NIWA v. SPDC
(2020) LCN/4926(SC)
In The Supreme Court
On Friday, February 07, 2020
SC.4/2008(J)
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Paul Adamu Galumje Justice of the Supreme Court of Nigeria
Between
NATIONAL INLAND WATERWAYS AUTHORITY APPELANT(S)
And
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED RESPONDENT(S)
RATIO
THE DOCTRINE OF STARE DECISIS
The doctrine of stare decisis literally means to stand by what has been decided, and not to unsettle things that have been established. It precludes judges of subordinate Courts from changing what has been determined, especially where the determination is by a superior Court. See Clement v Iwuanyanwu (1989) 4 SC (pt 11) 89 at 97. The point is that the lower Court is bound by the decision of a higher Court. Also, the Court will hold itself bound by its previous decisions except where it is satisfied that any of its previous decisions is erroneous or was reached per incurian, See Nigeria Agip Oil Company Ltd. v Chief Gifi Nkweke & Anor (2016) LPELR – 26060 (SC), Dalhatu v Turaki (2005) NWLR (pt 843) 310, Veepee Industries Ltd v.COCOA INDUSTRIES LIMITED (2008) NWLR (pt 1-705) 486.
There is no doubt that the principle of stare decisis is well entrenched in our jurisprudence and has helped to bring certainty to our laws as espoused by the Courts; else there would be confusion and anarchy in the judicial process. In Eperokun v University of Lagos (1986) NWLR (pt 34) 762, Oputa, JSC (of blessed memory), held as follows:-
“The Supreme Court of Nigeria does not enjoy any legal or Constitutional immunity from error. But having said this, I must hasten to add that before a decision of this Court can be reconsidered and overruled, the Court has to be satisfied that the decision is erroneous otherwise the best policy is stare decisis et non quieta … (to stand by the decision and not to disturb settled points). Otherwise again little respect will be paid to our judgments if we overthrow that one day which we resolved the day before.”See also Paul Odi v Osafile (1985) 1 NWLR (pt 1) 17; Johnson v Lawanson (1971) All NLR 56. PER OKORO, J.S.C.
THE LAID DOWN PRINCIPLES AND PROCEDURE TO BE COMPLIED WITH BY A PARTY SEEKING TO APPEAL AGAINST A FINAL OR INTERLOCUTORY DECISION
Let me state here categorically that since an appeal is a creative of statute, a party seeking to appeal against either a final or interlocutory decision must meticulously follow the laid down rules and procedure provided by the statute. Now, issues relating to appeals from the Federal High Court or High Court of a State to the Court of Appeal are provided for in Section 241, 242 and 243 of the 1999 Constitution of the Federal Republic of Nigeria [as amended). Whereas Section 241 relates to appeals as of right, Section 242 provides for appeals with the leave of the Court.
Pursuant to Section 243(b) of the Constitution (supra), Section 25 of the Court of Appeal Act as well as Order 3 Rule 4 of the Court of Appeal Rules, being an Act of the National Assembly and Rules of principles, have direct impact on the right of appeal created by the Constitution.
Section 25 of the Court of Appeal Act provides:-
“Section 25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory appeal and three months where the appeal is against a final decision.
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days from the date of the determination of the application by the Court below to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.”
Order 3 Rule 3(5) of the Court of Appeal Rules provide:-
“If leave to appeal is granted by the Court or by the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 25 of the Act.”PER OKORO, J.S.C.
JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): The appellant commenced suit No. FHC/PH/322/03: National Inland waterways Authority v Shell Petroleum Development Company of Nigeria Limited at the Federal High Court, Port Harcourt Division via an originating summons dated 12th May, 2004. Upon conclusion of argument on the originating summons, the Federal High Court delivered judgment on 22nd day of April, 2005 wherein the Court granted the reliefs sought by the appellant in part.
Dissatisfied with the judgment of the trial Court, the respondent herein (as defendant) appealed to the Court of Appeal against the said judgment except the part holding that there were irreconcilable conflict in the affidavit of the parties. The appellant herein (as plaintiff) cross-appealed against part of the judgment of the trial Court. After briefs were filed and exchanged, the appellant as cross-appellant at the Court below realized that he ought to have obtained leave before filing the cross appeal. He then filed a Motion on Notice on 28/3/06 for trinity Prayers.
In its ruling on 10th July, 2006, the Court below dismissed the cross-appellant’s motion for
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lacking in merit. Thereafter, the appellant filed a similar motion dated 20th January, 2007 praying for the same reliefs as the one earlier dismissed by the Court below.
The Court of Appeal, in a ruling delivered on the 7th November, 2007, struck out the Appellant’s application on the ground that the trinity prayers made in the application dated 20th January, 2007 were similar to those made in the previous application dated 28th March, 2006 which was earlier refused by the Court. It also held that the Court had become functus officio after its ruling of 10th July, 2006 refusing the earlier application, It then adjudged the motion an abuse of Court process.
