HON. FRANCIS O. ANI & 91 ORS v. THE GOVERNOR OF ENUGU STATE & ORS
(2016)LCN/8425(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2016
CA/E/253/2012
RATIO
APPEAL: RATIO-DECIDENDI; WHETHER THE GROUNDS OF APPEAL AGAINST A DECISION SHOULD CONSTITUTE A CHALLENGE TO THE RATIO-DECIDENDI
An appeal presupposes that an Appellant is challenging the ratio-decidendi in a decision of the Court. It is not everything that is uttered by the learned trial Judge, in the course of arriving at a decision that is binding. Thus, his reasoning while in motion may gather many imprests, some of which merely helped the Court in the decision making process, and others which are of no essence. Thus it is only the quintessence of the reasons for his decision that is best described as the ratio-decidendi.
A ground of appeal against a decision must not only relate to the decision but should further be a challenge to its ratio-decidendi.
In this particular circumstance, the Appellants in one breath is quarrelling with three separate rulings of 4/5/09; 19/1/12; and 23/1/12 respectively. In another breath, he says that the lower Court failed to deliver judgment.
It is clear that the Appellant is utterly confused and misconceived.
KARIBI-WHYTE, JSC observed in SARAKI & ORS v. KOTOYE (1992) 3 NSCC 331 thus –
“It is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
Any idea or proposition, which does not derive from a judgment, but provides a mere assumption in order to test its logical or empirical consequences, cannot form the basis of a Ground of appeal. Any such ground is hypothetical or academic, and this Court would readily decline toentertain any such ground GOVERNOR OF KADUNA STATE v. DADA (1986) 9 S.C. 11; OYENEJE v. ODUGBESAN (1972) 4 S.C. 244. The Court of Appeal approaches an appeal on the simple principle that the appellant must show that the decision appealed against was wrong – AGBONMAGBE BANK LTD v. C.F.A.O. (1966) 1 SCNLR. 367. An appellant cannot appeal that the trial Judge failed to deliver Judgment before he retired. That cannot be a valid Ground of Appeal. This is because a Ground of Appeal must relate to the “DECISION” appealed against. It must not be speculative or academic. Any complaint that does not relate to any “decision” cannot be relevant in the appeal and therefore incompetent. An Appellant’s right of appeal is circumscribed, within the parameters of the judgment appealed against. PER. RITA NOSAKHARE PEMU, J.C.A.
PRACTICE AND PROCEDURE: GRANT OF ADJOURNMENT; WHETHER THE GRANT OR REFUSAL OF ADJOURNMENT BY A COURT IS A DECISION OR THE EXERCISE OF A DISCRETIONARY POWER OF THE COURT
Now, a grant of adjournment by a Court cannot be said to be a decision. It is a discretionary power of Court, to grant or to refuse. It is not a “decision”. It is the exercise of a discretionary power by the Court, depending on the peculiar circumstances of a case. The trial Court did the same thing on the 23rd of January 2012, as reflected at Pages 148 – 149 of the Record of Appeal. Again, here the same trial Judge adopted the written addresses of the parties Counsel, and adjourned the case to the 25th of January 2012 for Judgment. This cannot be said to be a “decision” in whatever guise of in law. Again, it is simply an exercise of the discretionary power of the Court. PER. RITA NOSAKHARE PEMU, J.C.A.
APPEAL: APPEAL WITHOUT FOUNDATION; EFFECT OF AN APPEAL WITHOUT FOUNDATION
The appeal is without foundation, it is speculative, vexatious and indeed an abuse of Court process. You cannot put something on nothing, as it would collapse. There cannot be an appeal against what had not been decided against a party – BABALOLA v. THE STATE (1989) 4 NWLR (Pt. 115) 264 at 294 – 295. PER. RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
HON. FRANCIS O. ANI & 91 ORS Appellant(s)
AND
THE GOVERNOR OF ENUGU STATE & ORS Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decisions of the lower Court Coram Hon. Justice P. C. Akubuilo (retired) which are decisions made on the 4th of May 2009; 19th of January 2012 and 23rd of January 2012 respectively.
FACTS:
From the briefs of both parties, it is apparent that the Appellant is appealing the decisions and/or orders made on the 4th of May 2009, 19th of January 2012 and 23rd of January 2012, in the course of the hearing of this case.
The Appellants grouse is that this case was filed in 2006 in Suit No. E/770/2006. The parties concluded their cases on the 8th of December 2011. The Court decided to adjourn the matter for Judgment on 16th January 2012, and indeed it told the parties that he was retiring at the end of January 2012.
