UNITY BANK PLC & ANOR v. BOUARI
(2022)LCN/16590(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, February 04, 2022
CA/IB/M.230/2013
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. UNITY BANK PLC 2. MR. KOLAWOLE ADELEYE APPELANT(S)
And
WILLIAM BOUARI RESPONDENT(S)
RATIO
THE POSITION OF LAW ON SUBSTANTIAL QUESTIONS OF LAW RELATING TO INTERPRETATION OR APPLICATION OF THE PROVISIONS OF THE CONSTITUTION
Section 295 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has made provision for reference of substantial questions of law relating to interpretation or application of the provisions of the Constitution. In particular, Section 295(3) under which the Appellant has brought this summons provides that:
(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the Court is of the opinion that the question involves a substantial question of law, the Court, may, and shall if any party to the proceedings so request, refer the question to the Supreme Court which shall give its decision upon the question and give such direction to the Court of Appeal as it deems appropriate.
A party, like the Appellants herein, who seek for reference under Section 295 of the Constitution must satisfy the following conditions:
(i) He must show that the question involves the interpretation or application of the Constitution. See GAMIOBA v ESEZI II (1961) LPELR-25032(SC), per Brett, JSC at page 6, para. C and ATAKE v AFEJUKU (1994) LPELR-585(SC), per Bello, JSC (as he then was) at pages 17 – 18, para. G.
(ii) He must satisfy the Court making the reference that the question for reference is one which involves a substantial question of law. See AFRICAN NEWSPAPERS OF NIGERIA LTD. v FRN (1985) LPELR-211(SC), per Aniagolu, JSC at pages 17 – 18, para. F.
(iii) He must show that the question as to the interpretation or application of the Constitution had arisen from the proceedings before the Court making the reference. See BAMAIYI v A-G FEDERATION (2001) 12 NWLR (Pt. 727) 46 and OBAYOGIE v OYEWE (1994) 5 NWLR (Pt. 346) 637.
(iv) The Court which is making the reference to the higher Court must refrain from giving its opinion on the question. See ADESANYA v PRESIDENT, FRN & ANOR (1981) LPELR-147(SC), per Fatayi-Williams, JSC (as he then was) at pages 16 – 17, para. B. See also on these requirements: ABUBAKAR vs. A.G. FEDERATION (2007) 6 NWLR (Pt.1031) 626 at 639, 643 and 645, AUDU v A-G FEDERATION & ANOR (2012) LPELR-15527(SC), per Rhodes-Vivour, JSC at pages 10 – 11, paras. D – D, MAINSTREET BANK REGISTRARS LTD v ETIM (2016) LPELR-40556(CA), per Yahaya, JCA at pages 15 – 16, para. D, SALAMI v NJC & ORS (2014) LPELR-22774(CA), per Orji-Abadua, JCA at pages 38 – 40, para. C and MAINSTREET BANK REGISTRARS LTD v PROMISE (2016) LPELR-40572(CA), per Nimpar, JCA at pages 11 – 27, para. C. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON AN APPEAL
An appeal must have its foundation from the case at the lower Court because an appeal is actually a continuation of the original suit and not the institution of a new action. Hence, an appeal must emanate from a decision made in the suit and there cannot be an appeal against what has not been decided against a party. See: OC EZE OBI INVESTMENT LTD & ANOR v MIC-MERCHANT INVESTMENT LTD & ANOR (2019) LPELR-48266(CA), per Jauro, JCA (as he then was) at page 12, para. D, ONYIA v MBIKO & ANOR (2014) LPELR-23028(CA), per Agim, JCA (as he then was) at page 44, para. A, B-LINE COMMUNICATIONS LTD & ORS v ACCESS BANK & ANOR (2013) LPELR-22451(CA), per Augie, JCA (as he then was) at page 39, para. C and ANI & ORS v GOVERNOR OF ENUGU STATE & ORS (2016) LPELR-40944(CA), per Pemu, JCA at page 13, para. B. PER MOHAMMED, J.C.A.
WHETHER OR NOT A GROUND OF APPEAL WHICH SHOWS THAT THE LOWER COURT MISUNDERSTOOD THE LAW IS A GROUND OF LAW
In EHINLANWO v OKE & ORS (2008) LPELR-1054(SC), it was held, inter alia, that ground of appeal which shows that the lower Court had misunderstood the law is a ground of law. See also JIM JAJA v COP RIVERS STATE & ORS (2012) LPELR-20621(SC), per Ngwuta, JSC at pages 10 – 11, para. F. For this reason, I have no hesitation in holding that, even though this is an interlocutory appeal, the only remaining ground 3 of the appeal is one of law, which by Section 241(1)(b) of the 1999 Constitution does not require leave of Court to initiate. I so hold. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON RIGHTS GRANTED UNDER THE CONSTITUTION
It is settled law that rights granted under the Constitution, even as they may seem for the benefit of the individual, they are also imperative public policy measures aimed at ensuring public peace and public order. For this reason, rights conferred by the Constitution cannot be waived. See OGBONNA v A.G. OF IMO STATE (1992) LPELR-2287(SC), per Akpata, JSC at page 79, para. A, ENIGWE & ORS v AKAIGWE & ORS (1992) LPELR-1145(SC), per Nnaemeka-Agu, JSC at pages 39 – 41, para. C and ARIORI & ORS v ELEMO (1983) 1 S.C. 13 at 19 – 20. The fact that the Appellants continued to participate in the proceedings after the refusal of the transfer cannot therefore constitute a waiver of their right to appeal against the decision of the trial Court on the ground of the fair hearing imperative stated in Section 36(1) of the 1999 Constitution which the Appellants invoked in the trial Court. I so hold. PER MOHAMMED, J.C.A.
WHETHER OR NOT CRIMINAL CONTEMPT PROCEEDINGS IS DISTINCT AND SEPERATE FROM THE MAIN SUIT
Now it is settled that where criminal contempt proceedings is commenced as alleged by the Appellant’s Counsel in this appeal, it is supposed to be a distinct and separate from the main suit, whether it is civil or criminal. In a recent decision of this Court in KEENLINE INVESTMENT LTD v PATERSON ZACHONIS INDUSTRIES PLC & ORS (2021) LPELR-54933(CA), Ikyegh, JCA held that:
“The procedure followed by the appellants appeared appropriate in the sense that taking prejudicial steps in respect of the res during the pendency of an action is remedied by invoking the disciplinary powers of the Court in form of contempt proceeding for the punishment of the party for the act which is distinct from the substantive action. See Ecobank (Nig.) Ltd. v. Anchorage Leisures Ltd. (2018) 18 NWLR (Pt. 1650) 116 at 134, where the Supreme Court following the case of Onocha v. A.G., Delta State (2013) LPELR-20781 held that contempt proceeding is not part of the main civil or criminal proceedings before the Court; it is separate; or put differently, contempt proceeding is distinct and independent of the main suit…
Flowing from the above, it behoved the appellants to pursue the contempt proceedings to its logical conclusion from inception to the last tier of the adjudicatory system if not satisfied with the decision over it; not to resurrect the complaint in the substantive action up to the appellate level of the proceedings, when proof of the case did not depend on it.” PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): Vide a Notice of Appeal filed on the 10th of June, 2013, the Appellant herein instituted this appeal against the decision of the High Court of Oyo State sitting in Ibadan in Suit No. I/132/2008. The grounds of appeal as contained in the Notice of Appeal, shorn of particulars are as follows:
1. The learned trial judge erred in law by holding that he would take application of the respondent of May 10th, 2013 to strike out the suit of the appellants before entertaining the application of the appellants of May 15th, 2013 to strike out the application of the respondent of May 10th, 2013 when the application of the respondent of May 10th, 2013 is procedurally defective as no pleadings in the previous suit and present suit were attached to that application as required by law before the Court can reach a decision whether plea of res judicata as raised by the respondent can be sustained or not.
2. The learned trial judge erred in law by not striking out the Motion on Notice of the Respondent of May 10th, 2013 as issue of res judicata can only be raised in the pleading and not by affidavit evidence and there is no statement of defence by the respondent to the Amended Statement of Claim of the appellant, consequently the proceeding of June 6th, 2013 by which the application of the May 10th, 2013 to strike out the suit of the appellants was entertained by the learned trial judge is in conflict with the provision of Section 36(1) of the 1999 Nigeria Constitution relating to fair hearing and it is null and void by virtue of Section 1(3) of the 1999 Nigeria Constitution.