Dissatisfied with the rulings of the Court below, the appellant filed notice of appeal on 31st July, 2008. The said notice contains five grounds of appeal from which the appellant distilled four issues for the determination of this appeal. Briefs of argument were filed and exchanged.
On 12th November, 2019, when this appeal was heard, the learned counsel for the Appellant Adeyinka Aderemi Esq; adopted the brief of the appellant filed on 29/4/10 but deemed properly filed on 28/1/2011. At the
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said hearing, learned counsel abandoned issues two and four, thus conceding to the preliminary objection raised by the learned Senior counsel to the respondent against the two issues. What this means is that the Appellant argued this appeal based on issues one and three only. In the circumstance, issues two and four, having been abandoned are hereby struck out.
The remaining two issues, which I hereby renumber as 1 and 2 are as follows:-
1. Whether the Court of Appeal was right to have held that the granting of leave to appeal is not sufficient to cure the defect in the Notice of Appeal that had earlier been filed without leave, having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 74 NWLR (pt 945) 249
2. Whether the decision of the Court of Appeal refusing leave on grounds of incompetence operates as a bar on the appellant bringing the same application before the same Court subsequently.
The learned Senior counsel for the Respondent distilled two similar issues as that of the Appellant for the determination of this appeal, though couched differently. The two issues are:-
1. Whether the decision of
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the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (2005) 14 NWLR (pt 945) 249.
2. Whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiffs Motion in its decision of November 7, 2007 after the earlier similar application was dismissed for lack of merit.
Before I take a further step in this matter, may I state that the learned senior counsel for the Respondent had given notice of preliminary objection against issues two and four in the Appellant’s brief. However, at the hearing of this appeal, the learned counsel for the Appellant abandoned the two issues, thereby conceding the preliminary objection. At that point the learned Senior counsel withdrew the notice of preliminary objection. Accordingly, the notice of preliminary objection and the arguments made in respect thereof are hereby discountenanced. I shall then determine this appeal on the remaining two issues distilled by the appellant with concurrence of the Respondent.
ISSUE ONE:-
This issue is whether the Court of Appeal was right to have held that the granting of leave to appeal is
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not sufficient to cure the defect in the notice of appeal that had earlier been filed without leave having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 14 NWLR (pt 945) 249. This issue as couched by the respondent appears to be more apt. It states whether the decision of the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (supra).
The contention of the Appellant in this issue is that although the Appellant had filed notice of appeal without the leave of Court in the mistaken believe that there was no need for leave to be first sought and obtained; the lower Court ought to have regularized their position as was done by this Court in Williams v Mokwe (supra). That the Court below did not follow the decision in William v Mokwe (supra). Rather it distinguished it and held that leave cannot be granted retrospectively.
Learned counsel for the Appellant submitted that the distinction being put on the case is misconceived and has conveniently lost sight of the real issue determined by the Supreme Court in Williams v Mokwe. That although the Supreme Court
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took cognizance of the law that a notice of appeal which requires leave if filed without the requisite leave is a nullity, whether the appeal is interlocutory or trial, it still went ahead to grant the application.
Learned counsel referred the Court to the case of Nurudeen Oniwaya v Omolete Ikuomola & Ors CA/L/323M/2006 delivered on 1st February, 2007 per Ogunbiyi, Agbo and Galumje, JCA which declined to follow the decision inNational Inland Waterways Authority v Shell (the subject matter of this appeal) but followed Esiri v Idika (1987) 4 NWLR (pt 66) 502 and Williams v Mokwe (supra). He also drew the attention of the Court to the fact that out of the four grounds of appeal contained in the notice of appeal dated 3rd June, 2005, two were valid grounds of appeal as conceded by all. According to him, the notice of appeal was not void ab initio. He submitted that a single valid ground of appeal is all a notice of appeal requires to be competent. He urged the Court to resolve this issue in favour of the Appellant.
Learned Senior counsel for the Respondent, Chief Richard Akinjide, SAN in the brief he filed but argued by Chief Mrs. A. Williams
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Akinjide, SAN submitted that although the decision of the Supreme Court are binding and must be followed by the Court of Appeal, however, where the circumstances giving rise to the decision of the Supreme Court are different from the facts of the case before the Court of Appeal, the lower Court is not bound to follow the decision of the Supreme Court but may distinguish it as appropriate, relying on Adegoke Motors v Adesanya (1989) 3 NWLR (pt. 109) 250.
According to the learned SAN, the decision in Williams v Mokwe (supra) was inapplicable in the circumstances of this case and that the lower Court was right in refusing to follow it and rightly distinguished it. He contended that this Court granted leave in Mokwe’s case subsequent to the filing of notice of appeal because the leave sought was to appeal as a person interested in a final judgment. That the decision appealed against in Williams v Mokwe (supra) did not require leave, unlike in the present case.