However when the case came up on the 16th of January 2012, it further adjourned the matter to the 23rd of January 2012, 26th of January 2012 and 27th of January 2012 respectively. And on the 27th of January the Court failed to read the Judgment to the detriment of the Appellants.
?This, they claimed, occasioned miscarriage of
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Justice to the Appellants. That the trial Court would have delivered its judgment even without the addresses of counsel being adopted.
The Appellants is dissatisfied with this development and has appealed same.
They filed a Notice of Appeal on the 13th of February 2013 encapsulating three Grounds of Appeal which are –
GROUND (1)
The learned trial Judge erred in law when he failed to give Judgment in favour of Plaintiffs against defendants/respondents 3-14.
GROUND (2)
The learned trial Judge misdirected himself in law when he adjourned the case for Judgment on 16th of January 2002 and later on 25th January 2012 when he knew he would not declare the judgment.
GROUND (3)
The trial Judge erred in law when he failed to apply the principle of justice delayed is justice denied. – pages 157 – 164 of the Record of Appeal.
On the 28th of January 2016, Chief Enechi Onyia SAN, submits that the Court granted them leave to file another Notice of Appeal and same was deemed filed on the 17th of February 2015.
?That the Appellants brief is in respect of two Appeals – One the 17th of January 2013. That the 2nd
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Notice of Appeal was argued in the Appellants brief of Argument.
The Appellants filed their Brief of Argument n the 17th of January 2013. It is settled by Chief Enechi Onyia SAN, OON.
The Respondents filed their Brief of Argument on the 14th of November 2013. Same is settled by C. O. Eze Esq., Director of Civil Litigation, Ministry of Justice, Enugu.
On the 28th of January 2016, the parties adopted their respective briefs of Argument.
In their Brief of Argument, the Appellants proferred four (4) issues for determination which are –
1. “Whether the trial judge was right in not determining the suit on the basis of the pleadings of the parties as the only issue before the Court was whether the action was time barred.
2. Whether after hearing the case and adoption of the written addresses of the parties, the trial judge would not have decided the issue of time bar instead of continued adjournment of the judgment.
3. Whether the exercise of the discretion of the trial judge in adjourning the case was made judicially and judiciously.
?4. Whether the exercise of the trial judge’s discretion in continuously adjourning
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the judgment until he retired from judicial service occasioned miscarriage of justice in that justice delayed is justice denied”.
The Respondents had filed a Notice of Preliminary Objection on the 27th of March 2013 which is reflected and argued in Paragraphs 1.10 to 4.1 of his Brief of Argument.
Their brief of Argument proferred two (2) issues for determination which are –
i) “Whether there was any improper exercise of the trial Court’s discretion which occasioned a miscarriage of Justice to the appellants in this case.
ii) Whether the current appeal is one which justifies the exercise of the general powers of the Court of Appeal.”
I shall consider the Notice of Preliminary Objection first to see if same is meritorious.
In it, the Respondents objection is predicated on the fact that the Appeal as it is, is incompetent.
The grounds upon which the objection is brought are as follows:-
1) “The current appeal is not such as is contemplated by Section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999.
2) The purported appeal is against the non-delivery of the judgment of lower Court
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by Hon. Justice P. C. Akubuilo (retired).
3) There is no decision of the Court to be appealed against in this case.
4) The purported appeal is against the adjournment of the Court to deliver the judgment which was not delivered before the retirement of the trial Judge.
5) The matter has been re-assigned to another judge of the Enugu State High Court for proper trial and a decision in due course.
6) The purported appeal is a patent absurdity”.
I want to believe that the Respondents are relying on these grounds in arguing their preliminary objection.
I shall therefore consider the Preliminary Objection based on the grounds.
Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999, by its express provisions, stipulate issues of Appeals as of right from the Federal High Court, or a High Court to the Court of Appeal (Section 241 (1) of the Constitution of the Federal Republic of Nigeria 1999), and Appeals with leave of the Federal High Court, or of that High Court, or the Court of Appeal (Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999).
?The provisions of Sections
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241 (1) and 242 (1) of the 1999 Constitution, relate to “decisions” of the Federal High Court, or the High Court.
Per the Interpretation Section of the Constitution of the Federation of Nigeria – Part IV, the word Decision means ?
“In the relation to a Court, any determination of that Court and includes judgment; decree, order conviction, sentence or recommendation.”
