PRINCE ADESHINA AREMU AJIBOLA & ORS v. MR. KAMALDEEN SALAHUDEEN & ORS
(2019)LCN/12890(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/M.156/2018(R)
RATIO
INTERPRETATION: MEANING OF ‘APPEAL’
“…it is clear that an appeal by whatever name called is still an appeal. Once the party is aggrieved one way or the other with the decision of the lower Court, the Appellate Court should rarely deny the right of appeal to such party, unless it is shown clearly that the applicant failed to follow the rules of the Appellate Court that were laid down for appeals generally. See Bukoye & Ors. Vs. Adeyemo & Ors. (Supra). But certainly, it cannot be a just reason to deny an applicant the right of appeal, simply because the correct nomenclature was not stated in the application for leave to appeal.” PER BALKISU BELLO ALIYU, J.C.A.
INTERPRETATION: MEANING OF APPEAL AND CROSS APPEAL
“The term ‘appeal’ simply denotes, to seek to review (a lower Court’s decision) by an appellate Court of competent jurisdiction. Contrariwise, the term ‘cross-appeal’ denotes an appeal by the appellee usually heard (and determined) at the same time as the appellant’s appeal. See BLACK’S LAW DICTIONARY, 16th Edition, 1999 @ 94. I think, it was in the case of AT ENGINEERING COMPANY LIMITED VS. MILITARY GOVERNOR OF OGUN STATE (2009) 40 WRN 1, that the Apex Court aptly made a distinction between an appeal (simpliciter) and cross-appeal, thus: A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals each appeal, is separate and is an independent complaint by the parties even though both appeals are heard together. See the case of CHIEF KALU IGWE AND 2 ORS. VS. CHIEF OKUWA KALU AND 2 ORS. (2002) 26 WRN 58. A party seeking to set aside a finding in a judgment which is crucial can only do so through a substantive cross-appeal and not on application to affirm or vary the judgment on other grounds. See BRIGGS VS. BOB-MANUEL AND ORS. (2003) 1 SCN 218 at 226 ? 227. Per Ogbuagu, JSC @ 47.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
COURT AND PROCEDURE: RIGHT TO APPEAL
“Indeed, the grant of an application for an enlargement to seek leave to appeal or to appeal simpliciter, is squarely at the discretion of the Court. The discretion, of course, ought to be exercised not only judicially but also judiciously. However, the discretion cannot be exercised in vacuo but in absolute regard to the facts and circumstances surrounding the case. See AKINPELU VS. ADEGBORE (2008) 10 NWLR (Pt. 1096) 53 @ 554 paragraphs F – H; AKINYEDE VS. THE APPRAISER (1975) 2 SC 39; OBIKOYA VS. WEMA BANK (1989) 1 NWLR (Pt. 96) 157.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. PRINCE ADESHINA AREMU AJIBOLA
2. MALLAM MUSA DELODUN MOHAMMED
3. CHIEF SAMUEL ABOLARINWA, THE OLOJA OF OKE ONIGBIN
(for themselves and on behalf of Odo-Oja ruling house of Oke Onigbin) Appellant(s)
AND
1. MR. KAMALDEEN SALAHUDEEN
2. CHIEF SALIU ABDULSALAM
(The Oloja of Ike Onigbin)
3. CHIEF BURAIMOH OGUNDE
(The Esa of Oke Onigbin)
4. THE GOVERNOR OF KWARA STATE Respondent(s)
BALKISU BELLO ALIYU, J.C.A. (Delivering the Lead Ruling):
The Applicants were the claimants in a chieftaincy dispute filed as Suit NO: KWS/251/2017 before the Kwara State High Court sitting at Ilorin, while the Respondents were the defendants. The Respondents filed preliminary objections challenging the jurisdiction of the Court below to determine the Applicants’ suit on the grounds that the suit was statute barred and that it was also caught up by estoppel per rem judicatem. In the Court’s considered ruling delivered on 27th July 2018 by Hon. Justice T. S. Umar, the objections of the Respondents were dismissed paving the way for the Applicants to proceed with the prosecution of their claim.
