MRS. MATILDA ADERONKE DAIRO V UNION BANK OF NIGERIA PLC & ANOR-2007

MRS. MATILDA ADERONKE DAIRO V UNION BANK OF NIGERIA PLC & ANOR

(2007) LCN/3628(SC)

In the Supreme Court of Nigeria

Friday, July 13, 2007


Case Number:SC.187/2002

 

JUSTICES:

ALOMA MARYAM MUKHTAR, JUSTICE SUPREME COURT

IKECHI FRANCIS OGBUAGU, JUSTICE SUPREME COURT

FRANCIS FEDODE TABAI, JUSTICE SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE SUPREME COURT

CHRISTOPHER MITCHEL CHUKWUMA-ENEH JUSTICE SUPREME COURT.

BETWEEN

APPELLANTS

MRS. MATILDA ADERONKE DAIRO.

AND

RESPONDENTS

1.UNION BANK OF NIGERIA PLC

2 CHIEF GEORGE AMURUN.

RATIO

 

I.T. MUHAMMAD, JSC (Delivering The Leading Judgement)  The plaintiff at the Lagos State High Court of Justice Holden at Ikeja within the Ikeja Judicial Division, took a writ of summons against the defendant. She indorsed the following claim:   “Plaintiff claim is for N25 Million damages for the libelous publication pasted by the second defendant on the Plaintiff’s one story building of No. 12, Adegbite Street, Iju Ajuwon, Agege.”   Background facts giving rise to the above claim as contained in the printed Record of Appeal, show that the plaintiff is a banker of repute with the Nigerian Arab Bank Ltd holding the post of an Assistant Manager in the Bank. She is the owner of a property known and described as No. 12, Adegbite Street, Iju – Ajuwon, Agege in the Ikeja Local Government Area of Lagos State. The Plaintiff claimed that on or about the 10th of January, 1981, the 1st defendant caused an Auction Notice to be pasted on her one Storey building at No. 12, Adegbite Street, Iju-Ajuwon Agege. The Plaintiff never had any transaction with the 1st defendant or authorized any person to mortgage the property for any consideration. She claimed that many people went to her house to inquire about her indebtedness to the 1st defendant. She was as a result, subjected to embarrassment, queries and humiliation by her employers at the Nigerian Arab Bank Ltd.   On enquiring from the Land Registry Abeokuta, Ogun State, it was discovered that the officials of the 1st defendant at its Oni Panu branch executed a deed of mortgage on the property for one of their customers, Alhaji Mojeed Alepo Bakare from whom the plaintiff bought the land upon which the one storey building at No. 12, Adegbite Street, Iju – Ajuwon, Agege was erected without the said Alhaji Mojeed Alepo Bakare depositing any title documents. Action was commenced at the Ota High Court of Ogun state whereby the said mortgage deed dated 13th September, 1985, registered No. 13 at page 13, in vol. 276 of Land Registry, with the consent of the Governor were quashed by Order of a Certiorari in suit No. MT/7/91 – Matilda Aderonke Dairo v. Military Governor of Ogun State & Ors (5/3/92). The plaintiff maintained that by pasting the said Auction Notice on her property that portrayed her in bad faith and unworthy of any credit. The plaintiff demanded, through her solicitor, an apology and compensation from the 1st defendant to which the latter remained adamant. PAGE| 2 By reason of pasting the Auction Notice on the premises the plaintiff has been injured in her credit and reputation and has been brought into public scandal, odium and contempt. The plaintiff thus claimed against the defendants jointly and severally as per her writ of summons.   Meanwhile, a motion on Notice was filed and moved before the trial court for an order striking out the suit on the ground that the trial court had no jurisdiction as the cause of action – Libel – arose in Ogun State. After having a thorough examination of the writ of summons, the statement of claim and the affidavit evidence, the learned trial judge ruled that he had no Jurisdiction to try the case as the cause of action arose in Ogun State while he was presiding over a Lagos State High Court. He accordingly struck out the suit with costs in favour of the defendants.   Dissatisfied with the ruling of the trial court the plaintiff/applicant filed her Notice of Appeal to the Court of Appeal. Three grounds of appeal were set out therein. The Court of Appeal dismissed the appeal. The appellant now comes to this court. She set out four grounds of appeal in the Notice of Appeal.   Briefs were filed and exchanged by the parties. The respondents filed a Notice of preliminary objection whose arguments were incorporated in the respondent’s brief of argument.   