UNITY BANK PLC & ANOR v. BERKHOUT
(2020)LCN/15766(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, November 13, 2020
CA/IB/143/2014
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. UNITY BANK PLC 2. MR. KOLAWOLE ADELEYE APPELANT(S)
And
CHIEF JOOP BERKHOUT RESPONDENT(S)
RATIO:
A GROUND OF APPEAL MUST BE BASED ON THE DECISION OF THE LOWER COURT
It is trite law that in an appeal, a ground of appeal must be based on the decision or Judgment of the lower Court, and if not so based, such a ground would be incompetent and liable to be struck out. Put in other words, where there is neither a Ruling nor a Judgment of the lower Court appealed against, the Notice of Appeal and the Grounds are incompetent and ought to be struck out. JIMI OLUKAYODE BADA, J.C.A.
A NOTICE OF APPEAL IS THE FOUNDATION UPON WHICH AN APPEAL IS BASED
In MALLAM ABUBAKAR ABUBAKAR& OTHERS VS SAIDU USMAN NASAMU & OTHERS (2012) LPELR – 7826 (SC), it was held among others that:-
“…An appeal should be a complaint against the valid decision of a trial Court. In the absence of such a decision, there cannot possibly be an appeal against what has not been decided against a party…”
– See – NYAKO VS ADAMAWA STATE HOUSE OF ASSEMBLY & OTHERS (2017) 6 NWLR 1562PAGE 347.
In OLU ODE OKPE VS. FAN MILK PLC & ANOTHER (2017) 2 NWLR PART 1549 PAGE 282.
It was held among others that-
“A Notice of Appeal is said to be the spinal cord of an Appeal, it is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore it follows that where the Originating Process is defective or invalid, it cannot sustain an appeal, it will collapse and must be struck out. See – J.A. ADERIBIGBE & ANOTHER VS. TIAMIYU ABIDOYE (2009) 5 SCM PAGE 1, (2009) 4 -5 SC PART III PAGE 123. JIMI OLUKAYODE BADA, J.C.A.
AN APPEALABLE DECISION IS BASED ON THE FINDINGS BY A COURT
In law, an appeal is a proceeding undertaken by a higher Court in which the decision of a lower Court is reconsidered or reviewed. See Odedo v. PDP &Ors (2015) LPELR – 24738 (SC); Adedeji v. Adeoba (2011) 10 NWLR (pt.1255) 316 at 327 paragraphs E – G and Omisore& Anor v. Aregbesola & Ors (2015) LPELR-24803(SC). An appealable decision is therefore based on the findings by a Court on material issues which have been disputed or canvassed before the Court. HARUNA SIMON TSAMMANI, J.C.A.
WHAT IS THE ESSENCE OF AN APPEAL
It is trite that the essence of an appeal is to subject findings of fact and inferences drawn therefrom by the lower Court in a matter before it for review by an Appeal Court to determine whether or not such findings and decision are correct. It follows therefore that there cannot be a valid appeal where a trial Court has not taken any decision on facts or issues submitted to it for determination. An appeal must be based on a pronouncement made by the Court. See OREDOYIN VS. AROWOLO(1989) 4 NWLR (PT. 114) 172; CONTRACT RESOURCE NIGERIA LIMITED VS. UNITED BANK FOR AFRICA PLC (2011) 16 NWLR (PT. 1274) 592; OSUN STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION VS. ACTION CONGRESS (2010) 19 NWLR (PT. 1226) 273; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81. FOLASADE AYODEJI OJO, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the proceedings of Oyo State High Court of Justice, Ibadan Judicial Division in Suit No: I/730/2013 – (1) UNITY BANK PLC (2) MR KOLAWOLE ADELEYE VS CHIEF JOOP BERKHOUT dated the 11th day of February, 2014 in which the Ruling was adjourned to 28/2/2014.