The learned Silk submitted further that the application of the Appellant leading to the present appeal was brought on the premise that they needed leave of the Court of Appeal to appeal against that
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part of the judgment of the Federal High Court which the Appellant labeled “interlocutory.” Thus, the application brought by the appellant at the lower Court was premised on the nature of the decision appealed against vide Section 242(1) of the 1999 Constitution (as amended).
Learned Senior counsel concluded that Williams v Mokwe has nothing to do with the retrospective regularization of an appeal filed pursuant to Section 242 of the 1999 Constitution without prior leave of Court. That Williams v Mokwe dealt with Section 243 of the Constitution. He relies on the case of Ojemen & Ors v Momodu ll (1983) 1 SCNLR 788 at 203. He urged the Court to resolve this issue against the Appellant.
The doctrine of stare decisis literally means to stand by what has been decided, and not to unsettle things that have been established. It precludes judges of subordinate Courts from changing what has been determined, especially where the determination is by a superior Court. See Clement v Iwuanyanwu (1989) 4 SC (pt 11) 89 at 97. The point is that the lower Court is bound by the decision of a higher Court. Also, the Court will hold itself bound by its previous
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decisions except where it is satisfied that any of its previous decisions is erroneous or was reached per incurian, See Nigeria Agip Oil Company Ltd. v Chief Gifi Nkweke & Anor (2016) LPELR – 26060 (SC), Dalhatu v Turaki (2005) NWLR (pt 843) 310, Veepee Industries Ltd v.COCOA INDUSTRIES LIMITED (2008) NWLR (pt 1-705) 486.
There is no doubt that the principle of stare decisis is well entrenched in our jurisprudence and has helped to bring certainty to our laws as espoused by the Courts; else there would be confusion and anarchy in the judicial process. In Eperokun v University of Lagos (1986) NWLR (pt 34) 762, Oputa, JSC (of blessed memory), held as follows:-
“The Supreme Court of Nigeria does not enjoy any legal or Constitutional immunity from error. But having said this, I must hasten to add that before a decision of this Court can be reconsidered and overruled, the Court has to be satisfied that the decision is erroneous otherwise the best policy is stare decisis et non quieta … (to stand by the decision and not to disturb settled points). Otherwise again little respect will be paid to our judgments if we overthrow that one day which we resolved the day before.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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9
See also Paul Odi v Osafile (1985) 1 NWLR (pt 1) 17; Johnson v Lawanson (1971) All NLR 56.
In the instant appeal, the Appellant is basically complaining that the Court below failed and/ or neglected to observe or abide by the stare decisis doctrine. Putting it poignantly, the appellants are saying that the Court below refused to follow the case ofWilliams v Mokwe (2005) 14 NWLR (pt 945) 249 which was cited to it. To be able to adequately resolve this matter, there is need to carefully examine the facts and decisions in Williams v Mokwe (supra) vis-a-vis the facts and decisions of the lower Court in the instant appeal. The need becomes more relevant because the law is trite that each case must be determined upon its own peculiar circumstances as no two cases can be completely the same. They can be similar. See The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v Eke-Spiff & Ors (2009) 7 NWLR (pt 1139) 97.
In Williams v Mokwe (supra), the Respondent was not a party to the proceedings at the trial Court. But before judgment, it appealed to be joined. For some inexplicable reasons, the application for joinder dated 8th
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July, 1994 was not heard and determined by the trial Court. Judgment was entered eventually in favour of the Appellant who was the plaintiff at the trial Court. Even though not a party, having not been joined, respondent G. C. Mokwe & Sons Ltd being dissatisfied with the decision of the trial Court, filed its notice against the judgment on 28/7/94. Respondent also filed its application for leave to appeal at the trial Court a day after it had filed its notice of appeal on 29/7/94. Respondent on 24th June, 1995 applied to the Court of Appeal under Section 222(a) of the 1979 Constitution for leave to appeal as a party interested against the trial Court’s judgment dated 28/7/94. The application which was not opposed by the appellant was granted as prayed on 5th February, 1996 more than six months after the respondent had filed its notice of appeal.
The appeal was heard and allowed by the Enugu Division of the Court of Appeal. A review was ordered after the trial Court’s decision appealed against had been set aside. Being dissatisfied, the appellant appealed to the Supreme Court. It was argued that the Court of Appeal’s order dated 5/2/96 granting leave
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to the respondent to appeal against the decision of the trial Court following respondent’s application subsequent to the filing of notice of appeal to that effect was illegal.
In dismissing the appeal, the Supreme Court observed that appellant had neither opposed respondent’s application at the Court of Appeal for leave and for the deeming of the respondents’ irregularly filed notice of appeal as properly filed nor appealed against the said order. In affirming the decision of the Court of Appeal, the Court per Kalgo, JSC first referred to the decision of that Court thus:-
“The appeal was heard by the Court of Appeal and in its judgment Niki Tobi, JCA (as he then was) who read the leading judgment said:
“It is clear from the record book that the motion in question (for leave to appeal) was moved by learned counsel for the appellant on 5/2/96, A. U. Chilota, counsel for the respondent did not oppose the motion. This Court accordingly granted it as prayed. Leave was therefore granted the appellant. The order was given way back on 5/2/96. The respondent had all the opportunity to appeal if he was not satisfied. But there was no appeal. He now raises
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the issue in his brief filed on 28/10/96, I do not think the law allows him to do so. The objection on the competence of the appeal therefore fails.