3. The learned trial judge erred in law by refusing the oral application of the appellants’ counsel made in Court on June 6th, 2013 for the re-assignment of the suit to another Court in view of the issue of Criminal Contempt raised against the respondent’s Counsel that while litigation is still in Court the respondent’s Counsel and a third party had been selling the subject matter of litigation.
The Record of Appeal was transmitted to this Court on the 3rd of December, 2013 and same was deemed properly transmitted on the 28th of February, 2018. Parties filed and exchanged briefs of argument. The Appellants’ Amended Brief of Argument settled by Oluwole Aluko Esq., was filed on 24th April, 2019, while that of the Respondents, settled by Kolawole Esan Esq., was filed on the 9th of March, 2020 and deemed properly filed and served on the 14th of July, 2021. The Respondent also filed a Preliminary Objection to the competence of the appeal in his Brief of Argument. The Appellants’ Reply Brief was filed on 16th July, 2021 in which the Appellant also responded to the Preliminary Objection of the Respondent.
In their adopted Brief of Argument, the Appellants distilled the following four issues for determination:
I. Whether the decision of the learned trial judge to entertain the application of the respondent of May 10th, 2013 to strike out the suit before entertaining the application of the appellants of May 15th, 2013 is perverse having regard to the fact that (i) it is settled elementary principle of law that the application of the appellants of May 15th, 2013 that preserves the jurisdiction of the Court to hear the suit on its merit will be taken before the application of the respondents of May 10th, 2013 that deprives the Court of its jurisdiction (ii) The application of the respondents of May 10th, 2013 is null and void ab initio since reference was not made in it to the parties, subject matter, relief and issues in the previous suit and present suit on which decision on res judicata can be based.
II. Whether in the absence of the pleading highlighting the parties, subject matter, relief and the issue in the previous suit and present suit the plea of res judicata can be raised in affidavit evidence and if the answer is in the negative whether the decision of the learned trial judge of June 6th, 2013 by which he entertained the application of the respondent of May 10th, 2013 on issue of res judicata is perverse having regard to the fact that there is not statement of defence by the respondent to the Amended Statement of Claim of the appellants and issues could only be joined on the pleadings and not by affidavit evidence.
III. Whether the decision of the learned trial judge of June 6th, 2013 to entertain the application of the respondent of May 10th, 2013 is perverse having regard (i) to the criminal contempt raised against the counsel to the respondent that he and third party had been selling the subject matter of litigation (ii) to the oral application for reassignment of the suit to another Court.
IV. Whether the Motion on Notice of the respondent of May 10th, 2013 constitute abuse of the Court process that should have been struck out suo motu by the Court.
On his part, the Respondent’s brief of argument was essentially a preliminary objection to the competence of the appeal, requiring the Court to decide whether the appeal of the Appellants is competent on the following four grounds:
Whilst the appeal was pending, the learned Counsel for the Appellant Oluwole Aluko Esq., filed an Originating Summons on the 17th of August, 2021 essentially seeking that this Court should refer some questions of law, which he formulated and which according to him have arisen from the pending appeal, to the Supreme Court for determination.
On the day of hearing of the appeal on the 25th of November, 2021, the learned Counsel for the Appellant insisted on first moving his Originating Summons, but after hearing the parties, the Court decided to hear the learned Counsel for the Appellants’ originating summons together with the appeal which was for hearing on that date. The parties argued both the originating summons and the substantive appeal.
I intend to commence the determination of this appeal by first considering the Originating Summons filed by the learned Counsel for the Appellant before proceeding to the substantive appeal, since the Respondent’s preliminary objection to the appeal was as a response to the Appellant’s Brief of Argument in the substantive appeal.
THE ORIGINATING SUMMONS OF THE APPELLANT:
The Originating Summons of the Appellant filed on 17th August, 2012 was brought under Section 295(3) of the CFRN, 1999. It seeks “the determination of the undermentioned questions of law or reference of the questions of law to the Supreme Court.” The questions of law were:
1. Whether this Honourable Court pursuant to the provisions of Section 295(3) of the 1999 Nigeria Constitution and decision of the Supreme Court in African Newspaper of Nigeria vs. Federal Republic of Nigeria (1985) 1 ANLNLR Part 1 page 50 at 158 – 159 shall refer the questions of law stated in the originating summons to the Supreme Court for determination in the area that is contested.
2. Whether on the construction of Section 241(1) of the 1999 Nigeria Constitution and decision of the Supreme Court in Dike and Ors vs. Aduba and Ors. (2000) 1 SCNQR page 243 at 252 on the interpretation of Section 241(1) of the 1999 Nigeria Constitution the word “decision” in Section 241(1) of the 1999 Nigeria Constitution by the golden rule interpretation of statute and ejusdem generis rule interpretation of statute is not confined to ruling or judgment of the Court alone but encompasses “directive”, “recommendation” steps taken by the Court in the course of proceedings and if the answer is in the affirmative whether the respondent brief of argument is incompetent in so far as it did not deal with the legal issue in the appellant brief of argument that the directive of the Court below at page 157 of the record of appeal to entertain the motion on notice of the respondent at page 576 – 78 that is incompetent under Order 22 Rule 1 and 2(1) of the High Court rules Oyo State 2010 that forbids demurrer is perverse and qualifies as decision that can be appealed against under Section 241(1) of the 1999 Nigeria Constitution.
3. Whether by the decision of the Supreme Court in Sokoto State Government of Nigeria vs. Kamdex Nig. Ltd. (2007) 3 SC Part 1 Page 74 at 105 the facts of this case where issues of law have been raised that the directive of the Court below to entertain incompetent application of the respondent under Order 22 Rule 1 and 2(1) of the High Court Rules, Oyo State, 2010 qualifies as decision under Section 241(1) of the 1999 Nigeria Constitution differ from facts of the cases where the issue of law was never raised that by the golden rule interpretation of statute the word “decision” under Section 241(1) of the 1999 Nigeria Constitution is not confined to ruling or judgment of the Court alone but encompasses the directive, step taken by the Court in the course of proceedings and recommendation of the Court.
4. Whether there is any provision in the current rules of the Court of Appeal that Notice of Appeal that is filed within time shall be incompetent because of the perfection of the bond of appeal out of time even after the exchange of the brief of argument by the appellants and respondent in the appeal and if the answer is in the negative whether the brief of argument of the respondent that is based on the decisions of the Courts on obsolete rules of the Courts is incompetent.
5. Whether this Honorable Court pursuant to the provisions of Section 6(6) of the 1999 Nigeria Constitution and Section 15 of the Court of Appeal Act suo motu can strike out the motion on notice of the respondent at pages 76 -78 of the record of appeal that is incompetent under Order 22 Rule 1 and 2(1) of the High Court Rules of Oyo State, 2010 that forbids demurrer and if the answer is in the affirmative whether this Honorable Court pursuant to the provisions of Section 6(6) of the 1999 Nigeria Constitution and Section 15 of the Court of Appeal Act and decisions of the Supreme Court in Ogundepo vs. Olumesan (2011) 12 SC (Part 1) page 1 at 213 can enter judgment for the appellants in terms of the relief in the Amended Statement of Claim at pages 12 – 13 of the record of appeal as there is no statement of defence in the suit by the respondent.
6. Whether on the construction of Sections 10 and 13 of the Limitation Law of Oyo State and decision of the Supreme Court in Sosan V Ademuyiwa (1986) NWLR Part 27 page 241 at 256 judgment that is obtained outside the period of limitation law is no longer enforceable and if the answer is in the affirmative whether the judgment of the Supreme Court in SC 270/2002 that was obtained in the year 2008 by the Bouari family outside the period of 10 years under the limitation law after the creation of the deed of legal mortgage in the year 1963 and 1968 is no longer enforceable.
7. Whether under Section 122(2)(m) of the Evidence Act, 2011 this Honourable Court can take judicial notice of the list of authorities filed in this Honourable Court on February 18th, 2021 by the appellants containing decisions of the Court of Appeal and Supreme Court in cases where reference had been made to the town and judicial divisions of the Courts that do not exist in the Nigeria Constitution.
8. Whether the learned counsel to the respondent by virtue of the provisions of Sections 15 – 20 of the Legal Practitioners Act Subsidiary Legislation 2010 has committed act of professional misconduct by assisting the respondent to disobey the judgment and ruling of the High Court of Justice, Ibadan, Court of Appeal Ibadan and Supreme Court in Suit Nos. I/1152/95, CA/I/160/98, CA/I/M.18/98 and SC 201/99 that affirmed the legal right of the appellants to take possession of the property that is situated at No. 20 Oba Adebimpe Street Ibadan and if the answer is in the affirmative whether this Honourable Court pursuant to the decision of the Supreme Court in Badejo vs Sawe (1984) 6 SC page 350 can refer the act of the professional misconduct of the learned counsel to the respondent to the Legal Practitioners Disciplinary Committee of the Bar.
