, the Respondent filed a Counter-Affidavit of 24 paragraphs to which are annexed three Exhibits marked as Exhibits “A”, “B” and “C” respectively. The Applicants also filed a Further Affidavit on the 27/3/14 to which is attached the trial court’s Ruling of the 25/5/2011.

The gravamen of the Applicants’ application is hinged on paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Applicants’ Affidavit in support which I endeavor to reproduce below:
“4. That in the course of trial, the lower court delivered two separate rulings on 26th of October, 2010 and 25th of May, 2011.
5 That the first ruling is that of 26th of October, 2010 in which the lower court overruled our objection and admitted in evidence two different documents which are (i) a purchase receipt dated 9th of December, 1985 admitted as Exhibit “E” and (ii) a document titled “Memorandum of Understanding” dated 7th of April, 2004 admitted as Exhibit “F”.
6. That the second ruling is that of 25th of May, 2011 in which the lower court also overruled our objection and admitted in evidence a document titled “Family Undertaking” as Exhibit “G”.
7. That we were dissatisfied with the two rulings and would have appealed promptly but our counsel, Abraham Adeoye Esq., told us that the appellate courts have always advised that in this type of situation it is better, neater and time saving to wait until the final determination of the case before one shows his dissatisfaction by an appeal, hence he advised us to wait and we took his advice.
8. That judgment was eventually delivered in the case on 5th of March, 2013 and it favoured us because the counter-claim was dismissed.
9. That we did not however know that the Appellant/Cross-Respondent appealed against the judgment until 4th of February, 2014 when counsel, Abraham Adeoye; Esq., sent a message to us in the village where we reside that the Appellant/Cross-Respondent has filed a Motion on Notice dated 20th of January, 2014 in which he is praying this Honourable Court to hear his appeal only on his own Brief of Arguments.
10. That it was on the basis of this information that we became aware of the existence of the appeal.
11. That the 3rd Respondent/Cross-Appellant and I were not served with any of the appeal processes.
12. That I also know that our counsel, Abraham Adeoye, Esq. was not served with any process of appeal.
13. That on 4th of February, 2013 when we eventually became aware of the appeal, we quickly instructed our counsel to go to the Registry of the lower court and confirm what was going on and our counsel went to the Registry of the lower court where he confirmed that the Respondent filed an appeal against the judgment on 12th of April, 2013 and he also thereat collected the appeal processes including the record of appeal.”

A careful reading of the Appellant/Respondent’s Counter-Affidavit filed on the 11/3/2014 will show that the Respondent seeks to show that the Applicants are guilty of inordinate delay in the filing of their Cross-Appeal. That, the grounds of appeal in the proposed Cross-Appeal do not disclose any good and substantial reasons for the failure to appeal within the prescribed period; and that to grant the reliefs would lead to the waste of precious time of this court. For ease of reference, I herein below reproduce those paragraphs of the counter-Affidavit I find germane to the resolution of the issues in this application; they are:-
“3. The trial Judge of High Court of Ogun State, Aiyetoro Judicial Division, holden at Ilaro (Honourable Justice A. O. Asenuga) delivered the judgment in this suit on the 5th of March, 2013.
4. Dissatisfied with the judgment of the trial court, the Appellant appealed against the said judgment.
5. The Notice of Appeal dated 12th April, 2013 was filed and served.
6. Consequent upon the foregoing paragraph, the Records of Appeal dated the 10th July, 2013 was compiled and transmitted.
7. The Appellant’s Brief of Argument dated 12th August, 2013 was filed on 13th August, 2013 and was served on the Respondents 28/8/2013.
8. The affidavit of service of the Appellant’s Brief of Argument sworn to by our Omobowale Balogun of counsel is hereby attached and marked Exhibit A.
9. That following the Respondents’ failure to file their Brief of Argument, the Appellant filed a Motion dated the 20/11/4, praying this Honourable Court to hear this appeal only on the Appellant’s Brief of Argument dated 12/8/13.
10. That our Litigation Manager, Ugbade David Oche, personally, went to serve the Respondents’ counsel with the said Motion dated 20/11/14.
11. That Abraham Adeoye Esq., Counsel to the Respondents refused to receive the Motion.
12. He rather offered the address of one of the Respondents to our Litigation Manager so as to effect the service of the motion on him. The address as given to our Litigation Manager is hereby attached and marked as Exhibit B.
13. Our Litigation Manager painstakingly located the address and effected the service of the Motion dated 20/1/14. I have attached the affidavit of service and marked as Exhibit C.
14. That the Respondents were very much aware of the pendency of this appeal.
15. The appeal is against the rulings delivered by Justice A. O. Asenuga of the High Court of Ogun State on 26/10/2012 and 25/5/2011.
16. That judgment in the suit was delivered on the 5/3/2013.
17. That by the rules of the Honourable Court, an appeal against an interlocutory ruling is within 15 days. Appeal against final judgment must be within 30 days.
18. The affidavit in support of the Respondents’ Motion dated 21/2/2014 failed to disclose good and substantial reasons for the failure to appeal ‘ within the prescribed period. The delay is willful, deliberate and in ordinate.
20. The grounds on the notice of cross-appeal also disclose no reasonable cause why the cross-appeal should be heard.
21. That granting the reliefs sought in the Respondents’ Motion dated 21/2/2014 is to waste the precious time of this Honourable Court.”