This Court concluded as follows:-
“The facts elicited in the above quotation were perfectly correct according to the proceedings in this case, and I entirely agree with the Court of Appeal that without an appeal, the orders, the objection to the competence of the appeal on that ground cannot be taken. That should be the end of the matter.”
In its judgment, the Court below held that the facts in Mokwe’s case (supra) cannot bind the instant case. The reasons given are that:-
1. The judgment appealed against in Williams v Mokwe (supra) was a final judgment while the instant appeal is interlocutory.
2. The applicant in William v Mokwe was not an original party in the case and only came in after judgment as a party interested while the appellant herein was the plaintiff who filed the suit.
3. The respondent to the application for leave in Williams v Mokwe did not oppose the application while in this matter the respondent has been adamant in his objection.
Let me state here categorically that since an appeal is a creative of statute, a party seeking to appeal against either a final or interlocutory decision must meticulously follow the laid down rules and procedure provided by the statute. Now, issues relating to appeals from the Federal High Court or High Court of a State to the Court of Appeal are provided for in Section 241, 242 and 243 of the 1999 Constitution of the Federal Republic of Nigeria [as amended). Whereas Section 241 relates to appeals as of right, Section 242 provides for appeals with the leave of the Court.
Pursuant to Section 243(b) of the Constitution (supra), Section 25 of the Court of Appeal Act as well as Order 3 Rule 4 of the Court of Appeal Rules, being an Act of the National Assembly and Rules of principles, have direct impact on the right of appeal created by the Constitution.
Section 25 of the Court of Appeal Act provides:-
“Section 25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2)
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of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory appeal and three months where the appeal is against a final decision.
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this section, be allowed a further period of fifteen days from the date of the determination of the application by the Court below to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.”
Order 3 Rule 3(5) of the Court of Appeal Rules provide:-
“If leave to appeal is granted by the Court or by the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 25 of the Act.”
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Order 3(4) –
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.”
A careful perusal of the above provisions, particularly Section 25(1) of the Court of Appeal Act, shows that a party desiring to file an appeal as of right will do so by filing a notice of appeal to that effect within the time prescribed. Another notice provided for in that same section is notice of application for leave to appeal in decisions not covered under Section 241 of the Constitution. Thus a party seeking to appeal against an interlocutory decision which requires leave, is required to file a notice of his application for leave to appeal. At that stage, he is not required to file a notice of appeal. At best, he can exhibit his proposed notice of appeal to the affidavit in support of his application for leave to appeal. An application for leave to appeal must first be sought and obtained before filing notice of appeal.
Order 3 Rule 4 of the Court of Appeal Rules reproduced above states that if leave is granted by the Court or by the High Court, the appellant shall file a notice of appeal within the time prescribed by Section 25 of the Act.
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It follows that if leave is refused by the Court, no notice of appeal shall be filed.
My Lords, in Williams v Mokwe (supra), this Court approved the grant of leave subsequent to the filing of the Notice of Appeal. Now, a careful examination of the decision in that case will reveal that the leave sought in that case was leave to appeal as a person interested. The decision appealed against in Mokwe’s case (supra) did not require leave, being a final decision unlike in the present case which is an appeal against an interlocutory decision.
The application of the Appellant leading to the present appeal was brought on the premise that they needed leave of the Court of Appeal against that part of the judgment of the Federal High Court which even the Appellant has labeled “interlocutory”, Thus, the application brought by the Appellant at the Court below was premised on the nature of the decision appealed against vide Section 242(1) of the 1999 Constitution.
I agree with the submission of the learned Senior counsel for the Respondent that the substance of the distinction between William v Mokwe (supra) and the instant appeal lies in the fact
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that inWilliams v Mokwe (supra), the appeal was a valid appeal as of right by virtue of Section 241(1) (a) of the 1999 Constitution. The leave subsequently granted in Mokwe’s case (supra) was only to regularize the legal standing (locus standi) of the appellant in that case since he was ab initio not a party in the matter. Another reason why the decision in Williams v Mokwe cannot be faulted is that it relates to the power of the Supreme Court to regularize an irregularity i.e where a valid appeal is filed irregularly. Having filed an appeal against a final judgment of the High Court, the requirement of leave to appeal as a person interested was totally a different question.
