HAJIYA ZAINAB A. D. RUFAI v. ALH. AHMED ILIYASU & ANOR
(2018)LCN/11876(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of July, 2018
CA/J/361/2016(R)
APPEAL: INCOMPETENCE OF NOTICE OF APPEAL
“A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competently before it. Failure to fulfill the condition precedent to the filing of an appeal renders the Notice of Appeal incompetent and nugatory. Since a Notice of Appeal is the foundation or substratum of an appeal, the incompetence of a notice of appeal negates the entire appeal. KENTE V. ISHAKU & ORS (2017) LPELR 42077 (SC); MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ATOLAGBE V. AWUNI (1997) 9 NWLR (PT 522) 536 AND CBN V. OKOJIE (2004) 10 NWLR (PT 882) 488; SPDC NIG LTD. V. SAM ROYAL NIG LTD. (2016) LPELR-40062 (SC). In FBN PLC V. T.S.A. INDUSTRIES LTD. (2010) LPELR-1283 (SC), the apex Court restated the principle thus: “A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on jurisdiction of the Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.”…A ground of appeal filed without leave of Court where leave is required is incompetent and is liable to be struck out. OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (PT. 1297) 407. A Court lacks competence where there is failure to fulfill any condition precedent to the exercise of its Jurisdiction. Where the grounds of appeal are only of facts or of mixed law and facts, the grounds as well as the appeal must be struck out, as incompetent unless leave is shown to have been duly obtained. NZEL V. UNN (2017) 6 NWLR (PT. 1561) 300; FASUYI & ORS V. PDP & ORS. (2017) LPELR- 43462 (SC); DAIRO V. UNION BANK OF NIGERIA PLC. (2007) 16 NWLR (PT. 1059) 99; KASHADADI V. NOMA (2007) 13 NWLR (PT. 1052) 510.” PER UCHECHUKWU ONYEMENAM, J.C.A.
Justice
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
HAJIYA ZAINAB A. D. RUFAIAppellant(s)
AND
1. ALH. AHMED ILIYASU
2. MR. TERRY EDMUNDRespondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Lead Ruling):
The ruling is as a result of the Motion on Notice filed 20th September, 2017 pursuant to Order 6 Rules 1, 7, Rule 9 (1) (2) of the Court of Appeal Rules 2016. The Applicant on the face of the motion paper sought for the following Orders:
1. AN ORDER extending time for the Appellant/Applicant to seek leave to appeal against the interlocutory decision of the High Court of Justice, Bauchi State dated 14th June, 2016 by Hon. Justice Rabi T. Umar in suit No. BA/55/2015 between Hajiya Zainab A.D. Rufai & Anor. V. Mr. Terry Edmund, who are the parties in this appeal as reflected on the Notice of Appeal marked as Exhibit “A”.
2. AN ORDER granting leave to the Appellant/Applicant to appeal against the interlocutory decision of the High Court of Justice, Bauchi State dated 14th June, 2016 by Hon. Justice Rabi T. Umar in suit No. BA/55/2015 between Hajiya Zainab A.D. Rufai & Anor. V. Mr. Terry Edmund, who are parties in this appeal as contained on the Notice of Appeal already filed with leave of court.
3. AN ORDER extending time for the Appellant/Applicant, to appeal against the interlocutory decision of the High Court of Justice, Bauchi State dated 14th June, 2016 by Hon. Justice Rabi T. Umar in suit No. BA/55/2015 between Hajiya Zainab A.D. Rufai & Anor. V. Mr. Terry Edmund who are parties in this appeal as contained in the Notice of Appeal.
