DEBAYO & SONS LIMITED & ORS V. TUNJI GOMEZ & ORS
(2011)LCN/5022(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of February, 2011
CA/L/134/09
RATIO
ESSENCE OF AN APPEAL: ESSENCE AND MEANING OF AN APPEAL
The essence of an appeal is to show that the decision appealed from is wrongly made and should be set aside or varied. See Alsthom S.A. & Anor. v. Saraki, 2 NSC QR (Pt. 1) 25 at 34 – 35. An appeal therefore is not an inception of a new case but a continuation of the original suit by way of rehearing on the records. See Order 6 Rule 2(1) of the Court of Appeal Rules 2007. An appeal must therefore be against the decision of the lower court. PER ADAMU JAURO, J.C.A.
DECISION OF COURT: REQUIREMENTS OF THE LAW FOR THERE TO BE A DECISION OF A SUIT
To amount to a decision within the context of section 318 of the constitution, there must be a determination by the court which settles a point in favour and against the parties respectively. See United Agro Ventures Ltd v. FCMB (1998) 4 NWLR (Pt. 547) 546, Dike v. Anduba (2000) 2 SCNJ 41 at 48, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 at 161, NITEL V. Jatau (1996) 1 NWLR (Pt. 425) 392 at 403, Ige v. Olunloyo (1984) 15 SCNLR 158, Gov. of Kwara State v. Eyitayo (1996) 5 NWLR (Pt. 451) 693 at 701. PER ADAMU JAURO, J.C.A.
INTERPRETATION OF STATUTE: STATUTORY PROVISION ON WHO CAN EXERCISE A RIGHT OF APPEAL TO THE COURT OF APPEAL FROM THE DECISION OF THE FEDERAL HIGH COURT OR A HIGH COURT
The question now to be considered in the circumstances of this case is whether the appellants have a right of appeal against the ruling now on appeal. In answer to this question the provisions of Section 243(a) of 1999 Constitution as it relates to civil appeals becomes relevant, and it provides thus: “S.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 at the instance of any other person having an interest in the matter…” The above provision therefore contemplates two situations namely, a party to the matter and any other person having an interest in the matter. A party to the proceedings has been construed to mean a person aggrieved i.e. a person against whom a decision has been pronounced which deprived him of some right. See Akinbiyi v. Adelabu (1956) SCNLR 109. In Mobil Producing (Nig) – 399, Uwaifo JSC had this to say. PER ADAMU JAURO, J.C.A.
RIGHT OF APPEAL: CIRCUMSTANCE UNDER WHICH A PARTY TO A PROCEEDING CANNOT APPEAL A DECISION ARRIVED THEREAT
A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance, Akinbiyi v. Adelabu (1956) SCNLR 109 where it was recognised that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right. The appellants though parties to the proceedings cannot be said to be aggrieved parties, as the decision was neither pronounced against them nor does it wrongfully deprive them of an entitlement or something which they had a right to demand. In the circumstance the ruling of the court below was given against the five plaintiffs as applicants not against the defendants who are now appellants. Consequently the appellants cannot be said to be aggrieved parties within the con of the ruling with a right of appeal against it. The appellants not being aggrieved parties do not therefore have a right of appeal against the ruling. PER ADAMU JAURO, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
Between
1. DEBAYO & SONS LIMITED
2. MRS. LANRE EMANUEL
3. MR. OLUBODE DEBAYO-DOHERTY
4. REMSONS SERVICES LIMITEDAppellant(s)
AND
1. TUNJI GOMEZ
2. MRS. ADENIKE DURO EMMANUEL
3. BABAJIDE DEBAYO – DOHERTY
4. BABALOLA DEBAYO – DOHERTY (Representing Estate of Ademola Debayo – Doherty)
5. FUNMILAYO JAWANDO
6. BIMBO BIOBAKU
7. OLAOLUWA DEBAYO – DOHERTYRespondent(s)
HON. JUSTICE ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Lagos, per Ajakaiye J, delivered on 16th December 2008, which disallowed a notice of discontinuance filed by five out of the twelve plaintiffs in suit No. FHC/L/CS/304/2002 pending before the court.
