TEJUMADE A. CLEMENT & ANOR V. BRIDGET J. IWUANYANWU & ANOR(1989)

TEJUMADE A. CLEMENT & ANOR V. BRIDGET J. IWUANYANWU & ANOR

In The Supreme Court of Nigeria

On Friday, the 28th day of April, 1989

SC.137/1988

 

JUSTICES

ANDREWS OTUTU OBASEKI    Justice of The Supreme Court of Nigeria

AUGUSTINE NNAMANI    Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE    Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA    Justice of The Supreme Court of Nigeria

SALIHU MODIBBO ALFA BELGORE    Justice of The Supreme Court of Nigeria

Between

 

  1. TEJUMADE A. CLEMENT
    2. OLUWATOYIN A. EDEM Appellant(s)

AND

  1. BRIDGET J. IWUANYANWU
    2. JOHN U. IWUANYANWU Respondent(s)

OPUTA, J.S.C. (Delivering the Leading Judgment): On the 31st January, 1989, the Court heard this appeal. After reading the Briefs of Argument filed by the parties and hearing learned counsel for the appellants elaborate some of the points agitated in his Brief, I formed the impression that there was no substance in the appeal. The appeal was accordingly dismissed. The Court did not even call upon Mr. Ezugha – learned counsel for the respondents. Reasons for judgment were then adjourned to today the 28th day of April, 1989. Hereunder are my reasons.
This is yet another classic example of one of those expensive luxuries in civil litigation which leaves the central issue in dispute untouched while concentrating on peripheral skirmishes. The present respondents were plaintiffs in the court of first instance. They sued the defendants in the Lagos High Court before Fafiade, J., claiming damages for negligence. The present appellants who were the defendants in the original action then took an objection to the plaintiffs’ action alleging that same was statute-barred – that it was brought after the statutory period of 3 years allowed and prescribed for such actions by the Lagos State Limitation Law. Fafiade, J. held that the plaintiffs’ action was not statute-barred. The defendants then appealed to the Court of Appeal, Lagos Division, coram Ademola, Babalakin and Awogu, JJ .C.A. In a lead judgment to which the other Justices concurred, Awogu, C J.C.A. allowed the defendants’ appeal holding that the plaintiffs’ writ was filed on 2/3/83 when the receipt for the fees was issued and not on 1/3/83 when the plaintiffs handed over their summons and fees to the Registrar. The Court of Appeal then held that the plaintiffs were one day out and were thus caught by the Statute of limitation. Awogu, J .C.A. ruled and held:-
“It is obvious then that if the accident occurred on 1/3/80 the computation of the 3 years will be from 2/3/80 and will therefore expire on 1/3/83. As at that date the Respondents have not paid for the Writ of Summons. They did so on 2/3/83. Accordingly the claim was statute-barred as of that date. It was a day too late. The appeal is allowed and the Ruling of Fafiade, J. delivered on January 15th, 1986 is hereby set aside and in its place it is hereby ordered that the claim be dismissed because it is statute-barred.”
The plaintiffs, from the judgment of the Court of Appeal above, thus lost their case in limine and were understandably dissatisfied and aggrieved. They then appealed against the judgment of the Court of Appeal dismissing their claim. The plaintiffs’ Notice and Grounds of Appeal were exhibited and marked Exh. C. Now Exh. C contained at least one ground of law (Ground 3) and 3 other grounds of either of mixed law and fact or of fact simpliciter. For the ground of law, the plaintiffs appeal as of right under Section 213(2) of the 1979 Constitution as amended. For the grounds of fact or mixed law and fact the plaintiffs can only appeal with leave of the Court of Appeal or of the Supreme Court. The plaintiffs naturally then applied for that necessary leave to convert their prospective right of appeal to a present right which would invest them with the requisite power to appeal on fact or mixed law and fact. The Court of Appeal granted the plaintiffs the leave they sought, ruling as follows:-
“There is no doubt that if the application is made in the Supreme Court it will be mandatory for the applicant to exhibit the judgment of the lower Court, and the brief of argument. It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court. I have examined the grounds of appeal and it (sic) raises an interesting point of law. Leave is granted the applicant to appeal.”
It is against the above ruling granting the plaintiffs leave to appeal on so grounds of fact or of mixed law and fact that the defendants have now appealed to this Court. The 1st Ground of Appeal complained that:-
The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held as follows:-
“This is an application for leave to appeal to the Supreme Court. It has been opposed by learned counsel for the respondent on the ground amongst other things that the judgment of the High Court and brief of argument have no been attached to the affidavit in support. There is no doubt that if the application is made in the Supreme Court it will be mandatory for the applicant to exhibit the judgment of the lower Court, and the brief of argument. It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court.”
“PARTICULARS
(a) The combined effect of Sections 213(3), 6 and 215 of the Constitution of the Federal Republic of Nigeria 1979 is to make it constitutionally obligatory for an applicant for leave to appeal to the Supreme Court to comply strictly with the Supreme Court Rules 1985.
(b) The Court of Appeal has no jurisdiction to entertain an application for leave to appeal without recourse to the Supreme Court Rules 1985.
(c) That finding does not show an appreciation of the rationale and necessity for exhibiting upon such application the two judgments and a brief as required by the rules as well as other materials.
(d) It is erroneous to hold that an application for leave to appeal in the Court of Appeal need not comply strictly with the provisions of the Order 6 rule 2 of the Supreme Court Rules, 1985.”
Arising out of the above ground of appeal, the defendants/appellants in their Briefs formulated the following Questions for Determination:-
“2-1 Whether the Court of Appeal has jurisdiction to entertain an application for leave to appeal to the Supreme Court without recourse to the Supreme Court Rules 1985.
2-2 Whether the Court of Appeal was right in holding that an application for leave to appeal to the Supreme Court need not comply with the applicable rules of the Supreme Court.”
I think it is trite law that Rules of Court are Rules of Procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction conferred aliunde. This point was H clearly brought out by Brett, F.J. in Ogunremi & Anor.: Adeniyi v. Dada: Asiyunbi & Ors. (1962) 1 All N.L.R. 663 at p.671: see also Brett, M.R. in Cropper v. Smith (1883) 24 Ch.D. 305. Now the jurisdiction – the legal capacity or legal jurisdiction – to grant leave to appeal on grounds of fact or of mixed law and fact was conferred on the Court of Appeal not by the Supreme Court Rules 1985 but by Section 213(3) of the 1979 Constitution as amended. The self same Section 213(3) also conferred on the Supreme Court a similar jurisdiction to grant leave to appeal to it on grounds of fact or of mixed law and fact from judgments of the Court of Appeal. The jurisdiction of the Supreme Court in that regard is also not founded upon the Supreme Court Rules either. Of course the Court of Appeal had jurisdiction to grant the respondents the leave they asked for.
Section 213 of the 1979 constitution created two rights – one, the right covered by Section 213(2) that is the right to appeal as of right to the Supreme Court. Appeals on grounds of law simpliciter come under Section 213(2) of the 1979 Constitution. There the appellant appeals as of right. From Exh.C, the plaintiffs thus had a pending appeal on law before the C Court below. The right to appeal on grounds of fact or mixed law and fact is a conditional right depending on a particular contingency – that is the granting of leave by either the Court of Appeal or the Supreme Court itself. Thus, from a purely constitutional and/or jurisdictional stand-point, it will be idle to argue that the Court of Appeal lacks the jurisdiction to entertain an application for leave to appeal to the Supreme Court. It definitely has that jurisdiction.