The Respondents were aggrieved and appealed against the said ruling of the High Court to this Court, and the appeal has been entered as NO: CA/IL/104/2018. The record having been compiled and transmitted, and the briefs filed and exchanged, the Applicants filed this motion on notice on the 30th November, 2018, which is the subject of this ruling. The Applicants by their motion prayed for the following orders:
1. AN ORDER of this Honourable Court extending the time within which the Applicants may seek leave to appeal against the Ruling of the Kwara State High Court, Ilorin Division delivered on the 27th of July 2018 by Hon. Justice T. S. Umar in Suit No: KWS/251/2017 as contained in Exhibit A.
2. AN ORDER of this Honourable Court granting leave to the Applicants to appeal against the Ruling of the Kwara State High Court Ilorin Division delivered on the 27th of July 2018 by Hon. Justice T. S. Umar in Suit No: KWS/251/2017 as contained in Exhibit A.
3. AN ORDER of this Honourable Court extending the time within which the Applicants may appeal and file their Notice of Appeal against the Ruling of the Kwara State High Court, Ilorin Division delivered on the 27th of July 2018 as contained in Exhibit A.
4. LEAVE AND ORDER of the Honourable Court allowing the Applicants to rely on and argue the Appeal based on the Records of proceedings compiled and transmitted by the 1st to 3rd Respondents on the 30th August, 2018 in Appeal No. CA/IL/104/2018, which is an appeal against the same ruling of the lower Court.
5. LEAVE AND ORDER of this Honourable Court allowing the Applicants
to compile and transmit Additional records to include the certified true copy of the ruling of the lower Court sought to be appealed against.
6. AND for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.
The grounds relied upon by the Applicants are that:
1. The Applicants intend to appeal against part of the ruling of the lower Court which gave credence to Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State.
2. The time allowed in law within which the Applicants may seek leave to appeal and within which they can also file their notice of appeal have however lapsed.
3. The failure of the Applicants to file their appeal within time was not deliberate as the Appeal becomes necessary upon the recent review of the Ruling of the trial Court in the process of responding to the Briefs of Argument in Appeal No. CA/IL/104/2018.
4. The ground upon which the Applicants are seeking to appeal against the decision of the lower Court is exceptional as it challenges the constitutionality of the obligation to make the deposit of the sum of one hundred thousand Naira (N100, 000) to the Government of Kwara State before an action in chieftaincy matter could be filed against the same Government of Kwara Stated as can be seen in the proposed notice of Appeal.
5. There are pending appeals in Appeal No. CA/IL/104/2018 against the same Ruling of the lower Court filed by the Respondents where they have already compiled and transmitted the record of the proceedings of the lower Court to this Honourable Court on 30th August, 2018.
6. The Respondents will not be prejudiced in any way if the application is granted.
7. It is in the interest of justice to grant this application.
In support of the application, is the affidavit of Ayokunle Olufade, learned counsel to the Applicants. The facts he swore to in his affidavit are the same as the stated grounds of the application supra. But I find paragraphs 5 and 7 of the affidavit particularly pertinent to this application and are reproduced below:
5. That the failure of the Applicants to file their appeal within time was not deliberate as the Appeal becomes necessary upon the recent review of the Ruling of the trial lower Court in the process of responding to the Appellant’s Briefs of Argument in Appeal No. CA/IL/104/2018.
6. —-
7. That there are pending appeals in Appeal No. CA/IL/104/2018 against the same Ruling of the lower Court filed by the Respondents where they have already compiled and transmitted the record of proceedings of the lower Court to this Honourable Court on 30th August 2018.
Attached to the affidavit, are the certified true copy of the ruling of the Court below against which the Applicants are seeking to appeal, and the proposed notice of appeal marked as Exhibits ?A? and ?B? respectively.