9. Whether by the decision of the Supreme Court in Cardozo vs. Daniel (1986) 2 SC page 498 at 525 – 526 and AILERU v ADEMUOYE (1967) All NLR page 271 the judgment of the Supreme Court in SC 270/2002 that is no longer enforceable by virtue of Sections 10 and 13 of the Limitation Law of Oyo State and decision of the Supreme Court in Sosan vs. Ademuyiwa (1986) NWLR Part 27 page 241 and 256 and which did not set aside the sale of the property by the 1st appellant to the 2nd appellant cannot operate as res-judicata in this suit on appeal.
10. Whether by the decision of the Court of Appeal in Fawehinmi vs. State (1990) NWLR part 127 page 486 paragraphs in an affidavit that state precisely what the provision of the law contain do not offend provision of the Evidence Act 2011 and cannot be struck out.
Upon the determination of the aforementioned questions, the Appellants then sought for the following reliefs:
i. An order of this Honourable Court striking out the motion on notice of the respondent at pages 76 – 78 of the record of appeal that is incompetent under Order 22 Rule 1 and 2(1) of the High Court Rules of Oyo State by which point of law can only be raised in pleading and not by motion on notice.
ii. An order of this Honourable Court striking out the incompetent respondent brief of argument that did not contest any issue in the appellant brief of argument.
iii. And any order of (sic) other order that this Honourable Court may deem fit to make.
In support of the Summons was an affidavit of 9 paragraphs deposed to by one Joseph John a law clerk to the Counsel for the Appellants. In his submission in support of the originating summons, learned Counsel for the Appellant, Oluwole Aluko Esq., submitted that the originating summons was brought pursuant to Section 295(3) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN, 1999). He relied on the 9 paragraphs affidavit in support of the summons and pointed out that the questions raised by him in the originating summons were uncontested by the Respondent. He also raised objection to the competence of the Respondent’s Brief of Argument and urged the Court to strike out the Respondent’s Brief of Argument, and based on the uncontested questions of law, to grant the reliefs in the originating summons.
On his part, the learned Counsel for the Respondent, Kolawole Esan Esq., drew the attention of the Court to the preliminary objection raised in the Respondent’s Brief of Argument filed on 9th March, 2020 which challenged the competence of the appeal. He urged the Court to disregard the summons filed by the Appellant. He submitted that the Appellant had failed to meet the criteria for reference of constitutional matter to the Supreme Court, which require that a constitutional issue must arise in the proceedings before the Court of Appeal and there must be a substantial question of law so found by the Court of Appeal. He pointed out that none of the 9 paragraphs of the supporting affidavit to the summons satisfy those requirements. Relying on the authority of BAMAIYI v AGF (2001) 12 NWLR (Pt. 727) 468 at 489, paras. D – G, he urged the Court to dismiss the summons and hear the appeal on its merit.
RESOLUTION OF THE SUMMONS:
Section 295 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has made provision for reference of substantial questions of law relating to interpretation or application of the provisions of the Constitution. In particular, Section 295(3) under which the Appellant has brought this summons provides that:
(3) Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Court of Appeal and the Court is of the opinion that the question involves a substantial question of law, the Court, may, and shall if any party to the proceedings so request, refer the question to the Supreme Court which shall give its decision upon the question and give such direction to the Court of Appeal as it deems appropriate.
A party, like the Appellants herein, who seek for reference under Section 295 of the Constitution must satisfy the following conditions:
(i) He must show that the question involves the interpretation or application of the Constitution. See GAMIOBA v ESEZI II (1961) LPELR-25032(SC), per Brett, JSC at page 6, para. C and ATAKE v AFEJUKU (1994) LPELR-585(SC), per Bello, JSC (as he then was) at pages 17 – 18, para. G.
(ii) He must satisfy the Court making the reference that the question for reference is one which involves a substantial question of law. See AFRICAN NEWSPAPERS OF NIGERIA LTD. v FRN (1985) LPELR-211(SC), per Aniagolu, JSC at pages 17 – 18, para. F.
(iii) He must show that the question as to the interpretation or application of the Constitution had arisen from the proceedings before the Court making the reference. See BAMAIYI v A-G FEDERATION (2001) 12 NWLR (Pt. 727) 46 and OBAYOGIE v OYEWE (1994) 5 NWLR (Pt. 346) 637.
(iv) The Court which is making the reference to the higher Court must refrain from giving its opinion on the question. See ADESANYA v PRESIDENT, FRN & ANOR (1981) LPELR-147(SC), per Fatayi-Williams, JSC (as he then was) at pages 16 – 17, para. B. See also on these requirements: ABUBAKAR vs. A.G. FEDERATION (2007) 6 NWLR (Pt.1031) 626 at 639, 643 and 645, AUDU v A-G FEDERATION & ANOR (2012) LPELR-15527(SC), per Rhodes-Vivour, JSC at pages 10 – 11, paras. D – D, MAINSTREET BANK REGISTRARS LTD v ETIM (2016) LPELR-40556(CA), per Yahaya, JCA at pages 15 – 16, para. D, SALAMI v NJC & ORS (2014) LPELR-22774(CA), per Orji-Abadua, JCA at pages 38 – 40, para. C and MAINSTREET BANK REGISTRARS LTD v PROMISE (2016) LPELR-40572(CA), per Nimpar, JCA at pages 11 – 27, para. C.
On the first requirement which is the foundation of any reference, I have examined the ten questions formulated by the learned Counsel for the Appellants Mr. Oluwole Aluko. The first question merely states the pronouncement of the Supreme Court upon the powers of this Court under Section 295(3) of CFRN to refer to the Supreme Court questions of law relating to interpretation or application of the Constitution for determination and direction.
As for questions 2 and 3 which relate to definition of “decision” as used in Section 241(1) of the Constitution, I hasten to state that the word “decision” used in Section 241(1) of the CFRN has been defined by the Constitution itself. Section 318(1) of the 1999 Constitution has defined “decision” in relation to Court to mean “any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” See also WESTERN STEEL WORKS LTD & ANOR v IRON & STEEL WORKERS UNION & ANOR (1986) LPELR-3479(SC), per Oputa, JSC at pages 27 – 28, para. G and SHETTIMA & ANOR v GONI & ORS (2011) LPELR-417(SC), per Onnoghen, JSC (as he then was) at pages 31 – 33, para. E, where the Supreme Court had endorsed that Constitutional definition.
As for the argument of the learned Counsel for the Appellant that a golden rule of interpretation be used to interpret the word “decision” as used in the Constitution, I make haste to refer to the dictum of Onnoghen JSC (as he then was) in SHETTIMA & ANOR v GONI & ORS (supra), wherein he held that:
“The words have to be deployed in their plain and ordinary meanings as the Court is not permitted to read into any piece of legislation words and/meanings not contained therein or stretch the meanings to include matter(s) not in the contemplation of the framers/drafters of the Constitution or Statute. Once the above is borne in mind, it becomes necessary to state that the meaning of the word “decision” as defined in Section 318 of the 1999 Constitution is as it relates to a Court (and I may add Tribunal) and it is clear that it is synonymous with the determination of the Court in the form of judgment, decree, order, conviction, sentence or recommendation. In other words, it is my considered view that the word “decision” therein means the same as a determination, judgment, decree, order conviction, sentence or recommendation of a Court or Tribunal, and, I may add, any quasi judicial Tribunal, authority or body. I hold the view, therefore, that there is no legally cognizable difference between the words “decision” and “judgment” as used in Section 285(7) of the 1999 Constitution as the learned senior counsel for the appellants would want us to believe and hold.”
From the above authorities, it is clear that the word “decision” had been adequately defined by the Constitution as stated by the Apex Court.
And the application of that definition to the facts of the case before trial Court is one of the issues to be resolved in the instant appeal of the Appellants. I therefore do not believe that the Appellants’ questions 2 and 3 have raised any substantial question of law relating to the interpretation or application of the provisions of the Constitution which will require a reference by this Court to the Supreme Court. I so hold.
