SAMUEL SOGBESAN v. MR. ADEBOWALE OGUNBIYI & ORS(2005)

SAMUEL SOGBESAN v. MR. ADEBOWALE OGUNBIYI & ORS

  (2005)LCN/1795(CA

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of July, 2005

CA/L/53/2003

 

JUSTICES

KUMAI BAYANG AKAAHS   Justice of The Court of Appeal of Nigeria

MUSA DATTIJO MUHAMMAD   Justice of The Court of Appeal of Nigeria

CLARA BATA OGUNBIYI   Justice of The Court of Appeal of Nigeria

Between

 

SAMUEL SOGBESAN Appellant(s)

AND

  1. MR. ADEBOWALE OGUNBIYI
    2. ALHAJI LAMIDI AJAO
    3. MR. OLUSEYE SOGBESAN
    4. ALHAJA OMOLARA AKINGBADE Respondent(s)

 

OGUNBIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of his Lordship, Justice Rhodes Vivour of the Lagos High Court, delivered on the 6th July, 2001, whereby the appellant’s application dated 2nd day of March, 1998, was dismissed. The appellant desired to set aside the consent judgment entered into by the parties and signed on the appellant’s behalf by his counsel. The appellant claimed that the judgment even though signed by his counsel on his behalf was however without his instructions and very much against his will.
The facts that gave rise to this appeal are simple and briefly as follows: At pages 9 – 10 of the record of proceedings, the lower court on the 17th March, 1997, entered judgment in the suit No. LD/2896/95, in terms of the settlement agreed upon between the parties and evidenced at pages 11 and 12. Consequent to same, the appellant as the defendant, brought a motion on notice dated 2nd March, wherein he prayed as follows:
“(1) Extension of time within which to apply to set aside the judgment delivered on 17th March, 1997.
(2) That the judgment entered in suit No. LD/2896/95 on the 11th March, 1997, be set aside by this Honourable Court.
(3) …”
In support of the motion is an affidavit of 15 paragraphs, and these are all evidenced at pages 4 – 6 of the record; consequent to the foregoing, arguments commenced on the 13th April, 2000, and concluded on the 2nd May, 2001, with a counter affidavit having been filed in the interim on the 5th April, 2001. All these are also evidenced at pages 39, 41 and 13 – 14 of the said record respectively. The ruling that gave rise to this appeal was delivered on the 6th July, 2001, wherein the lower court refused and dismissed the application to set aside the consent judgment.
By a notice of appeal dated 25th July, 2001, the appellant filed two grounds of appeal. Both parties to the appeal filed their respective briefs of arguments with that of the appellant dated 9th June and filed the 11th June, 2003. That of the respondents was dated 25th October, 2004, and filed the same day. The appellant further filed a reply brief dated the 29th October, 2004, and also filed the same day. When the appeal was called up for hearing, the learned counsel, Mrs. I. O. Harrison represented the respondent; there was however no representation for the appellant. The learned respondents’ Counsel, in arguing the appeal adopted their brief and urged us to dismiss the appeal. It is pertinent to restate that even in the absence of the appellant’s Counsel, with his brief having been filed, same was deemed argued consequent to the provisions of the Rules of this court per Order 6 rule 9(5). From the grounds of appeal filed therefore, the appellant formulated two issues for determination as follows:
1) Whether a counsel’s compromise can bind his client when such counsel acted contrary to the client’s specific instructions?
2) Whether the learned trial Judge correctly applied the provisions of the law to the issues canvassed before him?
On behalf of the respondents however, their learned Counsel Mrs. I. O. Harrison first raised a preliminary objection and subsequently formulated three main issues from the grounds of appeal as follows:
Preliminary issue
Whether the notice of appeal filed by the appellant on the 25th day of July, 2001, is competent
Main issues
1. Whether the judgment of court dated 11th March, 1997, can properly be termed a consent judgment pursuant to the provisions of the High Court Rules of Lagos State, 1994.
2. Whether a subsequent withdrawal of authority from a counsel can affect acts or steps taken (by the said counsel on behalf of his client) prior to the said withdrawal.
3. Whether based on the facts before the lower court it had jurisdiction to set aside the consent judgment dated 17th March, 1997.
I would as a point of observation wish to briefly state that the formulation of three issues by the respondents from the appellant’s two grounds of appeal is totally outside the contemplation of the law. In other words, it is trite that issues are to be distilled from the grounds of appeal. The formulation of the three issues amounted to proliferation and therefore bad practice.
Before delving into the merit of this appeal, it would be pertinent as a pre-requisite to dispose of the preliminary issue raised by the respondent. In other words, whether or not the notice of appeal filed by the appellant on the account of this appeal is competent or not.
