ZAIBADARI CO. LTD v. FIRS
(2021)LCN/15837(CA)
In The Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, September 15, 2021
CA/A/1092/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
ZAIBADARI COMPANY LIMITEDAPPELANT(S)
And
FEDERAL INLAND REVENUE SERVICE RESPONDENT(S)
RATIO:
WHEN A NOTICE OF PRELIMINARY OBJECTION IS DEEMED ABANDONED
It is only for this reason, that I have taken time to do a very hard thinking on this issue and I came to the conclusion that a Respondent’s notice of preliminary objection is deemed abandoned if not argued or moved at the hearing of the substantive appeal because indeed, a Respondent who had filed a notice of preliminary objection challenging the competence of the appeal may as well, as he has the liberty so to do, decide either to withdraw it or simply ignore it for whatever reasons, perhaps known only to him.
In my view therefore, unless and until the Notice of preliminary objection is moved or argued before the hearing of the substantive appeal it would be nigh impossible to expect the Court to read the construction of the mind of the Respondent’s Counsel merely on his face to know what he has in his mind to do with the Notice of preliminary objection unless he rises up to the occasion and moves or argues it before the substantive appeal is heard. It is my view, and I so hold, that it is in law safer for the Court to infer from the circumstances of the outward express failure or neglect or refusal to move or argue the Respondent’s Notice of preliminary objection the inward intention of the Respondent’s mind not to rely any longer on the Notice of preliminary objection and thus he is deemed to have abandoned it. PER OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.
WHAT IS “ABUSE OF COURT PROCESS”?
Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there aretwo or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time. See Ikine v Edjerode (2001) 18 NWLR (Pt 745) 446 at 479. PER OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Abuja Division, dated 30/10/2019, under the hand of Hon. Justice A. I. Chikere, in suit no. FHC/ABJ/CS/437/2018.
The applicant, in the suit, now respondent in this appeal, is an agency of the Federal Government responsible for collection of taxes due to that tier of government. The respondent accused the appellant of defaulting in payment of taxes due and payable. The respondent commenced a suit against the appellant before the lower Court.
In commencing the above-named suit, the respondent filed an Originating Motion, dated and filed on 25/04/2018, wherein the applicant claimed as follows:
“1. An Order for the sale of the landed property of the Respondent located at Plot 551 Wuye BO3, FCT, Abuja to satisfy her arrears of tax of N18,802,560.00 (Eighteen Million, Eight Hundred and Two Thousand, Five Hundred and Sixty Naira Only) being outstanding tax due against the Respondent as at the year 2015.
2. And for such other orders as the Honourable Court may deem fit to makein the circumstance.”
The lower Court heard the suit, after determining that the appellant had been duly served with processes regarding the suit and that the appellant elected not to participate in the proceedings. In the words of the lower Court, in its judgment, dated 26/03/2019:
“On 9/10/18, this Court by Motion Ex-parte granted Applicant leave to serve the Respondent by substituted means i. e. by publication in the Leadership Newspaper with wide circulation nationwide.
In the Affidavit of Service filed on 22/10/18, the deponent averred thus:
6. “That on the 17th of October, 2018, the Plaintiff/Applicant complied with the order on page 39 of Leadership Newspaper. Attached herewith and marked Exhibit ‘P1′ is a copy of the publication.”
Despite the service of process on the Respondent’s Company, it refused, neglected and failed to state its side of the case nor have Counsel appear on its behalf to state its case.”
The lower Court, in the same judgment, concluded as follows:
“This Court is bound to belief the Affidavit in Support of application to the effect that the Respondent is a tax evader and in default of its tax obligation to the Applicant.
Accordingly, an order for the sale of the landed property, the Respondent located at Plot 551, Wuye BO3, FCT, Abuja, is hereby made to satisfy her arrears of tax of N18,802,560.00 (Eighteen Million, Eight Hundred and Two Thousand, Five Hundred and Sixty Naira, only).
No order as to cost.”
The appellant, as defendant/judgment debtor in the lower Court, filed a Notice of Appeal, dated and filed on 18/04/2019, against the judgment of the lower Court. A copy of the Notice of Appeal is at pages 35-36 of the record of appeal. In the third paragraph of the Notice of Appeal, the appellant asked the Court of Appeal, to whom the Notice of Appeal is addressed:
“To set aside the judgment of the Court below delivered on the 26th day of March, 2019 and dismiss the suit accordingly.”
The appeal being determined in this judgment, it is noted, is not based on the Notice of Appeal filed against the judgment of the lower Court, described above. The appellant did not do anything with or about its Notice of Appeal, after it was filed before the Court on 18/04/2019. It is still in the Court’s record, winking at parties and the Court.
What the appellant did was to, thereafter, by another motion on notice, dated and filed on 21/05/2019, ask the lower Court to make an order:
“…setting aside the judgment of this honourable Court delivered on the 26th day of March, 2019 for default of appearance.”
See pages 45-56 of the record of appeal.
Ibrahim Aliyu Maigari, who deposed to the affidavit in support of the application, testified in paragraphs 15 and 16 thereof, as follows:
“15. That upon the delivery of the judgment on the 26th day of March, 2019, the Judgment Debtor/Applicant briefed the law firm of Sani & Co. to apply and set aside judgment.
