SUBURBAN TELECOMS LIMITED & ORS v.SOLUTION PLUS LIMITED
(2016)LCN/8346(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of March, 2016
CA/A/146/2012
RATIO
APPEAL: INTERLOCUTORY DECISION: THE CONSEQUENCE OF THE GROUND OF APPEAL WHICH CHALLEGES AN INTERLOCUTORY DECISION
The law is that where a ground of appeal challenges an interlocutory decision of a Court predicated on exercise of discretion, it is at best a ground of mixed law and facts. See GARUBA V. OMOKHODION (2011) 15 NWLR (1269), 145, 182 -183, NATIONAL JUDICIAL COUNCIL v. AGUMAGU (2015) 10 NWLR (1467) 365, 404, AHMED V. SUSU MICROFINANCE BANK LTD (2015) 13 NWLR (1476) 403, 427, COKER V. USA (1997) 47 LRCN 435, 450. PER. JOSEPH EYO EKANEM, J.C.A.
APPEAL: SITUATIONS WHERE AN APPEAL SHALL LIE FROM DECISION OF THE FEDERAL HIGH COURT OR A HIGH COURT TO THE COURT OF APPEAL AS OF RIGHT
That being so, the appellant needed leave of Court to appeal against the ruling. This is on account of Sections 241(1) and 242 (1) of the Constitution of Nigeria (as amended) which provided as follows; Section 241 (1)
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceeding;?
Section 242 (1)
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” PER. JOSEPH EYO EKANEM, J.C.A.
APPEAL: AN INTERLOCUTORY APPEAL; THE TIME DURATION OF FILING AN INTERLOCUTORY APPEAL
An interlocutory appeal from the High Court to the Court of Appeal whether on ground of law alone or mixed law and facts or facts only must be filed within 14 days of the decision appealed against. This also applies to notice of application for leave to appeal See Section 24(2) (a) of the Court of Appeal Act and MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (989) 474, 494. It follows therefore that where time to appeal to the Court of Appeal has expired, the High Court loses Jurisdiction to grant extension of time to apply for leave to appeal or to grant leave to appeal see OLOWOAKE V SALAWU (2000) 11 NWLR (677) 127, 141 and 142, AKPAN V EKPO (2001) 5 NWLR (707) 502, 511 AND NGERE V OKURUKET XIV (2012) 11 NWLR (1417) 147, 175. PER. JOSEPH EYO EKANEM, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
SUBURBAN TELECOMS LIMITED
SUBURBAN BROAD BAND LIMITED
C. T. ACCESS LIMITED
SUBURBAN SYSTEMS LIMITED
EXCHANGE TELECOMMUNICATIONS LIMITED Appellant(s)
AND
SOLUTION PLUS LIMITED Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory, holden at Abuja in Suit No, FCT/HC/CV/1017/08 delivered on 10/5/2010 (not 21/4/2010 as stated in appellant’s brief) in which the application of the respondent (as plaintiff) to amend its statement of claim after close of evidence was granted.
Aggrieved by the ruling, the appellants (the defendants in the suit) have appealed to this Court by way of a notice of appeal bearing 14 grounds of appeal. In line with the rules of Court, the parties have filed their briefs of argument as follows:
(1) The appellants filed;
(a) A 51 – page brief of argument filed on 27/3/2012;
(b) An unpaginated reply brief filed on 1/2/2015 but deemed filed on 2/3/2016.
(2) The respondent filed a 16 – page respondent’s brief filed on 2/3/2016 but deemed filed on 2/3/2016.
In his brief of argument appellant’s counsel, out of the 14 grounds of appeal formulated 14 issues for determination of the appeal as follows:
(A) Whether the learned trial Judge has not breached the defendants/Appellants
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right to hearing or fair hearing as enshrined in Section 36 (1) of the 1999 Constitution when it granted an order for the plaintiff to amend its pleading by stating some new averments as its relates to its original relief No. 1 which is a claim for N2,630,500 particularly plaintiff original relief No.1 to now read or become a claim for N6,806,519 after the defendants have joined issues with the plaintiff/respondent on the said previous relief No. I which was originally a claim for N2,630,500 and even after a the defendants had closed their case and even after defendants counsel had filed and adopted their written address on the said original relief No.1 which has a claim for N2,630,500.
