Addis Ababa & Anor V. D.s. Adeyemi (1976)

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SIR UDO UDOMA.

In this appeal the appellants were the defendants in Suit No. IK/93/70 in the Ikeja Judicial Division of the High Court of Lagos, wherein the claims of the plaintiff, herein respondent, were:     (a) “Declaration of title as absolute owner according to Yoruba native law and custom or alternatively in fee simple to all that piece or parcel of land situate, lying and being at Lisabi Street, Palm Grove, via Ikorodu Road, Idi-Olowo. (b) £200 damages for trespass to the land. (c) Recovery of possession of the land. (d) Injunction restraining the defendants, their agents and servants from trespassing on the said land”.  

Pleadings were duly filed and delivered; and after due hearing of relevant evidence, the learned trial Judge (Bada, J.) found for the respondent. He dismissed the claim for damages for trespass but granted the respondent the declaration of title to the land in dispute and the injunction sought as against the appellants, who thereupon appealed against the said judgment.

When, however, the appeal came up for hearing by this court on 30th November, 1976, Mr. Oduwole learned counsel for the respondent raised and argued objections to the hearing of the appeal on the grounds whereof prior notice had been given in due compliance with Order VII Rule 14(1) of the Rules of this court.  

Learned counsel submitted that there was no appeal properly before the court because: (1) the bond executed by the appellants on the direction of the Registrar of the court below and filed in connection with the appeal, is defective in that: (a) it is wrongly headed: “In the High Court of Lagos State” instead of “In the Supreme Court of Nigeria”; and (b) it does not provide for the due prosecution of the appeal in the appropriate clause, the words “for the due prosecution of the appeal” having been omitted therefrom. And (2) the Notice of Appeal filed by the appellants is also defective in that it is again headed: “In the High Court of Lagos State” instead of “In the Supreme Court of Nigeria” which is an indication that the appeal was never intended for this court.   

Learned counsel then submitted that on the authority of a decision of this court in Adeshina Moses and Anor. v. Saibu Ogunlabi, (1975) 4 S.C. 81 following upon the decision of the West African Court of Appeal in Ogunmola v. Igbo (1941) 7 WACA 137, the appeal be struck out on the ground that it is incompetent.   For the appellants, Mr. Alokolaro, while conceding that the objections were well taken, contended that the court should consider the defects complained of as curable irregularities amounting to non-compliance with the rules of the court.

In which case, the court should exercise its powers of waiver under Order IX Rule 28 of the Rules of the court and direct that the hearing of appeal do proceed notwithstanding such irregularities. He submitted that the ruling of this court in Adeshina Moses and Anor v. Saibu Ogunlabi was per incuriam in that it does not appear that the attention of the court which heard the appeal was drawn to Order IX Rule 28 of the Rules of the court as that court did not make any reference thereto in its ruling.

On examination of the bond which was executed by the appellants and filed in support of the appeal, we observed, true enough, that it was wrongly headed: “In the High Court of Lagos State” instead of “In the Supreme Court of Nigeria”; and that the words “for the due prosecution of the appeal” were conspicuously absent in the appropriate clause. Our first impulse however, was to invoke Order IX Rule 28 of the Rules of the court and so treat the matter as curable irregularities amounting to non-compliance with the Rules of the court, having regard to the fact that the bond was prepared obviously by the Registrar of the court below, who must ostensibly be held responsible for having used a wrong form for the purpose. The fault in that respect therefore cannot at any rate be laid at the door of the appellants.   But then we were confronted with the decision of this court in Adeshina Moses and Anor v. Saibu Ogunlabi which was delivered by Coker, JSC., as recently as 21st April, 1975, on precisely the same points argued before us in this appeal which relate to defects in the bond which was filed in that appeal.  

In that case, the court on the issue of the defects in the bond the subject-matter of a preliminary objection raised and argued, said: at page 83: “With respect to the Notice of the Preliminary Objections, quite apart from typographical errors appearing on the bond purportedly filed by the defendants, we observed that it was headed in the High Court when it should be headed in the Supreme Court and, what is worse, the bond did not provide for the due prosecution of the appeal as required by the provisions of Order 7 Rule 10 of the Rules of this court.

The bond was only conditioned upon the payment of costs but even then, the wording of it and the other defects to which we had already pointed are sufficient to characterize it clearly as defective. Learned counsel for the plaintiff in this connection, referred us to the cases of Funchee v. Henry    Braid (1913) 2 NLR 102 and Ogunmola v. Igbo (1941) 7 WACA 137. We think these cases are in point and that in order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statute creating such rights. We have concluded that the defendants’ appeal is not competent and it is struck out as not being properly before us”.