16. That the law firm filed an application for CTC of judgment and record of proceedings in this suit and upon the Judgment Debtor/Applicant instructions filed an appeal which at the moment is been abandoned.” (Bold font for emphasis)
The appellant’s motion seeking to set aside the lower Court’s judgment was argued before the lower Court on 30/10/2019. The motion was determined that same day by the lower Court. In a terse ruling, dated 30/10/2019, the lower Court, after hearing Abubakar A. Maigari Esq. (for the judgment debtor/applicant, now appellant in this appeal) and Collins Ugwunebo Esq. (for the judgment creditor/respondent, now respondent in this appeal) stated, as follows:
“The Judgment Debtor/Applicant by Exhibit R2 annexed to Further Counter-Affidavit has filed an appeal at the Court of Appeal challenging the judgment of Court delivered on the 29th (sic) day of March, 2019 this present Motion on Notice is an abuse of Court process.
Accordingly, Motion lacks merit and hereby dismissed with fifty thousand naira (N50,000.00) cost in favour of Judgment/Creditor/Respondent.”
See page 98 of the record of appeal.
It is the ruling of the lower Court, quoted in its entirety, above, dated 30/10/2019, which is the basis of the appeal being determined in this judgment. This is because, the appellant, who made the failed application before the lower Court, was aggrieved by the decision of the lower Court.
The appeal being determined herein was argued on 01/07/2021. M. Sanni Esq., learned counsel for the appellant adopted the appellant’s brief of argument, filed on 10/01/2020, which was deemed as properly filed before the Court, on 01/07/2021, as argument of the appeal.
The summary of the appellant’s argument, in the appellant’s brief of argument, is that the judgment of the lower Court, shown on pages 105-111 of the record of appeal, was delivered in default of appearance, by the appellant. Appellant’s counsel, who settled the brief (Mohammed Sano Esq.) explained that the appellant abandoned a prior appeal filed against the judgment of the lower Court and later filed the motion on notice, under Order 8 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2009, seeking to set aside the judgment of the lower Court by the same lower Court. He complained that contrary to Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules, 2009 the lower Court ordered substituted service of Court process on the appellant. He submitted that the Rules does not permit substituted service on a company and failure to serve the appellant, as prescribed, deprived the Court of jurisdiction in the suit. Reliance was placed on the case of Mark v. Eke (2004) All FWLR (Pt. 200) 1455.
In addition to the above, learned counsel complained, in argument, that the appellant whose registered/principal office is at Zaibadari, Michika Local Government of Adamawa State (formerly Gongola State) could/should not have been sued by the respondent before the lower Court, contrary to Order 2 Rule 1(2) of the Rules of that Court. Learned counsel insisted that the issue of jurisdiction is fundamental and at the heart of adjudication. The case of Inspector General of Police v. Gloria (2010) All FWLR (Pt. 534) 169 at 170 was relied upon. The Court was advised that it is the Yola Division of the Federal High Court which should have been the appropriate venue for the suit, as it is with jurisdiction to determine the suit.
In paragraph 4.7 of the appellant’s brief of argument, learned counsel submitted that:
“Therefore the judgment delivered in this suit is a nullity and ought to be set aside by the lower Court.”
On when the Court may set aside its own judgment, the attention of this Court was pointed to the case of Tomtec Nigeria Ltd. v. F. H. A. 2010 (Pt. 509) 509 at 400 (citation given does not identify any Law Report). Learned counsel complained, in paragraph 4.7 of his presentation, that:
“Despite the existence of some of the aforementioned circumstances, the trial Judge failed to set aside its judgment simply because of the appeal which was termed abandoned.”
Learned counsel grumbled about the lower Court’s reliance on technicality, in dismissing the motion to set aside its judgment. Learned counsel further affirmed, in paragraph 4.9 of his presentation, as follows:
“It is a clear testimony by the Appellant that the appeal dated 18th April, 2019 was indeed abandoned haven not taken any step to prosecute the appeal.”
He urged the Court to invoke the provisions of Order 21 Rules 2 and 3 of the Court of Appeal Rules, 2016, which provides for departure from the rules and order waiver of compliance with the same Rules of Court. The Court was directed to Section 15 of the Court of Appeal Act, which provides this Court with general powers.
In the “SUMMARY” at paragraph 5.0 and 5.1 of appellant’s brief of argument, learned counsel stated as follows:
“5.1 The Appellant had canvassed argument on the issue and show that the lower Court have no jurisdiction to try and determine the matter and any irregularity that arises thereafter with regard to this appeal can be taken care by the provision of Order 21 Rules (2) and (3) of the Court of Appeal Rules, 2016 and also S. 15 of the Court of Appeal Act, 2014.”
Learned counsel urged the Court to allow the appeal.
C. U. Ugwunebo Esq., learned counsel for the respondent, adopted respondent’s brief of argument, dated and filed on 30/01/2020, as argument of the respondent’s opposition to the appeal, after the appellant’s counsel had argued the appeal. Learned counsel, for the respondent, directed the attention of the Court to the preliminary objection, embedded in the respondent’s brief of argument, raised against the appeal for its incompetence. Learned counsel identified the two issues raised in the respondent’s brief of argument.
The respondent’s counsel opened by arguing the preliminary objection at paragraphs 2.00-3.04 of the respondent’s brief of argument, which challenged the appeal for being incompetent.