(B) Whether the teamed trial Judge was legally right when it granted an amendment which relates to or in respect of a new relief No. 1 which was copiously introduced by the plaintiff at a very late stage after the closure of the parties case and even after the defendant had filed and adopted its written address so as to over reach the defendants because it was a deliberate wrong which has arisen from ill-will.
(c) Whether, it was legally right for the learned trial
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Judge to grant plaintiff reliefs vide a motion for amendment of plaintiff, statement of claim even when the defendants vide its counter-Affidavit in opposition to the said motion to amend plaintiff statement of claim had controverted the plaintiff deposition for the said amendments since there are no cognizable facts upon which the said amendments of plaintiff statement of claim and its relief No. l was granted and even upon a misapplication of the legal principles of amendment of plaintiff pleading in relation to the facts as contained in the defendants/appellants counter -affidavit in opposition of the application for the amendment of the plaintiff pleading.
(D) Whether the learned trial Judge was legally right to allow the plaintiff/respondent to make a case as per its relief No.1 of its earlier statement of claim and suddenly or surreptitiously reverse his position to make a different case as per its relief No.1 of the amended statement of claim so as to change the complexion and nature of the relief No.1 since, the plaintiff has originally joined issues with all defendants/appellants on a different relief No.1.
(E) Whether the teamed trial Judge
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was legally right when it held that the amendment which was sought by the plaintiff is to bring the pleading in line with the evidence which had already being adduced.
(F) Whether it was legally fight for the trial Judge to hold that by the grant of the amendments of the plaintiff statement of claim, it will not change the complexion and nature of the relief No.1 as contained in the amended statement of claim.
(G) Whether the learned trial Judge was legally right when it granted the amendment of the plaintiff original statement of claim when there are no cognizable facts for the Court to grant such an amendment.
(H) Whether the learned trial Judge could not be said to have misdirected himself in fact when it followed the facts in the case of SHELL v. AMBA (1992) 2 SCNJ pg 152 at pg 160 by granting the amendment sought by the plaintiff in this suit when the facts that gave also to the said decision is clearly distinguishable from the facts in respect of the amendment sought by the plaintiff/respondent in this suit/application.
(I) Whether it could not be said that the learned trial Judge had misdirected itself in law when it relied on the
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ratios in the cases of ABRAHAM V. OLORUNFEMI (1991) 1 NWLR PT.165 pg.53 and the ratio in the case of LAGURO V TOKU (1992) 2. NWLR PT 223 Pg 278 when the ratio in the above two cases are clearly distinguishable from the action in the present suit/application.
(J) Whether the?learned?trial Judge was legally right when it?misapplied the legal principles of amendment of pleading in relation of the facts in the defendant/appellants counter-Affidavit in opposition to an application for the amendment of the Plaintiff statement of claim.
(K) Whether the learned trial Judge was legally right when it did not apply the required legal principles of amendments of pleadings to the facts of the plaintiff application for amendment in this suit when it held that a litigant should not be punished for the mistake they made in the conduct of their case by deciding otherwise than in accordance with their rights
(L) Whether the leaned trial Judge was legally right when it granted an amendment which was intended to circumvent the defendant defence to relief No.1 with a view to cause injustice to another party i.e. the defendants/appellants in this Case/Appeal when it
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mis-applied the cases of CROPPER v. SMITH (1884) 26 C.H.D. PG.710 and AKANIWON V. NSIRIM 2008 3 M.J.S.C. Pg 40 which said ratio and facts are purely distinguishable from the ratio and facts of the amendments in this suit/application at the Lower Court.
(M) Whether the learned trial Judge was legally right when after granting the plaintiff/application for amendment, it then gave the defendants/appellants an opportunity to amend their statement of defence even when the defendant/appellants disputed the fact of the said amendment.
(N) Whether it could not be rightly said that the Ruling of the tower Court presided by the learned trial Judge on the Amendment of the plaintiff statement of claim was reasonable, for same to be warranted and whether same can be supported having regard to the weight of evidence disclosed in the suit/application.
Respondent’s counsel in his brief of argument formulated four issues for the determination of the appeal. The issues are:
“1. Whether the exercise of power by the Lower Court to grant leave to amend the statement of claim is discretionary?
2. Whether the Lower Court exercised its discretion in
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accordance with laid down principles of law?
3. Whether the amendment sought by the plaintiff/respondent is in line with evidence which is already before the Lower Court?