4. AND SUCH FURTHER or other orders as this Hon. Court may deem fit to make in the circumstances of this case.
The fact that led to this application is that the Applicant filed an appeal against two interlocutory decisions of High Court of Bauchi State delivered by Rabi T. Umar (CJ) on 14th June, 2016 and 23rd November, 2016 respectively. While the Applicant obtained leave of the trial Court to appeal against the decision of 23rd November, 2016, no leave was obtained for the appeal against the decision of 14th June, 2016. In the 1st Respondents brief in response to the Appellants brief he challenged the competence of the appeal which was filed without leave. Consequently, the Applicant brought this application seeking for extension of time to seek leave to appeal against the ruling of the trial Court made on 14th June, 2016.
The Motion on Notice filed 20th September, 2017 was predicated on four grounds and had an affidavit of 7 paragraphs in support with attached 2 Exhibits marked as Exhibits A (Proposed Notice and Grounds of Appeal ); and B (Ruling in Suit No: BA/55/2015 delivered on 14th June, 2016). The 1st Respondent on 23rd November, 2017 filed a counter affidavit of 5 paragraphs with an attached Exhibit marked as Exhibit A Notice and Grounds of Appeal. The 2nd Respondent did not file any process.
On 16th April, 2018, Mr. O. J. Bichi learned counsel for the Applicant moved the motion. He adopted their written address filed on 20th February, 2018 by order of Court. He relied on the supporting affidavit with the two Exhibits and the written address as their oral argument in urging the Court to grant the application as prayed. For the 1st Respondent, by Order 19 Rule 9 (4) of the Court of Appeal Rules 2016, the counter affidavit filed on 23rd November, 2017, and written address filed 14th March, 2018 were deemed adopted and relied on in urging the Court to dismiss the application. Mr. J. T. Kuleve who represented the 2nd Respondent said they were not opposing the application.
In the Applicants written address he raised a sole issue which is that:
Whether this Hon. Court has power to grant the Applicant’s application by granting leave retrospectively in respect of Ground No. Two contained in the notice of Appeal already filed.
For the 1st Respondent the sole issue formulated is that:
“Whether the Applicant application is competent under the circumstances.
From the prayers on the motion, the grounds for the application and the supporting affidavit, I view the issue raised by the Applicant as more appropriate in the determination of this application.
SUBMISSIONS ON ISSUE
Whether this Hon. Court has power to grant the Applicant’s application by granting leave retrospectively in respect of Ground No. Two contained in the notice of Appeal already filed.
Mr. O. J. Bichi, learned counsel for the Applicant submitted that a party who applies for leave to appeal seeks permission from the Court to exercise his constitutional right of appeal and as such nothing must be done or left undone which is capable of thwarting the exercise of the right.
He relied on: MANGRAHT V. ODUBA (2004) 4 NWLR (PT. 863) 279; ATTORNEY GENERAL OF THE FEDERATION V. BI-COURTNEY LIMITED (2014) LPELR- 22968 (CA); Per ADEREMI, JCA. Mr. Bichi noted that this Court is always minded to grant trinity prayer applications to ensure a dissatisfied party is granted the opportunity to ventilate his grievances against the decision of the Court below. He cited: CHIEF FRIDAY PETER IDAH & ORS V. CHIEF PASTOR S.N. UMOH & ORS (2012) LPELR-19997 (CA).
On the next leg of argument of the learned counsel for the Applicant, Mr. Bichi submitted that as the Court has the power to grant an application for leave to appeal and to equally deem same, it follows that the Court has the power to grant leave retrospectively in respect of a ground of appeal. He cited:WILLIAMS V. MOKWE (2005) 14 NWLR (PT. 945) AT P. 249 AT 254 R. 5 (P. 267, PARA. C); JOHN M. MAFULUL & ORS V. BITRUS TAKWEN & ORS, CA/J/142/2010 delivered on 28th April, 2016.
The Applicants counsel urged the Court to find merit in the application and to grant same.
In response Mr. N.M. Jumba, the learned counsel for the 1st Respondent in his written address first noted the distinction between appeal as of right and appeal with leave as required in the instant case. He submitted that, where an Applicant had already lodged an appeal without seeking leave (where the leave is required) the appeal is incompetent. He referred to ORDER 6 RULE 10 of the Court of Appeal Rules, 2016 as to when an appeal is deemed to have been brought.