The next issue to consider is – What Rules of Procedure will govern the Court of Appeal when it is exercising its undoubted jurisdiction (under Section 213(3) of the 1979 Constitution) to grant an appellant leave to appeal on grounds of fact or of mixed law and fact It is obvious that Order 3 Rule 3(2) of the Court of Appeal Rules as well as its Civil Form 5 both relate to leave to appeal to the Court of Appeal from inferior Courts and not to leave to appeal from the Court of Appeal to the Supreme Court. The Supreme Court Rules of 1985 are Rules made by the Chief Justice of Nigeria pursuant to powers enabling him so to do and conferred on him by Section 216 of the Constitution of the Federal Republic of Nigeria 1979. These Rules as the name implies are designed to control and regulate practice and procedure in and before the Supreme Court. In the same way, Section 227 of the self same 1979 Constitution gave the President of the Court of Appeal powers similar to those given to the Chief Justice of Nigeria by Section 216 to make Rules to regulate the practice and procedure in the Court of Appeal. In exercise of those powers the President has made the Court of Appeal Rules.
Now every Court is the guardian of its own record and the master of its own practice: see Tindal, C.J. in Scales v Cheese 12 M. & W. 685 at p.687: see also Gregory v. Brunswick 2 H.L. Cas. 415. The maxim is Cursus Curiae est Lex Curiae – the practice of a particular Court is the law of that Court. That is one reason why in matters of procedure and practice as in matters of discretion, an appellate court is usually slow to interfere or intervene unless satisfied that they were based on erroneous principles.
The other hurdle facing the appellants on the two Questions for Determination outlined above, is the obvious fact that Rules of Practice of one court are specifically made for that court and will not as a general rule be applicable to another court unless it is so expressly stated and incorporated by its own Rules. This formed part of the decision of this Court in Tukur v. Government of Gongola State (1988) 1 N.W.L.R. (Pt. 68) 39 at p.50. In the Supreme Court Rules, specific provisions are made, in Order 6 Rule 2, to cover applications for leave to appeal to the Supreme Court. The Court of Appeal Rules dealing with appeal from the High Court and other inferior courts did not specifically provide for (in its Order 3 dealing with Civil Appeals) the procedure in applications for leave to appeal from the Court of Appeal to the Supreme Court. The jurisdiction to grant such leave having been vested in the Court of Appeal by the constitutional provision of Section 213(3) of the 1979 Constitution, it is desirable that the President of the Court of Appeal makes definite Rules to regulate the exercise of that particular jurisdiction or else incorporates by reference, the provisions of Order 6 Rule 2 of the Supreme Court Rules 1985. In the absence of either specific Rules being made or Order 6, Rule 2 of our Supreme Court Rules 1985 being incorporated, it is my view that as we fall back on English Rules to fill in some lacuna in our own Rules so also the Court of Appeal may fall back on Order 6, Rule 2 of the Supreme Court Rules of 1985. This is a very different thing from saying, as was alleged in the defendants/appellants’ “Particulars” of their Grounds of Appeal that:-
“The combined effect of Section 213(3), 6 and 216 of the Constitution of the Republic of Nigeria 1979 is to make it constitutionally obligatory for an applicant for leave to appeal to the Supreme Court to comply strictly with the Supreme Court Rules 1985.”
The above assertion is not a correct statement of the true legal position.
In CA/L/65/84 Tijani v. Elabanjo decided by the Court of Appeal on 29th day of April, 1985 (unreported), there was also an application for leave to appeal to the Supreme Court on grounds of fact under Section 213(3) of the 1979 Constitution. The Court coram (Ademola, Nnaemeka-Agu and Uthman Mohammed, JJ.C.A.) dismissed the application giving as its reasons:-
(i) No special circumstances have been shown to grant leave to appeal on question of facts raised in the grounds of appeal.
(ii) The application is not supported with the necessary particulars and materials upon which the discretion of the Court could be exercised under the relevant Rules of the Supreme Court.
In that application, Idigbe, in opposition stressed that the applicable Rules was Order 6 Rule 2, Rules of the Supreme Court, 1985 and the applicable authority Ukpe Ibodo v. Iguasi Enarofia (1980) 5-7 S.C.42. The grant of leave is at the discretion of the court. That being so an appellate court cannot question the exercise of that discretion unless it so appears that it was in fact exercised not judicially and judiciously. The question of the applicable Rules notwithstanding, the Court of Appeal in Tijani v. Elabanjo supra could have dismissed the application under Reason No.1 above. Tijani v. Elabanjo supra is thus not a direct and unequivocal answer to the question whether it is obligatory that in applications for leave to appeal on grounds of fact or mixed law and fact, the Court of Appeal must follow and comply strictly with Order 6, Rule 2 of our 1985 Supreme Court Rules. The 3rd Question for Determination as formulated in the defendants/appellants Brief is:-
“2-3 Whether the Court of Appeal was right in entertaining and granting such application (for leave to appeal to the Supreme Court) in the absence of the judgment of the lower Court and the brief of argument to support the same and other essential documents as required by the said rules”
Ground 2 of the Grounds of Appeal with its Particulars setting out the supposed “essential documents as required by the said rules” is reproduced hereunder for ease of reference:-
“2. The learned Justices of the Court of Appeal erred in law in granting leave to the applicant to appeal to the Supreme Court.
PARTICULARS
(a) In the absence of the judgment of the Court of first instance, the Brief of Arguments and the materials required by Order 6 rule 2 (c) (g) (h) and 2 of the Supreme Court Rules 1985 the Court of Appeal could not properly exercise its discretion in this matter.
(b) The Court of Appeal failed to be guided by the authoritative pronouncement of the Supreme Court in the case of Ukpe Ibodo & Ors. v. Enarofia & Ors. 1980 (5-7) S.C.42 at 57 and 58, that the requirements of Order 6 are the prerequisites for the proper exercise of the Court’s discretion.
(c) Leave to a willful appeal to the Supreme Court is not granted as a matter of course and a wilful failure to comply with the rules is fatal.
(d) There were no exceptional circumstances shown by the applicant on the application to justify the grant of leave on issues of mixed law and facts.”