In his submission to substantiate the objection, the learned respondents’ counsel cited a number of authorities and re-iterated that the right to appeal is not discretionary but statutory and which is governed by the constitution. Furthermore, counsel argued that with the present appeal being one against a consent judgment, the appellant should have first obtained leave of the High Court or Court of Appeal as a condition precedent to the validity of the appeal. A number of authorities cited by learned counsel to butress his submission included the cases of Abuul v. BENSU (2003) 16 NWLR (Pt. 845) 59 at 86; Goni v. Gambo (2003) 17 NWLR (Pt. 849) 411 at 420; Edun v. Odan Community (1980) 8/11 SC 103; Woluchem v. Wokoma (1974) 3 SC 153. Also of relevance is section 220(2)(c) of the Constitution of the Federal Republic of Nigeria, 1979. The learned Counsel therefore urged us to dismiss the appeal at this stage without necessarily having to go into the merit of same.
In response to the objection raised, the appellant on the reply brief vehemently refutted same and garnered that since the appeal was filed in 2001, section 220(2)(c) of the 1979 Constitution is not applicable; that the applicable law is 1999 Constitution which omitted section 220(2)(c) of the 1979 Constitution. The learned counsel sought to rely on section 241 subsections (1)(b) and (1)(d) of the 1999 Constitution as relevant. That having regard to the two grounds of appeal filed, while ground (b) falls in line with section 241(1)(b) ground (a) also comes within the ambit of section 241(1)(d) of the 1999 Constitution respectively. The learned Counsel in support cited the case of Alhaji Lawal Tunbi v. Isreal Opawole (2000) 2 NWLR (Pt.644) 275 at 284, (2000) 1 SC page 1 at 9 where their Lordships of the apex court held
“it is more than a technical error committed by the Court of Appeal to decide an appeal before it on an abandoned brief.”
Learned Counsel urged us to allow the appellant’s appeal and set aside the consent judgment delivered by the lower court on 17th March, 1997.
The grouse surrounding the preliminary objection is whether or not, the notice of appeal filed is competent. It is also relevant and follows that the submission by the appellant on his reply brief puts into question the applicable law governing this appeal. While the said learned Counsel for instance argues in favour of the 1999 Constitution, the respondent restates the applicability of the 1979 Constitution.
With reference to the 1999 Constitutional provisions and specifically sections 241(1)(b) and (d), same are as rightly submitted by the learned appellant’s counsel, the positions relating to appeals as of right from decisions of the Federal High Court or a High Court.
However, and that notwithstanding, the same section 241(2)(c) had the following to say:
“(2) Nothing in this section shall confer any right of appeal-
(a) …
(b) …
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
By the very nature of this appeal, same seeks to challenge the consent judgment given by the lower court as evidenced on the grounds of appeal as well as the particulars thereto. There is therefore no ingenuity of arguments with supported authorities that can override the constitutional provision requiring leave as a pre-requisite condition to filing an appeal against a consent judgment. It is significant to point out that with the subsisting judgment of the lower court either rightly or wrongly, same has the force of law and no denial by the appellant could hold to change its legal effect except if overturned on appeal. The reference made by the counsel to section 241(1)(b) and (d) of the constitution, no doubt, have their applicability but subject however that they do not serve as an overriding factor replacing the legislative intendment of section 241(2)(c). In other words, the argument by the appellant’s counsel relegating the force of the said subsection is grossly misleading and misplaced.
In the Court of Appeal decision of Goni v. Gambo (supra) the expectation of premium placed thereon is the principle requirement of section 220(2)(c) of the 1979. Constitution wherein the condition of prior leave, consequent to an appeal on consent judgment is a necessity.  The section, contrary to the contention by the learned appellant’s counsel is on the same parameter with the 1999 provision.
As rightly submitted by the learned respondent’s Counsel therefore, any appeal filed without the compliance laid down in the constitutional provision is incompetent as it touches on the jurisdictional competence of the court. Other related authorities in support are Edun v. Odan Community (1980) 8/11 SC 103 and Woluche v. Wokoma (1973) 3 SC 153.
With the ruling in this matter seeking to set aside a consent judgment, the right to appeal is not discretionary, but statutory and governed by the constitution. It is therefore imperative on the appellant to have first obtained leave of the High Court, or the Court of Appeal as a condition precedent to the validity of the appeal. The act of non compliance is detrimental to the appellant’s case and rendered same incompetent. The matter at hand is not predicated on a valid and subsisting appeal.
It therefore lacks foundation and which must crumble. In the result, and with the foregoing deductions arrived at, it would serve no useful purpose to go into the substantive arguments raised by counsel, as same would amount to an academic exercise in futility. The supposed appeal in this matter is hereby struck out as incompetent. A further order is also made that each party should bear its cost of the appeal.