As I stated earlier on, the Applicants filed a Further Affidavit of 14 paragraphs which purpose was to answer to certain pertinent facts deposed to by the Respondent. The depositions which I find of value in the determination of this application are paragraphs 4, 5, 6, 7, 8, 9 and 10 of the Further-Affidavit which I also reproduce below:-
“4 That contrary to the claim of the Appellant, at no time were we served with the Notice of Appeal and the Record of Appeal and we put the Appellant to the strictest proof of his claim that we were served.
5 That the Appellant himself knows that we were not served with the Notice of Appeal and the Record of Appeal but he is deliberately trying to mislead the court.
6. That we were not in court with our counsel, Abraham Adeoye; Esq., after judgment was delivered in this case on 5th March, 2013 and as such did not know that an appeal has been filed.
7. That in response to paragraphs 7 and 8 of the Counter-Affidavit, at no time did we brief the chambers of Chief Toye Coker & Co. or Abraham Adeoye, Esq., to receive the Appellant’s Brief of Argument on our behalf as we were not even aware an appeal was pending at the material time.
8. That we only got to know of this appeal on 4th February, 2014 when our counsel, Abraham Adeoye; Esq., sent a message to us in the village where we reside that the Appellant has filed an application praying this Honourable Court to hear the appeal only on his own Brief of arguments.
10. That when our counsel confirmed the existence of the appeal, he collected the appeal processes at the Registry of the lower court on 4th February, 2014 and it was after this that we specifically briefed him on this appeal.”

At the hearing of the application on the 12/11/2014, we sought to hear the views of counsel, on whether or not, the decisions the Applicants seek to appeal against are not interlocutory decisions, which will require leave of this court before the appeal could be filed. In answering this question, Mr. Abraham Adeoye of learned counsel for the Applicants cited and relied on the cases of A.N. Mohammed Pet. Ltd v. Afribank Nig. Plc (2007) All FWLR (Pt. 344) p.81 at 100-101 and Onwe v. Oke (2001) 3 NWLR (Pt. 700) p.406 at 417-418, which are to the effect that ruling on admissibility or rejection of documents is treated as part of the whole proceedings, and therefore not interlocutory. That were a party who seeks to appeal against such a decision is out of time, he does not require the leave of court, by way of the trinity prayers before he can appeal. That all an Applicant need do is to seek for extension of time to appeal.