On the 31st January, 2019, when the application was called for hearing, Olanrewaju Ademola Esq., leading Cletus Uduma Esq., moved the motion in terms of the prayers contained therein on behalf of the Applicants who were in Court, and prayed that the application be granted.
The learned Counsel to the 1st to 3rd Respondents O.J. Adeseko Esq., leading L. O. Olaosun Esq., who incidentally did not file a counter affidavit, objected to the application on the ground that the Applicants were the beneficiaries of the ruling of the trial Court that they now seek leave to appeal against, and which was appealed against in Appeal No. CA/IL/104/2018. The learned counsel submitted that this application is novelle to the 1st to 3rd Respondents who are the Appellants in the pending appeal No. 104/2018. Mr. Adeseko further drew the Court?s attention to the fact that the Applicants did not state the reason why they want to appeal against the ruling that was given in their favour and they did not state that they are cross appealing.
A. A. Daibu Esq. (C.S.C., MOJ, Kwara State) leading Mrs. O. Michaels (S.S.C.), M.O.Z. Usman Esq. (S.C.1) and K. K. Abdulkadir Esq. (S. C. 1) for the 4th Respondent did not also file a counter affidavit to the motion. He adopted the position as stated by Mr. Adeseko and aligned himself with Mr. Adesiko?s argument. Mr. Daibu further pointed out that by their prayers 1 and 2, the Applicants are seeking leave to appeal against the Ruling of the Kwara State High Court and not part of it, while the Ruling was given in their favour.
Mr. Ademola, learned counsel for the Applicants was quick to respond that though it is correct that the Ruling the Applicants are now seeking the leave of this Court to appeal against was in their favor, that of the Ruling (they now seek leave to appeal) was in favour of the Respondents.
I have considered the grounds of the application and the arguments of counsel. I note that this application was brought pursuant to Sections 14(1), 24(2) and 30 of the Court of Appeal Act 2004 (as amended). However that Section 14(1) only provides that an appeal against an interlocutory decision of the High Court or Federal High Court shall lie to this Court only with the leave of either this Court or the trial Court. Section 24(2)(a) provides that notice to appeal or notice of the application seeking leave to appeal from the interlocutory decision of the High Court shall be given within 14 days of the decision, while Section 30 is the interpretation Section.
The Applicants had further stated on their motion that they brought their application pursuant to Order 6 Rules 1 & 2 and Order 8 of the Court of Appeal Rules 2016. Instructively, Rules 1 & 2 of Order 6 only provide the form of application to be made to the Court, while Order 8 deals with compilation and transmission of records of appeal.
None of the sections of the Court of Appeal Act or the Rules of this Court relied upon for this application provide for appeals by a successful party from the decision of the High Court seeking to appeal against that decision that was given in his or her favour; especially, where the same applicant is a respondent in the appeal already filed by the party against whom the decision was given. Perhaps that was why the learned counsel for the Respondents who are Appellants in the pending appeal No: CA/IL/104/2018 found this application novelle as their counsel had put it. But is this contention of the Respondents that application is novelle correct and could that be a reason why this application should be refused.
Let me at this juncture draw My Lords’ attention to what an appeal really entails. In the case of Minister of Petroleum & Mineral Resources & Anor V. Expo-Shipping Line (Nig.) Ltd (2010) LPELR-3189 (SC), Adekeye J.S.C. held that:
An appeal is substantially a complaint against the decision of a trial Court. The 1999 Constitution of Nigeria guarantees every citizen of this Country an access to Court to air his grief and a right of appeal thereafter where necessary. The right of appeal must be exercised within the precept of law. See also Yaki & Anor. Vs. Bagudu & Ors. (2015) LPELR-25721 (SC), where it was held that no right, including the right to appeal is absolute. Thus the right to appeal is guaranteed and that right can only be curtailed by two factors namely, the nature of the appeal and the party exercising the right. Where the appeal falls within Section 242(1) of the Constitution of Nigeria 1999, (as amended), an appeal lies as of right, but where appeal does not fall within the purview of this section, the party would require leave of Court to appeal; otherwise, parties to any suit, whether claimant or defendant have an unfettered right to appeal against the decision of trial Court to the Court of Appeal and up to Supreme Court. See Chukwu & Anor. Vs. INEC & Ors. (2014) LPELR-25015 (SC) and Bukoye & Ors. Vs. Adeyemo & Ors. (2016) LPELR-40852 (SC).