Mr. Jumba drew the Courts attention to Exhibit A, he noted that the interlocutory ruling dated 14th June, 2016 had already been appealed against without leave and the effect of such failure to obtain leave to appeal where leave of Court is required for filing an appeal is that the appeal is rendered incompetent. He relied on SECTION 242 (1) OF THE 1999 CONSTITUTION (AS AMENDED) to submit that the appeal so filed by the Applicant herein is stripped of competence which infringed on the Courts jurisdiction to entertain it. He referred to: IDRIS V. AGUMAGU (2015)13 NWLR (PT. 1477) 441; DANBOYI V. SA’ADU (2011) 15 NWLR (PT. 1269) 1; ORGAN V. N.L.N.G LTD. (2013) 16 NWLR (PT. 1381) 506; ABALAKA V. PRESIDENT, F.R.N (2012) 5 NWLR (PT. 1292) 83; OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (PT. 1297) 407; NZEL V. UNN (2017) 6 NWLR (PT 1561) 300.
On the second leg, Mr. Jumba the learned counsel for the 1st Respondent submitted that the Applicants Application cannot operate to validate the ground of appeal which is incompetent upon non-fulfilment of a condition precedent for the filing of an appeal. He cited: ALADINMA MEDICARE LTD. V. REG. TRUSTEES O.C.M (2012) 5 NWLR (PT. 1294) 441; GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269) 145; FIRST ALSTATE SEC. LTD. V. ADESOYE HOLDINGS LTD. (2013) 16 NWLR (PT. 1381) 470; OSUDE V. AZODO (2017) 15 NWLR (PT. 1588) 293.
He urged the court to refuse the application and dismiss the same.
RESOLUTION OF ISSUE
A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competently before it. Failure to fulfill the condition precedent to the filing of an appeal renders the Notice of Appeal incompetent and nugatory. Since a Notice of Appeal is the foundation or substratum of an appeal, the incompetence of a notice of appeal negates the entire appeal. KENTE V. ISHAKU & ORS (2017) LPELR 42077 (SC); MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341; ATOLAGBE V. AWUNI (1997) 9 NWLR (PT 522) 536 AND CBN V. OKOJIE (2004) 10 NWLR (PT 882) 488; SPDC NIG LTD. V. SAM ROYAL NIG LTD. (2016) LPELR-40062 (SC). In FBN PLC V. T.S.A. INDUSTRIES LTD. (2010) LPELR-1283 (SC), the apex Court restated the principle thus:
“A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on jurisdiction of the Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.
In the instant appeal, the herein Applicant filed a single notice of appeal against two interlocutory decisions. He obtained leave of Court to appeal against one and failed to obtain leave of Court to appeal against the ruling delivered on 14th June, 2016 from where he couched his ground 2 of the grounds of appeal presently before the Court. After briefs had been exchanged and the 1st Respondent in his brief raised the issue of the incompetence of the appeal and or ground 2 of the grounds of appeal, the Applicant brought this application seeking for extension of time for leave to appeal, leave to appeal and extension of time to appeal against the ruling of 14th June, 2016.
There is no controversy to the fact that appeal against the ruling of 14th June, 2016 is not as of right and so is not governed by Section 241 of the 1999 Constitution as amended. Rather, the referred appeal firms on Section 242 (1) of the 1999 CFRN. By virtue of Section 241(1) (b); and Section 242 (1) of the 1999 CFRN (as amended); an appeal from the High Court of a State to the Court of Appeal against an interlocutory decision where the ground is not solely on law shall be by leave of the trial Court or the Court of Appeal. By Section 24 (2) (a) of the Court of Appeal Act, 2004, the period to give notice of appeal or notice of application for leave to appeal an interlocutory decision shall be 14 days. In the instant appeal, the Appellant did not appeal within 14 days of the ruling of the High Court of Bauchi State delivered on 14th June, 2016. Also the ground of appeal which is ground 2 of the grounds of appeal of the Notice and grounds of appeal filed 7th December, 2016, arising from the referred ruling, is a ground of mixed law and facts for which leave is required to argue the same. The Appellant/ Applicant did not seek and obtain leave of Court before filing the appeal against the ruling of 14th June, 2016 and before raising the ground 2 of the grounds of appeal.