Mr. Isicheli of learned counsel for the Respondent could not immediately respond, so we granted him seven (7) days to file any authority which challenges the submission of the Applicant on the point in issue. Learned counsel, instead of filing such authority, took upon himself, the liberty to file a “Written Address”. It is obvious that, he had no leave of this court to file such process as a “Written Address”. Since it has been filed, and is in the court’s file, we will look at it. Upon reading the said “Written Address”, I find that, substantially the arguments of counsel therein do not address the question posed by this court for counsel to address us on. The only portion of the arguments of learned counsel for the Respondent which I find as touching on the question raised by us suo motu, is at paragraph 9 of the said “Written Address”. Therein, learned counsel for the Respondent contended that:
“… that the ruling the Respondents intend to appeal against can adequately be dealt with in the substantive appeal. The Respondents have absolute liberty to address these issues and make submissions on them in their brief of argument…”

Now, I have been able to careful read the cases of A. N. Mohammed Pet. Ltd v. Afribank Nig. Plc (supra) and Onwe v. Oke (supra). In the case of Onwe v. Oke (supra), which is earlier in time, the Supreme Court, per Ejiwunmi, JSC held at page 418 paragraphs E – F as follows:
“In my humble view therefore, it may be said, that ordinarily, where an Appellant failed to appeal against an interlocutory order or ruling of a trial court within the time prescribed by Section 25(2)(a) of the court of appeal Act 1976, he must obtain the leave of court for his appeal to be competent. Where on the other hand, the complaint of the Appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an Appellant would not require the leave of court as the ruling appealed against is not regarded as interlocutory decision. The Appellant may therefore include the ground of appeal against that ruling of the trial court when appealing against the final judgment of the trial court.”

From the foregoing, Mr. Abrahams of learned counsel for the Applicants was absolutely right when he submitted that, the Applicants do not need the leave of this court by way of the trinity prayers before they can appeal. The only prayer they can validly make, and which they have rightly done, is for extension of time within which to appeal.

Now, that is not the end of the matter, as the Respondent has contended that, the Applicants are guilty of inordinate delay. The Applicants however, countered that, they were not aware that an appeal had been filed by the Respondent, until the 04/2/2014, when Mr. Abrahams of counsel, sent a message to them that the Appellant had filed a Motion before this court, that the appeal he has filed be heard on his brief of arguments alone, as the Applicants, as Respondents in the appeal have failed to file any brief of arguments. See paragraph 8 of the Affidavit in Support of this Motion and also paragraph 8 of the Further Affidavit of the Applicants. The Applicants had also deposed in paragraphs 4, 5, 6 and 7 of the Further Affidavit that, they were never served the Notice of Appeal nor the Record of Appeal; and that it was after receiving the message from their counsel that, upon their instruction, learned counsel collected those processes at the Registry of this court on the 04/2/2014. I notice that, apart from the bare assertions of the Respondent that he filed the Notice of Appeal and that the records were duly complied and transmitted; there is no deposition that the said Notice of Appeal and the Records were duly served on the Applicants. No proof of service of those processes were exhibit, save for that of the Appellant’s brief of arguments and the Motion to hear the Appellants appeal, which were annexed as Exhibits “A” and “C” respectively. Even at that, the law requires the Appellant to have served the Applicants personally, in the absence of any evidence, that the chambers of Chief Toye Coker & Co. had been retained by the Applicants for the purpose of this appeal. It is therefore my finding and conclusion that, the Applicants were not aware of the existence of an appeal (this appeal) filed by the Respondent, till the 4/2/2014, when Mr. Abraham Adeoye of counsel called to intimate them, after service on him of the Motion dated 20/1/2014. In that respect, I find that the Applicants are not guilty of any delay in filing this application. In so holding, I note that the Applicants filed this Motion, within 20 days of their becoming aware of the appeal.