But the position or misunderstanding of this application by the Respondents is understandable because traditionally an Appellant is one who challenges the findings of the lower Court that were not in his favour while the Respondent?s traditionally assigned role was to defend the decision of lower Court, which was in his favour. However, a successful party in the decision of the High Court who is averse to some part of that decision can also challenge that portion of judgment on appeal and may wish the judgment varied or affirmed on different grounds other than the grounds relied upon by the trial Court. In this circumstance, the Respondent is also an Appellant. In order to avoid confusion and only for the purpose of distinction and clarity, that in practice such appellant is called cross- appellant and his appeal is tagged as ?cross-appeal? and the person against whom the judgment was given who had first appealed against the judgment now becomes ?cross respondent?. Furthermore, such a successful party in the decision of the Court below could also choose to file a Respondent?s Notice pursuant to Order 9 of the Court of Appeal Rules, 2016. But in the eyes of the law he is an appellant having complained against the decision of the lower Court. In holding this position, I rely on this Court?s earlier decision in the case of Olodo & Ors. Vs. Iburuku & Ors. (2011) LPELR-364 4(CA), on the definition of what is termed as ?cross appeal? and it was held that:
“There does not seem to be any statutory provision for a cross-appeal. The name cross-appeal appears to be merely descriptive. If two appellants sign the same Notice of Appeal as appellant is described as joint appeal. If an appellant as well as a respondent file two separate appeals against the same decision, the appeal of the appellants, it is described as an appeal simpliciter while that of the Respondent is described as a cross-appellant. It is the 1999 Constitution that gives life to every appeal from the High Court to Court of Appeal and indeed from every decision of a superior Court of record to higher Court. The word cross-appeal is not provided for in the Constitution? An appeal is an appeal. Neither the Court of Appeal Act 2004 (as amended) nor the Court of Appeal Rules do so. In fact Order 1 Rule 5 of the Court of Appeal Rules 2011 defines an appeal as the filing of notice of appeal. The filing of a notice of appeal gives birth to an appeal or a cross-appeal as the case may be. Both appeals are to be heard together if they are against the same judgment?.The applicant being the respondent in this appeal having filed a Notice of Appeal ipso facto becomes a cross-appellant whether or not he tags it notice of appeal or cross-appeal. It does not in my respectful view require a new appeal number.” Per AWOTOYE, J.C.A.
See also Oro & Ors. Vs. Falade & Ors (1995) LPELR-2770 (SC), Oro & Ors. Vs. Falade & Ors (1995) LPELR-2770 (SC), and Lafia L. G. Vs. Executive Governor of Nasarawa State & Ors. (2012) LPELR-20602 (SC) and Nsirim Vs. Amadi (2016) 5 NWLR (pt. 1504) 42.
It is against the above background that I will proceed to determine the merit or otherwise of the present application.
As stated earlier the objection of the Respondents to this application was predicated on the fact that the Applicant was the beneficiary of the Ruling he is now seeking leave to appeal against, and that he did not seek leave to ‘cross-appeal’ which is the traditional known title of an appeal filed by a successful party in the decision of the lower Court. In view of the foregoing background analysis of what an appeal is in the eyes of the law, it is clear that an appeal by whatever name called is still an appeal. Once the party is aggrieved one way or the other with the decision of the lower Court, the Appellate Court should rarely deny the right of appeal to such party, unless it is shown clearly that the applicant failed to follow the rules of the Appellate Court that were laid down for appeals generally. See Bukoye & Ors. Vs. Adeyemo & Ors. (Supra). But certainly, it cannot be a just reason to deny an applicant the right of appeal, simply because the correct nomenclature was not stated in the application for leave to appeal.