In the circumstances of this appeal, this Court cannot exercise appellate jurisdiction beyond what and how Sections 241 and 242 of the 1999 Constitution (as amended) and Section 24 (2) (a) cumulatively confer on it. Appellant’s right of appeal, as donated by the Constitution is not at large neither is it exercised in vacuum. By Section 242 (1) of the 1999 Constitution (as amended), failure to obtain the mandatory leave is offensive to the provisions of the Constitution.
This strips the appeal of competence which robs this Court of the jurisdiction to entertain same. IDRIS V. AGUMAGU (2015)13 NWLR PART 1477 P. 441 AT P. 453 R. 8. The position of the law on interlocutory appeal is clear and straight forward. Once the ground is not of law and law alone, the leave of the lower Court or appellate Court is required and that must first be sought and obtained before an appeal is lodged. Seeking for and obtaining the required leave is a Constitutional and not procedural requirement. DANBOYI V. SA’ADU (2011) 15 NWLR (PT. 1269) 1 AT 5-6. In the case of ORGAN V. N.L.N.G LTD (2013) 16 NWLR (PT. 1381) 506 AT 515, the Supreme Court held that; “where leave of Court is required, it is a condition precedent to the exercises of the right of appeal. Accordingly, failure to obtain leave where it is required renders any appeal filed incompetent, as no Jurisdiction can be conferred on the appellate Court.”
The position of the law has been firmed and which is an appeal against an interlocutory decision which is not on a ground of law alone is not competent when prior leave is not sought and obtained.ABALAKA V. PRESIDENT, F.R.N (2012) 5 NWLR (PT. 1292) 83. A ground of appeal filed without leave of Court where leave is required is incompetent and is liable to be struck out. OLORUNKUNLE V. ADIGUN (2012) 6 NWLR (PT. 1297) 407. A Court lacks competence where there is failure to fulfill any condition precedent to the exercise of its Jurisdiction. Where the grounds of appeal are only of facts or of mixed law and facts, the grounds as well as the appeal must be struck out, as incompetent unless leave is shown to have been duly obtained. NZEL V. UNN (2017) 6 NWLR (PT. 1561) 300; FASUYI & ORS V. PDP & ORS. (2017) LPELR- 43462 (SC); DAIRO V. UNION BANK OF NIGERIA PLC. (2007) 16 NWLR (PT. 1059) 99; KASHADADI V. NOMA (2007) 13 NWLR (PT. 1052) 510.
Let me note that although the consequence for not seeking for leave to appeal where the grounds of appeal are of facts or mixed law and facts renders the appeal incompetent. However, I must observe that one ground of appeal on law in a notice of appeal is capable of sustaining an appeal. OPUIYO V. OMONIWARI (2007) 16 NWLR (PT. 1060) 415; DAIRO V. UNION BANK OF NIGERIA PLC (2007) 16 NWLR (PT. 1059) 99; KASHADADI V. NOMA (2007) 13 NWLR (PT. 1052) 510.
Consequent upon the position of the law x-rayed above, the appeal against the ruling of the High Court of Bauchi State delivered on 14th June, 2016 filed out of time and without first obtaining leave of Court is incompetent. Likewise ground 2 of the grounds of appeal filed 7th December, 2016 which is of mixed law and facts filed without leave of Court is also incompetent.