Respondent’s counsel argued the appeal, in the alternative, in case the preliminary objection is overruled. Learned counsel submitted that the appellant’s application, dated and filed on 21/05/2019, was a classic example of abuse of Court’s process. He narrated how an appeal was filed against the judgment of the lower Court and a motion was equally filed to set aside the same judgment. He submitted that the lower Court was in order when it dismissed appellant’s motion. On nature of abuse of process of Court, learned counsel referred the Court to the decisions in the case of A.G, Kwara State v. Lawal (2018) 3 NWLR (Pt. 1606) 266 at 278; Doma v. Adamu (1999] 4 NWLR (Pt. 589) 311; Bama Plastic Industries v. Vasilyer (1999) 10 NWLR (Pt. 624); and Ikile v. Edjerode (2001) 18 NWLR (Pt. 745) 446.
On the claim by the appellant that it abandoned its appeal, the Court was referred to Order 11 Rules 1 and 4 of the Court of Appeal Rules on procedure for withdrawal of an appeal. I will leave out argument on the respondent’s second issue because of what I intend to say, anon.
In sum, respondent’s counsel urged the Court to dismiss the appeal.
In his oral response, Sanni Esq., for the appellant, complained that the preliminary objection brought by the respondent is deemed abandoned, due to the fact that it was not argued before the appellant argued the appeal.
In his further oral response, the respondent’s counsel submitted that the appellant did not respond to the preliminary objection and is therefore deemed to have conceded the issues contained in the preliminary objection.
RESOLUTION OF THE APPELLANT’S COMPLAINT ABOUT THE PRELIMINARY OBJECTION
Order 10 Rule 1 of the Court of Appeal Rules, 2016 instructs as follows:
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
In this appeal, the respondent, at paragraphs 2.00-3.04 of the respondent’s brief, detailed out the basis of, grounds for and argument in respect of the preliminary objection raised against the hearing of the appeal, in clear terms. That, in my view, is sufficient notice given to the appellant of the preliminary objection intended to be relied upon by the respondent?
However, at the hearing or argument of the appeal, on 01/07/2021, the respondent’s counsel failed to rise to argue the preliminary objection, before the substantive appeal was argued by the appellant’s counsel. The implication of respondent counsel’s abstinence is explained in the case of Dio-Global Concepts Nig. Ltd. v. Access Bank (Nig.) Plc (2016) LPELR-40789(CA), where his Lordship, Georgewill, JCA stated explicitly, as follows:
“My Lords, I have always pondered over why a Respondent’s Notice of preliminary objection which was not moved at the hearing of an appeal is deemed abandoned and liable to be struck out by the Court, when by Order 18(9)(4) of the Court of Appeal Rules, 2011, once an appellate brief has been filed, the Court would at the hearing of the appeal deemed it as argued in the event that the affected party’s counsel was not in Court to adopt same.
The law reports are awash and replete with decisions to the effect that a Notice of preliminary objection not moved at the hearing proper of the appeal is deemed abandoned but hardly, as I have not come across any, has the reason or why it is so deemed abandoned been truly and lucidly explained or proffered in the many decisions on this issue I have taken the time and patience to read through while preparing the materials for the writing of this judgment. … Honestly however, I confess right away that I do not assume to have read all the decisions on this issue and there may still be some other decisions in which such salient reasons why the notice of preliminary objection is deemed abandoned may have been proffered by the Courts. It is only for this reason, that I have taken time to do a very hard thinking on this issue and I came to the conclusion that a Respondent’s notice of preliminary objection is deemed abandoned if not argued or moved at the hearing of the substantive appeal because indeed, a Respondent who had filed a notice of preliminary objection challenging the competence of the appeal may as well, as he has the liberty so to do, decide either to withdraw it or simply ignore it for whatever reasons, perhaps known only to him.
In my view therefore, unless and until the Notice of preliminary objection is moved or argued before the hearing of the substantive appeal it would be nigh impossible to expect the Court to read the construction of the mind of the Respondent’s Counsel merely on his face to know what he has in his mind to do with the Notice of preliminary objection unless he rises up to the occasion and moves or argues it before the substantive appeal is heard. It is my view, and I so hold, that it is in law safer for the Court to infer from the circumstances of the outward express failure or neglect or refusal to move or argue the Respondent’s Notice of preliminary objection the inward intention of the Respondent’s mind not to rely any longer on the Notice of preliminary objection and thus he is deemed to have abandoned it.
In the circumstances therefore, I hold that the Respondent had indeed abandoned the Notice of preliminary objection filed on 15/2/2016 in the instant appeal as rightly and unassailably submitted by the Appellant’s counsel. Consequently, the Respondent’s Notice of preliminary objection filed on 15/2/2016, having been found to have been abandoned by the Respondent, is hereby struck out.”
