SENATOR TOKUNBO AFIKUYOMI & ORS v. PROF. ALFRED BAMIDELE KASUNMU
(2019)LCN/13186(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/L/775/2008
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
SENATOR TOKUNBO AFIKUYOMI & ORS – Appellant(s)
AND
PROF. ALFRED BAMIDELE KASUNMU – Respondent(s)
RATIO
CONSEQUENCES OF WHERE A MOTION ON NOTICE IS FILED TO CHALLENGE SOME GROUND OF APPEAL IN AN APPEAL
It is now settled that even in cases where a motion on notice is filed to challenge some grounds of appeal in an appeal but the challenge is made by way of preliminary objection which would not dispose of the whole appeal, the issue is treated as a pardonable procedural irregularity especially where the parties joined issue on the application by proffering arguments thereon as in this case vide KLM Royal Dutch Airlines v. Jamilat Aloma (2018) 1 NWLR (pt.1601) 473 at 490 – 491 where the Supreme Court held per the lead judgment prepared by his lordship, Kekere-Ekun, J.S.C. thus
As the respondent has raised a preliminary objection in her brief, it is prudent to consider and resolve it before delving into the merits of the appeal. It should be noted that the preliminary objection relates only to ground 2 of the notice of appeal. As there is no complaint against grounds 1 and 3, it follows that the respondent is not challenging the competence of the appeal in its entirety. The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See: Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 C-F; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator Plateau State (2001) 16 NWLR (Pt. 740) 524. PER IKYEGH, J.C.A.
OPTIONS AVAILABLE TO A PARTY WHOSE MOTION IS STRUCK OUT
However, it was held in the case of Akpan and Ors. v. Ekpo and Ors. (2001) 5 NWLR (pt.707) 502 at 512 that the options available to a party whose motion is struck out is to be at liberty to either file a fresh motion or apply that the one struck out be relisted. There (Akpan v. Ekpo) the Court, (Calabar Division) unanimously held (coram: Edozie, Opene and Ekpe, JJ.C.A.) that where a partys motion is struck out, it is optional for that party to file a fresh motion or apply for the motion that was struck out to be relisted intoning the advice that in fact, it is quicker, more expedient and convenient to file a fresh motion.
The Supreme Court case ofPanalpina World Transport (Nig.) Ltd. v. J.B. Olandeen International and Ors. (2010) 19 NWLR (pt.1226) 1 at 20decided it per the lead judgment prepared by Adekeye, J.S.C., (and concurred in by Mahmud Mohammed, Chukwuma-Eneh, Fabiyi and Rhodes-Vivour, JJ.S.C.) that an applicant whose motion is struck out can either file a fresh motion or file an application to relist it, depending on the circumstances that led to the striking out of the motion or the nature of the order made; that where there was an attack on the contents of such motion prior to it being struck out, a fresh motion must be filed; and, also, a motion filed under the prerogative jurisdiction of the Court, which is struck out, can be refiled and brought before another Judge of the same jurisdiction.
The Supreme Court further held in Panalpina World Transport (Nig.) Ltd. v. J. B. Olandeen International and Ors. (supra)that where a matter is struck out in a circumstance that it has not been heard on the merit, there is a liberty to relist. The word liberty means having the right or freedom to do something (Oxford Advanced Learners Dictionary, 6th Edition, 682). The rationale behind it is that a matter merely struck out is considered as pending in abeyance in the Courts general cause list affording the claimant another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action.
It follows (supra) that the Court below was right in relisting the motion and the preliminary objection that were struck out on the ground that the respondent was absent in Court and could not move the motion and preliminary objection. PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The respondent claimed professional fees of 250,000.00 United States Dollars for the legal representation of the appellants in a series of litigation with 20% interest per annum from 17th January, 2001 when it became due and payable until the date of judgment, and thereafter at the rate of 10% per annum until the judgment debt is finally paid at the interest to be determined by the court.
Some house-keeping applications were filed. The matter was adjourned for hearing. Only the appellants as defendants were present in Court. The appellants moved for the action to be dismissed for lack of diligent prosecution. It was granted. The respondent filed a motion to set aside the order striking out his action and for the relistment of the action. The Court below heard the application and granted it by setting aside its order dismissing the action and proceeded to the action.
The appellants were dissatisfied with the decision of the Court below and filed a notice of appeal with several grounds of appeal. Briefs were filed and exchanged between the parties. The respondent argued
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the notice of preliminary objection in his brief filed on 10.10.11, but deemed as properly filed on 10.02.14, to the effect that the decision to set aside the orders of the Court below and relist the action was interlocutory and that the grounds of appeal being of mixed law and facts, as they challenge the exercise of the discretion of the Court below, the leave of the Court was required to file and argue the grounds of appeal and having not obtained the requisite leave, the appeal is incompetent and should be struck out citing in support Section 242(1) of the 1999 Constitution, Coker v. UBA (1997) 2 NWLR (pt.490) 641 at 661.