I need to emphasize that where an appeal can only be lodged with the leave of Court under Section 242 of the 1999 Constitution, no right of appeal exists ab initio. Leave is a condition precedent to bringing the appeal. Section 242 of the Constitution did not create any right of appeal. The only right created by Section 242 of the 1999 Constitution is the right of the prospective appellant to apply for leave to appeal. As far as the Ruling of the lower Court made on 10/7/2006 is
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concerned, I agree that grounds 1 and 2 in the notice of appeal relating to an interlocutory decision were incompetent, leave having not been sought and obtained before filing same. The Court below held on page 357 of the record as follows:-
“In the instant case where the appellant had filed a notice of appeal which, in respect of grounds 1 and 2 thereof required leave, being neither grounds of law alone nor in respect of the aspect of the lower Court’s decision that is final, the notice of appeal is to that extension, as submitted by Chief Akinjide SAN for the respondent, incompetent.”
However at the close of the judgment, the Court below held the Notice of Appeal to void ab initio. I disagree. I will explain. Both parties to this appeal, including the Court below agree that grounds 3 and 4 in the notice of appeal are competent and relate to the final decision of the trial Court which did not require leave. This means that the notice of appeal was competent because there are two competent grounds which could sustain the appeal.
In J. A. Aderibigbe & Anor v Tiamiyu Abidoye (2009) LPELR – 140 (SC) page 20, paragraphs D – F, this Court
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per I. T. Muhammad, JSC (as he then was) held as follows:-
“A notice of appeal can be competent and valid if it contains at least one valid ground of appeal. See Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999, Erisi & Ors v ldika & Ors (1987) 3 NWLR (pt 66) 503 at 576. A bare Notice of Appeal without any ground of appeal is valueless and incompetent. See Akeredolu & Ors v Akinremi & Ors (1986) 4 SC 325 at 372. It is incurably bad. The defect cannot be cured by an amendment. See Global Transport Oceanic Co., SA & Anor v Fixed Enterprises Nig. Ltd. (2001) 2 SCNJ 224.”
It is my well considered opinion which is in line with the decision of this Court that grounds 3 and 4 in the notice of appeal adjudged to be valid ought to have sustained the notice of appeal. The two grounds saved the notice of appeal from being void ab initio. The notice, in my opinion after excising the offending grounds 1 and 2 from it, was competent after all, the motion was in respect of grounds 1 and 2 which stemmed from an interlocutory decision. Thus, the decision of the Court below succeeded in knocking down grounds 1 and 2 which were
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incompetent. Since grounds 3 and 4 were competent, the notice of appeal was competent and the appeal could be heard on those two competent grounds. I resolve this issue partially in favour of the appellant.
ISSUE TWO
The issue here is whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiffs’ motion in its decision of November, 7, 2007 after the earlier similar application was dismissed for lack of merit on 10th July, 2006. Parties are ad idem that the facts leading to the Ruling of 10/7/2006 are similar to those which gave rise to the ruling of 7/11/2007. In refusing to rehear the said application, the Court below on pages 421 – 423 made the following conclusion:-
“The motion was refused after the usual judicial examination and scrutiny of the affidavit evidence adduced and relied on by the parties thereto. It should be remarked that applications such as the said motion are normally and ordinarily heard, considered and determined on the basis of the averments contained in the affidavits filed by the parties, oral submissions/arguments of counsel at the hearing which may include reference to judicial authorities
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and the state of the law on the issues involved… The motion was therefore heard on the merits of the affidavit evidence placed before the Court by the parties supported by the oral argument or submissions proffered by learned counsel. This is beyond contention since it is the agreed state of events in respect of the earlier motion. Consequently, I have no difficulty whatsoever in finding that in such circumstances, the said motion was heard on the merits by the Court on the 15th of May, 2006… Having exercised the discretion with finality, there can’t or better still, should not be another and eventually endless applications for the exercise of the same discretion based entirely on the same evidence and authorities that were fully considered in the previous application.”
In view of the above findings, the Court below concluded as follows on page 427 of the record:-
“In the result, the present motion, which seeks to reopen the reliefs decided therein finally, and have the decision reviewed and reconsidered by the Court is an abuse of the Court process. With the decision delivered on the 10th of July, 2006, which remain effective, the Court lacks
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the legal and judicial competence to entertain it because it amounts to a review of that decision.”
Having just concluded the resolution of issue 1 which is based of the ruling of 10th July, 2006. I have had sufficient interaction with the facts leading to that ruling. I am therefore in a very comfortable position to compare the motion leading to that ruling with the motion in respect of the ruling of 7th November, 2007. As was held by the Court below, the prayers and reliefs are the same. I agree entirely that the ruling of 10/7/06 was final as far as the lower Court is concerned. The second application which led to the ruling of 7/11/07 was indeed an abuse of Court process. The Court below, having earlier decided on the same motion, had no competence to entertain it again as it would amount to sitting on appeal over its earlier decision. Where an action is an abuse of process of Court, this Court in numerous decisions has held that the process is liable to be dismissed. See Igbeke v Okadigbo & Ors (2013) 12 NWLR (pt 1368) 225, Saraki v Kotoye (1992) LPELR- 3016 (SC), African Reinsurance Corporation v JDP Construction Nig, Ltd. (2003) LPELR – 215 (SC).