Question 4 as formulated by the Appellants, deals with the Rules of this Court relating to Notice of Appeal and Bonds of Appeal. It does not involve any question relating to interpretation or application of the provisions of the Constitution which will require a reference. In question 5, the Appellants raised the issue of whether the trial Court can suo motu strike out the motion on notice of the Respondent which the learned counsel for the Appellants appeared to have on his own “adjudged” as incompetent, when such power is only constitutionally reposed in the Courts. The question also relates to whether the said motion of the Respondent constitutes a demurrer forbidden by the rules of the trial Court – Order 22 Rules 1 & 2(1) of the High Court of Oyo State (Civil Procedure) Rules, 2010, and whether this Court can proceed to enter judgment for the Appellants. The said question has not evoked any substantial question of law on interpretation or application of the Constitution. It is basically within the confines of the Rules of Procedure of the trial Court or this Court.
Questions 6 and 9 concern Sections 10 and 13 of the Limitation Law of Oyo State and not any provision of the 1999 Constitution, while questions 7 and 10 deal with the provisions of the Evidence Act, 2011. Question 8 also relate to Sections 15 – 30 of the Legal Practitioners Act. Those questions contain no substantial questions relating to interpretation or application of the Constitution as to require a reference by this Court to the Supreme Court under Section 295(3) of the 1999 Constitution. I so hold.
I need to emphasize that the foundation of any reference is that the question sought to be referred is one which raises a substantial question of law relating to the interpretation or application of the Constitution. Therefore, the Court before whom a reference is sought must be satisfied that the question sought to be referred is not only one which relates to the interpretation or application of the Constitution, but one which has raised a substantial question of law. A question of law which has already been determined by the Courts and its position has become trite cannot be a substantial question which can be the subject of a reference. Conversely, no matter how substantial a question is, if it does not involve the interpretation or application of any of the provisions of the Constitution, it is outside the ambit of the subsection and is therefore not referable. See ATAKE v AFEJUKU (supra) and GAMIOBA v ESEZI II (supra).
Having found that the ten questions raised by the learned Counsel for the Appellants in the Originating Summons have not raised any substantial questions of law relating to the interpretation or application of the Constitution, I hold that the basic foundation for a reference has not been made out by the Appellants. The Originating Summons is therefore unmeritorious. I so find and hold. Accordingly, the originating summons filed by the learned Counsel for the Appellants, Oluwole Aluko Esq., is hereby dismissed.
I now turn to the appeal proper.
THE SUBSTANTIVE APPEAL:
On the day of hearing of the appeal, Oluwole Aluko Esq., the learned Counsel for the Appellant, submitted that the appeal is against the directive of the High Court of Oyo State at page 157 and pages 160 – 163 of the Record of Appeal. He adopted the Appellant’s Brief of Argument and Reply Brief of Argument and urged the Court to allow the appeal.
Kolawole Esan Esq., the learned Counsel for the Respondent adopted the Respondent’s Brief of Argument and particularly referred the Court to the preliminary objection raised in paragraph B on page 4 of the brief. Relying on the brief, he urged the Court to dismiss the appeal.
In their Amended Brief of Argument, the Appellants formulated the undermentioned four issues for determination:
1. Whether the decision of the learned trial judge to entertain the application of the respondent of May 10th, 2013 to strike out the suit before entertaining the application of the appellants of May 15th, 2013 is perverse having regard to the fact that (i). It is a settled elementary principle of law that the application of the appellants of May 15th, 2013 that preserves the jurisdiction of the Court to hear the suit on its merits will be taken before the application of the respondent that deprives the Court of its jurisdiction. (ii) the application of the respondents of May 10th, 2013 is null and void ab initio since reference was not made in it to the parties, subject matter, relief and issues in the previous suit and present suit on which decision on res judicata can be based.
2. Whether in the absence of the pleading highlighting the parties, subject matter, relief and issues in the previous suit and present suit the plea of Res judicata can be raised in affidavit evidence an if the answer is in the negative whether the decision of the learned trial judge of June 6th, 2013 by which he entertained the application of the respondent of May 10th, 2013 on issue of res judicata is perverse having regard to the fact that there is no statement of defence by the respondent to the amended statement of claim of the appellants and issues could only be joined on the pleadings and not by affidavit evidence.
3. Whether the decision of the learned trial judge of June 6th, 2013 to entertain the application of the respondent of May 10th, 2013 is perverse having regard to (i). To the issue of the criminal contempt raised against the counsel to the respondent that he and third party had been selling the subject matter of litigation (ii) to the oral application for reassignment of the suit to another Court.
4. Whether the Motion on Notice of the respondent of May 10th, 2013 constitute abuse of the Court process that should have been struck out suo motu by the Court.
In response, the Respondent had in his Brief of Argument essentially raised a preliminary objection to the competence of the appeal on the following 4 grounds:
1. There is no appeal before this Honorable Court in that the appellant failed to perfect the conditions of appeal within the stipulated time prescribed by the Registrar of the lower Court.
2. There is neither a ruling nor a judgment of the lower Court appealed against.
3. The appeal is premature in that the grounds of appeal disclose an interlocutory appeal and leave of either the lower Court or of the Court of appeal was not obtained before filing the appeal.
4. An appeal from the “Ibadan high Court 2” as contained in the notice of appeal of the appellants is not within the contemplation of the 1999 Constitution of the Federal Republic of Nigeria.
The Appellant had then filed a Reply Brief responding to the issues raised by the Respondent.
Since the Respondent had essentially made his Brief of Argument in this appeal as an objection to the competence of the appeal, I shall examine the parties’ arguments as submitted in their respective briefs of argument and, in line with the established procedure, first determine the Respondent’s objection to the competence of the appeal before determining the substance of the appeal itself.
APPELLANTS’ SUBMISSIONS:
On issue 1, the Appellants’ Counsel submitted that it is an elementary principle of law that where there are applications with one seeking to preserve the jurisdiction of the Court and another seeking to deprive the Court of its jurisdiction, the former shall be taken first. He cited V.C. ZARIA v ADO (1986) 3 NWLR (Pt. 31) 684 at 694 and BARCLAYS BANK OF NIGERIA LTD v CENTRAL BANK OF NIGERIA (1976) 1 All NLR (Pt. 409) 421 at 425.
He further argued that it is an elementary principle of law that where the issue of res judicata is raised in a pleading reference must be made to the parties, the subject matter, the reliefs and the issues in the past and in the present suits. He pointed out that Respondent neither entered appearance in the suit nor filed any statement of defence, and in his Motion on Notice of May 10th, 2013 he did not exhibit any pleading of the past or present suit. He contended that the doctrine of res judicata is a special defence that must be pleaded and it does not question the jurisdiction of the Court before whom it is raised. He relied on KUUSU v UDOM (1990) 1 NWLR (Pt. 127) 421 and 431. He posited that there is not provision in the High Court Rules Oyo State that suits can be terminated summarily without adjudication by motion on notice. He urged the Court to resolve this issue in favour of the Appellants.
On his issue 2, learned Counsel contended that the doctrine of res judicata can only be raised in the pleadings and not by way of affidavit evidence. He argued that the party seeking to prove res judicata must make reference to the parties, issues, subject matter and reliefs in the past and present suits. He pointed out that the Respondent neither filed a statement of defence nor made reference to or exhibited any pleading of the past or present suit in his motion on notice of May 10th, 2013. He contended that it is not the position of law that once there is a judgment of Supreme Court between parties on a certain subject matter, a Court will not have jurisdiction on any fresh issues between the parties. He referred to CARDOZO v DANIEL (1986)2 SC page 491. He submitted that before a plea of res judicata can be sustained, the parties, issues, subject matter and reliefs of the past and present suits must be the same and where one is missing the plea will fail. He cited ARO v FABOLU (1983) 2 SC 75 at 85.
Turning to his issue 3, Counsel for the Appellants argued that the Respondent never contested the issues raised by the Appellants in its Court processes. Instead, the Respondents proceeded to fraudulently dispose of the subject matter of the litigation. Relying on SOSAN v ADEMUYIWA (1986) NWLR (Pt. 27) 241 at 256, he argued that a judgment obtained outside the limitation period is not enforceable and the judgment in SC.270/2002 which was obtained 45years after the Respondent secured its account with the 1st Appellant is not enforceable.
The learned Counsel for the Appellant also referred to the Amended Statement of Claim dated May 27th, 2008, which was predicated upon the decision in Suits Nos. I/1152/95; CA/I/160/98; CA/I/M.18/98; SC.201/99, and submitted that the Appellants are entitled to take possession of the property and this Honourable Court is by virtue of Section 15 of the Court of Appeal Act, 2004, empowered to make a consequential order that the Respondent should deliver possession of the property to the Appellants, without remitting the case back for trial. Counsel cited INAKOJU v ADELEKE (2007) 1 SC (Pt. 2) 73 at 100 and OGUNDEPO v OLUMESAN (2011) 12 SC (Pt. 1) 39 at 44.