Briefly the facts of this case are that the Appellants i.e (Claimants at the lower Court) claimed against the Respondent i.e (Defendant at the lower Court) as follows:-
“(a) Declaration that the act of the Defendant in pulling down part of the building situated at No. 30 Oba Adebimpe Street, Ibadan – now referred to as No. 144 New Court Road, Lebanon, Ibadan that the 1st Claimant had sold to the 2nd Claimant since 1995 constitute trespass in law.
(b) The 2nd Claimant claims from the Defendant the sum of One Hundred and fifteen Million Naira that will be required by the 2nd Claimant to rebuild part of the building that is situated at No. 30 Oba Adebimpe Street, Ibadan now referred to as No. 144 new Court Road Lebanon, Ibadan which the Defendant between April and May 2013 pulled down.
(c) And any Order or other order that this Honourable Court may deem fit to make”.
By an application dated and filed on 28th day of June, 2013 the Appellants sought for an Order of the lower Court to restrain the defendant, his agents, servants, privies, from laying claim to the property that is situated at No. 144 New Court Road, Lebanon Street, Ibadan, pending the determination of the substantive suit.
Also by a motion on notice dated and filed on the 10th day of July 2013, the Respondent as Defendant sought for the Order of the lower Court to have the suit struck out in limine on grounds of jurisdiction and more specifically on the ground that the subject matter of the suit had been distinctly determined by the Supreme Court in SC/270/2002 – UNITY BANK PLC & 1 OTHER VS EDWARD BOUARI. The Respondent filed a Written Address to back up his objection to the suit. (See pages 37 – 40 of the Record of Appeal).
In response to the Motion on Notice of the Respondent to have the suit struck out in limine, the Appellants filed another motion dated and filed on the 15th day of July, 2013 seeking to strike out the motion on notice of the Respondent of 10th of July, 2013. (See pages 41 – 43 of the Record of Appeal).
The Respondent as Defendant at the lower Court filed a Counter Affidavit in opposition to the Appellant’s Motion on Notice of 15th July 2013 and backed it up with a Written Address. (See pages 47 to 49 of the Record of Appeal).
On the 11th day of February, 2014 (when this suit came up for hearing) the motions pending before the lower Court are (1) Motion to have the case struck out or dismissed and (2) Motion to strike out the motion seeking the dismissal of the suit.
The learned Counsel for the Respondent i.e Defendant at the lower Court urged the Court to hear the two applications together, while learned Counsel for the Appellants submitted that the two applications could not be argued together.
The learned trial Judge thereafter adjourned the case to 28/2/2014 for Ruling.
The learned Counsel for the Appellants without waiting for the Ruling filed a Notice of Appeal against the proceedings of the Court dated the 11th day of February, 2014.
The learned Counsel for the Appellants formulated four issues for the determination of this appeal. The said issues are set out as follows:-
(1) Whether in the absence of the pleading from the Respondent highlighting the parties, subject matter, reliefs and issues in the previous suit and present suit issue of res judicata can be decided by Motion on Notice at the interlocutory stage of the proceeding and if the answer is in the negative whether the Motion on Notice of the Respondent of July, 10th 2013 is incompetent and constitute abuse of the process of the Court that ought to have been struck out by the Court below suomotu.
(2) Whether in the absence of formal application by the Respondent that the notorious principle of law that the plea of res judicata can only be raised in the pleading and evidence must be led in support of it has been abrogated by statutory law, the Court below was in error by receiving oral address from the Appellant’s Counsel and Respondent’s Counsel on whether incompetent application of the respondent that ought to have been struck out suomotu by the Court can be taken together with the Appellant’s application that preserves the jurisdiction of the Court to hear the case on its merit.
(3) Whether the Court below was in error by taking oral application from the Appellant’s Counsel and Respondent’s Counsel on whether application of the Appellant of July 15th, 2013 can be taken together with the application of the Respondent of July 10th 2013 having regard to the fact that the application of the Respondent of July 10th 2013 that sought the relief of the Court for the termination of the suit without being heard is in violation of the provisions of Section 36(1) of the 1999 Constitution of Federal Republic of Nigeria and is null and void ab initio.