Learned counsel for the appellant formulated one issue for the determination of this court. It reads as follows:-   “Whether the Court of Appeal was right in upholding the decision of the High Court?” Learned Counsel for the respondents formulated two issues. They are as follows:   “(1) Whether the Court of Appeal was right when it held that the High Court of Lagos State has no jurisdiction in a libel suit in which the publication of the libelous document did not take place within the jurisdiction of the Court.   (2) Whether in this libel action, the Court of Appeal was bound by the decision of the Supreme Court in the fatal accident’s case of Olayiwola Benson & Anor v. Joseph Oladipupo Ashiru (1967) 1 All N.L.R. which was stated to be an obiter Dictum.”   Permit me My Lords to deal with the Notice of the preliminary objection raised by the respondents first. The Notice of the Preliminary Objection was dated 22nd April, 2003 but filed on 13/10/03. (a period of almost six months between the date of making and the date of filing in court) It reads:   “TAKE NOTICE that the RESPONDENTS will raise by way of PRELIMINARY OBJECTION in its Brief of Argument that the issue raised by the Appellant did not flow from the Grounds of Appeal in the Notice of Appeal and furthermore that the Grounds of Appeal are grounds of fact or at best grounds of mixed law and fact. AND for such order or other order as this Honourable Court may deem fit to make in the circumstances.” Four grounds upon which the Preliminary Objection was based are as follows: PAGE| 3 1. “The only issue raised by the Appellant did not flow from the Grounds of Appeal in the Notice of Appeal filed by the Appellant at pages 103 to 104 of the Record of Appeal.   2. The Grounds of Appeal filed by the Appellant are grounds of facts or at best mixed law and fact and the leave of either the lower Court or this Honourable Court was not sought before the Notice of Appeal was filed.   3. By virtue of the provisions of Section 233(2) of the Constitution of the Federal Republic of Nigeria 1999 an Appellant can only appeal as of right to the Supreme Court if the grounds of appeal involve questions of law alone.   4. It is only after leave had been obtained under section 233(3) of the said Constitution can grounds of appeal involving questions of fact or mixed law and fact can be competent before the Supreme Court.”   In his brief of argument, learned counsel for the respondents classified his Preliminary Objection into two: (a) that all the grounds of appeal were premised on grounds of fact or at best grounds of mixed law and fact and that by the provision of section 233(3) of the Constitution an appellant can have a right to appeal only with the leave of either the Court of Appeal or this Court. That as leave was never sought or obtained, this court is urged to strike out the appeal. Learned counsel cited and relied on several cases including, inter alia, Ogbechie v. Onochie (1986)2 NWLR (Pt. 26)484 at 491; Godwin v. C.A.C. (1998) 14 NWLR (Pt. 554) 162. (b) that the only issue for determination raised by the appellant did not seem to flow from the three grounds of appeal filed and moreso when the same is read in conjunction with the statement of facts of the appellant at page 2 paragraph 0/4 of the appellants brief of argument especially the point that the learned trial judge did embark, on a voyage of discovery. This point, the learned counsel argued was not placed before the learned trial judge. It thus became a fresh issue which was never canvassed before the learned trial judge. That issue, learned counsel argued further, never formed any ground in the grounds of appeal and no leave of this court was obtained before canvassing arguments on the point. Learned counsel urged this court to discontinuance the issue and that the appeal should be dismissed. Learned Counsel cited the case of Oje v. Babalola (1991) 4 NWLR (Pt. 185) 280 A-B in support of his arguments.   On the date this appeal was slated for hearing, the appellant and her counsel were not in court.  They did not file a reply brief in answer to the Notice of Preliminary objection filed by the respondents. Learned counsel for the respondents argued that the implication of appellant not filing a reply to the Notice of Preliminary objection is that she had nothing to answer.   