4. Whether an amendment in line with evidence already before the Court infringes on the defendants/appellants right to lair hearing?
It is pertinent at this point to state that the respondent filed a motion on notice on 13/1/2014 praying for the dismissal or striking out of the appeal. The motion is based on four grounds and is supported by an affidavit of I paragraphs deposed to by Dare Oketade, Esq; When the appeal came up for hearing on 2/3/2016, Olumide Olujinmi, Esq, of counsel for the respondent, referred to and moved his motion, arguments in respect of which are contained in pages 3-9 of the respondents brief. He urged the Court to strike out the appeal. John O. Adele, Esq; of counsel for the appellants, draw the Court’s attention to his reply contained in paragraphs 1.0 -1.18 of his reply brief He urged the Court to dismiss the objection.
I shall first deal with the objection of respondent’s counsel.
In arguing his objection, respondent’s
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counsel presented two issues for its determination. The issues are:
“(1) Whether an interlocutory appeal filed after 14 days of the decision of the lower Court is valid?
(2) Whether the failure of the appellant to seek leave to appeal on mixed law and facts renders the appeal
incompetent?”
Arguing the two issues together, respondent?s counsel referred to the grounds of the objection and submitted that based on Section 241 of the Constitution of Nigeria 1999 (as amended) and Section 24 (2) (a) of the Court of Appeal Act, 2004, an appeal from an Interlocutory decision of the High Court to the Court of Appeal shall be with leave of Court. He contended that the appellant did not seek for and obtain such leave. It was his further submission that the appeal was filed outside the period of 14 days prescribed by Section 24 (2) (a) of the Court of Appeal Act, 2011 without leave. He added that no leave was obtained to file the appeal the grounds of which are of mixed law and facts.
Counsel submitted that the appeal was incompetent for the reasons summarised above. He cited and relied on NNPC v. O. E. (NIG) LTD (2008) 8 NWLR (1090) 583 and
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GARUBA v. OMOKHODION (2011) 7 SCM 85 in support of his position.
In response, counsel for the appellants stated that the appellants sought for and obtained the leave of the trial Court to appeal out of time on grounds of mixed law and facts. He referred to pages 218 -219 of the record of appeal. He submitted that the trial Court had power to grant the leave based on Order 20 Rule 3 (1) and (2) of the High Court of the Federal Capital Territory, Abuja Civil Rules 2004. Leave having been so granted, the notice of appeal is proper in law, he opined. It was his view that since no record of appeal had been transmitted to this Court, the trial Court and this Court share concurrent jurisdiction to grant such leave.
The grounds of the objection of the respondent are that;
“(1) The grounds of appeal are of mixed law, and facts.
(2) The notice of Appeal was filed over a month after the interlocutory decision appealed against.
(3) The appellant has no leave of either the Lower Court or this Court to bring this appeal.
(4) This honourable Court lacks the jurisdiction lo hear the appeal without leave granted to the appellant.”
?The appeal
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of the appellants’ as earlier stated, is against the ruling of the trial Court which granted the respondent leave to amend its statement of claim. It is common ground between the parties that the appeal at hand is an interlocutory appeal against the trial Court’s exercise of its discretion, it follows therefore and it is agreed by counsel on both sides, that the appeal is on grounds of mixed law and facts. The law is that where a ground of appeal challenges an interlocutory decision of a Court predicated on exercise of discretion, it is at best a ground of mixed law and facts. See GARUBA V. OMOKHODION (2011) 15 NWLR (1269), 145, 182 -183, NATIONAL JUDICIAL COUNCIL v. AGUMAGU (2015) 10 NWLR (1467) 365, 404, AHMED V. SUSU MICROFINANCE BANK LTD (2015) 13 NWLR (1476) 403, 427, COKER V. USA (1997) 47 LRCN 435, 450.
That being so, the appellant needed leave of Court to appeal against the ruling. This is on account of Sections 241(1) and 242 (1) of the Constitution of Nigeria (as amended) which provided as follows;
Section 241 (1)
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the
10
following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceeding;?