Also, in the case of Konwawil Nig. Ltd. &Ors. v. Nwachukwu & Anor. (2018) LPELR-44188(CA), this Court reiterated its position, when it stated that:
“The 1st respondent filed a notice of preliminary objection on01/06/2017 and proffered arguments thereon in his brief filed on the same date, that is 01/06/2017. However, on 30/01/2018 when the appeal was heard, the 1st respondent failed to move the Court in respect of his preliminary objection before the appeal was argued. By the failure to move the preliminary objection, before the appeal was heard, the 1st respondent is deemed to have abandoned his preliminary objection. The law is now settled that any preliminary objection, which is not moved before an appeal is argued, is deemed abandoned. See Salawu Ajide v. Kadiri Kelani (1985) 3 NWLR (Pt. 12) 248; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 and Dr. Olukayode Fayemi & amp; Anor. v. Olusegun Adebayo Oni & amp; &Ors. (2010) 17 NWLR (Pt.1222) 326. The rationale for this principle of law is that a preliminary objection seeks to determine the appeal in limine thereby dispensing with the necessity of going into or hearing and determining the appeal on its merits. … The preliminary objection filed by the 1st respondent on 01/06/2017 is hereby struck out, as it was abandoned. The arguments of the 1st respondent in respect of the preliminary objection and the appellants’ arguments, in response thereto, are also hereby struck out.” Per Adumein, J.C.A. This Court is confronted with similar facts, as found in the decisions mentioned above. The decision of this Court, in the circumstance, cannot therefore be different. The preliminary objection contained in the respondent’s brief of argument is hereby deemed abandoned by the respondent, for failure to argue same before the substantive appeal was argued on 01/07/2021.The fact that the appellant failed to respond to the preliminary objection does not displace the responsibility, which the respondent had, to argue his preliminary objection, before the appellant argued the appeal.
The preliminary objection brought by the respondent in this appeal is hereby struck out.
RESOLUTION OF THE APPEAL
I have read and given consideration to both the appellant’s brief of argument and the respondent’s brief of argument adopted by learned counsel for the parties at the hearing of this appeal, especially the sole issue raised by the appellant, which is going to be relied upon in this judgment.
It bears repetition to state that a complete reproduction of the ruling of the lower Court, dated 30/10/2019, against which this appeal was filed, reads as follows:
“The Judgment/Debtor/Applicant by Exhibit R2 annexed to Further Counter-Affidavit has filed an appeal at the Court of Appeal challenging the judgment of Court delivered on the 29th day of March, 2019 this present Motion on Notice is an abuse of Court process.
Accordingly, Motion lacks merit and hereby dismissed with fifty thousand naira (N50,000.00) cost in favour of Judgment/Creditor/Respondent.”
The appellant filed a Notice of Appeal, dated 13/11/2019, on 14/11/2019, against the ruling quoted above, wherein this Court is confronted with a sole ground of appeal. The ground of appeal is recorded as follows:
“GROUNDS OF APPEAL
(1) ERROR IN LAW
(i) The trial Court erred in law when it entertained this suit wherein the Court lacked jurisdiction to hear and determine this suit.
PARTICULARS OF ERROR
1. That the subject matter of this suit is tax related matter against the Appellant who is a Company registered under the Companies and Allied Matter, Act.
2. The trial Court entertained the suit in the Abuja Division whereas the principal office of the Appellant is at Zaibadari Michika, Michika Local Government Area of Adamawa State.
3. The trial Court gave order dated 9th October, 2018 to serve the Appellant through substituted means by a publication in a Leadership Newspaper and thereby execute the order by publication dated 17th October, 2018.”
In order to fully and finally identify the decision of the lower Court, targeted in the notice of appeal, the appellant, in paragraph (2) of his Notice of Appeal, filed on 14/11/2019, confirmed that this Court should:
“…set aside the ruling of the Court below delivered on the 30th day of October, 2019 and strike out the suit accordingly for lack of jurisdiction.”
The ruling targeted is reproduced above. The appellant introduced the issue for determination to the Court in paragraph 3.1 of the appellant’s brief, distilled from the sole ground of appeal, as:
“Whether the trial Judge was right to dismiss the application to set aside its judgment for being an abuse of Court process despite not having jurisdiction to adjudicate on the matter”
In my view, there is absolutely no correlation between the ruling of the lower Court, dated 30/10/2019 and the sole ground of appeal filed by the appellant.
It is apparent that the lower Court dismissed the appellant’s motion, which sought to set aside the lower Court’s judgment dated 26/03/2021, in its ruling dated 30/10/2019, upon making a specific finding that the said motion filed by the appellant amounted to abuse of the process of the Court. The lower Court, in its ruling, noted that the appellant had previously filed a Notice of Appeal, by which the appellant herein sought the appellate Court’s order to set aside the same judgment, which was also the subject of the motion heard and determined by the lower Court on 30/10/2019. There is no appeal against the specific finding of the lower Court on abuse of process of Court. Where there is no appeal against specific findings of a lower Court, an appellate Court will not have the power to alter or upturn those findings. See Adeyemi v. Olakunri (1999) 14 NWLR (Pt 638) 204 at 211.
Apart from what is noted above, the notice of the appeal in this particular appeal did not concern itself with the ruling of the lower Court, dated30/10/2019, but complained about the issue of jurisdiction and the fact that the lower Court heard and determined the suit. That complaint is extraneous to the ruling of the lower Court, dated 30/10/2019, which the appellant’s prayer in the notice of appeal asked the Court to set aside, in this appeal.
In addition, the appellant’s issue for determination is not derived from the inappropriate sole ground of appeal filed by the appellant. The sole ground of appeal filed by the appellant did not mention anything about abuse of process of Court. lt is strange that the appellant inexplicably found an issue of abuse of process of Court out of his Notice of Appeal and disingenuously related same to the issue of jurisdiction, in the issue formulated, whereas, the ground of appeal filed does not mention anything about abuse of process of Court.
The respondent did not do better in its own formulation of issues. On its part, the respondent distilled two issues from the sole ground of appeal identified above.