The question that follows from the application and submissions of the Applicant herein is, whether this Court can grant leave to the Applicant now which will validate both the appeal and ground of appeal which are incompetent. The Applicant submitted that the Court has the power to grant leave retrospectively in respect of a ground of appeal. He cited:WILLIAMS V. MOKWE (2005) 14 NWLR (PT. 945) AT P. 249; (2005) 7 S.C. (PT.11) 153; JOHN M. MAFULUL & ORS V. BITRUS TAKWEN & ORS, CA/J/142/2010 delivered on 28th April, 2016. In WILLIAMS V. MOKWE (supra); the Supreme Court considered the application for leave to appeal and the order of the Court of Appeal granting the leave. The application which was filed on 29th June, 1995 was for:
1. An order extending the time within which the Applicant may apply for leave to appeal against the final judgment of the High Court Onitsha dated 28/7/94 as a party interested.
2. An order granting the Applicant G.C. Mokwe and Sons Limited leave to appeal against the judgment of the High Court of Onitsha dated 28/7/94 as a party interested.
3. An order deeming the Notice of Appeal dated 28/7/94 and filed 28/7/94 as properly filed.
4. An order directing a stay of execution of the judgment of the High Court Onitsha delivered in this Suit on 28/7/94 pending the determination of the appeal to this Honourable Court.
5. An order for accelerated hearing of this appeal.
The application which was supported by a 43 paragraph affidavit was not countered neither was it opposed when the Court of Appeal heard counsel on the application. Consequently the Court of Appeal granted inter alia; the Applicant leave to appeal as an interested party, and deemed the notices and grounds of appeal as properly so filed. The Supreme Court held that the deeming order made in the referred case cannot be seriously faulted for the following reasons:
1. The Respondent in this particular application for leave to appeal as party interested has given good and substantial reasons in affidavit why it failed to appeal within time.
2. It exhibited the Notice of Appeal containing grounds of appeal which shows good cause why the appeal should be heard;
3. It filed the application for leave to appeal under Section 222 (a) of 1979 Constitution as party interested on 28/7/94, the day the judgment of the trial court was delivered.
4. During the trial of the case and before the judgment was delivered, precisely on 11/7/94 the Respondent filed an application to be joined as a necessary party to the proceedings;
5. When the learned trial Judge failed to hear the application mentioned in (4) above, the Respondent felt aggrieved and filed a Notice of Appeal against that on 14/7/94.
6. By virtue of provisions of Section 31 of the Court of Appeal Act (Cap 75 of 1990, Laws of the Federation) as from 28/7/94, the Respondent is deemed to be an Appellant as defined therein.
7. The case was undefended in the trial Court because the then Defendant had no interest in the land in dispute.
At pages 19 20 paragraphs G A, WILLIAMS V. MOKWE (2005) LPELR 3489 (SC), the Apex Court stated thus: It is also of great importance to emphasize and bear in mind that the failure of the trial Judge to hear and determine the Respondents application to be joined as co defendant to the action and for leave to appeal to Court of Appeal has serious effect on the proceedings in this case generally and must be considered in the interest of Justice. The above means the case of WILLIAMS V. MOKWE (supra) was decided based on the facts and circumstances of the case and in the interest of Justice of that particular case. The decision therein did not in any way attempt to negate the fact that right of appeal is statutory and must abide the provisions of the statute that provided for it. GARUBA V. OMOKHODION (supra).
In contending that the grant of the Applicants application cannot operate to validate the ground of appeal which is incompetent upon non-fulfillment of a condition precedent for the filing of an appeal; the learned counsel for the Respondent relied on: ALADINMA MEDICARE LTD V. REG. TRUSTEES O.C.M (2012) 5 NWLR (PT. 1294) 441; GARUBA V. OMOKHODION (2011) 15 NWLR (PT. 1269) 145; FIRST ALSTATE SEC. LTD. V. ADESOYE HOLDINGS LTD. (2013) 16 NWLR (PT. 1381) 470; OSUDE V. AZODO (2017) 15 NWLR (PT. 1588) 293.