On the Appellants’ issue 4, it was submitted that the Respondent’s application of May 10th, 2013 constitutes an abuse of Court process and ought to have been dismissed by the virtue of power conferred on this Court in Section 15 of the Court of Appeal Act, 2004 on the grounds earlier stated.
THE RESPONDENT’S SUBMISSIONS:
On ground 1 of his objection to this appeal, learned Counsel for the Respondent submitted that there is no appeal since the Appellants did not perfect the conditions of appeal stipulated by the Principal Registrar on page 164 of the Record of Appeal, at lines 24 – 26. He argued that the Appellants were out of time and did not seek the leave of Court to perfect those conditions out of time. He cited and relied on UKRI v GECO PRAKLA (NIG.) LTD. (2010) 16 NWLR (Pt. 1220) 544 at 562 and AUTO IMPORT EXPORT v J. A. A. ADEBAYO & ORS (2002) 18 NWLR (Pt. 799) 554 at 578.
On grounds 2 and 3 of the objection, the Respondent submitted that there is neither a ruling nor judgment of the lower Court which is appealed against. He went further to narrate what transpired before the trial judge. He argued that the Appellants have, after fully participating in the argument on the parties’ applications taken together by the trial Court, not waiting for the ruling of the trial Court on those applications before embarking on an appeal. He added that the Appellants have while compiling the record of appeal deliberately omitted certain documents/processes as well as the record of proceeding of the trial Court of particular dates.
Counsel also pointed out that Ground 1 of the grounds of appeal is incompetent because there is no place in the whole record of proceedings where the learned trial judge held that the Respondent’s application of May 10th, 2013 to strike out the Appellants’ suit will be taken first. Instead, the learned trial judge had held that the application of the Respondent to strike out the suit and that of the Appellants which seek to save the suit shall be taken simultaneously.
On ground 2 of the grounds of appeal, the Counsel contended that the Appellants did not wait for the ruling of the lower Court before filing the Notice of appeal against the proceedings of 6th, June 2013, and as such appeal did not emanate from any Ruling of the lower Court. Counsel referred to the case of SALIHU & ANOR v DANJUMA & ORS (2015) LPELR-40621(CA), at page 9, paras. D – E, and ONYIA v MBIKO & ANOR (2014) LPELR–23028 (CA), at page 44, paras. E – F.
On ground 3 of the grounds of appeal, the learned counsel argued that the refusal of the learned trial judge to grant an oral application to reassign the case is an interlocutory decision, and the Appellants ought to seek the leave of Court to appeal the decision. Counsel submitted that ground 3 is also incompetent. He relied on Section 242(1) of the 1999 Constitution (as amended); Section 14(1) of the Court of Appeal Act, 2004 and OTU v ACB INTERNATIONAL BANK (2008) 3 NWLR (Pt. 1073) 179.
On ground 4, learned Counsel for the Respondent submitted that the Notice of Appeal is defective and incompetent, because “Ibadan High Court 2” is not within the purview of the 1999 Constitution of the FRN (as amended). He argued that the Constitution of the FRN (as amended) creates High Court of the state not an Ibadan High Court 2. Counsel referred to Section 270(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He urged the Court to strike out the appeal of the Appellants.
APPELLANTS’ SUBMISSIONS IN REPLY:
As a reply to the objection raised in the Respondents Brief of Argument, learned Counsel for the Appellant submitted that a Notice of Appeal has its origin in the 1999 Constitution and there is nothing in the Rules of Court that renders a Notice of Appeal incompetent on the ground that conditions are not perfected within time. He further argued that the Counsel for the Respondent had failed to indicate the Rules of Court in which the decision in UKIRI v GECO PRAKLA NIG LTD. (supra), was based. Counsel relied on BELLO v EWEKA (1981) 1 SC 101 at 103, and submitted that the cases of SOKOTO STATE GOVT. v KAMDEX NIG. LTD (2006) 4 SC (Pt. II) 110, UKIRI v GECO PRAKLA NIG. LTD (supra) and AUTO IMPORT EXPORT v J. A. A. ADEBAYO & ORS (supra), are irrelevant to the facts of the instant case, since the attention of the Apex Court was never drawn to the fact that an imperfect Notice of Appeal was filed before it. To further buttress his point, Counsel referred to Order 8 Rule 12 (a) of the Court of Appeal Rules.
Learned counsel also submitted that the Appellants and the Respondent having filed and exchanged Briefs of Argument, they have submitted to the jurisdiction of the Court under the principle of the private international law. He contended that the nature of preliminary objection filed by the Respondent is incompetent on the ground that the leave of Court was not sought by the Respondent. In support, Counsel cited Section 241(b) of the 1999 Constitution of the Federal Republic of Nigeria.
Referring to pages 110 – 115 of the Record of Appeal, the learned Counsel submitted that the defence of res judicata can only be raised in pleadings not in a Motion on Notice, and the parties, issues, subject matter and reliefs must be the same in the past and current suits. He relied on ARO v FABOLU (1983) 2 page 75 at 85 and OGBIMI v NIGER CONSTRUCTION LTD (2006) SC.
The learned Counsel for the Appellants further submitted that the argument of the Respondent that there is no ruling or judgment of the lower Court is misconceived, as by the golden rule of interpretation decision is not limited to judgments, orders, directives but also includes steps taken by the Court in the course of proceedings. He relied on DIKE v ADUBA & ANOR (2000) 1 SCNQR 241, and pointed out that the trial Court had specifically at page 157 of the record of appeal issued a directive to entertain incompetent Motion on Notice of the Respondent. He submitted that the trial Court ought to have relied on the decision in NWAGWU v OKONKWO (1987) pt 1 32 at 36 to strike out the said application of the Respondent. He argued that the submission of the Respondent is not only misconceived but it also amounts to tampering with the records of proceeding of 6/6/2013 which is at pages 156 – 159 of the Record of Appeal.
In response to the submission made by the Respondents’ Counsel that the Appellant did not seek the leave of Court to Appeal, Counsel relied on Section 241 of the Constitution of the Federal Republic of Nigeria (as amended) and argued that leave of Court is not needed to appeal since ground 3 of the Notice of Appeal relates to facts which are not in dispute. He relied on OGBIMI v NIGER CONSTRUCTION LTD (supra); and NWADIKE v IBEKWE (1987) 12 SC 14.
As for the argument of the Respondent that the nature of the appeal filed by the Appellants is incompetent and defective because it is outside the purview of the 1999 Constitution, learned Counsel to the Appellants submitted that the Respondent’s Counsel had misinterpreted the provision of Section 271 (1) and (2) of the 1999 Constitution and failed to take into consideration the 5 principles of construction of statutes. He cited in support YUSUF v DADA (1990) 4 NWLR (Pt. 146) 617 at 664 and ADEYEMO v POPOOLA (1987) 3 NWLR (Pt. 66) 758 at 586, amongst others in order to show that there is no judicial division of the Supreme Court, Court of Appeal, Federal High Court stated in the 1999 Constitution. He argued that the submission of the Respondent that the Notice of Appeal is incompetent and defective because of reference to Ibadan High Court 2 cannot be sustained.
In response to the submission of the Respondent that certain documents did not form part of the Record of Appeal, the Appellants’ Counsel relied on Order 8 Rules 6 and 8 of the Court of Appeal Rules 2016. He submitted that by virtue of that Rule, the Court allows compilation of relevant documents to avoid bulky Record of Appeal and the Respondent could have filed additional record to adopt documents that are necessary. He relied on OJOKOLOBO v ALAMU (1987) 7 SC.
RESOLUTION OF THE RESPONDENT’S PRELIMINARY OBJECTION TO THE COMPETENCE OF THE APPEAL:
The first challenge raised by the Respondent to the competence of the appeal is that the Appellants had failed to perfect the conditions of appeal within the stipulated time prescribed by the Registrar of the lower Court. Counsel for the Respondent had argued that since the Bond for Cost of Appeal entered by the Appellants was out of the 14 days stipulated by the Registrar of the Court below at page 164 of the Record and no extension of time was sought from this Court, the appeal is incompetent.
It is pertinent for me to point out in paragraph 2 of page 164, the Appellant was required by the Principal Registrar II, Mr. M. A. Adesokan (JP) to enter into a bond with one surety in like sum and perfect the conditions for the appeal within 14 days from 19th day of June, 2013. At page 166 of the Record of Appeal however, the same Mr. M. A. Adesokan had issued a CERTIFICATE OF REGISTRAR THAT CONDITIONS OF APPEAL HAVE BEEN PERFECTED as in Civil Form 9, to the effect that the Appellants “have duly and punctually complied with the conditions of appeal imposed on them in the above named suit.”