My Lords, I find it necessary to distinguish this case with the case of Olodo & ors. Vs. Iburuku & Ors. (supra) upon which I relied in determining what an appeal entails in the eyes of the law. In that case, the Applicants just like the applicants now before us, applied for leave to cross-appeal against the decision of the lower Court, which was given in their favour. But there was already filed a notice of cross-appeal against the decision earlier filed by their co-respondents, which they refused to prosecute, by failing to compile and transmit the record of appeal. This Court (Port Harcourt Division) in dismissing the application held that:
“All I have endeavored to state above is that the appeal filed by the applicant on 7/7/2005, it having been filed by a respondent in respect of a decision against which there is an appeal is itself a cross-appeal which can be accommodated within this appeal. This means there is no need for the applicant to seek leave to file a cross-appeal. There is no need for the applicant to file cross-appeal. There is no need for the application filed by the applicant. It seeks to file an appeal over another subsisting appeal. It is indeed an abuse of Court process and should be dismissed. Per AWOTOYE, J.C.A (Pp. 16-17, paras. E-A)
The circumstances in respect of the application now before us are quite distinct from the circumstances in the above case. This is because none of the Applicants in this application had filed any subsisting appeal. The Appeal No: CA/IL/104/2018, was filed by the Appellants, against whom the Ruling of the lower Court was given, while the applicants by this application are seeking leave to ?cross-appeal? so to say, against the same decision.
It is for the above stated reasons that I am of the view that the Application ought to be granted and it is hereby granted as prayed. The Applicants are granted leave to file their notice of appeal against the decision of the lower Court. The notice of appeal shall be filed within seven days from today.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice Balkisu Bello Aliyu, JCA, had graciously accorded me the privilege of perusing the Ruling just delivered by His Lordship.
Instructively, the genesis of the instant application is traceable to the ruling delivered by the Kwara State High Court on July 27, 2018 in Suit No. KWS/251/2017. By the ruling in question, the Court below, Coram T. S. Umar, J.; found and held to the conclusive effect:
Accordingly, I hold that this suit is not statute barred.
The suit cannot also be an abuse of Court process because what was decided at the High Court and the Court of Appeal was an interlocutory application which has not finally determined the right of the parties. The Claimants were in my view right to have chosen to take the hint of the Court of Appeal and initiated this action.
Therefore, the issue of estoppel raised by the counsel for the 4th Applicant does not arise. I therefore, hold that the preliminary objections are without merit and they are hereby refused.
Parties are ad idem, that the Applicants herein were undoubtedly the beneficiaries of the vexed ruling of the Court below. Yet, by prayers 1, 2 and 3 of the instant Applicant thereof, the Applicants have urged this Court for the trinity prayers for an extension of time to seek leave to appeal, leave to appeal and extending time to file a Notice of Appeal against the vexed ruling of the Court below.
Indeed, the grant of an application for an enlargement to seek leave to appeal or to appeal simpliciter, is squarely at the discretion of the Court. The discretion, of course, ought to be exercised not only judicially but also judiciously. However, the discretion cannot be exercised in vacuo but in absolute regard to the facts and circumstances surrounding the case. See AKINPELU VS. ADEGBORE (2008) 10 NWLR (Pt. 1096) 53 @ 554 paragraphs F – H; AKINYEDE VS. THE APPRAISER (1975) 2 SC 39; OBIKOYA VS. WEMA BANK (1989) 1 NWLR (Pt. 96) 157.