The case of the defendants/appellants as argued in their Brief and elaborated by the oral submission of their counsel is that failure to exhibit all the documents mentioned in Order 6, Rule 2 of the Supreme Court Rules 1985, especially those mentioned in Rule 2 sub-rules (1e), (1g), (1h) and sub-rule 2 was fatal 10 the application of the plaintiffs/respondents. Reliance was also placed on the decision of this Court in Ibodo v. Enarofia supra. This Court has of late, been as it were, so bombarded with submissions that “the Court of Appeal failed to follow the authoritative pronouncement of the Supreme Court” in one or other of its decisions, or that pronouncements by this Court in certain cases were made per in curiam (see U. T. C. Nigeria Ltd. v. Chief J.P. Pamotei & Ors. (1989) 2 N.W.L.R. (Pt.103) 244, that it becomes necessary to restate, redefine and re-emphasise the branch of our law dealing with what constitutes the ratio decidendi of a given case, precedents, and stare decisis. The ratio decidendi of a case is the reason for the decision, the principle of the decision. A court lower in the judicial hierarchy is bound by the ratio decidendi of a higher court not necessarily the obiter dictum. That seems to be the first rule designed, no doubt, to ensure uniformity in decision-making, foster stability, and enhance the development of a consistent and coherent body of law as well as assure equality of treatments for litigants similarly situated – see Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162 at p.193. Having said this, it now becomes essentially necessary to find out what it is that is binding on the lower court. Is it every pronouncement, every word uttered by a superior court that is binding The doctrine here is generally referred to as the doctrine of stare decisis. Stated fully, it is Stare decisis et non quieta movere, meaning literally – To stand by what has been decided and not to disturb and unsettle things which are established. Stare decisis thus means to abide by former precedents where the same points come again in litigation. Stare decisis pre-supposes that the law has been solemnly declared and determined in the former case. It thus precludes the judges of the subordinate courts from changing what has been determined. In other words, they should keep the scale of justice even and steady not liable to waiver with every Judge’s opinion. Under the doctrine of Stare decisis, lower courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher court considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Thus, prior cases which are close in facts or legal principles to the case under consideration are called precedents. The two cases (the one under consideration and the other to be used as precedent) must be close in facts – the facts must be similar for the doctrine to apply. This is so because as Chief Justice Stone observed in 1936:-
“With the common law, unlike the civil law and its Roman law precursor, the formulation of general principles has not preceded decisions. In its origin, it is the law of the practitioner rather than the philosopher. Decision has drawn its inspiration and its strength from the very facts which frame the issues for decision. Once made, the decision controls the future judgments of courts in like or analogous cases.”
In other words, it will be dangerous to consider any pronouncement of any Court even the Supreme Court in vacuo and without reference to the peculiar facts of the cases in which those pronouncements were made as those facts framed the issues that were decided.
As I said earlier on, courts attempt to decide cases on the basis of principles established in prior cases. These now serve as authorities. But an accepted principle may not necessarily decide the outcome of a dispute. Principles are wider than Rules. Rules apply in an all or nothing dimension.
Either the decision falls within the antecedent portion of the Rule, in which case it must be dealt with as the Rule dictates; or it does not, in which case it is unaffected by the Rule. Rules dictate results, come what may. Principles do not operate that way. Principles merely incline a decision one way, but not conclusively Principles survive intact even when they do not prevail in any particular instance. As principles are distilled from the facts of the case in which they were promulgated; as principles draw their inspiration and strength from the very facts which framed the issues for decision; it follows that when the facts are not similar, the principle need not apply or be applied to the new case. Principles therefore do not provide any patterns for definite situations. They (as their name implies – principium means the point of beginning) merely constitute the starting point of legal reasoning. The ratio decidendi of a case which creates the precedent establishes a principle which does not fore-close further inquiry especially when the facts are different.
Now coming to the case now on appeal and applying the principles of stare decisis and precedents, one soon observes many differences. In Ibodo v. Enarofia this Court was interpreting Order 1, Rule 5 and Order 7, Rule 4(2) of the Supreme Court Rules, 1977 dealing with enlargement of time within which to appeal. When an appellant is appealing out of time, the onus on him to persuade the court to exercise its discretion in his favour is obviously much, much higher than when the application (as in this case) is for leave to argue grounds of facts or of mixed law and fact in an appeal already pending on a ground or on grounds of law. The facts and circumstances of Ibodo’s case are therefore quite different from those of the case now on appeal. That being so, the principle of Ibodo’s case depending on its peculiar facts may not be too strictly insisted upon in this case. As I observed earlier on, in Ibodo’s case supra, the application was for extension of time within which to appeal and for extension of time within which to apply for leave to appeal. An application for extension of time within which to apply for leave to appeal pre-supposes that the time within which to appeal had expired. This is an entirely different situation from what happened in this case where the appellants/applicants appealed within time, had a competent, pending as well as a subsisting appeal on a ground of law and only applied for leave under Section 213(3) of the 1979 Constitution to appeal on questions of fact and mixed law and fact. The facts and circumstances of the case now on appeal can thus be easily distinguished from those in Ibodo v. Enarofia supra.
Again the rationale in Ibodo v. Enarofia supra is that the grant of leave to appeal being something discretionary, any application for such leave will contain all documents and facts upon which the discretion asked for, can judicially and judiciously be exercised. I will here refer to and adopt the dictum of Nnamani, J.S.C. in University of Lagos v. Olaniyan (1985) 1 N.W.L.R. (Pt.1) 156 at p. 166 that “Ibodo’s case has not laid down rigid rules……..it is not in every case that all the materials mentioned therein – record of proceedings, judgments etc. – must be annexed to an application.” In this case, the High Court over-ruled the defendants’ objection that the 3 years period of limitation of action had run out before the writ was filed. The defendants’ appeal against that Ruling was allowed. Now the plaintiffs appealed against that judgment of the Court of Appeal. What further documents, what further judgment does the Court of Appeal that was seized of all the relevant documents when it was considering the defendants’ appeal need, to enable it decide on whether or not the plaintiffs who appealed within time on both law, mixed law and facts and facts simpliciter may be allowed leave to appeal on facts or mixed law and facts The answer was given by the Court of Appeal per Akpata, J.C.A. thus:-
“It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court.”
I fully agree. It would have been a waste of time, effort and money to annex and exhibit all the documents and judgments mentioned in Ibodo v. Enarofia supra in this case. That would amount to following that decision blindly, literally and foolishly.
The 3rd Question for Determination as formulated by the defendants/appellants further complained that no Brief of argument in support of the application was filed. A short answer to that is that under Order 6, Rule 11, the Court of Appeal can “waive compliance with the provisions of this Order (Order 6 dealing with Filing of Brief of Argument) in so far as they relate to the preparation and filing of Brief of Argument.” When a court has power to do a thing and does that very thing in exercise of that power, it will be idle and purposeless to complain.
It was for all the reasons given above that I, on the 31st day of January, 1989 dismissed this appeal without even calling upon learned counsel for the respondent.