By Section 146 of the Evidence Act, 2011, there is a presumption of correctness in favour of the said certificate issued by the Registrar of the Court that the Appellants have duly perfected the conditions of appeal. The Respondent has not shown anything that rebuts that presumption.
Indeed, in addressing a similar scenario of imperfection of bond of appeal, this Court, per Abba-Aji, JCA (as he then was) had held in the case of AG & PT DELTA STATE & ANOR v OGOGO & ANOR (2005) LPELR-7553(CA), that the failure of an Appellant to sign the bond of appeal does not vitiate the Appellant’s capacity to prosecute the appeal and that an objection to such is merely technical and one which the Court could waive in order to ensure the attainment of substantial justice. See also Order 25 Rule 3 of the Court of Appeal Rules, 2021.
It is in the light of the above that I discountenance and overrule the Respondent’s first ground of challenge to the competence of this appeal.
On the Respondent’s second contention that this appeal is incompetent because there is not appealable decision, the settled law is that an appeal can only be competently made in respect of an appealable decision.
As pointed out while considering the Appellants’ summons, what amounts to a “decision” has already been defined by the Section 318(1) of the Constitution and is well pronounced upon by the Courts to mean “determination, judgment, decree, order, conviction, sentence or recommendation” :WESTERN STEEL WORKS LTD & ANOR v IRON & STEEL WORKERS UNION & ANOR (supra) and SHETTIMA & ANOR v GONI & ORS (supra).
In the instant appeal, the Appellants had claimed in the Notice of Appeal that they are appealing against “the decision of the Ibadan High Court 2 in suit No. I/132/2008 as contained in the ruling of the Honourable Justice M. L. Abimbola dated June 6th, 2013…” Then in ground 1 of the Notice of Appeal the Appellants stated that:
“The learned trial judge erred in law by holding that he would take application of the respondent of May 10th, 2013 to strike out the suit of the appellants before entertaining the application of the appellant of May 15th, 2013 to strike out the application of the respondent of May 10th, 2013 when application of the respondent of May 10th, 2013 is procedurally defective as no pleadings in the previous suit and present suit were attached to that application as required in law before the Court can reach a decision whether plea of res judicata as raised by the respondent can be sustained or not.”
Further in the Appellants’ Amended Brief of Argument at page 2 they stated in the third and fourth paragraphs, as follows:
“The respondent filed in Court application to strike out suit no. I/132/2008 on the ground of res judicata without making reference in that application to the parties, subject matter, reliefs, issues in the previous suit and present suit. Refer to page 76 – 109 of the record of appeal. The appellant filed counter-affidavit to that Motion on Notice and formal application to strike out on the ground of its incompetence. Further affidavit was also filed. Refer to page 103 – 115 of the record and 151 – 155 of the record of appeal.
The Court below at page 157 of the record decided to take the application of the respondent to strike out the suit first against the settled principle of law that where there are two applications before the Court, the application that preserve the jurisdiction of the Court to hear the case on its merit should be taken before the application that deprives the Court of its jurisdiction to hear the suit. The Court below was in error of law as issue of res judicata whenever it is raised does not affect the statutory jurisdiction of the Court to entertain a suit. Refer to Kuusu vs. Udom (1990) 1 NWLR part 127 page 421 and 431 where the Supreme Court held that a plea of res judicata is a special defence and does not question the jurisdiction of the Court before whom such a plea is taken. The Appellants had appealed against the decision of the Court below on ground of law alone.”
(underlining mine for emphasis)
From Ground 1 and the Appellants’ submission quoted above, especially the underlined segments, the Appellants claimed to have appealed against the decision made by the learned trial judge on the 6th of June, 2013, to the effect that he would take application of the respondent of May 10th, 2013 to strike out the suit of the appellants before entertaining the application of the appellant of May 15th, 2013 to strike out the application of the respondent of May 10th, 2013. A look at the proceedings of the trial Court of the 6th of June, 2013 shows that, contrary to the contention of the Appellants, the learned trial judge never decided to take the application of the respondent of 10th May, 2013 before entertaining the Appellant’s application of 15th May, 2013.
For a graphic comprehension of what the learned trial judge actually decided, I deem it pertinent to reproduce from the record of appeal, the proceedings of the trial Court and the actual pronouncement of the learned trial judge on the said 6th June, 2013. The excerpt of the proceedings of the trial Court of 6th June, 2013 at pages 156 – 157 of the Record of Appeal is as follows:
Mr. Esan: We have a motion dated 10th May, 2013 seeking to have the suit struck out, the Claimant filed a counter-affidavit, an application dated 15th May, 2013 seeking out motion struck out (sic). In order not to waste the Court’s time the two applications be argued together.
Mr. Aluko: We have substituted our written address, the defendant had not written address, we have a motion on notice dated 6th May, 2013; we have raised the issue of criminal contempt against Joop Berkaoet and against Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi.
Mr. Aluko:- Now that the issue of criminal contempt is raised the defendant address can be dealt with in compliance S. 36(1) of the Constitution (sic) look for reassignment to the Court. (sic)
Mr. Esan: The issue of Joop Berkoet carry into the case is not true; she had nothing to do with the case. I am the one to complain of bias. The issue of transferring dies not arise; a litigant asking for assignment must show concrete proof that there would be no fair hearing before the Court. The situation now is one of jurisdiction is result (sic) in part 1086 – Unity Bank Plc vs. Bouari (2008) 7 NWLR Pt. 1086 at 372 wants the two applications. (sic)
COURT: This is my direction in respect of the pleading (sic) applications as well as the request for transfer of the case by reason of perjury of a contempt proceedings since the issue of jurisdiction supercedes and substitute the issue of proceeding on contempt allegation, I rule that the issue of jurisdiction must be taken first. The request for transfer is therefore refused. I direct further that all pending applications should be taken simultaneously. I call on the objection (sic) on jurisdiction to argue this application thereafter Mr. Aluko will by way of response argument argue his objections.
Mr. Aluko: I intend to file notice of appeal against the ruling of this Court that all pendings will be taken together and that the issue of jurisdiction prevail over that of criminal contempt.
Esan: This is an application of mere intention and this Court will not sit on mere intention, an appeal does not operate as a stay. I urge the Court to proceed with hearing of the application.
Ruling: The intention of the Claimant Counsel to appeal is noted but such expression of intention does not operate as a stay of proceedings. I shall proceed with my argument (sic) as directed above.
From the above reproduced record of proceedings of the trial Court of the 6th of June, 2013, it is clear that contrary to the assertion of the Appellants, the learned trial judge NEVER decided that the application of the respondent to strike out the suit should be taken first. Rather he directed that all the pending applications of the Respondent and the Appellant shall be taken together, and even proceeded to state how that should be done. See the underlined part of the judge’s direction quoted above.
In UNITED AGRO VENTURES LTD. v FCMB LTD (1998) 4 NWLR (Pt. 547) 546 at 561, this Court, per Onalaja, JCA had held that the decision by a judge to hear two applications together is not an appealable decision. In that case, the plaintiffs who had presented a petition before the Federal High Court for a company to be wound up later brought an application that the petition for winding up be advertised. But the company sought to be wound up brought an application that the plaintiffs be restrained from advertising the petition. When the two motions came up before the Federal High Court, the learned judge decided that both motions be heard together. Upon an appeal by the company against that decision, this Court held as follows:
“In my opinion where no arguments on the two motions were proffered the procedure to be followed did not constitute a decision in fact and in law as there were no determination to completion of the respective prayers and or reliefs sought by the parties. Therefore the contention of the respondents that there was no decision against which the appellant would appeal is well founded and meritorious…”
See also on this OLADEJO v BANIRE (2014) LPELR-24265(CA), per Obaseki-Adejumo, JCA at pages 15 – 17, para. C.
Before drawing the curtain on this point, I need to point out that adjudication or judging essentially entails the exercise of discretion, whether procedural discretion in the course of conduct of the proceedings, or substantive discretion in applying substantive to the facts and/or evidence in order to finally determine the issue(s) in controversy between the parties. Whilst decisions which result from the exercise of such judicial discretion are generally subject to appeal by any of the parties who is aggrieved, it is not every decision in exercise of discretion made by a judge that is appealable. Decisions made by a judex for the purpose of adjudicatory convenience which does not affect the rights of any of the parties or the reliefs sought by them are not, and in fact cannot be appealable decisions. As dominus litis, the judex, who superintends over the adjudicatory process, must of necessity have the ability to control and direct the conduct of the proceedings. Decisions which he takes in order to conveniently and effectively adjudge the matter, which do not affect the rights of the parties or reliefs sought by them in the litigation, are not appealable. To hold otherwise, would be to make judging practically impossible.