(4) Whether the Motion on Notice of the Respondent of July 10th 2013 that sought relief from the Court for termination of the suit of the Appellant without being heard is in violation of the Provision of Order 22 Rules 1 & 2(1) of the Oyo State High Court Rules 2010 by which point of law can only be raised in the pleading and ought to have been struck out suomotu by the Court.
The learned Counsel for the Respondent did not formulate any issue for determination because the Grounds of appeal did not flow from the Ruling or Decision of the lower Court.
PRELIMINARY OBJECTION
At the hearing of this appeal on 19/10/2020, the learned Counsel for the Respondent referred to the Notice of Preliminary Objection earlier filed and served upon the Appellants. The objection was argued in the Respondent’s brief filed on 6/2/2019. He referred to page 2 paragraphs B – C.
He submitted that the appeal is incompetent because no Judgment or Ruling of lower Court was appealed against.
He adopted and relied on the said Respondent’s brief of argument as his argument in urging that this appeal be struck out.
In his own case the learned Counsel for the Appellants referred to Order 10 Rule 1 of the Court of Appeal Rules 2016. He submitted that the Respondent has abandoned the appeal. The Court’s record showed that the learned Counsel for the Appellants was served on 27/5/2014 with the Notice of Preliminary Objection filed on behalf of the Respondent.
He referred to the Appellants’ Reply brief of argument filed on 22/5/2019.
Learned Counsel for the Appellants adopted the said reply brief of argument as his argument in urging that the Preliminary Objection be dismissed.As for the main Appeal, learned Counsel for the Appellants stated that the appeal is against the decision of the High Court on pages 50 – 51 of the Record of Appeal.
The Notice of Appeal was filed on 14/2/2014 and the Appellants’ brief of argument was filed on 31/3/2014.
He adopted and relied on the said Appellants’ brief of argument as his argument in urging that this appeal be allowed.
On the other hand, the Respondent’s Counsel referred to the Respondent’s brief filed on 6/2/2019 which was deemed as properly filed and served on 22/5/2019.
He adopted and relied on the said Respondent’s brief of argument as his argument in urging that the appeal be dismissed.
PRELIMINARY OBJECTION
The learned Counsel for the Respondent filed a notice of preliminary objection before this Court on 21/5/2014.
The said notice is reproduced as follows:-
“NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO SECTION 242 OF THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA (1999), ORDER 7 RULE 1, ORDER 10 RULE 1 OF THE COURT OF APPEAL RULES 2011 AND UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE that the Applicant herein named intends at the hearing of this Appeal to raise a preliminary objection and will contend that this Honourable Court lacks Jurisdiction to entertain this Appeal.
GROUNDS OF APPLICATION
AND TAKE NOTICE that the grounds of the said objection are as follows:
1. That there is neither a ruling nor a Judgment appealed against.
2. That this Appeal is premature in that it is an interlocutory Appeal and no leave of either the lower Court or of this Honourable Court has been obtained.
3. That there is no Appeal before this Honourable Court.
4. That Notice of Appeal in this Appeal is defective in that there is no Ibadan High Court under the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
AND for such further or other Orders as this Honourable Court may deem fit to make in the circumstances.”
The said objection was argued in the Respondent’s brief of argument filed on 6/2/2019 and deemed as properly filed and served on 22/5/2019.
It was submitted on behalf of the Respondent that where there is neither a Ruling nor a Judgment of the lower Court appealed against,the Notice of Appeal and the Grounds are incompetent and ought to be struck out. He relied on the following cases:-
– EMMANUEL AGO VS. FEDERAL MORTGAGE FINANCE LIMITED (2013) LPELR 22820 (CA) AT PAGES 21 – 22 PARAGRAPHS C.