OBASEKI, J.S.C.: I dismissed this appeal on the 31st day of January, 1989 after reading the briefs of arguments filed by the parties together with the proceedings and judgment in the Court of Appeal and the High Court and hearing counsel for the appellant in oral argument and reserved my Reasons for the judgment of dismissal till today. I now proceed to give them. The appeal was against the grant by the Court of Appeal of leave to appeal on grounds involving questions of mixed law and facts and questions of facts only. Two issues for determination were formulated by the appellants’ counsel and they are:
“1. whether the Court of Appeal has jurisdiction to entertain an application for leave to appeal to the Supreme Court without recourse to the Supreme Court Rules 1985:
2. whether the Court of Appeal was right in holding that an application for leave to appeal to the Supreme Court need not comply with the applicable rules of the Supreme Court.”
These questions have been exhaustively dealt with by my learned brother, Oputa, J.S.C. in his Reasons for Judgment just delivered and his opinions on the issues are in total concurrence with mine.
Having regard to the constitutional provisions in sections 213(3) and 213(6) or the Constitution of the Federal Republic of Nigeria, 1979, the Supreme Court Rules 1985 and the Court of Appeal Rules 1981 as amended, the short answer to the two questions for determination must be in the affirmative.
Sub-section (3) of section 213 of the Constitution unequivocally conferred jurisdiction on the Court of Appeal to entertain applications for leave to appeal by its provision which reads:
“subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
On a proper interpretation of this section, where leave to appeal is required, no appeal shall lie from the decision of the Court of Appeal to the Supreme Court until leave is granted by either the Court of Appeal or the Supreme Court. It is only after leave is obtained that the right of appeal accrues and becomes exercisable.
The Constitution has throughout made matters of practice and procedure in our courts matters for the legislature and matters for the courts concerned. Thus, in the Supreme Court, sub-section (6) of section 213 specifically provided that:
“any right of appeal to the Supreme Court from the decisions of the Federal Court of Appeal conferred by this section shall, subject to section 216 be exercised in accordance with any Act (of the National Assembly) or Decree and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
In addition, section 216 of the Constitution provides that:
“Subject to the provisions of any Act (of the National Assembly) or Decree, the Chief Justice of Nigeria may make rules regulating the practice and procedure of the Supreme Court. Thus, it is clear that the main function of the Rules made by the Chief Justice under this section is for regulating the practice and procedure of the Supreme Court NOT the practice and procedure of the Court of Appeal.
The practice and procedure of the Court of Appeal is regulated by the Acts or Decrees and the Rules made by the President of the Court of Appeal.
This is specifically provided for in section 227 of the Constitution which reads;
“subject to the provisions of any Act (of National Assembly) or Decree, the President of the Federal Court of Appeal may make rules for regulating the practice and procedure of the Federal Court of Appeal.”
Thus, the Supreme Court Rules do not regulate the practice and procedure of the Court of Appeal. There is however nothing to prevent the President of the Court of Appeal from inserting a provision in the Court of Appeal Rules making it possible to follow the Supreme Court Rules where there is no provision in the Court of Appeal Rules on any specific matter. So far, there is no such provision in the Court of Appeal Rules and the submission of counsel that in the application for leave to the Court of Appeal, the Supreme Court Rules bind the Court of Appeal, has no basis. The case of Ibodo v. Enarofia (1980) 5-7 S.C.42 relied on by the appellant is of no assistance to the appellant. It was a decision in an application to the Supreme Court for extension of time to appeal and leave to appeal.
On the issue of jurisdiction, jurisdiction in the broad and substantive sense cannot be conferred by Rules of Court. Having regard to the constitutional powers conferred en the Chief Justice of Nigeria and the President of the Court of Appeal, the Rules of Court they can lawfully make are to regulate the practice and procedure in the court and not to confer jurisdiction to entertain an application for leave to appeal. The Court of Appeal cannot therefore have recourse to the Supreme Court Rules 1985 as source of jurisdiction to entertain the application.
Unless the Court of Appeal Rules incorporate by reference the provisions of the Supreme Court Rules, the Court of Appeal is not bound to apply the equivalent Supreme Court Rules.
Until recently, the various State High Court Rules and High Court Law contained provisions enabling the courts to apply English Rules in Rules of the Supreme Court of England where there is no equivalent rule applicable to the circumstance. See Ogunremi & Anor.; Adeniyi v. Dada: Asiyanbi & Ors. (1962) 1 All N.L.R. 663 at pp. 670 and 671; Cropper v. Smith (1883) 24 Ch.D.305. Tukur v. Government of Gongola State (1988) 1 N.W.L.R. (Pt.68) 39 at p.50.
In Ogunremi’s case (supra) Brett, F.J. delivering the judgment of the Federal Supreme Court, said at page 670:
“It is well settled that a Rule of Court cannot confer jurisdiction and as Brett, M.R. put it in Cropper v. Smith (1883) 24 Ch. D. 305 “by that rule it is assumed that the Court of Appeal has jurisdiction”; it would be equally true to say that by the rule it is assumed that the High Court has jurisdiction.”
Later on, the learned Federal Judge continued on the same page as follows:
“It is true that expressions are sometimes used which would seem to imply that in England the power is derived from the Rules of the Supreme Court; but I think the true effect is analogous to that of Order25 Rule 8 in relation to declaratory judgments (formerly dealt with in the Chancery Procedure Act 1852) as explained in Guaranty Trust Company of New York v. Hannay and Company (1915) 2 K.B. 536 by Pickford, L.J. at page 562-4 and by Bankes, L. J. at pp. 567-570, that is to say, that it regulates the practice of the Court in the exercise of a power derive aliunde and does not confer a power.”
Turning to the doctrine of Stare decisis, my learned brother, Oputa, J.S.C. has dealt with the matter in so far as it is relevant to this instant appeal. All courts below the Supreme Court are bound by the Ratio Decidendi of a case heard and decided by it if the same issue decided in that case arises before them later in another case. A decision on the application of the Rules of the Supreme Court in a motion for leave to appeal is not a decision on the application of the Court of Appeal Rules in a motion for leave to appeal to have the binding force of precedent which the appellant canvasses unless the two rules make identical provisions.
It was for the above Reasons and the Reasons so ably set out in the Reasons for Judgment just delivered by my learned brother, Oputa, J.S.C. that I dismissed the appeal on the 31st day of January, 1989.