The facts giving rise to this appeal can be briefly summarized thus: The plaintiffs/respondents instituted the action in the court below against the 1st defendant/appellant company, three of its directors and the company secretary.
The reliefs sought by the plaintiffs were injunctive and declaratory orders in relation to the management of the 1st defendant company and compliance with the provisions of the Companies and Allied Matters Act 1990. The case was assigned to Kafarati, J and on his transfer; it was reassigned to commence de novo before Ajakaiyo, J. Before the commencement of the trial de novo, five out of the twelve plaintiffs filed a notice of discontinuance through their counsel, A.O. Olaosebikan Esq.
On the 17th November 2008 when trial was to commence, learned counsel for the defendants drew the attention of the court to the notice of discontinuance filed on 12th November, 2008 by five out of the twelve plaintiffs. Learned counsel for the other plaintiffs opposed the notice of discontinuance filed by the five plaintiff’s. In the ruling complained of, the learned trial judge discountenanced and disallowed the notice of discontinuance and held that the five plaintiffs remain co-plaintiffs until determination of the case.
Aggrieved and dissatisfied with the said ruling, the defendants appealed against it vide a notice of appeal anchored on four grounds, dated 29th December, 2008 and filed on 30th December, 2008. The four grounds of appeal shorn of their particulars are hereby reproduced thus:
1. The learned trial judge erred in law by his misunderstanding and misapplication of the legal principles established by the Supreme Court in Green v. Green, and had applied the principles of non-joinder and misjoinder of parties to the notice of discontinuance filed by the Appellants prior to the commencement of the trial of the action de novo.
2. The learned trial judge erred in law by his failure to consider that there are 22 shareholders of the 1st Defendant Company as against 15 shareholders that are presently before the court.
3. The ruling is contrary to establish legal principles and judicial precedents.
4. The learned trial Judge failed to consider order 12 r 16 of the Federal High Court rules which enable parties to have their names struck out in a summary manner at the trial of the action.”
In compliance with the rules of court, parties filed and exchanged their respective briefs of argument. Mrs. A.O. Marinho leading Mr. Ikechukwu Ezimora, adopted and relied on the appellant’s brief of argument filed on the 1st April, 2009. Learned counsel stated that the 2nd to 7th respondents did not file any brief of argument. Learned counsel submitted that the appellants formulated three issues for determination from the four grounds of appeal and urged the court to allow the appeal. Mr. Tunji Gomez who appeared in person as the 1st respondent, adopted and relied on the 1st respondents brief of argument filed on 6th May, 2009 in urging the court to dismiss the appeal.
Learned counsel stated that the notice of discontinuance was filed more than 14 days after settlement of pleadings without extension of time which is contrary to law. Learned counsel further argued that the appellants are not even the five plaintiffs that filed the notice of discontinuance, hence urged the court to dismiss the appeal. Mr. Debayo Doherty for the 2nd to 7th respondents conceded that they did not file any brief of argument. The appellant’s in their brief of argument distilled three issues for determination from the four grounds of appeal. The 1st respondent beside proffering arguments in respect of the three issues nominated by him, proceeded to advance arguments in response to the three issues raised by the appellants.
Having studied the record of proceedings vis a vis the briefs of argument, the following observations were made:-
(i) The defendants now appellants were not the parties that filed the notice of discontinuance, the refusal of which is now the subject of appeal and
(ii) The second relief as contained in the notice of appeal prayed for the striking out of the names of the appellants from the suit.
It is noteworthy to restate that the appellants were sued as defendants in the court below.
Based on the foregoing observations parties were invited to address the court on the following two issues, namely:-
(a) What is the locus of the appellants in filing this appeal when they were not the applicants aggrieved by the ruling of the lower court refusing to strike out the names of the 7th, 9th, 10th, 11th and 12th plaintiffs, and
(b) The competence of relief two as contained in the notice of appeal which prayed for the striking out of the names of the appellants from suit No. FHC/L/CS/304/2002, considering the fact that the appellants as defendants were not the applicants that filed the notice of discontinuance”.