The two issues found for determination by the respondent are:
a. Whether the appellant’s application, dated 21st May, 2019 is an abuse of Court’s process as held by the lower Court.
b. Whether the appellant is entitled to raise a ground of appeal on a matter entirely different from the ruling of 30th October, 2018 which is the only point she is complaining of in this appeal.
It is a settled principle that more issues cannot or should not be distilled from the number of grounds available in an appeal. The respondent ran foul of that simple rule, when it formulated more issues than the sole ground of appeal available for the appeal.
It is also apparent that the second issue formulated by the respondent has no relationship with the sole ground of appeal filed by the appellant. The respondent neither filed a Respondent’s Notice of Contention nor filed an appeal or a cross-appeal in this case. The respondent is, therefore, not at liberty to formulate issues bereft of connection with the grounds of appeal, filed by the appellant. The second issue raised by the respondent is invalid. The second issue raised by the respondent is hereby struck out and will be discountenanced.
Regarding the first issue formulated by the respondent, it is my view that the issue is not derived from the ground of appeal filed by the appellant. The appellant did not mention abuse of process in his ground of appeal and there is no way the respondent, who did not file an appeal or cross-appeal or Respondent’s Notice of Contention of its own, could raise an issue, which the appellant did not complain about in his ground of appeal.
In the case of Abisi & Ors. v. Ekwealor & Anor. (1993) LPELR-44(SC), the Court remarked, as follows:
“…And in Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275, 283 Karibi-Whyte, J.S.C. observed thus:
‘It is necessary to emphasise the purpose of formulating issues for determination in briefs. Like pleadings to a litigation between the parties, the issues formulated are intended to accentuate the real issues for determination before the Court.
The grounds of appeal allege the complaints of errors of law, fact or mixed law and fact against the judgment appealed against. The issues for determination accentuate the issues in the grounds of appeal relevant to the determination of the appeal in the light of the grounds of errors alleged. Hence, the issues for determination cannot and should not be at large, but must fall within the purview of the grounds of appeal filed.”
Per OGUNDARE, J.S.C. (Pp. 32-33 paras. E)
In the case of Omagbemi v. Guiness (Nig.) Ltd. (1995) LPELR-2635(SC), the Court also remarked, as follows:
“It is now settled that any issue or issues for determination formulated, in either the brief of argument of the appellant or the respondent, in any case, must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal, then they cannot stand for being irrelevant. It follows, therefore, that any argument in the brief based on the faulty issue for determination is equally irrelevant to the appeal. The result is that the mandatory requirements of Order 6 Rule 2 of the Supreme Court Rules, 1985, have not been satisfied. In such a given situation. It is fatal if only one issue for determination is raised in the appellant’s brief of argument, as in the present case because the appeal becomes incompetent for non-compliance with the rules and liable to be struck out.” Per UWAIS, J.S.C. (Pp. 12-13 paras. F)
It is my view, therefore, that despite the presentation and adoption of both the appellant and respondent’s briefs of argument, neither the appellant nor the respondent formulated any valid issue for determination, derived from the sole ground of appeal, which is related to the ruling of the lower Court dated 30/10/2019, in this appeal. In the case of Ekunola v. CBN & Anor. (2013) LPELR-20391 (SC), the Court admonished that:
“A right of appeal or any other right granted by law cannot be exercised without compliance with the law granting the right, or any other law or rule regulating the exercise of the right.” Per NGWUTA, J. S. C.
The appellant misdirected its appeal in such a manner as to make its appeal baseless and incapable of being countenanced by this Court.
I will dismiss the appeal.
Order 7 Rules 4 and 5 of the Court of Appeal Rules provides as follows:
“4. The Appellant shall not without the leave of the Court urge or be heard in support of any ground not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds of appeal set forth by the Appellant; Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground.”
This Court being a penultimate Court, assuming the conclusion drawn in this judgment is found to be wrong, I hereby volunteer my opinion on the ruling of the lower Court, dated 30/10/2019, in ensuing paragraphs.
The lower Court was right and on firm grounds when it found that the appellant filed a notice of appeal against the Court’s judgment, dated 26/03/2019. Even the appellant’s counsel clearly admitted that the appellant abused the process of the Court, in his submission in the appellant’s brief of argument (paragraph 4.2 thereof) when he submitted, innocently, as follows:
“We submit that it is on record that the judgment delivered on the 26/03/2019 as contained in the pages 105-111 of the Record of Appeal was indeed delivered in default of appearance of the Appellant, though filed an appeal against the said judgment, the Appellant abandoned the appeal and applied for the judgment to be set aside based on the provision of Order 8 Rule 9 of the Federal High Court (Civil Procedure Rules) 2009 which is the law enforced as at then. This provision empowered the Appellant to file an application to set aside the judgment:-
“Where judgment is entered pursuant to any of the preceding rules of this order a Judge may set aside or vary such judgment on just terms upon and application on notice by the defendant …” (Bold font for emphasis)
In the affidavit filed in support of the appellant’s motion, dated and filed on 21/05/2019, seeking to set aside the lower Court’s judgment, dated 29/03/2019, the deponent (Ibrahim Aliyu Maigari) testified in paragraphs 15-16 of his affidavit, as follows:
“15. That upon delivery of the judgment on 26th day of March, 2019 the Judgment Debtor/Applicant briefed the law firm of Sani & Co. to apply and set aside judgment.
16. That the law firm filed an application for CTC of judgment and record of proceedings in this suit and upon the Judgment Debtor/Applicant instructions filed an appeal which is at the moment is been abandoned.”