The options open to a respondent who is dissatisfied with a judgment are not far-fetched. Indeed, the law is settled that a party to an action is dissatisfied with any finding of the Court, he has the right to appeal against same. This is absolutely so, notwithstanding whether the aggrieved party is the victorious or loosing party in the suit. Indeed, such a victorious party has the right of appeal against the decision, wholly or in part of the Court. In the case of FRA WILLIAMS VS. DAILY TIMES OF NIGERIA LIMITED (1986) 4 NWLR (Pt. 36) 526, the Supreme Court per Eso, JSC, aptly held:
It is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross appeal and shall not do so by an application to affirm or vary the judgment on other grounds.
One other option opens to the Respondent to challenge the decision of Court, is by way of a Respondent?s notice pursuant to Order 9 of the Court of Appeal extant Rules, 2016 which provides:
1. A Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied either in any event or in the event of the appeal being allowed, in whole or in part, must give notice to that effect, specifying the grounds of the contention and the precise form of the order which he proposes to ask the Court to make or to make in that event, as the case may be. In the case of NABISCO INC. VS. ALLIED BISCUITS COMPANY LIMITED (1998) 10 NWLR (Pt. 568) 16, the Apex Court per Ogwuegbu, JSC aptly held:
The point or points which the notice templates must have arisen from the Appeal. A Respondent’s notice is only available to vary and retain the judgment and not its reversal. Where a Respondent seeks to contest a different issue or cause of action different from the one raised by the appeal served on him, or a reversal of an adverse finding, he can only do so by Notice of Appeal or cross appeal. See also LAGOS CITY COUNCIL VS. E. A. AJAYI (1970) ALL NLR (Reprint) 293; WESTERN STEEL WORKS LIMITED VS. IRON AND STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (Pt. 49) 284; (1987) 1 NSCC 133 @ 142; NATIONAL SOCIETY FOR THE DISTRIBUTION OF ELECTRICITY VS. GIBBS (1900) 2 CH 280 @ 287; ELIOCHIN (NIGERIA) LIMITED VS. MBADIWE (1986) 1 NWLR (Pt. 14) 47; EJEALOR VS. GOVERNOR OF IMO STATE (2017) LPELR CA/OW/129/2013.
The term ‘appeal’ simply denotes, to seek to review (a lower Court?s decision) by an appellate Court of competent jurisdiction. Contrariwise, the term ‘cross-appeal’ denotes an appeal by the appellee usually heard (and determined) at the same time as the appellant’s appeal. See BLACK?S LAW DICTIONARY, 16th Edition, 1999 @ 94.
I think, it was in the case of AT ENGINEERING COMPANY LIMITED VS. MILITARY GOVERNOR OF OGUN STATE (2009) 40 WRN 1, that the Apex Court aptly made a distinction between an appeal (simpliciter) and cross-appeal, thus:
A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals each appeal, is separate and is an independent complaint by the parties even though both appeals are heard together.
See the case of CHIEF KALU IGWE AND 2 ORS. VS. CHIEF OKUWA KALU AND 2 ORS. (2002) 26 WRN 58?
A party seeking to set aside a finding in a judgment which is crucial can only do so through a substantive cross-appeal and not on application to affirm or vary the judgment on other grounds. See BRIGGS VS. BOB-MANUEL AND ORS. (2003) 1 SCN 218 at 226 ? 227.
Per Ogbuagu, JSC @ 47. Most ironically, the term cross-appeal is not provided for in the Constitution of the Federal Republic of Nigeria, 1999. However, a right of appeal from the decision of the Court below is exercisable in regard to civil proceeding at the instance of a party thereto (whether plaintiff of defendant) or with leave of the Court, at the instance of any other person having an interest in the matter.
What’s more, neither the Court of Appeal Act, 2004 (as amended) nor the Court of Appeal Rules, 2016 have defined the term cross appeal. Invariably, the term ?cross appeal? is merely descriptive. In the sense that if an appellant and a respondent file two distinct appeals against the same decision of the Court below in the same suit, the appeal of the appellant is described as an appeal simpliciter, while the Respondent?s appeal is tagged as a cross-appeal. See OLODO VS. IBURUKU (2011) LPELR ? 3644 (CA).