NNAMANI, J.S.C.: On 31st day of January, 1989, this appeal came before this Court. Having read the records of proceedings and the briefs of argument, and after hearing Kola Awodein of counsel for the appellants, S. Ezugha counsel to the respondents not being called, I was satisfied that it was devoid of merit and I dismissed it. I indicated then that I would give my reasons for that judgment today. I now give those reasons.
I had before now had a preview of the reasons for judgment just delivered by my learned brother, Oputa, J.S.C. As they were the same reasons for my decision, I entirely agree with them and I adopt them as mine. This is indeed one of those interlocutory appeals which arrive in this Court leaving the main matter stranded in the lower courts. Briefly, the respondents, following an automobile accident, had brought a civil Suit against the appellants herein. The appellants then brought, i.e., in the High Court of Lagos State, an application to strike out the suit as being statute barred having been filed, as they claimed, outside the period permitted by the laws of Lagos State for such suit. Fafiade, J. refused the application. An appeal to the Court of Appeal was allowed, the Court holding that the suit was not filed by the respondents herein within the statutorily prescribed time.
The present dispute arose from an application for leave to appeal to this Court in respect of the grounds of appeal raising issues of fact or mixed law and fact filed in the Court of Appeal by the respondents. It is pertinent to mention that the panel of the Justices of the Court of Appeal before whom this application came for hearing included Ademola and Awogu, JJ.C.A. who had delivered the judgment in the appeal to which reference was made above. It was there contended by the appellants herein that the application be refused, the applicants having not complied with Order 6, Rule 2 of the Supreme Court Rules, 1985 which among other things requires that a brief of argument as well as the judgment of the lower court being appealed against be attached to such an application. The Court of Appeal (Coram E Ademola, Akpata and Awogu) allowed the application. In his lead ruling Akpata, J.C.A. said as follows:-
“This is an application for leave to appeal to the Supreme Court. It has been opposed by learned counsel for the respondents on the ground amongst other things that the judgment of the High Court and brief of argument have not been attached to the affidavit in support. There is no doubt that if the applicant (sic) is made in the Supreme Court its (sic) will be mandatory for the applicant to exhibit the judgment of the lower court, and the brief of argument. It appears to me unnecessary for us to insist that the judgment of the lower court which this Court has pronounced upon should be exhibited before this Court. I have examined the grounds of appeal and it raises an interesting point of law. Leave is granted the applicant to appeal”
The appellants appealed to this Court, and have both in their brief of argument and in oral argument maintained the same position, i.e., that the application before the Court of Appeal ought to have complied with Order 6, Rule 2 of the Supreme Court Rules, 1985. I must say that this appeal is by no means frivolous, for the appellants referred to the cases of Tijani v. Elabanjo CA/L/65/84 delivered on 29/4184; Shittu v. Sibanjo and Ors. CA/L/238/85 delivered on 3/6/87; Ayinke v. Lawal and Ors. CA/L/258/86 delivered in September 1987 and of course the present suit CA/L/242/86 delivered on 31/5/88 in which the Court of Appeal had held in some that an application such as the one in dispute course the present suit CA/L/242/86 delivered on 31/5/88 in which the Court of Appeal had held in some that an application such as the one in dispute here should have complied with Order 6, Rule 2, and in some others that it was a question of exercise of the discretion of the Court.
My learned brother has indeed dealt with all the issues raised here in his lead reasons for judgment, including an analysis of those cases in the Court of Appeal and the decision of this Court in Ibodo v. Enarofia. I shall content myself with stating briefly what I conceive as the proper meaning and implication of Section 213(2), 213(3), 213(6), 216 and 227 of the 1979 Constitution of the Federal Republic of Nigeria. Perhaps I should start by stating that it is not in dispute that pursuant to the powers conferred on the Chief Justice of Nigeria by Section 216 of the Constitution, the Supreme Court Rules, 1985 (including Order 6, Rule 2) were made. These Rules can only apply to the procedure of the Supreme Court in the exercise of the jurisdiction granted to it by the Constitution. They cannot govern the exercise of the jurisdiction of other courts, Section 227 of the Constitution grants similar powers to the President of the Court of Appeal as were granted to the Chief Justice of Nigeria by Section 216. Such Rules, if made, would govern the exercise of any jurisdiction granted to the Court of Appeal.
Now looking at Section 213(2) of the Constitution, one sees that that sub-section grants an appeal as of right to this Court from a decision of the Court of Appeal on grounds of law alone. On the contrary, Section 213(3) only grants a conditional right of appeal. The sub-section gives a right of appeal to this Court in respect of grounds of appeal raising issues of fact or mixed law and fact conditional on the grant of leave by either the Supreme Court or the Court of Appeal. In other words, the right to appeal to this Court in such a case does not arise until leave to appeal has been granted. All this is essential for a proper understanding of sub-section (6) of Section 216 which seems to be at the centre of this issue. That sub-section provides that:
“(6) Any right of appeal to the Supreme Court from the decision of the Federal Court of Appeal conferred by this Section shall, subject to Section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
It seems to me clear that while exercising the jurisdiction granted to the Supreme Court by Section 213(2) of the Constitution, it would be bound to follow rules of court already made pursuant to Section 216. This would include the jurisdiction granted to it to grant leave in Section 213(3) of the Constitution. The position is not quite the same with the Court of Appeal. When it is considering an application for leave to appeal to this Court, there is as yet no right of appeal to this Court until such leave is granted. That being the case, I do not think that Section 213(6) would apply, nor would Order 6, Rule 2 of the Supreme Court Rules necessarily apply. What in my view would apply to such an application for leave made to the Court of Appeal are rules of court governing exercise of the jurisdiction granted to the Court of Appeal and made by the President of the Court of Appeal pursuant to Section 227.
It turns out that no Rules of Court have as yet been made by the President of the Court of Appeal to cover this particular matter. In such a case, it seems to me that the Court of Appeal would be entitled to look at the application within the principles governing the exercise of its discretion to grant or refuse such application. In the present case, I too do not see the wisdom in insisting on attaching the judgment of High Court upon which it had just pronounced, and what would a brief in the circumstances of that case have added. The Court of Appeal examined the grounds of appeal and was satisfied that they raised interesting points of law. Besides, in exercising its discretion to grant the application before it, that Court was not unmindful of the fact that there was already a pending appeal on grounds of law to this Court. The application only related to grounds raising issues of facts etc. It was for these reasons, and the more detailed reasons set down by Oputa, J.S.C. that I dismissed this appeal.