The respondent in this appeal filed a further-affidavit before the lower Court on 15/06/2019, in opposition to the motion brought by the appellant for the ruling of the lower Court, dated 29/03/2019, to be set aside. The deponent, Collins Ugwunebo, deposed in paragraph 5 of the further affidavit, as follows:
“5) That the Applicant on the 18th April, 2019 filed an appeal to the Court of Appeal requesting the appellate Court to set aside the judgment of this Honourable Court delivered in this case on the 26th March, 2019. Attached herewith and marked EXHIBIT R2 is a copy of the Notice of Appeal dated and filed on 18th May, 2019 by the applicant.”
The grounds of appeal and prayer against the judgment of the lower Court dated 26/03/2019, contained in the Notice of Appeal, which the appellant claims to have abandoned are, as follows:
“(1) The decision contained in the judgment appealed against was unreasonable, unwarranted and unsupportable by the evidence before the Court.
(2) ERROR IN LAW
(i) The learned trial Judge erred in law to entertain this case for lack of jurisdiction to hear and determine this suit.
PARTICULARS OF THE ERROR
1. That the trial Judge delivered judgment in this suit on the 26th day of March, 2019 whereas the Court lack jurisdiction.
2. That the Appellant registered address is in Michika, Adamawa State and all the tax of which the Appellant file was in Yola, Adamawa State.
(3) RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the judgment of the Court below delivered on the 16th day of March, 2019 and dismiss suit accordingly.”
There is no provision in the law and rules of appellate practice – in the Court of Appeal – permitting a party, in the type of appeal being determined, to simply abandon an appeal in respect of which a notice of appeal has been filed. The attention of this Court has not been drawn to any such provision. That is the reason, apparently, for timelines being given in the Rules, for specific actions to be taken in respect of filing of Notice of Appeal, leading to the hearing and determination of an appeal. Thus, the appellant in this case could not have validly claimed to have abandoned his appeal, without ensuring that the appeal is lawfully withdrawn, determined or terminated, one way or the other. To the extent that the appellant filed a Notice of Appeal, which has neither been withdrawn, struck out nor determined, to that same extent is the fact that the appellant still has a pending appeal before the Court of Appeal. See Order 11 of the Court of Appeal Rules, 2016.
Abandonment of appeal, provided under Order 18 Rule 11 of the Court of Appeal Rules concerns appeals from Court Martials and Tribunals and even in that case, there must be evidence or proof that appropriate process was filed to cause the abandonment to take effect, with implication that the appeal is deemed abandoned. The facts in this case and the type of lower Court, from which this appeal emanated, do not fit into the provision for abandonment of appeal, under the Court of Appeal Rules, 2016.
Thus, when the appellant later filed a motion seeking an order of the lower Court to set aside its judgment dated 29/03/2019, against which the appellant earlier filed a Notice of Appeal, asking the Court of Appeal to set aside the same judgment, the appellant implicitly, deliberately and openly abused the process of Court, despite the fact that it, falsely, convinced itself that it had the right to abandon the appeal addressed to the Court of Appeal earlier, in favour of the motion on notice filed before the lower Court, later. The subsequent motion on notice was an abuse of the process of Court and the lower Court, confronted with the infraction of the appellant, competently, identified same for what it is and dealt with it with alacrity, as it should do.
The Court must jealously guard the judicial process from being ridiculed and scandalized. Once a Court is satisfied that processes before it are an abuse of its processes and orders, which in effect is a direct challenge to its integrity, it should with all urgency, exercise its inherent jurisdiction and dismiss the abusive action or process. See Ezenwo v. Festus (No. 1) (2020) 16 NWLR (Pt. 1750) 324 at 341.
Abuse of process of Court simply means that the process of Court has not been used bona-fide and properly. For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there aretwo or more actions between the same parties in respect of the same subject matter in one or more Courts at the same time. See Ikine v Edjerode (2001) 18 NWLR (Pt 745) 446 at 479.
The Notice of Appeal filed by the appellant against the judgment of the lower Court (dated 26/03/2019) was directed at setting aside of the judgment of the lower Court. The motion on notice filed by the appellant and dismissed by the lower Court was also directed to achieve the same purpose. The two processes were filed in two different Courts, between the same parties, in an attempt to achieve the same purpose, thereby setting up a probable collision of exercise of power between a lower Court and a higher Court. The subsequent filing of the motion on notice to set aside the judgment following the filing of the notice of appeal infected the motion on notice with a fatal legal virus, which caused it to acquire the description of abuse of process of Court.
Before this judgment will be concluded, it is apt that I should record my remarks on another aspect to the appeal before this Court. That is the fact that from the sole ground of appeal filed by the appellant, the appellant is complaining about the fact that the lower Court did not have jurisdiction to determine the suit as it did, due to the fact that there is settled wisdom that jurisdiction can be raised at any time and even at the Supreme Court, for the first time. The appellant also, inordinately, included the issue of jurisdiction in the issue for determination submitted to Court. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. See Emerald Energy Resources Ltd. v. Signet Advisors Ltd. (2021) 8 NWLR (Pt. 1779) 579 at 617; INEC, Anambra State & Anor. v. Ifeanyichukwu Okonkwo (2008) LPELR–4315 (CA); Agwu & Ors. v. Julius Berger Nig. Plc. (2019) 11 NWLR (Pt. 1682) 165. In the case of Emerald Energy Resources (supra), the Court stated as follows:
“The law on the relationship between issues for determination and the ground of appeal is clear. The law is that, issues for determination must arise from the ground of appeal. There must be a connection between the issues for determination and the grounds of appeal just as there must be a connection between the grounds of appeal and the judgment or ruling appealed against. See Anyaonu vs. Chukwuma & Ors (2010) LPELR-3792 (CA); Adelekan vs. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33;Ajaokuta Steel Company Ltd vs. Greenbay Investment & Securities Ltd (2019) LPELR-46929 (S.C.).