Instructively, the case of OLODO VS. IBURUKU (Supra) cannot, by any stretch of imagination, be said to be on all fours with the instant case, for some obvious reasons. In OLODO?s case (Supra), this Court raised the pertinent question of whether the Applicants therein could cross-appeal. In addressing that pertinent question, this Court per Awotoye, JCA aptly postulated:
Can the applicant in this application cross-appeal?
The applicants had earlier filed an appeal against the judgment of the lower Court on 7/7/2005. The applicants were the 1st set of defendants at the Court below. The applicants and the appellants are from Izifa family in Akenfa?
It is therefore surprising, having regards to the above that one of the reasons for opposing this application is that the applicants and appellants share common interest in the appeal. This cannot be true.
But this does not justify an application to cross appeal in the face of the earlier appeal filed by the applicants. There does not seem to be any statutory provision for a cross appeal. The name cross appeal appears to be merely descriptive. If two appellants sign the same Notice of Appeal as appellants is described as joint appeal. If an appellant as well as a respondent file two separate appeals against the same decision, the appeal of the appellants, it is described as an appeal simpliciter while that of the Respondent is described as a cross appeal?
This application therefore fails. It is accordingly dismissed with cost of N20,000.00 in favour of each set of respondents.
It is obvious from the decision of this Court in OLODO VS. IBURUKU (Supra) that the Applicants’ application was refused by the Court on the simple ground that the Applicants had prior to the application filed an appeal which was still subsisting in the Court. Thus, this absurd scenario was deprecated upon by EKO, JCA (as the learned Lord then was) inOLODO VS. IBURUkU (Supra):
In view of all I have said above, is it therefore right in law or procedure for one party whose appeal or cross appeal is live and subsisting to contemplate filling a cross appeal, as this application seeks to do?
It is clear to me, therefore, from the authorities and peculiar facts of this application that permitting the applicants to file another cross-appeal, as this application seeks to attain will result in abuse of process. The multiplicity of appeals by the 4th – 8th defendants in the Suit No. YHC/3/86 against the same parties over the same subject matter will no doubt be abuse of process. This application is vexatious. Its purpose is merely to cause confusion and incontinences to the judgment creditors.
The application does not, on the merits, deserve to be granted. Accordingly, it is hereby dismissed with costs at N20,000.00 to each set of parties represented by Mr. Igbiriberesima.
Contrariwise, however, in the instant application, there is no indication whatsoever that the Applicants had, prior to filing the application, filed any notice of appeal whatsoever. Therefore, in my considered view, the Applicants are entitled to be accorded an opportunity to ventilate their grievances by filing a (cross) appeal to the Respondents? appeal (CA/IL/104/2018) against the said ruling of the Court below, delivered on July 27, 2018 in Suit No. KWS/251/2017.
Hence, against the backdrop of the foregoing postulates, I have no hesitation in concurring with the reasoning of my learned brother, the Hon. Justice B. B. Aliyu, JCA thereby reached in the said ruling, to the conclusive effect that the present application is meritorious, and same is hereby equally granted by me. The Applicants shall file their notice of cross appeal within seven (7) days from today.
HAMMA AKAWU BARKA, J.C.A.: I have been opportuned to have read before now the Ruling of my learned brother Balkisu Bello Aliyu JCA.
I entirely agree with the reasoning and the conclusion reached therein. I also grant the application as prayed.
Appearances:
Olarewaju L. Ademola, Esq. with him, Cletus I. Uduma, Esq.For Appellant(s)
O. J. Adeseko, Esq. with him, l. O. Olaosun, Esq. for the 1st to 3rd Respondents
A. A. Daibu, Esq. (C.S.C., MOJ Kwara State), with him, Mrs. O. Micheals (S.S.C), M. A. Z. Usman, Esq. (S.C.1) and R. K. Abdulkadir, Esq. (S.C.1) for the 4th Respondent
For Respondent(s)