Thus, following this Court’s decisions in UNITED AGRO VENTURES LTD. v FCMB LTD (supra) and OLADEJO v BANIRE (supra), I hold that the decision by the learned trial judge to take the two applications of the Respondent and of the Appellants together is not an appealable decision. I therefore uphold this ground of the Respondent’s objection to the competence of this appeal.
It is also pertinent for me to also observe that the trial Court’s proceedings at pages 158 – 159 of the Record of Appeal shows that after the said direction by the learned trial judge to take the two applications of the parties together, the parties proceeded to argue the applications and Mr. Aluko, the learned Counsel for the Appellants, actively participated in arguing the applications, after which the learned trial judge reserved ruling on the two applications to 11th July, 2013. Instead of awaiting the ruling of the trial Court on the two applications, the Appellants “jumped the gun” to bring this appeal against that direction, even contending in ground 2 of their Notice of Appeal, that the learned trial judge erred in law by not striking out the motion on notice of the Respondent; the same motion which the learned trial had taken together with the Appellants’ application and reserved ruling for the 11th of July, 2013.
An appeal must have its foundation from the case at the lower Court because an appeal is actually a continuation of the original suit and not the institution of a new action. Hence, an appeal must emanate from a decision made in the suit and there cannot be an appeal against what has not been decided against a party. See: OC EZE OBI INVESTMENT LTD & ANOR v MIC-MERCHANT INVESTMENT LTD & ANOR (2019) LPELR-48266(CA), per Jauro, JCA (as he then was) at page 12, para. D, ONYIA v MBIKO & ANOR (2014) LPELR-23028(CA), per Agim, JCA (as he then was) at page 44, para. A, B-LINE COMMUNICATIONS LTD & ORS v ACCESS BANK & ANOR (2013) LPELR-22451(CA), per Augie, JCA (as he then was) at page 39, para. C and ANI & ORS v GOVERNOR OF ENUGU STATE & ORS (2016) LPELR-40944(CA), per Pemu, JCA at page 13, para. B.
Therefore, apart from the fact that the direction by the trial judge to take the two applications together is in law not an appealable decision, the second deficiency of this appeal is that even the decision which the Appellants claim to be appealing against as contained in their grounds 1 and 2 of the Notice of Appeal, is not what was actually decided by the trial Court at page 157 of the Record of Appeal. It is therefore, obvious from the Record of Appeal that Grounds 1 and 2 of the Appellant’s Notice of Appeal do not emanate from any appealable decision of the trial Court or any decision at all made by the trial Court. A ground of appeal which does not flow or emanate from the decision appealed against is incompetent and liable to be struck out. See APC & ORS v ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337(SC), per Kekere-Ekun, JSC at page 19, para. B and ENEH v OZOR & ANOR (2016) LPELR-40830(SC), per Sanusi, JSC at page 11, para. B. Grounds 1 and 2, not flowing from any decision of the trial Court, are therefore incompetent. Accordingly, grounds 1 and 2 are hereby struck out.
As for ground 3 of the Appellant’s appeal which is against the refusal by the learned trial judge of the oral application by the Appellants’ Counsel for re-assignment of the suit, the first contention of the Respondent is that from the grounds of appeal, it is an interlocutory appeal for which leave to appeal ought to have been sought by virtue of Section 242(1) of the 1999 Constitution. The Appellant had however, argued that all the grounds of appeal were grounds of law which do not require leave of Court. I have already struck out grounds 1 and 2 which do not emanate from the decision of the trial Court.
As for only remaining ground, it is instructive that the record of proceedings at page 156 shows that Mr. Aluko had sought for the re-assignment of the case from the trial Court because, according to him, the Appellants have “raised the issue of contempt proceedings against Joop Berkaoet and against Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi.” Mr. Aluko had then cited Section 36(1) of the Constitution and sought for re-assignment of the case and after hearing the parties, the Court refused the application for transfer at page 157 and proceeded to take the two pending applications of the parties simultaneously and the counsel for the parties duly participated in the proceedings.
In EHINLANWO v OKE & ORS (2008) LPELR-1054(SC), it was held, inter alia, that ground of appeal which shows that the lower Court had misunderstood the law is a ground of law. See also JIM JAJA v COP RIVERS STATE & ORS (2012) LPELR-20621(SC), per Ngwuta, JSC at pages 10 – 11, para. F. For this reason, I have no hesitation in holding that, even though this is an interlocutory appeal, the only remaining ground 3 of the appeal is one of law, which by Section 241(1)(b) of the 1999 Constitution does not require leave of Court to initiate. I so hold.
On the second contention of the Respondent that the Appellants have lost a right to complain since, instead of appealing the decision of the trial Court refusing the transfer, they continued to participate in arguing the applications before the Court, the record of appeal at page 156 shows that the learned Counsel Appellants had sought for transfer of the case, stating that he had filed a motion dated 6th May, 2013 wherein the Appellants have raised the issue of criminal contempt against Joop Berkaoet, Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi. He then referred to Section 36(1) of the 1999 Constitution and urged the trial Court to reassign the case.
It is settled law that rights granted under the Constitution, even as they may seem for the benefit of the individual, they are also imperative public policy measures aimed at ensuring public peace and public order. For this reason, rights conferred by the Constitution cannot be waived. See OGBONNA v A.G. OF IMO STATE (1992) LPELR-2287(SC), per Akpata, JSC at page 79, para. A, ENIGWE & ORS v AKAIGWE & ORS (1992) LPELR-1145(SC), per Nnaemeka-Agu, JSC at pages 39 – 41, para. C and ARIORI & ORS v ELEMO (1983) 1 S.C. 13 at 19 – 20. The fact that the Appellants continued to participate in the proceedings after the refusal of the transfer cannot therefore constitute a waiver of their right to appeal against the decision of the trial Court on the ground of the fair hearing imperative stated in Section 36(1) of the 1999 Constitution which the Appellants invoked in the trial Court. I so hold.
As for the learned Counsel for the Respondent’s contention that the appeal is incompetent because the Appellant had in the preamble to the Notice of Appeal stated that the appeal is from the “Ibadan High Court”, I do not believe that such a mistake alone should render an appeal incompetent. The defect is only in naming the High Court as Ibadan High Court instead of High Court of Oyo State sitting in Ibadan Division. Since it is clear that the decision appealed against is one of the High Court and the suit number as well the parties have been clearly stated, I don’t think that any of the parties is in the dark as to which decision is being appealed against. It is trite that Courts of today are more inclined to pursuing substance in the quest to do justice than being enslaved to form or technicality. See THOMAS v FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR-48124(SC), per Okoro, JSC at pages 18 – 19, paras. A – A, ALIOKE v OYE & ORS (2018) LPELR-45153(SC), per Bage, JSC at pages 28 – 29, paras. E – E and IKECHUKWU v NWOYE & ANOR (2013) LPELR-22018(SC), per Ogunbiyi, JSC at page 10, para. A. Therefore, whilst it is important for requirements as to form to be complied with, mistakes as to form which are not substantial should not be allowed to clog the pursuit of doing justice to cases on their merit.
From the above, therefore, it is evident that while the Respondent’s objections has only succeeded in relation to grounds 1 and 2 of this appeal, the appeal is competent in relation to ground three which challenges the trial Court’s decision refusing to reassign the suit having regard to the allegation of criminal contempt against counsel to the respondent. From ground three, the Appellants distilled issue 3, which I have already adopted in deciding this appeal. I shall therefore proceed to decide the appeal solely on that issue.
THE APPEAL:
In that issue 3, the Appellant sought that this Court should determine:
Whether the decision of the trial judge of June 6th, 2013 to entertain the application of the respondent of May 10th, 2013 is perverse having regard (i) To the issue of criminal contempt raised against the counsel to the respondent that he and third party had been selling the subject matter of litigation (ii) to the oral application for reassignment of the suit to another Court. In the earlier part of this judgment, I have already summarized the submission of the parties in relation to this issue. Suffice it for me to state that in the record of proceedings of the trial Court at pages 156 of the Record of Appeal, learned Counsel for the Appellants had referred the trial Court to a motion on notice which he claimed was dated 6th May, 2013 in which he raised the issue of criminal contempt against Joop Berkhout, Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi and requested that the suit be reassigned. As rightly observed by the learned Counsel for the Respondent, the said motion dated 6th May, 2013 alleging criminal contempt is not in the Record of Appeal compiled by the Appellants.