I agree with the Respondent to the extent that an issue for determination which has no relationship to the grounds of appeal is incompetent and is to be struck out. Okonobor & Ors vs. Edegbe& Sons Transport Company Limited & Anor (2010) 17 NWLR (Pt. 1221) 181, the apex Court per Onnoghen, J.S.C. held:
“It is settled law that an issue raised in an appeal must relate to the ground(s) of appeal filed. No issue is allowed to be raised outside the ground(s) of appeal. In the instant appeal, it is clear that Issue 2 does not relate to the single ground filed. It is therefore incompetent and liable to be struck out…
That apart, the law is settled and trite that jurisdiction can be raised at anytime and even at the Supreme Court for the first time. Once a party challenges jurisdiction, the law is that it does not have to relate to any ground of appeal. See INEC, Anambra State & Anor vs. Ifeanyichukwu Okonkwo(2008) LPELR-4315 (CA); Agwu & Ors vs. Julius Berger Nigeria Plc (2019) LPELR-47625 (SC).” per Tobi, JCA.
In the case of Agwu & Ors. v. Julius Berger Nigeria Plc (supra), the Court, per Galumje, JSC. remarked as follows:
“The first arm of the argument of the Learned Counsel for the appellant is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of law in respect of which there can hardly be a departure. See Egbe v Alhaji (1989)1 NWLR (Pt.128) 546, Saraki v Kotoye (1992)9 NWLR (Pt.264) 156. For every general rule there is an exception, in order to accommodate certain unforeseen circumstances. Where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi. In Kalejaiye v LPDC & 1 Other (unreported Appeal No.SC.429/2015) delivered on 15th March, 2019 the issue of change in the quorum of the LPDC was not the ratio of the decision of the LPDC, yet it was the only ground upon which the appeal was determined by this Court. The ground of appeal against which the Appellants hinge their argument complained that the lower Court had no jurisdiction to decide substantive matter at interlocutory stage. This Court in a number of decisions has held that Courts are not allowed to delve into or decide the main complaint at an interlocutory stage. See FSB International Bank Nig. Ltd v Imano Nig. Ltd (2000) 11 NWLR (Pt.678) 620 at 639, A.G. Kwara State & Anor. v Lawal &Ors (2017) LPELR-4234 (SC); Egbe v Onogun (1972) 1 All NLR (Pt.1) 95, Ojukwu v Governor of Lagos State (1986) 3 NWLR (Pt.26) 35, Olaniyi v Aroyehun (1991)5 NWLR (Pt.194) 652, Madubuike v Madubuike (2001) 9 NWLR (Pt. 719) 698 at 707. Before the lower Court were substantive suit initiated by writ of summons and a motion on notice which were filed on the 1st of July 1999. Both processes prayed for injunctive orders restraining the Respondent from declaring the Appellants redundant and ejecting them from their official quarters. The motion of 4th ofOctober, 2000 sought for reinstating the Appellants and deeming them as employees of the Respondent. Clearly, the writ of summons, and the motion of 1st July 1999 as well as the motion of 4th October 2000 sought to perpetuate the Appellants on their jobs. The language used in the three process is a matter of semantics, as there does not seem to be so much difference in the prayers. It is therefore not out of place if any of the parties complained that the lower Court decided the claims endorse on the writ when it ruled on the application of 4th October, 2000. As I have stated elsewhere in this judgment, the first ground of appeal at the lower Court being a jurisdictional question, or issue, same can be raised at any stage of proceedings including the appellate Court for the first time. See Nwankwo &Ors v. Yar’adua & Ors (2010) 12 NWLR (Pt.1209) 518. In FHA v Kalejaiye (2010)19 NWLR (Pt.1226)149 at 164 para b, this Court, per Rhodes Vivour JSC said:-
“The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time.”
Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground. In the instant case, the lower Court was right when it overruled the preliminary objection in order to consider the complaint embedded in the first ground of appeal.”
Per GALUMJE, JSC (Pp. 11-14, para. D-D)
It is my view that, with the peculiar circumstances of the particular appeal before this Court, the appellant has not brought to us, an appeal against the judgment of the lower Court. Rather, the appellant has brought an appeal against the ruling of the lower Court, which refused to determine a motion seeking the setting aside the judgment of the lower Court, because the process of Court was abused by the appellant. Thus, the only issue of jurisdiction which may be raised in this appeal is jurisdiction to determine the motion on notice to set aside the judgment of the lower Court. The appellant did not raise such an issue in this appeal. The jurisdiction of the lower Court to determine the suit before it will have to be raised in an appeal against the judgment of the lower Court, which is not before this Court at this point.