KARIBI-WHYTE, J.S.C.: This appeal was heard and summarily dismissed on the 31st January, 1989, without calling on counsel to the respondents to reply to the arguments of counsel to the appellants. I indicated on that day that I will give the reasons today. The real issue in dispute between the parties is very short. It is whether the Court of Appeal in exercising a jurisdiction vested in it by the Constitution to grant leave to appeal to the Supreme Court, is bound to apply the rules of the Supreme Court. It is the contention of counsel to the appellants, that only the Supreme Court Rules are applicable and mandatory. The respondents contend the contrary and that the applicable rules are those of the Court of Appeal.
I have read the judgment of my learned brother, Oputa, J.S.C., in this appeal, and herein adopt the statement of the facts which have given rise to this appeal. The grounds of appeal and the issues for determination have been stated in the judgment of my brother, Oputa, J.S.C., and I adopt them.
I however reiterate in summary form so much of the facts as are relevant for the reasons for my judgment. Respondents had brought an action against appellants in the High Court claiming damages for negligence. Appellants as defendants raised a preliminary objection that the action was statute-barred having been brought more than three years from the accrual of the cause of action. The learned trial Judge overruled the objection. The defendants who are now the appellants appealed to the Court of Appeal. The Court of Appeal allowed the appeal and held that the action was statute-barred as contended by the defendants/appellants. Plaintiffs who are respondents to this application gave notice of appeal to this Court against the judgment of the Court of Appeal; dismissing their claim in limine.
Plaintiffs/Respondents in the four grounds of appeal exhibited had ground three as a ground of law. The other three grounds of appeal were either of mixed law and fact, or of facts simpliciter. The Court of Appeal granted plaintiffs leave to appeal. The defendants have appealed against the decision of the Court of Appeal on the ground that they have not followed the mandatory applicable rules of the Supreme Court, 1985. In accordance with section 213(2)(a) of the Constitution, 1979, no conditions attach to the exercise of the right of appeal on grounds of law. But Section 213(3) which governs the exercise of right of appeal where the grounds of appeal consist of mixed law and fact, or of facts simpliciter contain conditions.
Section 213(3) provides as follows-
“Subject to the provisions of sub-section (2) of this section, an appeal shall lie from the decisions of the [Federal] Court of Appeal to the Supreme Court with leave of the [Federal] Court of Appeal or the Supreme Court.”
Sub-section 2 referred to in subsection 3 relates to the situations where appellant is entitled to appeal as of right and therefore requires no leave of the Court of Appeal or the Supreme Court. The issue here is not whether the Court has jurisdiction. That there is jurisdiction in both the Court of Appeal and the Supreme Court to grant leave to appeal on grounds of mixed law and facts, or facts is evident from S.213 and unambiguous from a reading of the provisions of sub-section 3 of section 213 of the Constitution 1979, See Erisi v. Idika (1987) 4 NWLR (Pt.66) 503. The only issue is whether the Court of Appeal is entitled to rely on its rules or the rules of the Supreme Court in determining applications for leave to appeal to the Supreme Court.
It is pertinent to reproduce the authority upon which both the Court of Appeal and the Supreme Court can rely for the application of the Rules of their Courts.
Section 216 of the Constitution 1979 provides for the Supreme Court as follows –
“Subject to the provisions of any Act of the National Assembly, the Chief Justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.”
Similarly, section 227 of the Constitution 1979 provides in respect of the Court of Appeal as follows –
“Subject to the provisions of any Act of the National Assembly, the President of the [Federal] Court of Appeal may make rules for regulating the practice and procedure of the [Federal] Court of Appeal.”
Thus, the Rules made by virtue of sections 216 and 227 are meant for the regulation of the practice and procedure in the Supreme Court and Court of Appeal respectively. Each Court as it is constitutionally empowered and entitled to do, has made rules governing procedure in matters before it.
The application, subject-matter of this dispute, is for leave to appeal to the Supreme Court, from the Court of Appeal. The rules of procedure governing applications in the Court of Appeal are to be found in the Court of Appeal Rules, 1981. On a careful examination and analysis of the provisions of Order 3 Rule 3, it seems to me that no provision has been made for applications for leave to appeal to the Supreme Court from the Court of Appeal. Adequate provision appears to have been made in respect of applications for leave to appeal from the High Court to the Court of Appeal.
Order 3 r.3 which contains the procedure provides as follows:-
“3.-(1) Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought.
(2) Any application to the Court for leave to appeal other than an application made after the expiration of the time for appealing) shall be by notice of motion which shall be served on the party or parties affected.
(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.
(4) 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 first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the court below.
(5) If leave to appeal is granted by the Court or by the court below the appellant shall file a notice of appeal within the time prescribed by section 25 of the Act.
(6) Where an application for leave to appeal from a decision of the court below has been brought within the time specified by section 25 of the Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in a proper grant leave to appeal.”