– CHAMI VS. UNITED BANK FOR AFRICA (2010) LPELR –841 (SC) PAGE 33 PARAGRAPHS E – A, (2010) 6 NWLR PART 1191 PAGE 474 AT 502 PARAGRAPHS C – D.
The learned Counsel for the Respondent referred to all the grounds of appeal contained in the Notice of Appeal on pages 52 – 56 of the Record of Appeal and submitted that none of the five (5) Grounds had any relationship with the proceedings of 11th February 2013.
He relied on the case of:-
– ENTIRE CARGO OF ABOUT 3 UNITS CREW BOATS (FORMERLY ABOARD “BBC”) MARYLAND VS. BBC CHARTER (2015) LPELR – 24667 CA AT PAGES 9 – 10 PARAGRAPHS D – C.
Learned Counsel for the Respondent finally urged this Court to strike out the Appeal on the Ground that the grounds of Appeal are manifestly incompetent.
In his response, the learned Counsel for the Appellants in his Appellants’ reply brief of Argument filed on 22/5/2019submitted that the Notice of Preliminary Objection filed on behalf of the Respondent is incompetent and an abuse of the process of the Court.
He urged this Court to strike it out.
He argued that the operative word in Section 241 (1) of the 1999 Constitution of the Federal Republic of Nigeria is that appeal shall lie against decision of the High Court to Court of Appeal in Civil Proceedings. The operative word is decision and not Ruling or Judgment.
Learned Counsel for the Appellants submitted that where a Court Process from the face of it is incompetent and ought to have been struck out suomotu by the Court without entertaining argument from Counsel to the parties on it and the Court still received formal address from Counsel to the parties on whether incompetent application can be taken together with the motion on Notice to strike it out the Court in its directive, step or decision has committed error of law and the appeal against the directive or decision of the Court below on whether to entertain incompetent application together with the motion or Notice to strike it out, can be lodged without waiting for the Ruling.
RESOLUTION
I have already stated the facts which led to this appeal earlier in this Judgment, but in order to have a clear picture of the issues surrounding this appeal, the Proceedings of 11th day of February 2014 before the lower Court which led to this appeal is hereby reproduced as follows:-
“HOLDEN AT IBADAN
BEFORE THE HONOURABLE JUSTICE E. ESAN – JUDGE
THIS TUESDAY, THE 11TH DAY OF FEBRUARY, 2014
SUIT NO: I/730/2013
BETWEEN:-
UNITY BANK PLC. & 1 OR. – CLAIMANT/APPLICANTS
AND
CHIEF J. BERKHOUT – DEFENDANT
The parties are absent.
Oluwole Aluko for the claimant/applicant.
Kolawole Esan with Kayode Adegbola for the defendant.
Says he has a further affidavit which he has just filed.
Mr. Esan has been served.
Says the position last time was whether the Court could take the motion to strike out this suit in limine together with the application filed by the claimant to have this case dismissed.
Mr. Aluko says the two applications cannot be taken together on the following grounds.
(1) In the list of documents filed the claimant attached the Judgment of the Ibadan High Court and Court ofAppeal & Ruling of the Supreme Court by which the right of the claimant to take possession of the property had been settled.
(2) At the interlocutory stage of proceedings issue of Res Judicata is never decided by the Court without reference to the …
Note:- Mr. Esan says what Mr. Aluko is saying is exactly
Kardozo Vs. …1986 2 SC 491 at 524.
Replying Mr. Esan says this Court should hold that this Court can take the two applications together.
The Court can take the applications to strike out the motion and give a ruling if the Court strikes it out. That terminates the application. But if the Court holds that it should not then the Court will go ahead and take the 2nd application it saves time. The submission of Mr. Aluko borders on argument res judicata. The two applications can be taken together.
Mr. Aluko on point of law Vice chancellor Vs. Adio (1986) 3 NWLR 684 at 694.
The two cannot be taken together. It is abuse of Court process. With Exhibit A still at Supreme Court.