It was also contended in the preliminary objection that the ruling appealed against did not make any pronouncement on the validity or otherwise of the writ of summons, therefore the appellant should not have formulated a ground of appeal challenging the validity of the writ of summons when the issue never arose rendering the ground of appeal incompetent vide Awolesi Motors Nigeria Ltd. v. Dina (1994) 2 NWLR (pt.326) 368 at 373, Akibu v. Oduntan (2000) 13 NWLR (pt.685) at 462 – 463, therefore issue 2 in the appellants
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brief based on the said ground of appeal should be struck out for being incompetent.
The reply brief filed on 24.02.14 challenged the respondents notice of preliminary objection filed on 02.08.11 on the ground that it did not intend to dispose of all the grounds of appeal, therefore the present preliminary objection is inappropriate as it is not intended to dispose of the whole appeal.
Consequently, it was argued that the respondent should have filed a motion on notice as the preliminary objection if successful would not terminate the hearing of the appeal as there are other grounds of appeal to sustain the appeal vide General Electric Co. v. Harry Akande (2010) 18 NWLR (pt.1225) 596, Elder Okereke v. Kalu James (2012) 16 NWLR (pt.1326) 339 at 348 – 349, NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (pt.1328) 48 at 185 – 186.
The reply brief contended that the notice of appeal dated 24.07.2007 and filed on 26.07.2007 is against a final decision of the Court below dated 13.07.2007, as it determined the rights of the parties in the claim and subject matter before the Court below without leaving any option to either party to relitigate
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over the same claim/subject matter; that the grounds of appeal in the notice of appeal when examined thoroughly, reveal a misunderstanding by the Court below of the law and the misapplication of the law to the facts which makes them grounds of law and definitely not grounds of mixed law and facts; and that from the nature of the application and the nature of the order made, the decision appealed against is a final decision, therefore the preliminary objection should be dismissed vide Nwoko v. Azekwo (2012) 12 NWLR (pt.1313) 151 at 173 – 174, Ogolo v. Ogolo (2006) 5 NWLR (pt.972) 163 at 186 -187, Alor and Anor. v. Ngene (2007) 17 NWLR (pt.1062) 163 at 177, Njemanze v. Njemanze (2013) 81 NWLR (pt.7356) 376 at 393 – 395, Loveleen Toys Industries Ltd. v. Komolafe (2013) 14 NWLR (pt.1375) 542 at 565 – 566.
It is now settled that even in cases where a motion on notice is filed to challenge some grounds of appeal in an appeal but the challenge is made by way of preliminary objection which would not dispose of the whole appeal, the issue is treated as a pardonable procedural irregularity especially where the parties joined issue on the
4
application by proffering arguments thereon as in this case videKLM Royal Dutch Airlines v. Jamilat Aloma (2018) 1 NWLR (pt.1601) 473 at 490 – 491 where the Supreme Court held per the lead judgment prepared by his lordship, Kekere-Ekun, J.S.C. thus
As the respondent has raised a preliminary objection in her brief, it is prudent to consider and resolve it before delving into the merits of the appeal. It should be noted that the preliminary objection relates only to ground 2 of the notice of appeal. As there is no complaint against grounds 1 and 3, it follows that the respondent is not challenging the competence of the appeal in its entirety. The purpose of a preliminary objection is to truncate the hearing of an appeal in limine. It is raised where the respondent is satisfied that there is a fundamental defect in the appeal that would affect the Court’s jurisdiction to entertain it. Where there are other grounds that could sustain the appeal, a preliminary objection should not be filed. Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice.
5
The reason is that the success of the objection would not terminate the hearing of the appeal. See: Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 @ 423 C-F; Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator Plateau State (2001) 16 NWLR (Pt. 740) 524.
Notwithstanding the fact that the complaint is wrongly couched as a preliminary objection, I shall consider it in the interest of justice, as the appellant has responded to its reply brief. It is the respondent’s contention that ground 2 of the notice of appeal does not arise from the judgment appealed against.
(My emphasis).
The grounds of appeal are contained in pages 470 – 472 of the record of appeal (the record) thus
GROUNDS OF APPEAL
The learned trial judge erred in law and misdirected herself when she ruled on the Respondents application dated 9th April, 2007 for praying the Court to relist the Defendants’/Applicants’/Appellants Preliminary Objection dated 14th February, 2007 which application the Court granted by holding that the Defendants/Appellants
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preliminary objection dated 14th February, 2007 be set down for reargument.