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I have no difficulty in resolving this issue against the appellant.
The final outcome of this appeal is that the appeal before the Court of Appeal shall be heard on the merit based on the two competent grounds 3 and 4 in the notice of appeal. Grounds 1 and 2 relating to interlocutory decision remain incompetent as decided by the Court below. Part of the decision of the lower Court holding that appellant’s notice of appeal was void ab initio is hereby set aside.
Appeal allowed in part. I make no order as to costs.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Okoro, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is meritorious and should be allowed in part. I too will allow the appeal in part.
Appeal allowed in part.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment delivered by my learned brother, Okoro, JSC, and I agree with his reasoning and conclusion. He dealt authoritatively with the issues raised in the Appeal, and I have nothing useful to add, therefore I will simply adopt his
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reasoning as mine. Thus, I also allow this Appeal in part and I also make no order as to costs.
PAUL ADAMU GALUMJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC and I agree with the manner in which my brother resolved the two issues submitted by the Appellant for determination of this appeal. I have nothing useful to add, except to agree with my brother that the appeal is allowed in part. I make no order as to costs.
MARY UKAEGO PETER-ODILI, J.S.C. (DISSENTING): I do not agree with the judgment just delivered by my learned brother, John Inyang Okoro JSC and to underscore the lack of support. I have in the reasonings from which the decision came about, I shall make some comments.
The Appellant commenced the suit at the Federal High Court, Port Harcourt Division via an Originating Summons and upon conclusion, the Court delivered the judgment on the 22nd April, 2005 granting the reliefs sought by the appellant. Appellant dissatisfied with the part of the decision which was not in its favour set in motion a cross-appeal by motion on 28th March, 2006 seeking leave and extension of
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time to cross-appeal together with a deeming order to regularise the already filed Notice of cross-Appeal.
The Court of Appeal, Port Harcourt Division or Lower Court or Court below, Coram: Suleiman Galadima JCA (as he then was), Mohammed Lawal Garba and Ibrahim Mohammed Musa Saulawa JJCA, which delivered its ruling refusing the application.
The appellant re-filed with an application on 20th January, 2007 seeking the trinity prayers to cross-appeal which application the respondent opposed and on the 7th November, 2007, the Court of Appeal refused the application on the ground that the trinity prayers made in the application of 20th January, 2007 were similar to those made previously on 28th March, 2006 which were refused and so the appellate Court had become functus officio after the 10th July, 2006 Ruling refusing the application.
The detailed facts leading to this appeal are well captured in the lead judgment and no useful purpose would be derived repeating them save for when it becomes necessary to refer to any part thereof.
On the 12th day of November, 2019 date of hearing, learned counsel for the appellant, Adeyinka Aderemi Esq., adopted the
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brief of argument filed on 29/4/2010 and deemed filed on 28/1/2011 in which were distilled four issues for determination and with the appellant conceding to the objection raised by learned Senior Counsel for the respondent, Issues 2 and 4 were abandoned and struck out, leaving extant Issues 1 and 3 which would now become Issues 1 and 2:
1. “Whether the Court of Appeal was right to have held the granting of leave to appeal is not sufficient to cure the defect in the Notice of Appeal that had earlier been filed without leave, having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 14 NWLR (pt.945) 249, (This issue is distilled from Ground I of the Notice of Appeal).
2. Whether the decision of the Court of Appeal refusing leave on grounds of incompetence operates as a bar on the appellant bringing the same application before the same Court subsequently. (This issue arises from Ground 4 of the Notice of Appeal).
For the respondent, Chief Mrs. A. Williams – Akinjide SAN adopted the brief filed on 30/5/2013 and deemed filed on 22/1/14. She raised two issues for determination which are thus:-
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a) Whether the decision of the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (2005) 14 NWLR (pt. 945) 249? (Distilled from Ground 1 of the plaintiffs Notice of Appeal).
b) Whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiff’s motion in its decision of November 7, 2007 after the earlier similar application was dismissed for lack of merit?
I shall utilise the issues simply crafted by the respondent thus:
Whether the decision of the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (2005) 14 NWLR (pt. 945) 249. (Distilled from Ground 1 of the Plaintiffs Notice of Appeal).
b. Whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiffs Motion in its decision of November 7, 2007 after the earlier similar application was dismissed for lack of merit?
Learned counsel for the appellant contended that distinction put on the case of Williams v Mokwe (2005) 14 NWLR (Pt.945) 249 with the current one was misconceived as an irregularly filed appeal can be
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regularized by a subsequent order of Court to regularize it as the facts and issues are not opposite.