We have also taken the trouble to examine Ogunmola v. Igbo in order to ascertain its ratio decidendi. There conditional leave to appeal in accordance with the Rules of the West African Court of Appeal was granted on 3rd April, 1941, one of the conditions imposed by the court being that the appellant therein should furnish a bond for 25 guineas to secure the costs that might be awarded to the defendant therein.   On 17th April, 1941, a bond was filed for £25 instead of 25 guineas which in effect meant that at least one of the conditions imposed by the court had not been perfected when final leave to appeal was obtained.  The West African Court of Appeal held on a preliminary objection that there was no appeal properly before it and that the non-fulfillment of a condition of appeal imposed by the court was fatal. But in the penultimate passage of its judgment, the court said at page 138: “This opinion is without prejudice to any action the appellant may desire to take to perfect the appeal”.    The passage in that judgment contained quoted above was apparently prompted by the views which had been expressed by the Privy Council in Kojo Pan v. Atta Fua, No.48 of 1925 – a Gold Coast case in which the bond in question which was filed in that appeal had not even been signed by the appellant therein but by a third party who did not disclose his authority for the execution thereof; and when the appeal came before the Court of Appeal in the Gold Coast, on a preliminary objection, it was struck out. On appeal to the Privy Council when the matter was brought to the notice of the Council, their Lordships in a passage of their judgment quoted with approval by the West African Court of Appeal in Ogunmola versus Igbo (supra) stated that they desire to say that:   “in cases coming before them from the Dominions of the Crown, their consideration always is to secure, if possible, that substantial justice is done. That may not always be possible. There may be conditions in the local law or in the rules which preclude the possibility of getting round technical obstacles and doing complete justice. But they think that in the case of the Rules of Procedure in the Gold Coast Colony there are no such obstacles. The court was invested with the widest powers and it might have adjourned the hearing of the appeal until a proper bond was executed, or it might have said that an affidavit was sufficient; and that was the more incumbent on the court because its own Registrar had accepted the bond executed by Kwabena on behalf of the appellant”.   “Under these conditions their Lordships think that to refuse to hear the appeal merely on the ground of what might have been a mere technicality about the bond was to fail to do justice as between the parties; and they are of opinion that the case must be remitted to the court below to deal with it again; hear it, and if necessary, get some formal proof of Kwabena’s authority”.

It is thus clear that in Kojo Pon v. Atta Fua the order of the Privy Council was to remit the appeal to the court below with a direction that the same be there heard and determined. It was therefore on inappropriate structure upon which to erect Adeshina Moses and Anor v. Saibu Ogunlabi.    On the other hand, realizing as we must do that in this imperfect world of mortal beings, certainty is but an illusion and repose is not the destiny of man, we think nonetheless, that in law there ought to be not only an element of certainty but also of consistency of construction and application. This is more so in the sphere of adjectival law which is all about procedure. Otherwise, the practice of law might become impossible as crystal gazing would be completely eliminated.    As our decision in this appeal does not turn on the objections raised as to the defects in the bond filed by the appellants, we can only draw attention to the decision of the court in Adeshina Moses and Anor. v. Saibu Ogunlabi (supra), which we do not consider satisfactory, and express the hope that in no distant future, the matter may be referred for the consideration and examination of a full court.

The most serious objection, in our view, to this appeal being heard by this court concerns the Notice of Appeal, which was filed by the appellants. It is dated 23rd November, 1973 and was signed by learned counsel for the appellants. The Notice is a most disorderly document. It is defective in many respects, and incurably so. In the first place, there is nothing to show that the Notice of Appeal was intended for this court. It is headed as already pointed out “In the High Court of Lagos State: In the Ikeja Judicial Division”. In the second place, in the very first paragraph of the Notice, it is not stated that the appeal is to the Supreme Court as required by the Rules. Indeed, the words “Supreme Court” are carefully omitted therefrom. It is therein merely stated that the defendants being dissatisfied … “do hereby appeal upon the grounds set out in para. 3”. And contrary to the requirements of Civil Form 12 prescribed for use in terms of Order VII Rule 2 it was learned counsel instead of the appellants, who signed the Notice of Appeal. Learned counsel has offered no explanation whatsoever for these most serious irregularities. He has not explained why, for instance, he had chosen to use a wrong form that is to say, a form intended for appeals to courts other than the Supreme Court for the Notice of Appeal to this court.

In the circumstances, it is quite plain that as an appeal can only be initiated by the filing of appropriate Notice of Appeal as prescribed under Order VII Rule 2 of the Rules of this court, and, since in the present appeal, there has been filed in the court below by the appellants no proper Notice of Appeal in terms of Order VII Rule 2, we hold, to continue the architectural metaphor already employed elsewhere by us in this ruling, that this appeal like a wooden structure has not got off the ground at all. It has defied all attempts to have it erected.

There is therefore no peg upon which to hang Order IX Rule 28 because before consideration can be given to the application of that Rule, there must be an appeal properly so-called pending before the court. At present there is no appeal properly before this court. 

The defects as to Notice of Appeal are so fundamentally incurable that the only reasonable conclusion that can be, and which we have reached in the circumstances is that this appeal is incompetent. It is therefore struck out with costs to the respondent assessed and fixed at N182.00. Order accordingly.

Other Citation: (1976) LCN/2181(SC)