See also Section 318 (1) of the 1999 Constitution. The Respondent had submitted that the current appeal is not such as contemplated by Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999.
Now, what is the decision appealed?
Ground one in the Notice of Appeal filed by the Appellant on the 13th of February 2012 has this to say ?
“The learned trial judge erred in law when he failed to give judgment in favour of the plaintiffs against defendants respondents 3-4”.
The PARTICULARS OF ERROR are ?
1) “The appellants filed motion dated 5th day of November 2007 and filed on 8th day of November 2007 praying the Court below to grant that judgment be entered against 2-14 defendants which did not file any
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defence to the claim as required by Enugu State High Court Procedure Rules.”
First and foremost, this ground portends that there was no “decision” of the lower Court. Moreso, while the ground talks about the 3rd-14th defendants the particulars talk about the 2nd-14th defendants.
At page 108A of the supplementary Record fired on the 28th of January 2013, the Court, in answer to the motion on notice for Judgment before him, adjourned the matter to enable the defendants file their papers. The matter was adjourned to the 18th of June 2009 at 12 noon for pre-trial conference.
This is what happened on the 4th of May 2009 (Page 108A of the Supplementary Record).
There was no decision in the strict sense of the word to be appealed. Even if there is, it was incumbent on the appellants to have sought the leave of this Honourable Court before filing this Appeal, being an interlocutory matter. But, even then, by Section 241 (2) (a) of the Constitution of 1999 no right of appeal exist against a decision of a High Court, granting unconditioned leave to defend an action.
?For purposes of elucidation, I deem it pertinent to reproduce the
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proceedings of the 4th of May 2009 verbatim, of the High Court of Enugu State, holden at Enugu in Suit No. E/770/2006.
“Plaintiffs present in Court.
Defendants absent.
Chief Enechi Onyia SAN with D. O. Nweze, Esq.; U. N. Ekete (Mrs.); C. O. Edeh, Esq. and A. N. Ugwu (Mrs.) for the Plaintiff.
C. O. Eze Esq.; Deputy Director Litigations for the
Defendants.
Mr. Eze: This case was earlier adjourned for settlement. In the settlement process I had to write a letter to the 1st Defendant/Governor of the State. The reaction of the Governor is still being awaited but here in Court this morning, one of the Councilors, a party in this suit told me that they – the Plaintiffs are no longer interested in the bid to settle the matter out of Court. In the circumstance I am asking for a date to file my processes in reaction to the Suit.
Chief Onyia: I have motion on notice for Judgment and I want to take it because my chambers is not aware of any moves to settle the matter.
Court: I am minded to adjourn the matter to enable the Defendants file their papers.
Case is adjourned to 18th June, 2009 at 12.00 noon for pre-trial
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Conference”.
(Sgd)
K. N. Udeh
(Judge)
4/5/2009.
The gravamen of the Appellants appeal is that the lower Court failed to deliver the Judgment before his retirement.
And indeed, the Appellants are questioning THREE Rulings which are that of the 4th of May 2009, which I had just said is not a decision in law; that of the 19th of January 2012 as reflected at Page 148 of the Record of Appeal, and that of the 23rd of January 2012 as reflected at Pages 148-149 of the Record of Appeal.
Simply put, I observe that these so called “decisions” were not reflected on the index in the Record of appeal; the rulings are “LUMPED” as there should have been separate Notices of Appeal for the three so called decisions.
An appeal presupposes that an Appellant is challenging the ratio-decidendi in a decision of the Court. It is not everything that is uttered by the learned trial Judge, in the course of arriving at a decision that is binding. Thus, his reasoning while in motion may gather many imprests, some of which merely helped the Court in the decision making process, and others which are of no essence. Thus it is only
9
the quintessence of the reasons for his decision that is best described as the ratio-decidendi.
A ground of appeal against a decision must not only relate to the decision but should further be a challenge to its ratio-decidendi.
In this particular circumstance, the Appellants in one breath is quarrelling with three separate rulings of 4/5/09; 19/1/12; and 23/1/12 respectively. In another breath, he says that the lower Court failed to deliver judgment.
It is clear that the Appellant is utterly confused and misconceived.
KARIBI-WHYTE, JSC observed in SARAKI & ORS v. KOTOYE (1992) 3 NSCC 331 thus –
“It is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
Any idea or proposition, which does not derive from a judgment, but provides a mere assumption in order to test its logical or empirical consequences, cannot form the basis of a Ground of appeal. Any such ground is hypothetical or academic, and this Court would readily decline to
10
entertain any such ground GOVERNOR OF KADUNA STATE v. DADA (1986) 9 S.C. 11; OYENEJE v. ODUGBESAN (1972) 4 S.C. 244.