Section 242 (1)
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
The mandatoriness of leave to appeal against an interlocutory decision of the High Court to the Court of Appeal on grounds of mixed law and facts or facts alone has been underlined and emphasised in several cases including TOTAL INTERNATIONAL LIMITED V. AWOGBORO (1994) 4 SCNJ (1) 138, 148 and OJUKWU v. KAINE (2000) 15 NWLR (695) 516, 524. Where leave is required to file an appeal and an appeal is filed without leave, the appeal becomes incompetent and is liable to be struck out. See IKWEKI V. EBELE (2005) 127 LRCN, 1231, JEV V. IYORTOM (2014) 4 NWLR (1428) 578, 609 NATIONAL JUDICIAL COUNCIL V. AGUMAGU supra and
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ABDUL V. CPC (2014) 1 NWLR (1388) 299, 329.
Counsel for the appellants contended that the requisite leave was sought for and granted by the trial Court. He referred to pages 217-223 of the record of appeal. It is clear therefrom that the appellants filed a motion on notice on 18/6/2010 (even though the motion is not part of the record of appeal) praying for
(i) Extension of time to seek leave to appeal against the ruling the subject of this appeal;
(ii) Leave to appeal against the ruling;
(iii) Extension of time to appeal on mixed law and facts or facts alone.
(iv) Leave to file and serve grounds of appeal on law and facts and facts alone.
The application was granted by the trial Court on 31/1/2011.
It must be stated that an application, for leave to appeal must first be made at the trial Court unless special circumstances dictate otherwise. This is by virtue of Sections 14 (2) and 24 (3) of the Court of Appeal Act, 2004 and Order 7 Rule 4 of the Court of Appeal Rules 2011 which provides that:
“Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the
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first instance to the Court except where there are special circumstances, which make it impossible to apply to the Court below.”
An interlocutory appeal from the High Court to the Court of Appeal whether on ground of law alone or mixed law and facts or facts only must be filed within 14 days of the decision appealed against. This also applies to notice of application for leave to appeal See Section 24(2) (a) of the Court of Appeal Act and MADUABUCHUKWU V. MADUABUCHUKWU (2006) 10 NWLR (989) 474, 494. It follows therefore that where time to appeal to the Court of Appeal has expired, the High Court loses Jurisdiction to grant extension of time to apply for leave to appeal or to grant leave to appeal see OLOWOAKE V SALAWU (2000) 11 NWLR (677) 127, 141 and 142, AKPAN V EKPO (2001) 5 NWLR (707) 502, 511 AND NGERE V OKURUKET XIV (2012) 11 NWLR (1417) 147, 175.
In the instant appeal, the decision the subject of the appeal was delivered on 10/5/2010. The application for leave to appeal was filed at the trial Court on 18/6/2010 while leave was granted by that Court on 18/1/2011 both far beyond the period of fourteen (14) days for filing appeal or notice
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of application for leave to appeal against an interlocutory decision. The trial Court had no jurisdiction to entertain and grant the application. Thus the appeal filed on the basis of the order is incompetent. The law is that a judgment or an order given or made without jurisdiction creates no legal obligation and does not confer any right to any of the parties see ATTORNEY-GENERAL OF LAGOS STATE V. ATTORNEY – GENERAL OF THE FEDERATION (2014) 9 NWLR (1412) 217, 249. In the case Akpan v. Ekpo supra. 512 this Court stated that,
“If the trial Court has no jurisdiction to grant the application… Lack of jurisdiction on the part of the trial Court that granted the order renders the appeal incompetent… and if the Court observes this, this is the end of the appeal.?
?This appeal must therefore end here as it is incompetent. I therefore uphold the objection and hold that the appeal is incompetent. Consequently the appeal is hereby struck out with cost of N50,000:00 in favour of the respondent.
ABUBAKAR DATTI YAHAYA, J.C.A.: I had the benefit of reading in advance, the judgment of my learned brother Ekanem, JCA just
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delivered and I agree that this appeal is incompetent. It is struck out.
I abide by the order as to costs.
TANI YUSUF HASSAN, J.C.A.: I read before now the judgment just read by my learned brother, Joseph E. Ekanem, JCA.
I agree with my learned brother that the appeal is incompetent for failure to comply with Section 24(2)(a) of the Court Appeal Act.
?The appeal is also struck out by me. I abide by the order as to costs.
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Appearances
J. O. Adele, Esq.with him, A. E. Adete, Esq.For Appellant
AND
Olumide Olulinmi with him, Abdullahi Abayomi, Esq. Ademola O. Owolabi Esq.Miss Tolutope Adebiyi Miss Egonna M.Anaesiuba and Miss Chiazor A. NgigeFor Respondent