Starting from our own Court’s Rules,  Order 6 Rule 5(3) stipulates as follows: “The appellant may also file in the court and serve on the respondent a reply brief within four weeks after service of the brief of the respondent on him but except for good and sufficient cause shown a reply brief shall be filed and served at least three days before the date set down for the hearing of the appeal.” PAGE| 4 Although the Supreme Court Rules as cited above have not stated the aim, role or purpose of a reply brief I think the function, aim, role or purpose of a reply brief is to answer or deal with any new points arising from the respondent’s brief. Nnaemka-Agu, JSC; in the case of Okpala and Anor. v. Ibeme and Others (1989) 2 NWLR (Pt.102) 208, made the same observation and he said   “What is provided for is a reply brief where necessary …….. Even so, where it is necessary, it should be limited to ….. any new points arising from the respondent’s brief.”   It is interesting to note what Kendall Griffith, a lawyer and past President of the Appellate Lawyers Association of Illinois Bar, said on reply brief in his article titled “Effective Brief Writing”, contained in a Journal called “The Forum” (1980-81) vol. 16 at page 469 that:   “A reply brief if filed at all should be short and hard hitting. It should answer any matter raised for the first time on the appellee’s brief if the appellee has completely missed the point or has confused a legitimate point a reply is appropriate. Clarification should be succinct and brisk.”   Although by Order 6 Rule 5 of this Court’s Rules, it is not mandatory to file a reply brief where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant ought to file a reply brief. See: Popoola and Ors v. Adeyemo and Anos (1991) 8 NWLR (Pt.257) 1; Shuaibu v. Maihodu (1993) 3 NWLR (Pt.284) 748, Chukwuogor v. Attorney General. Cross River State (1998) 1 NWLR (Pt.534) 375. I agree entirely with the learned counsel for the respondent that where an appellant fails to file a reply brief where it is necessary for him to do so, as in this appeal, he will be deemed to have conceded all the new points or issues arising from the respondent’s brief. See: Okoye & Ors v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 where this court per Akpata, JSC held:   “The appellant’s completely ignored the relevance of Order 29 and its effect in the entire proceedings in the trial court. No reply brief – was filed to meet the contention of the defendant/respondent on the issues. I am in agreement with the Court of Appeal that the appellants are deemed to have conceded that Order 29 rightly took care of the plaintiffs/appellants suit.”   See further: Popoola & Ors v. Adeyemo & Anor. (Supra); Ayalogu v. Agu (1998) NWLR (Pt. 532) 129; Shuaibu v. Maihoda (Supra); Ogidi v. Egba (1999) 10 NWLR (Pt. 623) 42. It is a practice long established that where a respondent raises issues or points of law not covered by the appellant’s brief, the appellant is under a reciprocal duty to file a reply brief to answer such issues or points. It helps to reduce the time the appellant may take in replying to such issues or points during oral argument at the hearing of the appeal. Thus, where an appellant fails to file a reply to a point of law raised in the respondent’s brief and merely adopts and relies on his brief of argument at the hearing of the appeal without an oral reply it may amount to a concession of the points of law or issues raised. The situation in the present appeal is even worse; the appellant failed to file a reply brief to the Notice of Preliminary Objection raised and duly argued in the respondents’ brief of argument and she failed also to put any appearance to put up any oral argument in answer to the preliminary objection raised. PAGE| 5 Now, the challenge posed to the grounds of appeal touches on the jurisdiction of this court. Jurisdiction is the life-wire of a court as no court can entertain a matter where it lacks jurisdiction. Issue of jurisdiction can be raised at anytime even on appeal to this court. Because of its decisive nature, jurisdiction cannot be conferred on or taken away from any court just because the parties have agreed or consented to do so. Although the non – filing of a reply brief by the appellant may amount to a concession to the points raised by the respondents in their Notice of Preliminary Objection, arguments of which are contained in the respondent’s brief of argument, I think this court is still under a duty to consider the points of objection raised by the respondents as a challenge to the jurisdiction of this court. In doing so, I would like to have a cursory look at the criteria set out by a long list of decided cases on how to distinguish a ground of appeal based on law alone; on facts alone or on mixed law and facts. The following principles may serve as a guide:   i.   Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact, See: Maigoro v. Garba (1999) 10 NWLR (Pt. 624)555   ii. A ground of appeal which challenges the findings of fact made by the trial court or involves issue of law and fact is a ground of mixed law and fact. See: Maigoro v. Garba (Supra)   iii. Where the evaluation of facts established by the trial court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and facts; See: Maigoro v. Garba (Supra)   iv. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact simplicata. See: Ogbechie v. Onochie (Supra)   v. Where it is alleged that the trial court or an appellate court misunderstood the law or misapplied the law to the admitted or proved facts, such a ground of appeal is one of law simplicita. See: Nwadike v. Ibekwe (Supra).   vi. It is a ground of law if the adjudicating tribunal or court took into account some wrong criteria in reaching its conclusion or applied some wrong standard of proof or, if, although in applying the correct criteria, it gave wrong weight to one or more of the relevant factors. See: O’Kelly v. Trusthouse Forte P.I.C. (1983) 2 All E.R at P. 486; Nwadike v. Ibekwe (1987) 12 SC: 14   vii.  Several issues that can be raised on legal interpretation of deeds, documents, term of art, words or phrases, and inferences drawn therefrom are grounds of law. See: Ogbechie v. Onochie (Supra) pp 491-492   viii. It is a ground of law where the ground deals merely with a matter of inference even if it is limited to admitted or proved and accepted facts. See: Nwadike v. Ibekwe (Supra) PAGE| 6 ix. Where it is alleged that there was no evidence or no admissible evidence upon which a finding or decision was based, this is regarded as a ground of law, See: Ogbechie v. Onochie (Supra) where, Eso, JSC, citing with approval an article by C.T. Emery in Vol. 100 LQR held:        “If the tribunal purports to find that a particular event occurred although it is seized of no admissible evidence that the event did in fact occur, it is a question of law.”   It was the contention of Learned Counsel for the respondents that all the three grounds of appeal in the appellant’s Notice of Appeal dated 25th July, 2001 and filed on 19th September, 2001 are grounds of fact or at best grounds of mixed law and fact. I think I should quote hereunder, these grounds of appeal:   “(3) GROUNDS OF APPEAL: (a) The learned trial judges of the Court of Appeal erred in law by not following the decision of the Supreme court in the case of Olayiwola Benson & Anor v. Joseph Oladipupo Ashiru (1967) NWLR Page 363 on the grounds that the decision therein was obiter.   PARTICULARS (a) The decision in the case of Olayiwola Benson v. Oladipupo Ashiru (1967) NWLR Page 363 ratio 2 is not obiter. The reporter of the (1967) 1 ALL NLR page 184 wrongly put the word obiter at the top of all the holdings of the Court contrary to the context of the judgment as contained on page 188 of the report.   (b) The learned judges of the Court of Appeal erred in law by following the Supreme Court decisions in the cases of Egbue v. Araka (1988) 3 NWLR (Pt. 84) page 598 and Ezeugha v. Adimorah (1993) 1 NWLR (Pt.271) Page 620 at 625.   PARTICULARS (i) The operation of order 1A Rule 4 High Court of Lagos State Civil Procedure Rules 1972 and the decision of the Supreme Court in the case of Nneji v. Chukwu (1988) 3 NWLR Part 81 page 184 on the bindingness of the rule of each court on its operation were not raised and considered in the two cases.   (c) The learned trial judges of the Court of Appeal erred in law by not considering the applicability of the rules of common law of England on questions of private international law in the High Court of Lagos State as highlighted in the case of Olayiwola Benson v. Joseph Oladipupo Ashiru since the learned trial judges of the Court of Appeal held that it did not come for decision in that case.   