That an application for extension of time to ask for leave once refused by the Court may be re-filed before the same Court and the Court would not be considered to have acted when it was functus officio. That a decision of Court refusing extension of time to file an appeal or application for non-compliance cannot create an issue of estoppel in a subsequent action or appeal or application. He relied on the cases of the Mercantile Group AG v Aiyela (1995) 13 NWLR (414) 450 at 465-467; Ugwajiofo v Onyekagba (1964) 1 All NLR 124.
Learned counsel for the appellant stated that as the Court of Appeal had struck out the Notice of Appeal for reason of incompetence the Notice of Appeal having been filed without the requisite leave of Court, all it meant is that the appeal was defective in form as a condition for instituting it had not been met. That it does have the effect of barring further application by the appellant. He cited Mohammed v Olawunmi (NO. 2) (1993) 4 NWLR (Pt. 288) 384.
That the merit of the application of 28th March, 2006 was never really
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considered by the Court of Appeal in coming to its decision of 10th July, 2006 in that the issues of reason for lateness in filing and whether the grounds of appeal are arguable were never decided by the Court of Appeal but the technical issue that a notice of appeal had been filed before the application for extension and leave was brought before the Court. That the appellant was correct to re-file the application of extension of time and leave at the Court of appeal.
Learned senior Advocate for the respondent stated that the decision in Williams v Mokwe (supra) cannot be faulted as it relates to regularisation an irregularity i.e. where a valid appeal is filed irregularly. That when a competent appeal is filed against the final judgment of the lower Court, the appeal is valid but the requirement of leave to appeal as a person interested is a different question.
That where an appeal can only be lodged with the leave of Court under Section 242 of the 1999 Constitution, no right of appeal exists ab initio as leave is a condition precedent to bringing the appeal. That the case ofWilliams v Mokwe (supra) has nothing to do with the retrospective
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regularization of an appeal filed pursuant to Section 242 CFRN without prior leave of Court as Williams v Mokwe dealt with Section 243 of the 1999 Constitution.
For the respondent, it was contended that when a Court refuses an application for leave to appeal that Court may or may not be functus officio depending on the nature of the decision made thereon. Where the initial application for leave was not just refused but was dismissed for racking in merit as in this case, the Court is functus officio and that will result to a lack of jurisdiction to entertain a similar subsequent application. He cited Mohammed v Olawunmi (1993) 4 NWLR (pt. 288) 384; Ogolo v Ogolo (2006) 5 NWLR (pt. 972) 163 at 181.
In summary, the appellant contends that it is entitled to the extension of time to apply for leave to cross-appeal, leave to cross-appeal and extension of time within which to cross-appeal as this Court can regularise with retrospective effect, a notice of appeal irregularly filed so the matter can be dealt with on the merit.
Respondent countered with the fact that the Court of Appeal was right declining jurisdiction to entertain the Motion in its decision
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of 7th November, 2007 after the earlier similar application was dismissed for lack of merit.
There cannot be an argument that decisions of the Supreme Court are binding and must be followed by the Court of Appeal but it has to be done in context and not applied irrespective of the facts in the new case different from the facts that propelled the decision in the Supreme Court decision as when there is a divergence in the facts as between the earlier case decided by the supreme Court as against the matter before the Court below, it is only logical that a different decision would ensue and the Court below not to be denigrated for not following in the wake of the Supreme Court case. I am putting across the position of the law which is now well settled in answer to the persuasion by the appellant that the supreme Court case of Williams v Mokwe (2005) 14 NWLR (Pt.945) 249 ought to have been applied by the Court below so as to give a favourable disposition to the application of the appellant.
In considering the grouse of the appellant, it needs be seen that in Williams v Mokwe (supra), the Apex Court approved the grant of leave subsequent to the filing of
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the notice of Appeal in circumstances clearly distinct to the matter at hand as in that Williams v Mokwe (supra) the leave sought was to appear as a person interested and in that case leave was not required, a scenario different from the current case. This is so because the application herein leading to the present appear was brought on the ground that the appellant needed leave of the Court of Appeal against that part of the judgment of the Federal High Court which appellant labeled interlocutory which fell within the ambit of Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria. Again, different between the two is that in Williams v Mokwe (supra), the appeal was against a final decision of the Anambra State High Court which came within Section 241 (1) (a) of the 1999 Constitution wherein no leave is required to appeal and the application was brought pursuant to Section 243 of the 1999 Constitution which has to do with “who may exercise a right of appeal.”
At the risk of repetition, the case of Williams v Mokwe cannot be faulted as it relates to the power of the Supreme Court to regularise an irregularity where a valid appeal is
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filed irregularly. That is to say that there was a complete appeal against the final judgment of the Lower Court which appeal is valid and so there was no difficulty for the requirement and the grant of leave to appeal by the person interested.
Elucidating on the matter, the Supreme Court had in the case of:-
Ojemen & Ors. v Momodu II (1983) 1 SCNLR 188 at 203, Obaseki JSC stated the law thus:-
“The phrase “an appeal shall lie from the decision of the Federal (sic) Court of Appeal to the Supreme Court as of right”, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal (sic) Court of Appeal in the Supreme Court on grounds which involves questions of law alone. On the other hand, the provision that “an appeal shall lie… to the Supreme Court with leave of the Federal (sic) Court of Appeal or Supreme Court” implies that only the right to apply for leave to appeal is conferred by the constitution on the aggrieved party. “Leave” in this context means permission.”
