PASTOR UDO MONDAY UDO v. FRONTIER OIL LIMITED & ORS
(2015)LCN/7978(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of July, 2015
CA/C81/2013
RATIO
APPEAL: GROUND OF APPEAL; WHETHER AN APPEAL, INTERLOCUTORY OR NOT MUST BE AGAINST THE DECISION OF A COURT
On the basis of the above, one must state that an appeal whether interlocutory or not must be against a decision of a Court. This is because an appeal to an Appellant is a challenge against the Judgment or Ruling as it is to be predicated upon what the trial Court has decided in its Judgment or Ruling. Therefore, Grounds of Appeal must arise from the decisions of the trial Court appealed against. This is so because grounds of appeal are the means by which an Appellant expresses his complaint against the decision or Ruling of the trial Court. per. PAUL OBI ELECHI, J.C.A.
APPEAL; INTERFERENCE; THE ROLE OF THE COURT OF APPEAL NO TO INTERFERE WITH THE DECISION OF A TRIAL COURT WHERE THERE IS PROPER EXERCISE OF DISCRETION
As Obaseki, J.S.C. lucidly put it in Saraki vs Kotoye (1990) 4 NWLR (pt. 143) 144 at 171 Para E- G:B “The proper role of the Court of appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the Appellant Court would have exercise the discretion differently is on assault on justice and not within the statutory powers of the appeal Court.” See also University of Lagos vs Olaniyan (1989) 1 NWLR (PT.l) 156 at 163, University of Lagos vs Aigoro (1985) (pt. 1) 143 at 148. Demuren vs Asuni (1967) All NLR 94 at 101, Solanke vs Ajibola (1968) 1 All NLR 46 at 52, Sonekan vs Smith (1967) All NLR 329, Niger Construction Coy Ltd vs Okugbeni (1987) 4 NWLR Pt 67 page 787 and the latest in the series of Nwabueze vs Nwosu (1988) 4 NWLR (pt 88) 257 at 262 and 266. Lauwers Import- Export vs Jozebson (1988) 3 NWLR Pt. 83 429 and Re Adewumi & Ors (1988) 3 NWLR Pt. 83. Where the Court lay down as well as restated the principle that discretion ought not to be reversed merely because an Appellant Court might think it quite plain that they would have adopted a different course. see Ngwu & Ors vs Onuigbo & Ors (1999) LPELR – 1992 (SC). per. PAUL OBI ELECHI, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
PASTOR UDO MONDAY UDO
(FOR HIMSELF AND AS REPRESENTING
LABOUR COMMITTEE, EDO) – Appellant(s)
AND
FRONTIER OIL LTD.
IBEREDEM AKADU
(FOR HIMSELF AND AS REPRESENTING
EDO GROUP OF VILLAGES LABOUR COMMITTEE)
SAMUEL ABIA AYARA – Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the interlocutory Ruling of the Akwa Ibom State High Court sitting at High Court 2, Eket delivered on the 31st day of July, 2012 by his Lordship Hon Justice Ekerete A. Ebienyie whereby the names of the 1st and 3rd Respondent who were Defendants at the Lower Court were struck out.
FACTS OF THE CASE
The Appellant was appointed Chairman of a Labour Committee by Chiefs that make up what is called Edo group of villages to represent the interest of the Community by liaising with Companies operating in their domain for slots, employment opportunities meant for the Community, a function earlier on undertaken by the 2nd Respondent. The expression of interest was done through an irrevocable power of Attorney and was to last till August, 2013.
The 1st and 3rd Respondents who had earlier had dealings with the 2nd Respondent in that regard despite the change of position made known to them to continue to deal with the 2nd Respondent and refused/neglected to recognize the Appellant as his Labour Committee.
The Appellant who is the
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Plaintiff later sued for himself and on behalf of Labour Committee against the Respondent at the Lower Court for a declaration that the Plaintiff/Appellant and his Labour Committee Edo are the recognized persons to deal with the 1st and 3rd Defendants/Respondents in matters of Employment and other benefits meant for Edo Community until the expiration of their tenure of office in August, 2013. Also included are other ancillary reliefs.
The Lower Court later struck-out the 1st and 3rd Respondents’ names from the suit upon a Motion filed by the said Respondents. The Appellant formulated two issues for determination.
