Ayatu Abu V. Abdullahi E. Kuyabana & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

By a writ of summons issued out of the Abuja Judicial Division of the High Court of the Federal Capital Territory (herein referred to as the “lower court”) on 16th June, 1999, the plaintiff Ayatu Abu by his Attorney, Shuaibu Abu instituted an action against (1) Abdullahi Kuyabana and (2) Mike Ozioko as 1st and 2nd defendants respectively. The writ of summons is endorsed with the plaintiffs claim thus:-

“1. A declaration that the plaintiff is the bonafide owner of the Land known as Plot 884 later conveyed and known as Plot 885 Maburshi District in Abuja Federal Capital Territory.

2. A declaration that the transfer of the land known as Plot 884 later known as Plot 885 in Maburshi District of the Federal Capital Territory by the 1st defendant to the 2nd defendant or any other person is null, void and amounts to fraud as the 1st defendant had transferred the same to the plaintiff first in time.
3. An order of injunction restraining the defendants, their agents, servants and privies from building, constructing or doing anything on the said land.
4. An order directing the defendants their agents, servants and privies to handover the Statutory Right of Occupancy or any other documents relating to the land known as Plot 884 later known as

Plot 885 Maburshi District in the Federal Capital Territory to the plaintiff.”

The two defendants duly entered their respective appearances.

However, simultaneously with the issue of the writ of summons, the plaintiff sought ex-parte for an interim order seeking inter alia the following reliefs:-

(i) interim injunction restraining the defendants agents, and assigns from carrying out any building whatsoever on the land in dispute;

(ii) an order directing the defendants to deposit into the custody of the lower court the Certificate of Occupancy, Power of Attorney or any other documents of title of the land in dispute, pending determination of the motion on notice.

The court heard the application ex-parte on 17th June, 1999. It granted prayer 1 in its considered ruling on that day but declined to give a ruling until the defendants have had an opportunity of having their say on the motion on notice.

However, in the course of the hearing of the motion on notice, the defendants by a motion filed in the lower court on 16th July, 1999 prayed the court for an order striking out the entire suit by the plaintiff for want of jurisdiction on the grounds that:-

“(a) Non-compliance with provisions of Sheriffs & Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

(b) Lack of locus standi on the part of the plaintiff/applicant’s Attorney to institute the suit.”

As this application was a challenge to the jurisdiction of the lower court it decided to suspend hearing on the application for interim injunction and to hear and determine the motion on jurisdiction.

Arguments were duly heard. In a considered ruling given on 30th July, 1999 the lower court found in favour of the defendants on the issue of the locus standi of the plaintiffs Attorney but not on the issue of non-compliance with the provisions of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

The argument which the learned Judge of the lower court upheld was that which related to absence of registration of the Power of Attorney granted by the plaintiff to his attorney as required by section 3(2) of The Land Registration Act, Cap.515 of the Laws of The Federation of Nigeria, 1990. Based on that finding he considered that the suit filed by the purported attorney was incompetent as the power of attorney fell short of statutory requirement for recognition of instruments affecting land.

He accordingly dismissed the suit.

The plaintiff has appealed against that ruling to this court. He has also filed a brief of argument.

Following the alleged failure by the respondents to file a respondent’s brief of argument, plaintiff filed an application on 19th November, 1999 for the appeal to be heard ex-parte in accordance with the Rules of this court.

However, the defendants contested that application on the ground that the records settled by the plaintiff with the Registrar of the lower court was incomplete in that certain documents vital for the due prosecution of the appeal by the respondents were not included in the records. Parties then agreed for the inclusion of those documents.

In the event, respondents have now filed in this court an application seeking the following orders:-

“a. An order of the court enlarging the time within which to file the respondents’ notices, to wit:-

1. Notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the court below.
2. Notice by respondents of intention to contend that decision of court below be varied.

b. An order of the court to deem as properly filed and served the respondents, notices above mentioned and exhibited in the affidavit in support of this application.

c. Leave of court to raise issues of mixed law and facts in the two notices aforesaid.”

When that application came for consideration, A. A. Izinyon, Esq. learned Senior Advocate not only opposed the application for enlargement of time but also vehemently opposed the two notices sought to be filed by virtue of the application.

Before setting out the arguments of both counsel on the application, it is necessary to set out the substance of the two notices:-

1. “NOTICE OF INTENTION TO CONTEND THAT JUDGMENT BE AFFIRMED ON GROUND OTHER THAN THOSE RELIED ON THE COURT BELOW – EXHIBIT ‘A’

TAKE NOTICE that upon the hearing of the above appeal, the respondents intend to contend that the decision of the court below dated the 30th of July, 1999 should be affirmed on grounds other than those relied on by the court below.

AND TAKE NOTICE that the grounds on which the respondents intend to rely are as follows:

1. That the learned trial Judge misdirected himself in law and facts when he failed to inquire into and make a finding on the submission of counsel for the defendants/respondents that:

a. There was no valid Power of Attorney supporting the institution of the suit by the plaintiffs’ Attorney Shuaibu Abu in that the purported Power of Attorney (Exhibit CA1) in evidence was not duly executed and did not bear the signature of the plaintiff (Ayatu Abu).

b. That the signature appearing on the said power of Attorney was not that of the plaintiff (Ayatu Abu).

c. That the signature appearing on the purported Power of Attorney is different and contrasts with the authentic signature of the plaintiff Ayatu Abu appearing in Exhibit C of the 2nd defendant/respondents’ counter -affidavit dated 24th of June, 1999.