In GARUBA V. OMOKHODION (2011) LPELR-1309 (SC) PP. 45 PARAS A C; 47 PARAS D E; the Apex Court held It is trite that an appeal against an interlocutory decision other than on grounds of law requires leave of Court. The provisions of Sections 241 (1) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively from the Federal High Court or State High Court to the Court of Appeal as the case may be. And it is settled law that right of appeal is statutory. ..It is trite that without leave of Court having been first sought and obtained before filing the appeal, the appeal will be incompetent and liable to be struck out.
The case of GARUBA V. OMOKHODION (supra); is on all fours with the instant case. In Garubas case the Appellant filed his notice and grounds of appeal against interlocutory decision on grounds other than grounds of law without first obtaining the leave of Court, briefs had also been filed and exchanged wherein the Respondent raised the issue of the competence of the notice of appeal and the grounds which were of mixed law and facts. The Supreme Court held that the Court of Appeal was right to have struck out the incompetent appeal and grounds for failure to first seek and obtain leave before filing same. In Williams case, the Applicant was not a party at the lower Court. Few days before judgment the Applicant therein applied to be joined as a party at the trial Court but the trial Court refused the application. The day the judgment was delivered, the Applicant filed his notice of appeal and application for leave to appeal as an interested party.
The trial Court refused to hear and determine the application for leave which is why it was out of time. The Respondent therein did not file a counter affidavit and on the hearing of the motion the Respondents counsel said they were not opposing the application only to turn round to challenge the grant of the leave for the Applicant to appeal as an interested party and to deem the notice of appeal filed within time as proper. It was also remarked by the Apex Court and worthy of note that in Williams case, the suit was undefended at the trial Court because the person sued as Defendant was not a person interested in the outcome of the case. Clearly in my view, the case of Williams is quite distinct from the instant case and cannot stand as a good authority to be relied upon for the determination of the instant case. The facts and circumstances of the case of Williams and the case at hand are miles different.
It is particular to also note that in Williams case the Appellant/ Applicant filed both his Notice and Grounds of Appeal and leave to appeal as an interested party within time against a final judgment of the Court. From the foregoing, I hold that the case of WILLIAMS V. MOKWE (supra) is not applicable to the determination of this application. The case of Garuba (supra) in my view is relevant and a more recent authority on the issue for the determination of the instant case. I will therefore abide by the principle enunciated in the case of GARUBA V. OMOKHODION (supra) and other related cases in determining this application.
I herein therefore reiterate the position of the law as succinctly put in the case of NWADIKE & ORS V. IBEKWE & ORS (1987) LPELR 2087 (SC); where the Supreme Court held that the Court has got no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless, of course, leave was first sought and obtained. OLUWOLE V. LAGOS STATE DEVELOPMENT PROPERTY CORPORATION (1983) 5 SC 1; OBIJURU V. OZIMS (1985) 2 NWLR (PART 6) 167 AT PAGES 176 TO 188; J.B. OGBECHIE & ORS V. GABRIEL ONOCHIE & ORS (1986) 2 NWLR 484.
The resultant effect of the law is that where an Appellant’s grounds of appeal are only of facts or mixed law and facts, the grounds, and hence the appeal must be struck out unless leave had been obtained. On the other hand, where no leave had been obtained and some of the grounds are of law and others are either facts or mixed law and facts, only those which are grounds of law are competent: all grounds of fact or mixed law and facts must be struck out.
Consequently, the appeal against the interlocutory decision of the trial Court delivered on 14th June, 2016 on ground other than ground of law as per ground 2 of the grounds of the Notice and Grounds of Appeal filed on 7th December, 2016 is incompetent along with the said ground 2 for failure to abide Sections 241 (1) and 242 0f the 1999 Constitution (as amended), having been filed without first seeking and obtaining leave of Court. The application filed by the Applicant herein cannot validate the appeal which is incompetent as an invalid Notice and Grounds of Appeal cannot be deemed as properly filed and served. Accordingly application is refused and dismissed. I strike out the appeal against the ruling of the High Court of Bauchi State delivered on 14th June, 2016 in Suit No: BA/55/2015 and the ensuing ground 2 of the Notice and Grounds of Appeal filed on 7th December, 2016.