ISSUE NO. 1:
“Whether the Lower Court was right to have refused the Appellant counsel oral Application to extend time and deem the already filed counter Affidavit and Written Address thereto 1st and 3rd Defendant Motion?”
ISSUE NO. 2
“whether the Lower Court was right when the Honouroble Court while refusing the oral Application to extend
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time proceeded to declare the Appellant counter Affidavit and written Address thereto as incompetent went ahead to determine the 1st and 3rd Respondents Motion without the Appellant counter Affidavit and proceeded to strike out the names of the 1st and 3rd Respondents does not amount to a breach of the Appellants constitutional Right of fair hearing?”
OR
“whether having regard to the above, the Lower
Court did not act in breach of the principles of fair hearing expressed in the Latin Maxim to wit
“Andi alterem Partem” (hear the other side).”
In arguing issue No. 1 above, Learned Appellant’s Counsel submitted that the Learned trial Judge erred in Law when he refused the oral Application of the Appellant to extend time and to deem as properly filed the Counter-Affidavit of the Appellant as proper and proceeded to declare the said Counter Affidavit and Written Address as incompetent.
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Though the grant or refusal of an Application is at the discretion of the Court as conceded by Learned Counsel but must be exercised judicially and judiciously in the interest of the case. See Shell Petroleum Development Company Nigeria Ltd. vs. Udi (1996) 6 NWLR (Pt. 455) 483, Danias vs. Teachers Service Commission (1996) 5 NWLR (pt. 446) 97.
Furthermore, Learned Counsel submitted that the Lower Court having refused to grant an oral Application for extension of time to file the Appellant’s Counter-Affidavit and reply to the 1st and 2nd Respondent’s Motion and Written Address ought to have in the interest of justice grant the adjournment to the Appellant for the purpose of filing a formal Application to meet with the end of justice but the Lower Court chase to foreclose the Appellant right to be heard by proceeding to declare the Counter Affidavit and Written Address thereof as incompetent and adjourned the matter for Ruling on the Motion based solely on the 1st and 3rd Respondents Motion more so as they could have been compensated with costs.
The Appellant brought a formal Application at the Lower Court to have the order made by the Court to set aside
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the order refusing the oral Application but even though the Court did not hear the Motion, it proceeded to rule against the Appellant contrary to the decision in M. M. S. vs. Oteju (2006) 10 WRN 207. The Court therefore did not exercise its discretion judiciously or judicially in this case. See Chedi vs. Attorney General Federation (2006) 48 WRN 149. On the basis of this, Learned Counsel urged the Court to interfere with in the interest of justice as being perverse. See Oyewole vs Akande (2009) WRN 1. He then submitted that there is lack of fair hearing and the only thing to do is to set aside any decision arrived thereon. See Idakuo vs. Ejiga (2005) 48 WRN. He then urged the Court to set aside the decision of the Lower Court and resolve this issue in favour of the Appellant.
ISSUE NO. 2
“Whether having regard to the act of considering only the 1st and 3rd Respondents motion without giving opportunity to the Appellant to present his case to meet with the issues raised by the 1st and 3rd Respondent the Lower Court did not act in
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breach of the principles of fair hearing expressed
in the latin moxim to wit ” Audi aterem partem
(hear the other side).”
Learned Counsel for the Appellant submitted that Order 39 Rule 1 (3) of Akwa Ibom State (Civil Procedure) Rules 2009 relied upon by the trial Judge does not have any nexus with the present situation on the ground in respect of the Appellant, rather it is Order 39 Rule 6 and 7. The 1st and 3rd Respondents being out of time to file their processes in the Suit at the Lower Court brought a Motion for Extension of time and in the same Motion sought to have the names of the 1st and 3rd Respondent struck out.
The Appellant opposed that part of the Application seeking to strike out the names of the 1st and 3rd Respondents by filing a Counter affidavit, albeit out of time.
The Learned trial Judge refused the oral Application of the Appellant to extend time to file the Counter Affidavit and to deem same as properly filed and did not see the need to adjourn the matter for the Appellant who later filed prior to the delivery of the Ruling.
In spite of all the above, the
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Learned trial Judge went ahead to deliver the Ruling and struck-out the names of the 1st and 3rd Respondents and upon considering only the 1st and 3rd Respondents Motion and Affidavit in support.
On the basis of the above, Learned Counsel for the Appellant submitted that the Appellant was not given a Right of fair hearing at the Lower Court. See Olufeagba vs. Abdurraheem (2010) Lt WRN 38.