PARTICULARS      The doctrine of stare decisis does not preclude a lower court from pronouncing on a point of law not yet decided by the Superior Court, PAGE| 7 d) Other grounds of appeal are to be filed on the receipt of the proceedings of the Court of Appeal.” I have had a careful examination of the above grounds of appeal. In ground one or (a) the appellant is complaining that the Justices of the Court below refused to follow the decision of the Supreme court in the case of Olayiwola Benson & Anor. v. Joseph Oladipopu Ashiru (1967) NWLR page 363 on the ground that the decision therein was obiter. In the only particulars provided for the ground and indicated in another (a) the appellant stated that the said decision is not an obiter. This, in my view, will involve the question of whether the law applied in Benson’s case is applicable to the appeal on hand. The complaint in this appeal is on refusal to apply some principles of law. The ground, in my view is a ground of law. The same principle of law applies to ground No. 2 or (b) as it alleges that the Justices of the court below wrongly followed the Supreme Court decisions in the cases of Egbue v. Araka (1988) 3 NWLR (Pt. 84) page 589 and Ezeugha v. Ademorah (1993) 1 NWLR (Pt.271) 620 at 625. Thus, ground No. (b) is also a ground of law. Appellant’s ground No. (c) alleges that the learned Justices of the Court below erred in law in not considering the applicability of the rules of Common law of England on questions of private international law in the High Court of Lagos State as highlighted in Benson’s case (Supra). In its particulars, it is stated that the doctrine of stare decisis does not preclude a lower court from pronouncing on a point of law not yet decided by the superior courts. This ground in my view is purely one of law. See generally: Ogbechie & Ors v. Onuchie & Ors (1986) 1 NSCC 443 at 446. Board of Customs and Excise v. Barau (1982) 10 SC 48 at page 137; Godwin v. C.A.C. (Supra). The issue of distinguishing a ground of law from that of fact or that of mixed law and fact is indeed a thorny one. It tasks the mind of an appellate judge. See: Ogbechie v. Onochie (Supra); Nwadike & Ors v. Ibekwe & Ors (1987) 12 SC 14 at page 53. Although the decision on whether a ground of appeal raises a question of law alone does not depend on the label an appellant may give to the ground in question, it is evident in this appeal that from all the grounds set out by the appellant, he was certainly raising grounds of law, especially when the totality of each of the grounds along with its particulars is taken together. This, exactly, is what this court did in the case of Piemen & 3 Ors v. His Highness William O. Momodu II & 2 Ors (1983) 3 SC 173. The settled principle of law on the validity of a Notice of appeal is that when a ground of appeal involves a question of law, it alone can sustain that Notice of Appeal. Thus, by the provision of section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, such a ground of law confers right of appeal on an appellant without the necessity of seeking or obtaining leave from any court including this court or the court below. The first leg of the Preliminary Objection fails.   On the second leg of the Preliminary Objection that the only issue formulated by the appellant did not arise from any of the grounds of appeal. I have already set out the grounds of appeal above. Let me now reproduce the issue formulated for the determination of this appeal. It reads as follows:   “Whether the Court of Appeal was right in upholding the decision of the High Court.” It is the submission of learned counsel for the respondents that the issue being canvassed as regards the learned trial judge embarking on a voyage of discovery and determining issues not placed before him is a fresh issue which was never canvassed in the lower court and which did not form any ground of the grounds of appeal filed by the appellant. Learned counsel urged this court to discontinue the issue as it did not flow from the grounds of appeal. PAGE| 8 What is the decision of the trial court? On page 63 of the Record of Appeal, the Learned Trial Judge held as follows: “After a thorough examination of the writ of summons and the statement of claim, I rule that this court has no jurisdiction to try this case as the cause of action arose in Ogun State. The suit is accordingly struck out.” The court below dismissed the appeal and affirmed the trial court’s decision. I think, when a sole issue is formulated from several grounds of appeal, except those which are found to be incompetent, defective or academic, and the appellant did not isolate any ground to which that issue relates, the presumption is that it relates to all the grounds. See: Olowsago v. Adebanjo (1988) 4 NWLR (Pt.88) 275; Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 474.   