I award a cost of N50, 000.00 in favour of the Respondent.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the issues in contention on the application of the Appellant filed on the 20th of September, 2017. I agree that the application lacks merit and should be refused, but I do not abide the conclusions and final orders made in the lead Ruling.
By the said application, the Appellant prayed for the trinity prayers to appeal against the interlocutory decision of the High Court of Bauchi State in Suit No BA/55/2015 delivered by Honorable Justice Rabi T. Umar on the 14th of June, 2016.
The facts leading up to the application are that the Appellant flied a notice of appeal against two interlocutory decisions of the lower Court delivered on the 14th of June, 2016 and on the 23rd of November, 2016. The notice of appeal was dated and filed on the 7th of December, 2016. The Appellant obtained leave to appeal against the interlocutory decision delivered on the 23rd of November, 2016 but did not seek for and obtain leave to appeal against the interlocutory decision delivered on the 14th of June, 2016. The second ground on the notice of appeal of 7th of December, 2016 was directed at the interlocutory decision of the 14th of June, 2016.
The records of appeal in the appeal were compiled on the basis of the notice of appeal filed on the 7th of December, 2016 and they were transmitted to this Court on the 23rd of December, 2016 and the appeal was entered and given Appeal No CA/J/361/2016. The parties also compiled and transmitted a Supplementary Records of Appeal on the 23rd of March, 2017 and this was deemed properly compiled and transmitted by this Court on the 24th of April, 2017. The parties filed their respective briefs of arguments in the appeal.
The prayers sought by the Appellant on the application are an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. The Court’s discretion must be exercised so as to do what Justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478.
The Appellant did not pray the Court, on the present application, for orders deeming the notice of appeal filed on the 7th of December, 2016, containing the ground of appeal against the interlocutory decision of the 14th of June, 2016, the records of appeal and the supplementary records of appeal and the briefs of the parties already before the Court as proper upon the grant of the application. The necessary implication of the grant of the present application of the Appellant therefore is that the notice of appeal filed on the 7th of December, 2016, containing the ground of appeal against the interlocutory decision of the 14th of June, 2016, the records of appeal and the supplementary records of appeal and the briefs of the parties will all pre-date the leave and order for extension of time to appeal against the interlocutory decision of the 14th of June, 2016.
The question that arises is whether the grant of the application in these circumstances will amount to a proper exercise of the discretionary power of this Court.
Counsel to the Appellant submitted that by settled decisions of this Court and of the apex Court, this Court has powers to grant the prayers sought on the application notwithstanding that the appeal has already been filed and record of appeal transmitted and he referred to the decision of the Supreme Court in Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249 and that of this Court in Appeal No CA/J/142/2010 – Mafulul Vs Takwen delivered on the 28th of April, 2016. Counsel, with respect, obviously forgot that in matters of judicial discretion, since the facts and circumstances of two cases are not always the same, Courts do not make it a practice to lay down Rules and principles to fetter the exercise of its discretion or the discretion of the lower Courts. In matters of discretion no one case is an authority for the other.
A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be, as it were, putting an end to discretion – Akujinwa Vs Nwaonuma (1998) 13 NWLR (Pt 583) 632 at 647, Attorney General Rivers State Vs Ude (2006) 17 NWLR (Pt 1008) 436 at 461, Nwadiogbu Vs Anambra/lmo R. B. D. A. (2010) 12 SCNJ 212, Vandighi Vs Hale (2014) LPELR 24196(CA).