The Court referred to in these rules has been defined in Order 1 rule 2 to mean, the Court of Appeal, and the “Court below”, or ‘lower court’ as any court or tribunal from which appeal is brought. There is no provision for the procedure for leave to appeal to the Supreme Court even though the Constitution has conferred the jurisdiction on the Court of Appeal. Thus, there is a gap in the applicable procedure rules of the court.
Order 3 rule 7 has prescribed the contents of an application for leave to appeal from the decision of the court below – These are (a) Civil Form 5 duly completed, i.e., Notice of motion for leave to appeal (b) A certified true copy of the judgment of the court below sought to be appealed against (c) A copy of the proposed grounds of appeal, and (d) where leave has been refused by the lower court, a copy of the Order refusing leave. This is clearly not applicable to the instant case having specifically provided for appeals to the Court of Appeal, and not from the Court of Appeal.
The conditions prescribed by the Rules of the Supreme Court in respect of applications in that court for leave to appeal, which obviously applies only to appeals from the Court of Appeal are more elaborate. Order 6 r.2 Rules of the Supreme Court, 1985 are as follows –
“2.-(1) An application for leave to appeal or for enlargement of time within which to appeal or to seek leave to appeal, shall be supported by a Brief and shall include the following:
(a) the motion paper for the application;
(b) the relevant affidavit in support thereof and the counter-affidavit, if any, in opposition;
(c) the relevant documents referred to in, and exhibited with, the said affidavits which must include true copies of the judgments with which the application is concerned that is, both of the court below and the court of first instance verified by affidavit;
(d) the proposed grounds of appeal from the said judgments;
(e) a statement of the questions which the applicant would like the Court to consider, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary questions comprised therein. Only the questions set forth in the application or comprised therein will be considered by the Court;
(f) the Constitutional provisions, enactments, or subsidiary legislation, if any, which are relevant to the application;
(g) A concise statement of the case containing the facts material to the consideration of the questions presented; and
(h) a direct and concise argument amplifying the reasons relied upon.
(2) All arguments in support of the application shall be set out in the application as provided for in paragraph (h) of sub-rule (1) of this Rule.
(3) Failure on the part of an applicant for leave to present with accuracy, brevity, and precision whatever is essential to the clear and adequate understanding of the questions which require consideration shall be a sufficient reason for refusing the application.
(4) The Court, in the interest of justice, may adjourn the application so as to enable the party or parties affected to file their own Brief in reply.”
It is important to appreciate the fact that rules of practice of one court are formulated for the practice of that court and intended to be applicable in respect of matters in that court. They are not ordinarily intended to be applicable to other courts unless so expressly provided by incorporation in the rules of that other court- See Tukur v Government of Gongola State (1988) 1 NWLR (Pt.68) 39 at p.50. The Rules of the Court of Appeal were made and came into force in 1981. The provisions of Order 6 r.2 of the Supreme Court Rules which are new and were not in the old rules, in 1977 were made and came into force in 1985. The former Order 7 r .4(2) which dealt with applications to the Court for leave to appeal was less elaborate. In the absence of any provision in the Rules of the Court of Appeal for leave to appeal to the Supreme Court, and in the interest of uniformity in the procedure applicable in the two courts vested with the exercise of identical jurisdiction, it is desirable for the Court of Appeal to resort to the provisions of Order 6 r.2 when considering applications for leave to appeal to the supreme Court – See Laibru Ltd. v Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387. These in my opinion are the only rational basis why Order 6 r.2 Supreme Court Rules, 1985 should be applicable in the Court of Appeal in applications for leave to appeal to the Supreme Court. Again, since the Supreme Court can only hear appeals from the Court of Appeal, it is reasonable where there is no provision in the rules of the Court of Appeal for procedure to appeal to the Supreme Court to apply the rules of the Supreme Court applicable suitably modified.
I do not agree with counsel to the appellants that the combined effect of a reading of sections 213(3), 6 and 216 of the Constitution 1979 makes it mandatory for the Court of Appeal to comply strictly with the Supreme Court Rules, 1985, in these applications. Section 213(3) confers jurisdiction on the Court of Appeal as well as the Supreme Court to grant leave to appeal to the Supreme Court. The Court of Appeal in exercising jurisdiction to grant leave to appeal to the Supreme Court is exercising its own jurisdiction and not jurisdiction vested in the Supreme Court. It will therefore be appropriate for it to apply its own rules where there is any. It is not correct as submitted that it will be unconstitutional to apply its own rules in such circumstance. Section 6 enables both courts to exercise the judicial powers of the Constitution. Section 216 enables the Chief Justice of the Federation to make rules of practice for proceedings in the Supreme Court. It is difficult therefore to conceive how a combined reading of these sections as they are will enable the Court of Appeal to apply the rules of the Supreme Court 1985. Such a construction is neither express nor by necessary implication from the words used.