The Court of Appeal approaches an appeal on the simple principle that the appellant must show that the decision appealed against was wrong – AGBONMAGBE BANK LTD v. C.F.A.O. (1966) 1 SCNLR. 367.
An appellant cannot appeal that the trial Judge failed to deliver Judgment before he retired. That cannot be a valid Ground of Appeal. This is because a Ground of Appeal must relate to the “DECISION” appealed against. It must not be speculative or academic. Any complaint that does not relate to any “decision” cannot be relevant in the appeal and therefore incompetent. An Appellant’s right of appeal is circumscribed, within the parameters of the judgment appealed against.
In the present Notice of Appeal, the following issues are apparent ?
1) “The Appellant is quarrelling in one breath with three so called decisions which are interlocutory in nature but of which leave has not been sought by him according to law.
2) In another breath, he is appealing against the air, as there is no “decision”. He is saying that the
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lower Court failed to deliver the Judgment before the Judge retired.”
The proceedings of 19th January 2012 can aptly be reproduced –
“1st and 68th Plaintiffs are present in Court, other plaintiffs are absent.
All defendants are absent.
Enechi Onyia with A. N. Ugwu (Miss) A. I. Onoh (Miss) appear for the plaintiffs.
Counsel for the defendant is absent.
COURT – Case is adjourned to Monday 23rd January, 2012 being a date the clerk of the Court reported to Court that the defence took. It is being adjourned for Adoption Addresses”.
(SGD)
P. C. AKUBUILO
JUDGE
19/01/2012.”
Now, a grant of adjournment by a Court cannot be said to be a decision. It is a discretionary power of Court, to grant or to refuse. It is not a “decision”. It is the exercise of a discretionary power by the Court, depending on the peculiar circumstances of a case.
?The trial Court did the same thing on the 23rd of January 2012, as reflected at Pages 148 – 149 of the Record of Appeal. Again, here the same trial Judge adopted the written addresses of the parties Counsel, and adjourned the case to the 25th of January 2012 for
12
Judgment.
This cannot be said to be a “decision” in whatever guise of in law. Again, it is simply an exercise of the discretionary power of the Court.
In all, the objection is sustained.
The appeal is without foundation, it is speculative, vexatious and indeed an abuse of Court process. You cannot put something on nothing, as it would collapse. There cannot be an appeal against what had not been decided against a party – BABALOLA v. THE STATE (1989) 4 NWLR (Pt. 115) 264 at 294 – 295. There would be no need to go into the merits of the substantive appeals as that would amount to embarking on academic exercise.
The Appeal lacks merit. It is spurious, and it is one that should be dismissed and same is hereby dismissed accordingly.
This matter shall be remitted to the Chief Judge of Enugu State for re-assignment to another Judge.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, RITA NOSAKHARE PEMU, JCA. I agree with reasoning, conclusions and orders therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading the draft of the lead
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judgment just delivered by my learned brother RITA NOSAKHARE PEMU, JCA. I completely agree with the reasoning and conclusion therein. The issue here is whether any appealable decision was rendered by the Court below to warrant this appeal. In Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), a decision of a Court is defined as “any determination of that Court and includes judgment, decree order, conviction sentence or recommendation”.
In MINISTER OF PETROLEUM RESOURCES v. EXPO SHIPPING LINE (NIG.) LTD (2010) 1 NWLR (Pt. 1208) PAGE 261 AT 293(D) the Supreme Court held that “an appeal is substantially a complaint against the decision of a trial Court.” The inability or failure of the learned trial judge to deliver his judgment before his retirement cannot by any stretch of imagination qualify as a decision appealable under Sections 240-246 of the Constitution. The learned senior advocate chose to embark on a wild goose chase when the lower Court took the appropriate step by assigning the case to another judge for trial denovo. This appeal is unmeritorious. It is a waste of resources and judicial time. The appeal is
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dismissed.
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Appearances
Chief Enechi Onyia, SAN with S. C. Onyia, Esq.For Appellant
AND
C. O. Eze, Esq. (Director of Civil Litigation Ministry of Justice Enugu) with I. L. Aniegbunam (Mrs.) (Legal Officer Ministry of Justice Enugu) and I. M. A. Onuoha (Legal Officer Ministry of Justice, Enugu)For Respondent