PARTICULARS
i. The Appellants preliminary objection dated 14th February, 2007 challenging the Claimants/ Respondents suit was argued on 12th March, 2007 and the reliefs striking out the suit in its entirely was granted on 12th March, 2007.
ii. The Court is functus officio and can not relitigate a matter which has been decided on the merits especially on the success of a preliminary objection.
iii. The Court did not consider the points raised in the appellants counter affidavit to the Respondents application dated 9th April, 2007 against relisting the Claimants/Respondents suit.
GROUND TWO
The learned trial judge erred in law in relisting the Respondent or Plaintiffs suit which was struck out on 12th March, 2007 following the success of the Appellants preliminary objection dated 14th February, 2007 challenging the competence of the suit.
PARTICULARS
i. The preliminary objection dated 14th February, 2007 challenged the competence of the suit and the jurisdiction of the Court to
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hear and determine same.
ii. The Court found merit in the objection of the applicants on the issue of law and struck out the suit in its entirety.
iii. The only remedy available to the Respondent, if any, is to appeal the ruling.
GROUND THREE
The learned trial judge erred in law in relisting the Respondent or Claimants/Applicants motion on notice dated 23rd February, 2007 which was struck out on 12th March, 2007.
PARTICULARS
i. The Court has no power to relist the struck out motion via another motion.
ii. The High Court of Lagos State (Civil Procedure) Rules 2004 makes no provision to relist a motion struck out and no inherent powers can be exercised in that regard.
iii. The order made by the Court is perverse.
GROUND FOUR
The learned trial judge erred in law in relisting the Respondent or Claimants/Applicant notice of preliminary objection dated 23rd February, 2007 which was struck out on 12th March, 2007 and relisting same of argument.
PARTICULARS
i. It is an abuse of Court process for the Claimant/Respondent to file their preliminary objection dated 23rd February, 2007 to challenge the
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Defendant/Appellant Preliminary Objection dated 14th February, 2007.
ii. The Court has no power to relist the Preliminary Objection which has been struck out by a motion.
iii. The High Court of Lagos State (Civil Procedure) Rules 2004 makes no provision to relist a notice of Preliminary Objection and no inherent power can be exercise in that regard.
iv. The Order made by Court is perverse.
The decision of the Court below setting aside its decision and relisting the action as well as the motion and preliminary objection did not tackle the issue of expired writ, therefore the ground of appeal and the issue tied to it on expired writ are of no moment and are hereby struck out on the ground that they did not arise from the decision appealed against.
The application to set aside the decision of the Court below and relist the action was fought on affidavit evidence which the Court below weighed (affidavit and counter affidavit) before it exercised its discretion to set aside its decision and relist the action. A consideration of disputed facts and the application of the law on the disputed facts raise an issue of mixed law and fact
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by a Court and the exercise of discretion thereof is an issue of mixed law and fact vide In Re: The Vessel M v. Lupex (1993) 2 NWLR (pt.278) 670 at 683, U.B.A. v. GMBH (1989) 3 NWLR (pt.110) 374 at 388, 91, Ogbechie v. Onochie (1986) 3 S.C. 54 at 56 or (1986) 2 NWLR (pt.23) 484, Ojemen v. Momodu II (1983) 3 S.C. 173 at 207, Ayanboye v. Balogun (1990) 5 NWLR (pt.151) 392, Ojukwu v. Onyeador (1991) 7 NWLR (pt.203) 286, Ogunlabi v. Oyewole (1992) 8 NWLR (pt.262) 729 at 681 to 682.
The application to set aside a judgment or decision and the determination of it either by a refusal to set aside the decision or the granting of an order to set aside the decision in default of appearance or for want of diligent prosecution is made may be appealed against as an interlocutory decision vide Dahuwa v. Adeniran (1986) 4 NWLR (pt.34) 264 at 269 – 270 thus
it appears clear to me that an appeal against the order of the 3rd December, 1984, refusing to set aside the four-year old judgment in the case is interlocutory.
There is thus merit in the preliminary objection on the setting aside of the decision and relisting
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the action. I uphold the preliminary objection and strike out the grounds of appeal and the issues tied to the grounds of appeal on discretionary remedy and hereby strike out the appeal on ground of incompetence under Order 6 Rule 1 of the Court of Appeal Rules, 2016.
The arguments on the motion and the preliminary objection struck out for want of diligent prosecution is premised on the fact that such a motion cannot be relisted. It was contended that the remedy lies in filing another motion citing in support the case of Dr. (Mrs.) Bomo Ivbiyaro (Nee Francis) and Ors. v. Mrs. Omokaro Moni Francis (Nee Obire) (2002) 1 NWLR (pt.747) 33 at 43.