In addressing the court, Mrs. A.O. Marinho for the appellants made reference to Section 241, 242 and 243 of the constitution relating to the right of a party to file an appeal. Learned counsel submitted that the right under the aforementioned sections of the constitution is exercisable by a person aggrieved by the decision of the court and that the appellants were actually affected by the ruling. Learned counsel conceded that there was a mistake in prayer two of the notice of appeal, but urged the court to correct the mistake under its inherent powers by substituting the word “applicants” in place of “appellants”. In support of the foregoing submissions, learned counsel submitted additional authorities, namely:-
Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1, Isulight v. Jackson (2005) 11 NWLR (Pt. 937) 631, Omotosho v. Abdullahi (2008) 2 NWLR (Pt. 1072) 526, Ejezie v. Anuwu (2008) 12 NWLR (Pt. 1101) 446. In concluding, learned counsel urged the court to allow the appeal.
Mr. Tunji Gomez appeared in person as the 1st respondent and submitted that it is quite clear that only an aggrieved person by the decision of a court that can appeal against it. In support of this contention, learned counsel relied on the case of Omotosho v. Abdullahi (supra). Learned counsel contended that the mere fact that the trial judge referred to shareholders or other issues does not in any way affect the appellants or form the ratio of the ruling. Learned counsel further argued that it is too late in the day for the notice of appeal to be amended at this stage. Learned counsel therefore urged the court to refuse the amendment and dismiss the appeal, since the appellants are not aggrieved parties. For the 2nd to 7th respondents, Mr. Adebayo Doherty submitted that the defendants in the lower court can never be said to be aggrieved parties to entitle them to appeal as the ruling does not affect them in any way. As for the amendment to prayer two of the notice of appeal, learned counsel urged the court to refuse same as the applicants are not before the court. In concluding, learned counsel urged the court to dismiss the appeal.
Having reviewed the further submissions of counsel, a good starting point will be by a quick revisit as to the nature of civil appeals. An appeal has been defined as an invitation to a higher court to review the decision of a lower court or tribunal to find out whether on a proper consideration of the facts placed before it, and the applicable law, the lower court arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172 at 211, Iweke v. SCOA (2000) 3 SC 21 at 31, Att. Gen of Oyo State v. Fairlakes Hotels Ltd (1988) 3 NWLR (Pt. 92) 1 and Ponnamma v. Arumogan (1905) AC 390. The essence of an appeal is to show that the decision appealed from is wrongly made and should be set aside or varied. See Alsthom S.A. & Anor. v. Saraki, 2 NSC QR (Pt. 1) 25 at 34 – 35. An appeal therefore is not an inception of a new case but a continuation of the original suit by way of rehearing on the records. See Order 6 Rule 2(1) of the Court of Appeal Rules 2007. An appeal must therefore be against the decision of the lower court.
The contention of the appellants in their further address is that they were affected by the decision of the lower court; hence they have the right to appeal against it. In support of this contention they relied on Sections 241, 242 and 243 of the 1999 Constitution. What then is the decision of the lower court that is now on appeal? The appellants as earlier indicated in this judgment were defendants in the court below. The issue before the lower court which was considered in the ruling now on appeal, was an application by five out of the twelve plaintiffs to discontinue and withdraw from the suit. The court in its ruling discountenanced the notice of discontinuance filed and held that the affected plaintiffs namely the 7th, 9th, 10th, 11th and 12th plaintiffs were necessary parties. The main issue determined by the ruling was the refusal to strike out the names of the affected plaintiffs that filed the notice of discontinuance.
The defendants now appellants complained both against the refusal to strike out the names of the affected plaintiffs and the reference made to plaintiffs as beneficiaries of the will of late chief T.A. Doherty. As earlier stated in this judgment, an appeal must be against a decision of the lower court. The word “decision” has been defined in Section 318 of the Constitution and it implies the exercise of a judicial determination as the final and definite result of examining a question, a judgment, decree or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to questions raised before it. To amount to a decision within the con of section 318 of the constitution, there must be a determination by the court which settles a point in favour and against the parties respectively. See United Agro Ventures Ltd v. FCMB (1998) 4 NWLR (Pt. 547) 546, Dike v. Anduba (2000) 2 SCNJ 41 at 48, Balogun v. Adejobi (1995) 2 NWLR (Pt. 376) 131 at 161, NITEL V. Jatau (1996) 1 NWLR (Pt. 425) 392 at 403, Ige v. Olunloyo (1984) 15 SCNLR 158, Gov. of Kwara State v. Eyitayo (1996) 5 NWLR (Pt. 451) 693 at 701.