Court:- Case adjourned to 28/2/14 for Ruling.
(SGD.)E. ESAN – JUDGE11/02/14”
A perusal of the proceedings of 11th February 2014 of the lower Court set out above would reveal that the learned trial Judge had not made Ruling on whether or not the two applications before that Court could be heard together or not when the Appellants filed a Notice of Appeal against the proceedings of the Court dated 11th day of February 2014.
It is trite law that in an appeal, a ground of appeal must be based on the decision or Judgment of the lower Court, and if not so based, such a ground would be incompetent and liable to be struck out. Put in other words, where there is neither a Ruling nor a Judgment of the lower Court appealed against, the Notice of Appeal and the Grounds are incompetent and ought to be struck out.
In MALLAM ABUBAKAR ABUBAKAR& OTHERS VS SAIDU USMAN NASAMU & OTHERS (2012) LPELR – 7826 (SC), it was held among others that:-
“…An appeal should be a complaint against the valid decision of a trial Court. In the absence of such a decision, there cannot possibly be an appeal against what has not been decided against a party…”
– See – NYAKO VS ADAMAWA STATE HOUSE OF ASSEMBLY & OTHERS (2017) 6 NWLR 1562PAGE 347.
In OLU ODE OKPE VS. FAN MILK PLC & ANOTHER (2017) 2 NWLR PART 1549 PAGE 282.
It was held among others that-
“A Notice of Appeal is said to be the spinal cord of an Appeal, it is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore it follows that where the Originating Process is defective or invalid, it cannot sustain an appeal, it will collapse and must be struck out. See – J.A. ADERIBIGBE & ANOTHER VS. TIAMIYU ABIDOYE (2009) 5 SCM PAGE 1, (2009) 4 -5 SC PART III PAGE 123.
In other words, the Notice of Appeal being the foundation of a proper appeal, where it is shown to be incompetent or null and void, there can be no valid appeal pending before the Court
– EGBOLGBIN OKETIE & 2 OTHERS VS. AMBROSE OLUGHOR & 6 OTHERS.
In Re- OSIBAKORO D OTUEDON VS. PETER EGUEYE (1995) 5 SCNJ PAGE 217.”
It must be emphasized that an appeal deals with the complaint of the Appellant against the Ruling or Judgment. A consideration whether a ground of appeal is of error in law, in fact and in substance, is a complaint that it is against evaluation, assessment, weight of evidence, findings of fact or a complaint of misdirection on the facts or mixed law and fact.
See:- YUSUF VS. UBN (1996) 6 NWLR PART 457 PAGE 632. BOARD OF CUSTOM & EXCISE VS. BARAU (1982) 10 SC PAGE 48 AT 143; (1982) 10 S.C. (REPRINTED) PAGE 23.
Any Ground of Appeal which is not based upon the Ruling or Judgment of the lower Court is incompetent and is liable to be struck out.
As I stated earlier in this Judgment that Ruling of the lower Court in the case was adjourned till 28/2/2014. The Notice of Appeal filed by the Appellants is contained on pages 52 – 56 of the Record, none of the 5 grounds of appeal was derived from the ruling which is yet to be delivered.
The grounds of Appeal in this case which is not related or connected with any issue decided by the lower Court is incompetent and liable to be struck out.
See ADUKU VS FRN & OTHERS (2009) 9 NWLR PART 1146 PAGE 370.
The Notice of Appeal filed by the Appellants in this appeal is premature and it lacks proper foundation, it will collapse and it is hereby struck out.
Having struck out thisappeal based upon preliminary objection that the Notice of Appeal is incompetent, surely the substratum of the appeal has gone. The bath water together with the baby have been thrown away. There is nothing left to sustain the appeal. The treatment of the appeal becomes an academic exercise from which nothing will be gained.
See- TANIMOLA VS SURVEY MAPPING GEODATA LTD (1995) 6 NWLR PART 403 PAGE 617.