Order 6 rule 2 of the Supreme Court Rules 1985 being rules made for applications in the Supreme Court is not applicable proprio vigore. It is applicable because of the absence of provision, in the Court of Appeal Rules, 1981. It is therefore neither mandatory on the Court of Appeal, to apply it, nor unconstitutional not to apply it. It should be applied because it is desirable in the interest of justice to do so. I think Mr. Ezugha for the respondents was right in his submission that Ibodo v Enarofia (1980) 5-7 S.C. 42 relied upon by Mr. Awodein for the appellants is clearly not applicable. Ibodo v Enarofia (supra) was an application in the Supreme Court for leave to appeal, where the rules of the Supreme Court applies proprio vigore. In the instant case it is an application in the Court of Appeal, for leave to appeal to the Supreme Court. The rules of the Court of Appeal ought to apply proprio vigore.
Mr. Awodein has criticised the view of the Court of Appeal that it was not necessary to exhibit its own judgment to the application for leave to appeal. It was submitted that since it was a condition for the exercise of the discretion to grant leave to appeal, and the judgment being that of a different panel, it was mandatory for the applicant to exhibit it. It was submitted that the judgment being exhibited is that of the court is irrelevant. It was also argued that the Court of Appeal was wrong to have dispensed with the requirement to file brief and to exhibit the judgment of the court of first instance.
Now, it is elementary common sense that the Court of Appeal will not require to be exhibited before it the judgment of the Court of first instance which was the judgment that was on appeal before it; and in respect of which it has pronounced its judgment. The Court of Appeal is conversant with this judgment and its attention is not being drawn to it for the purpose of the application. The Court of Appeal has a discretion to dispense with the filing of briefs in matters before it, and may dispense with same where it considers filing of briefs unnecessary. The question however is whether in a situation where it is required to apply the rules of the Supreme Court which renders these conditions for exercising discretion, (and not jurisdiction) necessary it can also dispense with any of the conditions which it considers superfluous. I think it surely can. The rules are not to be mechanically followed regardless of the reasons and the situations that gave rise to them. Order 6 r.2 was devised to assist the Supreme Court, a court at last resort coming into the matter for the first time, to decide whether there are good reasons why leave should be given to the applicant to appeal to the Court. In such a situation the Supreme Court should be furnished with all the judgments of the courts that have pronounced on the dispute, subject-matter of appeal. This will enable it to exercise its discretion to grant leave. The Court of Appeal is in a different situation, having heard the appeal and examined and pronounced upon the judgment of the court of first instance, and has expressed its views on the matter as a whole, it can surely dispense with the requirement of filing judgments of the courts below which it has examined. It is the more unnecessary to require it to call for its own judgment to be exhibited. The time and expense involved in satisfying this requirement negatives the demands of justice. Compliance by the Court of Appeal with the provisions of Order 6 r.2 of the Supreme Court Rules are not mandatory, but should be as much as is practicable to enable the valid exercise of discretion of the Court.
Mr. Awodein for the appellants also complained about the conflicts in the judgment of the Court of Appeal. He referred to Tijani v. Elabanjo CA/L/65/84 delivered on 29th April, 1985, which was followed in Shittu v. Osinbanjo CA/L/238/85 delivered on 2/6/87 that the Rules of the Supreme Court are applicable.
The decision of the Court in Ayinke v. Lawal & Ors. CA/L/258/86 decided on September, 1987 and the instant case that the Rules of the Supreme Court need not be complied with. I agree with Mr. Ezugha that these decisions are in the strict analysis not conflicting. In both Tijani v. Elabanjo (supra) and Shittu v. Osinbanjo, (supra) the reasons for refusing the application for leave were in the two cases that applicant did not show special circumstances for the grant of leave to appeal on questions of facts raised in the grounds of appeal, and the application is not supported with the necessary particulars and materials upon which the discretion of the Court could be exercised under the relevant rules of the Supreme Court. In Ayinke v. Lawal (supra) which is contended as in conflict, it will seem from the reasons given by the court that the application was not only regular before the court, also that the appellants had supplied sufficient materials to enable the court exercise its discretion. Thus showing that although the learned Justices did not say they were applying the Rules of the Supreme Court, in the exercise of the jurisdiction vested in them by the Constitution, they were satisfied with the materials before them to enable them exercise their discretion to grant leave. This is in my view the true reason for Order 6 r.2, Rules of the Supreme Court 1985. There clearly are no conflicts in the rationes of the decisions.
The question of whether the Rules of the Supreme Court 1985 are applicable in applications in the Court of Appeal for leave to appeal to the Supreme Court is not a ratio decidendi in any of the cases.
It was for the above reasons and for the additional reasons in the judgment of my brother, Oputa, J.S.C., that I dismissed the appeal of the appellants.

BELGORE, J.S.C.: I have read in advance the reasons for judgment as given by my learned brother, Oputa, J.S.C. He has amply explained the procedure in the Court of Appeal for leave to appeal to the Supreme Court from the Court of Appeal. I agree with him entirely as it was for the same reasons advanced by him that I dismissed this appeal on the 31st day of January, 1989.
Appeal dismissed.

 

Appearances

Kola Awodein Esq. For Appellant

 

AND

S.S. Ezugha, Esq. For Respondent