Finally, he urged the Court to resolve this issue in favour of the Appellant and consequently to set aside the decision of the Lower Court in this matter and to allow the appeal.
On the 1st and 3rd Respondents’ preliminary objection, the Brief of Argument stated that the Appellant initiated this action at the Lower Court by filing his Writ of Summons and front loaded other processes. The 1st and 3rd Respondents were out of time to file their defences and other front loaded processes, so brought a composite motion on notice dated and filed same day being 22nd March, 2012 challenging the Court’s jurisdiction or alternatively, praying the Lower Court to dismiss the suit as against the 1st and 3rd Respondents. The said Motion had raised 5 issues for determination
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two of it are:
1. “Whether Plaintiff’s Statement of claim revealed any cause of action against 1st and 3rd Defendants.
2. Whether the 3rd Defendant is a proper party in this suit being a servant and agent of 1st defendant of all times material to this suit.”
It was on the basis of that Motion having been moved, replied and rejoined that the Lower Court adjourned for Ruling. The Lower Court in its Ruling on the 31st July, 2012 resolved the two issues above stated in favour of the 1st and 3rd Respondents and held that:
“From the facts or combination of set of facts in
this case, there is no cause of action lying against the 1st and 3rd Defendants and that “the 3rd defendant is not a necessary party to this action.”
Consequently, the names of the 1st and 3rd Respondents were struck out. It is this Ruling of 31st July, 2012 that the Appellant is making this appeal. On the other hand, it appears that the Appellants
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Grounds of appeal, particulars of the Grounds of appeal and even the issues for determination do not address the issues and Orders of that Court. The Appellant has not appealed against any of the two Findings/Holdings/Order of the Lower Court in its final Ruling i.e.
“That from the facts or its combination, no cause of action lies against the 1st and 3rd Respondents or “That the 3rd defendant is not a necessary party”.
Rather than attack any of the findings of the Lower Court above, the Appellant oscillates his appeal on an earlier Ruling of the Court made on the 7th May, 2012 which notice of appeal he has not given.
?
On the basis of the above, one must state that an appeal whether interlocutory or not must be against a decision of a Court. This is because an appeal to an Appellant is a challenge against the Judgment or Ruling as it is to be predicated upon what the trial Court has decided in its Judgment or Ruling. Therefore, Grounds of Appeal must arise from the decisions of the trial Court appealed against. This is so because grounds of appeal are the means by
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which an Appellant expresses his complaint against the decision or Ruling of the trial Court.
In the instant case, the Ruling of the trial Court is:
1. “That from the fact or combination of set of facts, there is no cause of action lying against the 1st and 3rd Defendants.
2. The 3rd Defendant is not a necessary party to this action.”
As a result of the above, the names of the 1st and 3rd Defendants were struck out of the suit. This was the decision of the Court on the 31st July, 2012 and which Notice of Appeal as per page 123 or page 140 of the Records of proceedings. The present appeal is therefore against the above order or decision of the trial Court.
Instead of tackling the Courts Ruling and /or decision as per the Judgment on the 31st July , 2012, the Appellant borrowed all his facts and figures in presenting this appeal on an earlier Ruling of the trial Court on the 7th May, 2012 which he has not given any Notice of Appeal. In the circumstance, I do agree with the Respondent’s Learned Counsel submission for the 1st and 3rd Respondents that the issues complaints and argument are based on the trial
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Court’s Ruling on 7th May, 2012 and not on the proper appeal before the Court which is the Ruling on 31st July, 2012. They are therefore incompetent. see Aohajunwa and ors vs. Obelle & Ors (2008) 3 NWLR (Pt. 1073) International Offshore Construction Ltd. vs. S. L. N. Ltd. (2003) pt. 845 p. 159 Saraki vs. Kotoye.
From the Respondent’s Brief of Argument one can see that he has incorporated his Preliminary objection inside his Respondents Brief of Argument. This procedure of arguing a Preliminary objection as the Respondent’s Counsel has done in this case in an accepted practice in our Courts. The procedure obviates the need to file a separate notice of preliminary objection. See Okereke vs. James (2012) 16 NWLR pt. 339.