The Supreme Court has often reiterated that it does not condone a situation where an earlier decision is capable of fettering the exercise of discretion – Adisa Vs Oyinwola (2000) 10 NWLR (Pt 674) 116. In Ajunwa Vs Shell Petroleum Development Corporation (Nig) Ltd (2011) 12 SCNJ 596 the Supreme Court made the point thus:
Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of Justice shall be discharged without any form of prompting of parties. Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment and conscience of others … Let me say it in passing that this Court does not condone a situation where an earlier decision is capable of fettering the exercise of discretion. Judicial discretion is a vital tool in the administration of Justice.”
Again, it is a settled principle in our legal jurisprudence that legal principles established in decided authorities are not to be applied across board and in all matters without regard for the facts and issues framed for adjudication in a particular case. This point was succinctly made by the Supreme Court in Marine Management Association Inc & Anor Vs National Maritime Consultancy Ltd (2012) 3 NWLR (Pt 1333) 506 at 538A when the Court stated that:
“Isolated and general principles of law cannot be relied on solely to determine an issue in a case without looking at the circumstances, facts and merits of each case.”
This is because decisions of Courts draw their inspiration and strength from the facts which framed the issues for decision and once such decisions are made they control future judgment in like or similar cases, hence the facts of two cases must either be the same or at least similar before a decision in the earlier case can be used in a later case – Fawehinmi Vs Nigerian Bar Association (No 2) (1989) 2 NWLR (pt 105) 558, Ndu Vs Onuaguluchi (1999) 11 NWLR (Pt 625) 152, Anaedobe Vs Ofodile (2001) 5 NWLR (Pt 706) 365, Abubakar Vs Nasamu (No 2) (2012) 17 NWLR (Pt 1330) 523.
Thus, it is improper to try and force the ratio of a case on facts to which it cannot be assimilated; the ratio of any case should not be pulled by the hair of the head and made to apply to cases where the surrounding circumstances are different – Mortune vs Balonwu (2000) 5 NWLR (Pt 655) 87.
The question on the present application is not whether this Court possesses the discretionary jurisdiction to grant the trinity prayers sought by the Appellant on the application of course, this Court possesses such power and jurisdiction. The question is whether it is proper for this Court to exercise the power and jurisdiction after the records of appeal have been transmitted, appeal has been entered and given an appeal number and the Appellant has filed its brief of arguments. Reading through the decision Williams Vs Mokwe supra, it is obvious that the grant of the application for leave to appeal was not done after the appeal had been entered in the appellate Court and given an appeal number and the Appellant’s brief of arguments filed, as in the instant case. The facts and circumstances in that case are thus different from those on the present application and it cannot govern the present application.
The resolution of the question on this application must depend on the peculiar facts of this appeal, and nothing more. The grant of the prayers sought on the application will bring about a total confusion in the processes filed in this appeal. The leave to appeal against the interlocutory decision of the 14th of June, 2016, which should be first step in appealing against the decision, will now post-date the filing on the notice of appeal, the compilation of the records of appeal, the entry of the appeal in this Court and the filing of briefs of appeal.
Failure of the Appellant to obtain prior leave to appeal contaminated all the steps taken by the Appellant in appealing against the interlocutory decision of the 14th of June, 2016 and there is no prayer on the present application seeking the regularization of those steps. A Court has a duty to ensure that its records are sequential and orderly and tell a continuous and flowing story. It must not encourage parties to jumble processes of Court without seeking for and obtaining necessary orders explaining why a process is filed out of place.
In the circumstances, it is my view that this is not a proper case for this Court to exercise its discretion in favour of the application of the Appellant. It is my finding that the application lacks merit and it fails and I hereby refuse same. This is my order on the application.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read in draft the Ruling delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. and I agree with the reasoning and conclusion reached therein.
In the result, I am also unable to allow the application and make no order as to costs.
Appearances:
O. J. Bichi, Esq.For Appellant(s)
J. T. Kuleve, Esq.- for 2nd RespondentFor Respondent(s)
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