It is also my considered view that while the appellant is entitled to raise the issue of want of jurisdiction at any time and at any stage of the proceedings, the law does not permit the appellant to abuse the process of the Court while seeking to exercise the right to complain about jurisdiction. The appellant has no doubt, a constitutional right to appeal against any decision affecting it, which is found offensive or seek to secure an order of Court to set aside the offensive decision. However, the exercise of such a right, in the circumstances of the appeal before us, was outside bounds permitted by law, which is described as excessive exercise of a right, which may invariably lead to abuse of the process of Court.
For example, in the case of Ladoja v. Ajimobi (2016) LPELR-40658 (SC), the Court warned, in regard of excessive exercise of a right, as follows:
“I seek to state at this point and without hesitation that the issue at hand has nothing to do with a party’s right to exercise hisconstitutional right to appeal the judgment of the Tribunal. The constitutional provision is guaranteed in Section 246(1)(b)(ii) which cannot be taken away by any means whatsoever. The missing link however is, to what extent can the right be exercised? It is extant and as provided in the case of Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156 cited by the 1st cross-respondent’s counsel. Reliance on that case is more in support of the cross-appellant’s case and not the 1st cross-respondent. For instance, at page 183 of the report, this Court held and said:-
“The Constitution of this country and the law and practice in the administration of justice have vested in the aggrieved a right of appeal to a superior Court against any decision in respect of which he is aggrieved on the grounds of law or fact on which he considers the Court is in error.”
The same principle was applied also in the case of Agwasim V. Ojichie (2004) 10 NWLR (Pt 882) 613 at 662-663. The right, though available freely, is however restrictive and only to be exercised within bounds; that is to say it is subject to other rights which must not be encroached upon in the course of the cross respondents exercising their rights. Excessive exercise of right outside the constitutional permit is no longer a right but a wrong which is an abuse of process.
From all indications, I hold the strong view that the interpretation given by the 1st cross-respondent’s counsel to the authorities cited on behalf of the cross-appellant is a complete misconception of Section 246(1)(b)(ii) of the Constitution.
In the case of Agwasim V. Ojichie under reference (supra) at pages 622-623 of the report, this Court listed some instances where an abuse of Court process can occur as follows:-
“The abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways such as;-
(a) instituting a multiplicity of actions on the same subject – matter against the same opponent on the same issue, or
(b) instituting a multiplicity of actions on the same matter between the same parties;
(c) instituting different actions between the same parties simultaneously in different Courts even though on different grounds; or
(d) where two similar processes are used in respect of the exercise of the same right.”
The summary and the conclusion from the foregoing authority is obvious; that is to say the concept of abuse of Court process is serious and fundamental as it goes into the jurisdiction of the Court. See Dingyadi V. INEC (No 1) (2010) 18 NWLR (Pt 1224) 1 at 23. There must be sanity in the application and exercise of the given constitutional right.
Again, in the context of the case of Agwasim V. Ojichie (supra), by instituting multiplicity of actions in situation where two similar processes are used in respect of the exercise of the same right, as it is in the cross-appeal before us, is an outright misuse of a legal process. It is a departure from legal or orthodox use of process culminating into an abuse thereof.
The right of appeal which is constitutional is a creation of statute and is never at large.”
The appellant has excessively exercised his rights in this case by, inappropriately, using the processes of Courts. The fact that the Notice of Appeal and issue for determination raised involves a challenge to jurisdiction of the lower Court, does not amount to forgiveness of gross and grave abuse of the process of the Court, which the appellant perpetrated in this appeal and in respect of which the appellant has not demonstrated penitence.
Despite entreaties by the appellant’s counsel in the appellant’s brief, to this Court, to salvage its appeal, by relying on Order 21 Rules 2 and 3 of the current Rules of this Court and Section 15 of the Court of Appeal Act, I am of the view that those provisions cannot alter the status of the fundamental procedural sin committed by the appellant. The decision of the lower Court to dismiss the appellant’s motion was not based on technicality, but on sound prescriptions of the law and direction provided by the highest Court in the land, as demonstrated above. Raising the issue of jurisdiction, in the manner the appellant did in this appeal, does not diminish or constitute atonement for the abuse of process of Court committed with the appellant’s motion, seeking to set aside the judgment of the lower Court, subsequent to the filing of an appeal, against the same judgment.
I hereby determine that the lower Court was right, in its ruling dated 30/10/2019, when it dismissed the appellant’s motion on notice, which sought to set aside the judgment of the lower Court dated 26/03/2019. The appellant’s motion was an abuse of the process of Court, in view of the pending appeal already filed by the same appellant against the same judgment. The ruling of the lower Court, dated 30/10/2019 is hereby affirmed. This appeal is dismissed for being without merit.
The appellant shall pay cost in the sum of N200,000.00 (Two hundred thousand naira) to the respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Hon. Justice O.A. Adegbehingbe, JCA; and I am in complete agreement with his reasoning and conclusion that the appeal lacks merit and same is hereby dismissed. The ruling of the lower Court delivered on the 30th October, 2019 is hereby affirmed.
I also abide by the order as to costs.
ABBA BELLO MOHAMMED, J.C.A.: I have had a preview of the draft lead judgment just delivered by my learned brother, Hon. Justice Olabode Adegbehingbe, JCA. I agree with the reasoning and conclusions contained therein. I adopt same as mine in dismissing this appeal for lack of merit. I also affirm the ruling of the trial Court of 30th October, 2019.
Appearances:
Appellant absent and unrepresented For Appellant(s)
C. U. UGWUNEBO, ESQ. For Respondent(s)