AKAAHS, J.C.A.: I agree with the judgment of my learned brother, Ogunbiyi, J.C.A., a preview of which I had in draft. Both counsel are agreed that the notice of appeal which is dated 25/7/2001 was filed within time on 27/9/2001. The judgment being appealed against is a consent judgment and the appellant needed leave either of the lower court or this court before filing the notice of appeal as section 241(2)(c) of 1999 Constitution which stipulates that:
“241-(2) Nothing in this section shall confer any right of appeal-
(a) …
(b) …
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
is the provision which should regulate the appeal.
This provision is in pari materia with section 220(2) of the 1979 Constitution. Karibi-White, JSC. dealt with the situations, where the constitutional provisions confer a right of appeal and where a party needs to seek leave before he can exercise the right to appeal when he explained in Aqua Limited v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 thus, at pages 655-656:
“The sections under consideration appear to me plain and unambiguous even though counsel to the appellant seems to contend otherwise. Section 220(1) confers a general right of appeal without leave of the court, and as of right, but the paragraphs thereof prescribe the conditions for the exercise of the right. Each paragraph is independent of the other as to the rights conferred. Section 220(2) deals with all cases where there is no right of appeal; except paragraph (c) which confers right of appeal with leave of the High Court or the Court of Appeal. Section 221(1) which is subject to section 220 is concerned with the exercised of right of appeal where leave of the High Court or Court of Appeal is required. A careful analysis of section 220(1)(a) and (b) discloses that the paragraphs of the subsection govern the exercise of right of appeal, as of right and without the necessity to seek leave of the Court of Appeal in respect –
(a) final decisions of the High Court sitting at first instance.
(b) non-final decisions where the ground of appeal involves questions of law alone – See State v. Albert (1982) 5 SC 6; Gamioba & Ors. v. Esezi II & Ors. (1961) 2 SCNLR 237; (1961) 1 All NLR 584; Olawoyin & Ors. v. C.O.P (No.2) (1961) 1 All NLR 622; (1961) 2 SCNLR 278.
It seems to me that the non qualification in (a) of the ground for the exercise of the right, leaves it at large and enables the exercise of the right with respect to all grounds of error whether of law, fact, or mixed law and fact.
The section does not appear to me to contemplate appeals from final decisions of the High Court in the exercise of its appellate jurisdiction, described as double appeals. In such cases, it seems to me that the provisions of section 221(1) will apply.”
In the same case Wali, JSC. Explained the position of the law in a lucid manner when he stated on page 643 of the report as follows:
“In summary, the position of the law may be thus stated; under section 220(1)(a) a general right of appeal to the Court of Appeal as of right from a final decision of the High Court exercising original jurisdiction enures to a litigant in both civil and criminal proceedings irrespective of the nature of the grounds of appeal; and under section 220(1)(b) in non-final decisions as well as in double-appeals where the grounds of appeal involve issues of law alone and in all cases other than those mentioned in section 220(1)(c), (d), (e), (f) and (g), with the leave of either the High Court or the Court of Appeal.”
The right of appeal therefore is embedded in the Constitution and anybody who wants to exercise such right must do so in accordance with the provisions of the Constitution. As it stands, since the judgment being appealed against is a consent judgment, the right to appeal is not automatic, but has to satisfy the condition stated in section 241(2) of the 1999 Constitution, namely that the party wanting to exercise the right must first seek leave to do so; failing which the notice filed and the appeal itself will be incompetent and liable to be struck out. As the appellant did not seek leave of court to appeal, the appeal is incompetent. It is for this reason and the fuller reasons given by Ogunbiyi, JCA. in the lead judgment that I agree that the appeal is incompetent and accordingly should be struck out. I also endorse the order that each party should bear its costs.

M. D. MUHAMMAD, J.C.A.: Having had a preview of the lead judgment of my learned brother, Ogunbiyi, JCA., I agree with the reasoning and conclusion therein that this appeal is incompetent.
I offer a few words in respect of the appeal purely for the purposes of amplification.
The right of appeal must be statutorily provided for before it is legitimately invoked. Where a statute has not provided the aggrieved to ventilate his grief by challenging the legal worth of the decision that caused him his grief, the appellate court would be moribund and devoid of the jurisdiction to consider the aggrieved person’s appeal. For this matter, S. 241(2)(c) of the 1999 Constitution is relevant in providing thus:
“-(2) Nothing in this section shall confer any right of appeal-
(c) Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties…”
In the case at hand, following terms of settlement between the parties, the lower court entered a consent judgment which appellant sought the court to set-aside. The lower court refused and thus the instant appeal.
These facts are beyond dispute. That appellant has not obtained the leave of either this court or the court below before filing his appeal is also not in doubt. Where an action is commenced not by the due process provided for by law, the action as so commenced is incompetent and no court of law would have the jurisdiction to consider same. I shall remind disputants of Supreme Court’s decision in Madukolu v. Nkemdilim (1962) 2 SCNLR 341, and Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536 SC in this regard. Since the instant appeal has not been commenced with the leave of either of the lower court or this court as required by S. 241(2)(c) (supra), appellant does not have the right of appeal in the first place and by extention the right of being heard by us.
For the foregoing and the detailed reasons adumbrated in the lead judgment, I equally so hold. I dismiss the appeal as being reflected in the lead judgment.
Appeal struck out.

 

Appearances

Appellant not representedFor Appellant

 

AND

I.O. Hanison (Mrs.)For Respondent

 

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