The case of Ivbiyaro and Ors. v. Francis (supra) dealt with the dismissal of substantive action for want of prosecution and the inherent powers of the Court to relist it upon application. It did not treat the question whether a motion struck out could not be relisted. The Court (Port Harcourt Division; coram: Ogebe, Akpiroroh and Ikongbeh, JJ.C.A.) unanimously held that in deserving circumstances, an action dismissed for non appearance of the claimant could be readily relisted especially where the dismissal has
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been done not on the merits of the case but on account of inaction or action that could be described as want of diligent prosecution, an umbrella expression that covers a wide range of circumstances including default of appearance by the claimant in which the expeditious disposal of a case is frustrated by the activity or inactivity of the claimant. Nothing was discussed in the case whether a motion struck out could not be relisted.
However, it was held in the case of Akpan and Ors. v. Ekpo and Ors. (2001) 5 NWLR (pt.707) 502 at 512 that the options available to a party whose motion is struck out is to be at liberty to either file a fresh motion or apply that the one struck out be relisted. There (Akpan v. Ekpo) the Court, (Calabar Division) unanimously held (coram: Edozie, Opene and Ekpe, JJ.C.A.) that where a partys motion is struck out, it is optional for that party to file a fresh motion or apply for the motion that was struck out to be relisted intoning the advice that in fact, it is quicker, more expedient and convenient to file a fresh motion.
The Supreme Court case of Panalpina World Transport (Nig.) Ltd. v. J.B. Olandeen
12
International and Ors. (2010) 19 NWLR (pt.1226) 1 at 20 decided it per the lead judgment prepared by Adekeye, J.S.C., (and concurred in by Mahmud Mohammed, Chukwuma-Eneh, Fabiyi and Rhodes-Vivour, JJ.S.C.) that an applicant whose motion is struck out can either file a fresh motion or file an application to relist it, depending on the circumstances that led to the striking out of the motion or the nature of the order made; that where there was an attack on the contents of such motion prior to it being struck out, a fresh motion must be filed; and, also, a motion filed under the prerogative jurisdiction of the Court, which is struck out, can be refiled and brought before another Judge of the same jurisdiction.
The Supreme Court further held in Panalpina World Transport (Nig.) Ltd. v. J. B. Olandeen International and Ors. (supra) that where a matter is struck out in a circumstance that it has not been heard on the merit, there is a liberty to relist. The word liberty means having the right or freedom to do something (Oxford Advanced Learners Dictionary, 6th Edition, 682). The rationale behind it is that a matter merely struck out is
13
considered as pending in abeyance in the Courts general cause list affording the claimant another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action.
It follows (supra) that the Court below was right in relisting the motion and the preliminary objection that were struck out on the ground that the respondent was absent in Court and could not move the motion and preliminary objection.
Accordingly, whatever matter which is struck out that requires relistment calls for the exercise of the discretion of the Court which has to take into consideration all the circumstances including such questions on the extent of the delay in making the application, the reasons therefore, the nature of the claim and the effect of granting the application upon the rights of the other party which are matters of discretion based on competing facts vide Ikomi v. Agbeyegbe 12 (1948) WACA 379.
Having decided majorly on the preliminary objection that it has substance, I sustain it and hereby strike out the appeal as the precondition or condition precedent to obtain the leave of the Court before filing the
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grounds of appeal render the notice of appeal and the grounds thereof incompetent vide Ngere v. Okuruket IV (2014) 11 NWLR (pt.1417) 147, Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (pt.1539) 335.
The appeal is accordingly struck out on ground of incompetence under Order 6 Rule 6(1) of the Court of Appeal Rules 2016. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: This appeal which was brought against the exercise of the judicial discretion of the Lower Court to relist the Respondent’s motion and preliminary objection clearly needed and required the prior leave of Court to be valid and competent in law, being in addition, an interlocutory decision of that Court. Ibrahim-Ohida v. Mil. Adm., Kogi State (2000) 12 NWLR (680) 24; N. I. C. v. Acen Ins. co. Ltd. (2007) 6 NWLR (1031) 589
For failure to obtain the prior leave of Court to bring the appeal on the grounds of mixed law and facts against the interlocutory decision of the Lower Court in the exercise of its judicial discretion, the appeal is incompetent and non-existent in the eyes of the law as the condition precedent for its validity
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and has not fulfilled or satisfied.
I agree with the lead judgement of my learned brother Joseph Shagbaor Ikyegh, JCA, a draft of which was read by me before now. The Appeal is struck out by me too for being incompetent.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read the judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA.
I agree entirely with his reasoning and conclusion and I have nothing more useful to add.
The failure to obtain leave rendered the appeal incompetent and a Court with competent jurisdiction cannot hear an incompetent appeal. The appeal is hereby struck out.
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Appearances:
Mr. O. Oladele with him, Mr. J. S. Matesun For Appellant(s)
Mr. A. B. Kasunmu For Respondent(s)
Appearances
Mr. O. Oladele with her, Mr. J. S. Matesun For Appellant
AND
Mr. A. B. Kasunmu For Respondent