I have already decided earlier on that, the Applicants are not guilty of any inordinate delay in bringing this application. My duty now is to consider whether the ground(s) of appeal, prima facie show good course why the appeal should be heard. The application under consideration seeks extension of time to cross-appeal two Rulings of the court below, delivered on the 26/10/2010 and 25/5/2011. A cursory reading of the grounds of appeal as encapsulated in the two proposed Notices of Cross-Appeal annexed to the Affidavit in Support of the application would show that both, materially and substantially touch on the admissibility of certain documents by the trial court. They certainly raise questions of law to be determined by this court. To my mind, a question of law to be determined on appeal is undeniably a good reason why an appeal should be heard. The conclusion I have arrived at therefore, is that, the Applicants have shown that they are entitled to the exercise of our discretion in their favour. This application therefore has merit and is accordingly granted. Consequently I hereby order as follows:
1. That the Respondents/Applicants are granted extension of time to today to cross-appeal against the Rulings of the Ogun State High Court in Suit No. HCT/45/2005, delivered on the 26/10/2010 and 25/5/2011 respectively.
2. The Notices of Cross-Appeal are to be filed in the Registry of this court within fourteen (14) days from the date of this Ruling.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: Because of the circumstance of this application wherein the applicant is seeking for an order extending the time within which the respondent cross-appellant/applicant may cross appeal and file their notice of cross-appeal against the ruling delivered by the High Court of Ogun State per Justice A. O. Asenuga delivered on 26th day of October 2010 and 25th May 2011 in Suit No. HCT/4/05, and after considering the submissions in the argument of the learned counsel for the applicant which was courageously, diligently and tenaciously tendered, and that of the Appellant/Respondent’s counsel thereto. I found the argument of the applicant’s counsel sufficient to opens the gate for the exercise of the courts discretion. The altitude of the appellate court towards the exercise of judicial discretion have been enunciated in several cases.
To make such discretion look judicial and judicious it has to be based on prudence, rationality, sagacity, astuteness, considerateness and reasonableness. I feel this is a proper case to exercise such discretion. See the cases of Akin Akinyemi (Akin Akinyemi & Associate) v. Odu’a Investment Co. Ltd. (2012) 1 SC (Pt. iv) 1, Olumegbon v. Kareem (2002) 8 SCM 151.

My brother Haruna Simon Tsammani, JCA treated the application to my satisfaction and I add no more.

I adopt my learned brother’s views and conclusions in the Ruling and also exercise the court’s discretion in favour of the applicant. I grant the order sought in the manner and as contained in the ruling of my learned brother.

NONYEREM OKORONKWO, J.C.A.: There is a popular saying that “every rule has an exception”. This is also true of some legal rules for example, the rule under consideration in this application the subject of the ruling just delivered by my learned brother Haruna Simon Tsammani, JCA. The rule is that in respect of interlocutory appeals, once time to appeal has expired, the intending appellant has first to seek leave of court in what has become known as “the trinity prayers” before proceeding to appeal.

The exception here is that where the interlocutory order relates to admission or rejection of evidence in the course of hearing, such leave is not necessary and the intending appellant need only seek extension of time to appeal as applicant’s counsel has done in this case.

But there must be a rationale for every exception to any rule. The rationale in this situation is that admission or rejection of evidence is a phenomenon that appertains to judgment and its rationalization and so, though it appears interlocutory, it is translated to final the judgment when evidence is considered, evaluated, accepted or rejected.

In the lead judgment, my lord Tsammani, very assiduously groped into the treasure chest, consequent upon the tenacity of the applicant’s counsel Abraham Adeoye and unraveled the philosophy behind the exception.

The apparent exception to the rule is in the interest of justice because it extrapolated evidence to where it belongs – final judgment.

For these reasons and the more detailed version in the lead judgment, I also will grant the application in the manner spelt out in the lead ruling.

Appearances

Abraham Adeoye, Esq. with C. M. Ugah Esq. – Respondents/ApplicantsFor Appellant

AND

Kingsley Isicheli Esq. – Appellant/RespondentFor Respondent