– MAKINDE VS AKINWALE (1995) 6 NWLR PART 399 PAGE 5.
In the circumstance, this appeal is accordingly struck out.
There shall be (N100,000.00) One Hundred Thousand Naira costs in favour of the Respondent and against the Appellants.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA, gave me the advantage of reading in advance the judgment just delivered.
In law, an appeal is a proceeding undertaken by a higher Court in which the decision of a lower Court is reconsidered or reviewed. See Odedo v. PDP &Ors (2015) LPELR – 24738 (SC); Adedeji v. Adeoba (2011) 10 NWLR (pt.1255) 316 at 327 paragraphs E – G and Omisore & Anor v. Aregbesola & Ors (2015) LPELR-24803(SC). An appealable decision is therefore based on the findings by a Court on material issues which have been disputed or canvassed before the Court.
Thus, the Black’s Law Dictionary (9th Ed.) at p.467 defines an appealable decision as;
“A decree or order that is sufficiently final to receive appellate review (such as an order granting summary judgment), or an interlocutory decree or order that is immediately appealable…”
From the above definition, it appears to me that, an appeal presupposes the existence of a decision appealed against. In the absence of any appealable decision, on a point in issue, there cannot validly be an appeal. See Olufeagba & Ors v. Abdul-Raheem &Ors (2009) 18 NWLR (pt.1173) 384.
In the instant case, though the step taken by the trial Court to adjourn the arguments of Counsel as to whether the two motions filed should be taken together or separately may be considered as a decision, the same cannot be said to be an appealable decision. In any case, none of the Grounds of appeal and the issues culled there from was based on the decision of the learned trial judge to adjourn for Ruling. On that score, I am of the view that there is no appealable decision of the trial Court made on the 11/2/2014 which supports any of the Grounds of Appeal in this case.
On that note, I agree with my learned brother that this appeal lacks proper foundation. There is nothing upon which it can be sustained. The Preliminary Objection therefore succeeds; and this appeal is accordingly struck out.
I abide by the order on costs.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. His Lordship has resolved the germane issue for determination in this appeal which is whether the Appellant has invoked the jurisdiction of this Court. It is trite that the essence of an appeal is to subject findings of fact and inferences drawn therefrom by the lower Court in a matter before it for review by an Appeal Court to determine whether or not such findings and decision are correct. It follows therefore that there cannot be a valid appeal where a trial Court has not taken any decision on facts or issues submitted to it for determination. An appeal must be based on a pronouncement made by the Court. See OREDOYIN VS. AROWOLO(1989) 4 NWLR (PT. 114) 172; CONTRACT RESOURCE NIGERIA LIMITED VS. UNITED BANK FOR AFRICA PLC (2011) 16 NWLR (PT. 1274) 592; OSUN STATE INDEPENDENT NATIONAL ELECTORAL COMMISSION VS. ACTION CONGRESS (2010) 19 NWLR (PT. 1226) 273; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81.
In ABUBAKAR VS. NASAMU (NO. 1) (2012) 17 NWLR (PT. 1330) 407 @ 460-461, PARAS H-A, the Supreme Court, per Adekeye, JSC held as follows:
“An appeal should be a complaint against the valid decision of a trial Court. In the absence of such a decision, there cannot possibly be an appeal against what has not been decided against a party.”
In the instant appeal, the learned trial Judge adjourned to deliver its ruling on arguments canvassed by Counsel before him. He had not taken a decision or made any pronouncement. In the circumstance, there cannot be a valid appeal. I wish to emphasise that an appeal is a complaint of an appellant against the ruling or judgment of a Court.
It is for the above and the more elaborate reasons given by my learned brother in the lead Judgment that I also hold that this appeal lacks merit and should be struck out. I too strike out this appeal. I abide by the consequential order as to cost made in the lead Judgment.
Appearances:
MR. OLUWOLE ALUKO For Appellant(s)
2. MR. KOLAWOLE ESAN For Respondent(s)