Now it is settled that where criminal contempt proceedings is commenced as alleged by the Appellant’s Counsel in this appeal, it is supposed to be a distinct and separate from the main suit, whether it is civil or criminal. In a recent decision of this Court in KEENLINE INVESTMENT LTD v PATERSON ZACHONIS INDUSTRIES PLC & ORS (2021) LPELR-54933(CA), Ikyegh, JCA held that:
“The procedure followed by the appellants appeared appropriate in the sense that taking prejudicial steps in respect of the res during the pendency of an action is remedied by invoking the disciplinary powers of the Court in form of contempt proceeding for the punishment of the party for the act which is distinct from the substantive action. See Ecobank (Nig.) Ltd. v. Anchorage Leisures Ltd. (2018) 18 NWLR (Pt. 1650) 116 at 134, where the Supreme Court following the case of Onocha v. A.G., Delta State (2013) LPELR-20781 held that contempt proceeding is not part of the main civil or criminal proceedings before the Court; it is separate; or put differently, contempt proceeding is distinct and independent of the main suit…
Flowing from the above, it behoved the appellants to pursue the contempt proceedings to its logical conclusion from inception to the last tier of the adjudicatory system if not satisfied with the decision over it; not to resurrect the complaint in the substantive action up to the appellate level of the proceedings, when proof of the case did not depend on it.”
In the instant appeal, the Appellants are contending that the refusal of the learned trial judge to reassign the suit before him in view of the criminal contempt allegation which they raised against Joop Berkhout, Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi, was perverse. However, as shown in KEENLINE INVESTMENT LTD v PATERSON ZACHONIS INDUSTRIES PLC & ORS (supra), the said ex facie criminal contempt allegations which the Appellants claimed to have raised is distinct and separate from the main suit pending before the trial Court. Hence, it cannot be the basis upon which the learned trial judge will be asked to reassign the main suit.
Additionally, it is the law that where contempt is alleged ex facie curiae which will require the taking of evidence, it is desirable that the contempt allegation should be tried by another judge than the one handling the main suit. This principle was restated by this Court in ADEDUNTAN v AGBARA & ORS (2019) LPELR-47351(CA) where Garba, JCA (as he then was), held as follows:
“Among the issues that require consideration in the appeal is issue IV on which it is submitted for the Appellant that the lower Court was wrong to have presided over the contempt against its own judgment. Military Governor of Kwara State v. Afolabi and Boyo v. Attorney General, Mid-West both (supra) are relied on for the argument. The underlining and salient principle stated in the two (2) cases is that where a judge is personally involved in the alleged contempt or witnesses are required to testify on the acts or omission which constituted the alleged contempt outside of Court, it was better for another judge to deal with the committal proceedings in the spirit of natural justice and fair hearing. The cases did not lay down any cut and dry principle to be applied in all cases that whenever an alleged contempt of Court was committed outside of Court or ex facie curiae, then the Court in respect of whose decision/order/judgment it was committed is precluded from dealing with it. Where, as in the alleged contempt against the Appellant which involved failure or refusal to comply and abide by the undertaking made to the lower Court to secure the stay of execution of its judgment, which did not involve the judge of the lower Court personally or require calling of witnesses in the proceedings, there was no compelling feature therein to warrant that the committal proceedings should have been dealt with by another judge and not the one in respect of whose order the undertaking was given.”
Given the position of the law as espoused in the above judicial authorities, I hold the considered view that the decision of the learned trial Judge refusing to reassign the main suit because of the contempt allegation raised by the Appellants cannot and does not amount to a breach of fair hearing right of the Appellants and is therefore, not perverse as contended by the Appellants. I therefore resolve the remaining sole issue in this appeal against the Appellants.
On the whole, I find no merit in this appeal for all the reasons aforementioned. Accordingly, I hereby dismiss same and affirm the decision of the trial Court in the proceedings of 6th June, 2013 in Suit No. I/132/2008: UNITY BANK PLC v WILLIAM BOUARI wherein the Court refused to transfer the case by reason of a contempt proceedings raised by the Appellants and instead proceeding to entertain the two applications of the parties. This appeal is dismissed for lack of merit.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA just delivered.
My Lord has adequately dealt with the issues in this appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal lacks merit.
For emphasis sake, I will comment on the claim of the Appellants in the Notice of Appeal that they are appealing against “the decision of the Ibadan High Court 2, in Suit No. I/132/2008 as contained in the ruling of the Honourable Justice M. L. Abimbola dated June 6th, 2013.”
In order to understand the contention of the learned Counsel for the Appellants that he is appealing against the decision of the Ibadan High Court 2 in Suit No. I/132/2008, it would be appropriate to reproduce, what transpired at the trial Court on 6th June, 2013 and it is set out as follows:
“Mr. Esan: We have a motion dated 10th May, 2013 seeking to have the suit struck out, the Claimant filed a counter-affidavit, an application dated 15th May, 2013 seeking out motion struck out (sic). In order not to waste the Court’s time the two applications be argued together.
Mr. Aluko: We have substituted our written address, the defendant had not written address, we have a motion on notice dated 6th May, 2013; we have raised the issue of criminal contempt against Joop Berkaoet and against Mr. and Mrs. Kolawole Esan and Mrs. Omolara Adeyemi.
Mr. Aluko: Now that the issue of criminal contempt is raised, the defendant address can be dealt with in compliance Section 36(1) of the Constitution (sic) look for reassignment to the Court. (sic)
Mr. Esan: The issue of Joop Berkoet carry into the case is not true; she had nothing to do with the case. I am the one to complain of bias. The issue of transferring dies not arise; a litigant asking for assignment must show concrete proof that there would be no fair hearing before the Court. The situation now is one of jurisdiction is result (sic) in part 1086 – Unity Bank Plc vs. Bouari (2008) 7 NWLR Pt. 1086 at 372 wants the two applications. (sic)
COURT: This is my direction in respect of the pleading (sic) applications as well as the request for transfer of the case by reason of perjury of a contempt proceedings since the issue of jurisdiction supercedes and substitute the issue of proceeding on contempt allegation, I rule that the issue of jurisdiction must be taken first. The request for transfer is therefore refused. I direct further that all pending applications should be taken simultaneously. I call on the objection (sic) on jurisdiction to argue this application thereafter Mr. Aluko will by way of response argument argue his objections.
Mr. Aluko: I intend to file notice of appeal against the ruling of this Court that all pendings will be taken together and that the issue of jurisdiction prevail over that of criminal contempt.
Esan: This is an application of mere intention and this Court will not sit on mere intention, an appeal does not operate as a stay. I urge the Court to proceed with hearing of the application.
Ruling: The intention of the Claimant Counsel to appeal is noted but such expression of intention does not operate as a stay of proceedings. I shall proceed with my argument (sic) as directed above.”
(See Pages 156-157 of the Record of Appeal)
A perusal of the record of proceedings of the trial Court of 6th day of June, 2013 reproduced above, would reveal that the trial Court did not decide that the application of the Respondent to strike out the suit should be taken first. The trial Court merely directed that all pending applications of the Respondent and the Appellants shall be taken together.
I am of the view that an appeal ordinarily presupposes the existence of a decision. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party.
Since there was no decision by the trial Court in respect of the applications in contention, therefore there is no appealable decision. The decision by the trial Court to hear the two applications together is not an appealable decision.
Consequent upon the foregoing, this Court therefore lacks the vires to consider same on appeal because there is no appealable decision.
See -United Agro Ventures Ltd vs. FCMB (1998) 4 NWLR Part 547 Page 546 at 561.
– Olufeagba & Ors Vs. Abdul-Raheem & Ors (2009) 18 NWLR Part 1173 Page 384.
In view of the foregoing and the fuller reasons in the lead judgment, I am also of the view that this appeal lacks merit and it is also dismissed by me.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and I do not desire to add to the conclusions expressed by my learned brother, Abba Bello Mohammed, JCA in the judgment which has just been delivered. For the reasons therein articulated, which I adopt as mine, I also join in dismissing the appeal and on the same terms as set out in the leading judgment. I abide by the consequential orders made in the leading judgment.
Appearances:
Oluwole Aluko, Esq. For Appellant(s)
Kolawole Esan, Esq., with him, Mrs. Bolanle Ogunwale For Respondent(s)