I have earlier on in the course of this Judgment stated that the facts, Grounds complaints and argument used in processing this appeal do not have any bearing on the orders and decisions of the trial Court on the 31st July, 2015 but that the argument facts and Ground are that of the Court’s Ruling on the 7th May, 2012. what this portends is that the appeal is incompetent and fundamentally defective. The Preliminary Objection filed
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by the Respondent against this interlocutory appeal therefore succeeds. Consequently, the preliminary objection having succeeded, the hearing of the appeal abates. See Okereke vs. James (Supra). There must be an end to litigation. see Oguoha vs. Oguodia (2004) 43 WRN 17.
The issue whether the trial Court exercised its discretion judicially and judiciously in refusing the Appellants application for adjournment is entirely within the Court’s domain. I think and I hold the view that the Lower trial Court exercised a discretion that is not perverse.
As Obaseki, J.S.C. lucidly put it in Saraki vs Kotoye (1990) 4 NWLR (pt. 143) 144 at 171 Para E- G:
“The proper role of the Court of appeal where
there is a proper exercise of discretion is not to
interfere with the decision. To do so merely on
the ground that the Appellant Court would have
exercise the discretion differently is on assault
on justice and not within the statutory powers of the appeal Court.”
See also University of Lagos vs Olaniyan
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(1989) 1 NWLR (PT.l) 156 at 163, University of Lagos vs Aigoro (1985) (pt. 1) 143 at 148. Demuren vs Asuni (1967) All NLR 94 at 101, Solanke vs Ajibola (1968) 1 All NLR 46 at 52, Sonekan vs Smith (1967) All NLR 329, Niger Construction Coy Ltd vs Okugbeni (1987) 4 NWLR Pt 67 page 787 and the latest in the series of Nwabueze vs Nwosu (1988) 4 NWLR (pt 88) 257 at 262 and 266. Lauwers Import- Export vs Jozebson (1988) 3 NWLR Pt. 83 429 and Re Adewumi & Ors (1988) 3 NWLR Pt. 83. Where the Court lay down as well as restated the principle that discretion ought not to be reversed merely because an Appellant Court might think it quite plain that they would have adopted a different course. see Ngwu & Ors vs Onuigbo & Ors (1999) LPELR – 1992 (SC).
In conclusion therefore, I hereby uphold the Preliminary Objection. Also, since the issues canvassed for determination do not arise from the Court’s Ruling as per 31st July, 2012 (and not mentioned at all in the Ruling of 31st July 2012), this Court as an Appellant Court will not determine such issues because they do not attack the ratio decidendi of the decision of the trial
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Court on the 31st July, 2012 now on appeal since the determination of the issues will not enhance the success or otherwise of the appeal. See D. T. T. enter (Nig) Co Ltd vs. Alhaji Busari & Ors (2011) 8 NWLR (Pt 1249) 396.
The appeal therefore fails and it is accordingly dismissed. Consequently, the interlocutory Ruling of the Akwa Ibom High Court sitting at High Court 2, Eket in the Judicial division delivered on the 31st day of July, 2012 by his Lordship, Hon Justice Ekerete ‘A’ Ebieneyie striking out the names of the 1st and 3rd Respondents who were Defendants at the Lower Court is hereby affirmed.
I assess and fix cost at N50,000.00 in favour of the Respondents.
CHIOMA NWOSU-IHEME J.C.A.:
I had the opportunity of reading in draft the judgment delivered by my learned Brother P. O. ELECHI, J.C.A. I agree with his reasoning and conclusion.
In this concurring opinion, I shall adopt the facts of this case as set down in the lead judgment of my learned Brother.
Having resolved all the issues in favour of the Respondents, I agree that this appeal lacks merit and that it be dismissed.
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The Ruling of the Akwa Ibom State High Court sitting in Eket delivered on the 31st day of July, 2012 by Ekerete Ebienyie J., is hereby affirmed
I accordingly abide by the order as to costs made by ELECHI, J.C.A. in the lead judgment.
ONYEKACHI AJA OTISI J.C.A.:
My learned Brother, Paul Obi Elechi, J.C.A., made available to me, in draft form, a copy of the lead Judgment just delivered dismissing this appeal. I am in complete agreement with his reasoning and conclusion, which I adopt as mine.
I also dismiss this appeal. I abide by the Orders made in the lead Judgment
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Appearances:
.For Appellant(s)
U.D.A Imeh, Esq. for the 1st and 3rd Respondent.For Respondent(s)
Appearances
.For Appellant
AND
U.D.A Imeh, Esq. for the 1st and 3rd Respondent.For Respondent