It is undoubtedly settled and trite law that an appeal is usually against a ratio and not against an obiter, as an obiter dictum does not qualify as a decision and is therefore not appealable. See Abacha v. Fawehinmi (2000) 4 SC (Pt. 11) 1, Saude v. Abdullahi (1989)7 NWLR (Pt. 116) 384, Ogunbiyi v. Idhola (1996) 6 NWLR (pt. 452) 12, Coker v. UBA Plc (1997) 2 NWLR (Pt. 490) 641. The question determined in the ruling now appealed against, is the refusal to strike out the names of the five plaintiffs. Any other complain against the ruling is a complaint against an obiter, which does not form the decision of the court and therefore not appealable.
The question now to be considered in the circumstances of this case is whether the appellants have a right of appeal against the ruling now on appeal. In answer to this question the provisions of Section 243(a) of 1999 Constitution as it relates to civil appeals becomes relevant, and it provides thus:
“S.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 at the instance of any other person having an interest in the matter…”
The above provision therefore contemplates two situations namely, a party to the matter and any other person having an interest in the matter. A party to the proceedings has been construed to mean a person aggrieved i.e. a person against whom a decision has been pronounced which deprived him of some right. See Akinbiyi v. Adelabu (1056) SCNLR 109. In Mobil Producing (Nig) – 399, Uwaifo JSC had this to say.
“It is true that the judgment of the trial court which was affirmed by the court below was given against only the second defendant. In effect, the first defendant is not an aggrieved party that can appeal against the judgment of the court below to this court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of Section 233(5) of the 1999 Constitution which says that: “Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto.” That provision must be understood to apply to an aggrieved person or party.
A party to proceedings cannot appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had a right to demand. Unless there is such a grievance, he cannot appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not been affected by a decision may nevertheless appeal against it merely as a party. See, for instance, Akinbiyi v. Adelabu (1956) SCNLR 109 where it was recognised that a person entitled to appeal is a person aggrieved by a decision, i.e. a person against whom a decision has been pronounced which deprived him of some right.”
The appellants though parties to the proceedings cannot be said to be aggrieved parties, as the decision was neither pronounced against them nor does it wrongfully deprive them of an entitlement or something which they had a right to demand. In the circumstance the ruling of the court below was given against the five plaintiffs as applicants not against the defendants who are now appellants. Consequently the appellants cannot be said to be aggrieved parties within the con of the ruling with a right of appeal against it. The appellants not being aggrieved parties do not therefore have a right of appeal against the ruling. The application to amend prayer two of the notice of appeal therefore becomes unnecessary.
Consequent upon the foregoing the appeal is therefore incompetent and is accordingly struck out. There will be no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I was opportuned to read before now the well articulated lead judgment in this appeal written by my learned brother JAURO, JCA and I agree completely with both his reasoning and conclusions.
The appellants as respondents in an application refused by the trial court do not have any right of appeal whatsoever. They are in fact expected to defend the ruling of the trial court. In filing this appeal, they are exercising a right that does not avail them. The whole appeal has been a futile exercise. The appeal is grossly incompetent and I too strike it out.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in advance, the draft of the judgment just delivered by my learned brother, Jauro J.C.A. I entirely agree with the well reasoned judgment. For the reasons and conclusion therein I too strike out the appeal as same is incompetent and abide by the order made as to costs.
Appearances
Mrs. A.O. Marinho with Mr. Ikechukwu EzimoraFor Appellant
AND
Mr. Tunji Gomez appears in person as 1st Respondent
Mr. A. Debayo-Doherty with Folusho Fayokun Esq for the 2nd to 7th RespondentsFor Respondent