A refreshing of the memory would show that the appellant herein brought his appeal at
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the Court below on all four grounds of appeal at the time it filed the Notice of Appeal at the Registry of the Federal High Court.
By Order 3, Rule 5 of the Court of Appeal Rules 2002, an appeal shall be deemed to have been brought when the Notice of Appeal is filed in the registry of the Court below (the trial Court in this instance). Therein lies another distinction in the case of Williams v Mokwe which earlier matter has nothing to do with the retrospective regularisation of an appeal filed pursuant to Section 242 CFRN without prior leave as the case in hand as Mokwe’s case deals with Section 243 CFRN.
The implication is that the facts in this present case being out of range of those in the Williams v Mokwe, the principle that governed Williams v Mokwe (supra) are not applicable herein to sway the hand of the Court to the appellant’s side.
The appellant also being dissatisfied that its application was dismissed on the ground that the Court below was functus officio, is a grief that has no legal basis. I shall attempt to elaborate. There are instances where the refusal to grant leave to appeal may or may not render the Court functus officio as
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the dependent factor is the nature of the decision made in respect of the application. Where the initial application for leave was struck out, there would be jurisdiction in the Court to entertain another similar application as the Court would not be functus officio but where as in the case at hand, the earlier application was dismissed for lacking in merit then the jurisdiction of the Court would be, that the order became spent and the Court becomes functus officio and can no longer entertain a similar application. See the Mercantile Group v Aiyela (1998) 4 NWLR (pt.414) 450; Ugwajiofo v Onyekagbu (1964) 1 All NLR 124; Mohammed v Olawunmi (1993) 4 NWLR (Pt.288) 384.
What I am saying has to do with the fact that the initial application by the appellant was fully argued before the Court of Appeal, both on the law and the facts before the order of dismissal by that Court was made on 10th July 2006. Also the order of dismissal was not based on non compliance with the rules of Court but on a breach by appellant’s of a principal provision of the Constitution and the Court of Appeal Act in respect of a right of appeal. I agree with learned Senior Advocate,
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Mrs. Williams – Akinjide that such breaches are not procedural but substantive defects. It follows that when the appellant came calling on the same Court asking it to set aside that earlier dismissal order of 10th July, 2006, so as to clear the way for the second application, it was in a way a request or demand for the Court of Appeal to sit on appeal over its decision, a jurisdiction it did not have nor can be donated by the appellant or anyone else since that power of Court had been foreclosed by the consideration of the earlier application, decision and order of dismissal on the merit made. See Ogolo v Ogolo (2006) 5 NWLR (pt.972) 163 at 181.
I cannot resist but fall back on the clarification which effectively settles the matter at hand, in the Supreme Court case of Mohammed v Olawunmi (1993) 4 NWLR (pt.288) 384 per Olatawura JSC thus:-
“There is nothing in law preventing the plaintiff in an action of that nature from filing or instituting another action before the Court that has jurisdiction. An order striking out an action or appeal for non compliance with the rules of Court cannot create an issue estoppel in a subsequent action.”
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At page 396-397 of Mohammed v Olawunmi (2) (supra), per Olatawura JSC stated thus:-
“Mr. Bashua had made one fundamental error and that is that the earlier decisions of the Court were made on the merit of the application. I cannot see any where in all the judgments relied upon by Mr. Bashua, that the applications were refused because they lacked merit. In other words, there is a difference between an application dismissed on being heard on its merit and an application struck out for want of compliance with the rules of Court. Litigants consult solicitors in their search for justice. Counsel make mistakes in the approach to solution of technical matters, but the Court must ensure that justice is not sacrificed at the altar of technicalities we now know and fully appreciate that litigants should not be penalized for the mistake of counsel. It is for this reason that a Court must draw a line between an application heard and dismissed on its merit and an application struck out for non compliance with the rules. In the case of the former, an appeal is the solution so as to correct the error made by the Court but in the case of the latter, the litigant is still in
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order to bring another application.
A litigant should not be denied a further access to Court on the ground that an earlier application was struck out. He can, if he is willing, file another application. However, where a matter has been fully argued and determined on its merit, it will amount to an abuse of the process of Court to relitigate same issues already determined.” (Underlining mine).
From the foregoing, this appeal has no fighting chance and I dismiss it.
Appeal Dismissed. I do not make an order as to costs.
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Appearances:
ADEYINKA ADEREMI, ESQ, with him, IDODE OLAJIDE and OSEFAN ANEGBE, ESQ. For Appellant(s)
CHIEF (MRS) A. WILLIAM AKINJIDE SAN, with him, E. OSAGIE, ESQ. For Respondent(s)