It is thus, my humble view that the issue is a live issue and competent. The primary concern of an appellant in formulating issues for the determination of his appeal is that such issues must stem from the grounds of appeal. Consideration of statement of facts giving rise to the matter on appeal is irrelevant and inconsequential at that stage.  I find no merit in this leg of the objection and it too, fails.  Finally, the respondents’ Preliminary Objection lacks any merit. I accordingly overrule and dismiss it. In considering the appeal I shall limit myself to the issue formulated by the appellant. It reads as follows: “Whether the Court of Appeal was right in upholding the decision of the High Court.?” Making his submissions in the brief of arguments, learned counsel for the appellant stated that the Court of Appeal was wrong in upholding the decision of the trial court as the issue determined before the trial court was not placed before it. The trial court lacked jurisdiction to suo motu formulate issues and thereafter embark on a voyage of discovery to make findings on them. Learned Counsel cited in support the case of Adeniran v. Alao (2001) 12 SC (Pt. 2) 59 at page 87 (2001) 1 SCM, 1 . Secondly, the issue which came up before the Supreme Court’s decision in the case of Egbue v. Araka (1988) 3 NWLR (Pt.84) 598 was based on the provision of Order 1A Rule 2 of the Lagos State High Court Rules, 1972. Nowhere, it was argued further, in that decision, where the Supreme Court held that before the High Court of a state can have jurisdiction in the publication of a libelous article the publication must have taken place within the jurisdiction of the court as carried by Ratio 6 of the Report. That piece of statement was said by Mr. Kehinde Sofola (SAN) on pages 606 – 607 of the report. Learned Counsel for the appellant made a short comparison between the provisions of Order 9 and Order 7 of the Lagos State High Court Civil Procedure Rules, 1972. He argued that the learned Justices of the Court below were wrong to have relied on Order 9 Rule (1)(f) of the Lagos State High Court Rules (Supra) which he said did not specifically confer jurisdiction on the commencement of libel action on the place of publication of the libelous document. PAGE| 9 The learned counsel submitted further, that contrary to the decision of the Court of Appeal, the Supreme Court decision in Olayiwola Benson v. Oladipupo Ashiru (supra) on page 363 of the report, ratio 2 was an obiter as the reporter therein wrongly put the word obiter at the top of all the holdings of the court contrary to the contents of the judgment as contained on pages 188 of the body of the report. Learned counsel argued that it was still open to the Court of Appeal Justices to make a pronouncement on the applicability of the Rules of the common laws of England on question of Private International Law in the High Court of Lagos State as the Court of Appeal would not be caught by the doctrine of stare decisis. He referred to the case of 7Up Bottling Co. Ltd. & Ors v. Abiola & Sons Nig. Ltd. (1995) 3 NWLR (Pt. 383) 257 at pages 207 – 271. Learned Counsel submitted that the Supreme Court decision in Olayiwola v. Ashiru (Supra) is still good law as it has not been overruled subsequently by the same court and the Court of Appeal is bound by it. The appellant urges this court to set aside the decision of the Court of Appeal and Order the trial court to hear the suit on its merits.   On the main appeal, learned counsel for the respondents formulated two issues for determination. I already set out these issues earlier. Appellants lone issue has comprehensively take care of these two issues. I shall consider them together in line with the appellant’s lone issue. Learned Counsel referred this court to the motion on Notice together with the supporting affidavit at pages 7 – 10 of the Record of Appeal for this court to see how unmeritorious the appeal is. He referred to paragraphs 5 – 10 of the supporting affidavit and some part of the trial court’s proceedings. Learned Counsel submitted strongly that flowing from the oral submissions of learned counsel for the respondents, Mr. Adeneji and that of the appellant Mr. Dairo, the pith of the respondents prayer was that being a libel action, the High Court of Lagos State has no jurisdiction in the matter as the alleged libel arose in Ogun State. Learned Counsel submitted that in the circumstances, the Learned Trial Judge was quite in order when she raised the question which the appellant had complained of in her brief of argument and it was not a voyage of discovery, or formulating issues suo motu by the Learned Trial Judge as arguments on the issues were earlier canvassed by both Counsel before the Learned Trial Judge raised such issues. Learned Counsel urged us to reject the submission of the appellant that the Learned Trial Judge embarked on a voyage of discovery by suo motu formulating issues which were not canvassed before the court and that the lower court compounded the error in their judgment.   It was argued for the respondents that the references to Order 1A Rule 4 of the High Court of Lagos State Civil Procedure Rules 1972, which was applicable when the action was instituted at the court of first instance, the provisions of that Rule were of no use or helpful to the appellant. Learned Counsel for the respondents set out the rule in his brief in extenso. He set out also Order 7 Rule 1(f) of the said Rules. Learned Counsel argued that it is the place a libel is published that the cause of action arose. He cited the cases of Ezomo v. Oyakire (1985) 2 SC 260; Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598   On the case of Benson v. Ashiru (supra) Learned Counsel submitted that the case had not been adopted in any other case by the Supreme Court to enable it acquire the force of a ratio decidendi and the same was not made per incuriam as stated in the said law Report (NLR), the statement of the Supreme Court was made obiter. The case of Benson v. Ashiru (Supra) was in relation to fatal accident and not libel. PAGE| 10 On the applicability of the Rules of Common Law of England on the question of private International Law in the High Court of Lagos State, this court is urged to ignore appellants submission as same was never raised as a ground of appeal and or part of issues for determination of the appeal before the lower court. Learned Counsel for the respondents urged us to dismiss this appeal and uphold the judgment of the court below.   I think the primary role of an appeal court is to hear and determine appeals that are brought before it. In its determination of an appeal, it may grant, refuse reliefs in an interlocutory application arising therein. It may allow or dismiss an appeal. It may make consequential orders as the circumstances of the appeal may warrant. Where the appeal court upholds or affirms the decision of the trial court or a court lower to it, it means that the appeal before it is dismissed. Where it allows the appeal, it means the decision of the trial court or the court lower to it is set aside. It may also make amendments on some decisions of the trial or lower court. In discharging its duties, the appeal court is always guided by the principles of justice.   The main complaint against the lower court’s judgment is that it upheld the decision of the trial court when it was the trial court that formulated issues suo motu and arguments were not canvassed before it by the parties. I agree with the learned counsel for the appellant to the extent that the law is quite settled that where a court raises issues suo motu, the parties should be given equal opportunity to address the court on such issues. Failure to do so will render the proceedings of that court, however well conducted, to a nullity. See: Nteogwulle v. Otuo (2001) 16 NWLR (Pt.738) 58, (2001) 9 SCM, 111; Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678. But is that what happened in this case? It is clear from the Record of Appeal (pages 28 – 29) that there is a proceeding by the trial court in respect of a motion on Notice filed by the defendants praying for an order striking out the suit for lack of Jurisdiction. Learned Counsel for the defendants/applicants, Mr. Adeneji, moved the motion. Mr. Dairo for the plaintiff/respondent/appellant, responded. In his response (submissions) he stated, inter alia;   “The publication we are complaining about was pasted in Ogun State but the publication emanated from the office of the Auctioneer (the 2nd defendant) in Lagos as reflected in the endorsement of our writ of summons…..my submissions are that the Defendants are

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