2. That the learned trial Judge misdirected himself in law when he failed to strike out the substantive suit on the ground above mentioned.
3. That the learned trial Judge misdirected himself in law and facts when he failed to make a finding on the contention of the learned counsel for the defendants/respondents to the effect that the court should discountenance the purported Power of Attorney i.e. Exhibit CA1 which was shown to have been made in the United States of America but was not authenticated by a Notary Public in Nigeria pursuant to section 118 of the Evidence Act.
4. That the learned trial Judge misdirected himself in law when he failed to strike out the substantive suit on the above ground.”
5. “NOTICE BY RESPONDENTS OF INTENTION TO CONTEND THAT DECISION OF COURT BELOW BE VARIED:- EXHIBIT ‘B’

TAKE NOTICE that upon the hearing of the above appeal the respondents herein intend to contend that the decision of the court below dated 30th day of July, 1999 shall be varied as follows:”

It follows that the suit being incompetent must be and is hereby struck out.

AND TAKE NOTICE that the grounds on which the respondents intend to rely are as follows:-

1. The respondents in their motion paper specifically prayed for an order striking out the suit.
2. Evidence was not led by the parties on merit.
3. An order of dismissal was not asked for by the respondents.
4. The order of dismissal by the trial court may have been an error and should be corrected under the slip rule.

It is the contention of Mr. Okeke learned counsel for the respondent/applicants that the application has been made out of time for the reasons already stated in respect of the initial compilation of Records of Proceedings of the lower court. He urged this court to grant the three application in the interest of justice.

Opposing the application, learned Senior Advocate, Mr. Izinyon contended that the application is incompetent on account of the reliefs sought; he submitted that the two applications are inconsistent with the provisions of Order 3 rule 14(i) and (ii). It is his submission that applicants have to choose between whether they wish this court to affirm the decision of the lower court or whether to vary it; that the court cannot grant two respondents notices in one application.

Learned Senior Advocate then refers to prayer (c) which seeks leave of this court to raise issues of mixed law and fact. He contends that the proper application in the circumstance is for applicants to seek leave to cross-appeal.

It is the contention of learned Senior Advocate in particular that applicants who seek to challenge findings of facts by the lower court have no choice but to cross-appeal. He relies on: (i) College of Education (Warri) v. Odele (1999) 1 NWLR (Pt.586) 253 at 262. (ii) Chuke v. Federal Housing Authority (1999) 10 NWLR (Pt.624) 574 at 586. (iii) African Continental (Seaways) Ltd. v. Nigeria Dredging Roads and General Works Ltd. (1977) NSCC 323 at 324.

It is also submitted that even on its merits applicants have not complied with the provisions of 0.3 r. 4(2) of the Rules of this court in that they have merely stated what their counsel did and not what they did to comply with the Rules as to filing the papers timeously.

With utmost respect to learned Senior Advocate that submission cannot have been intended to be taken seriously by this court.

Obviously, respondents having engaged the services of counsel must rely on their professional expertise as to the appropriate procedure for the settlement of records of appeal and the appropriate contents of such Record in which they would need to prosecute the appeal.

The affidavit in support together with the earlier proceedings in this court on 22nd February, 2000 when appellants sought for the appeal to be heard on appellant’s brief alone for the failure of respondents; brief in which this court had to direct parties to agree on which documents to include in the Record of Appeal convince me that there is no substance in this ground of opposition to the application.

I therefore need only to consider the arguments on the need or otherwise for a cross-appeal.

Mr. Okeke in reply to the opposition of Mr. Izinyon in respect of 0.3 r.14 (i) and (ii) contends that those rules do not in any way preclude a respondent from filing and relying on Forms 11 and 12 as a respondent could both ask this court to affirm a decision of the lower court on grounds other than those relied upon by the lower court and also to ask this court to vary a part of the order. He therefore urges the court to give a literal interpretation to the provisions of 0.3 r.14 and grant the applications.

Order 3 rule 14 of the Court of Appeal Rules as amended provide thus:-

“(1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be.

2. A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention.”

There have been a number of cases in which the provisions of Order 8 rule 3(1) and (2) of the Rules of Supreme Court. 1985 which are in pari-materia with the provisions of 0.3 r.14(1) and (2) of the Court of Appeal Rules, 1981 as amended, have been considered by the Supreme Court and authoritative opinions given. However, the locus classicus case in which the history of that legislation commencing with 0.7 r. 13(1) of The Supreme Court Rules L. N. 96 of 1961; 0.7 r.13 of the Supreme Court Rules. 1977 to the present position under the 1985 rules were considered together with the notable cases thereon is the case of Williams v. Daily Times (1990) 1 NWLR (Pt.124) 1; Hon Justice Kayode Eso JSC., as he then was took the opportunity to review and comment on those earlier cases.

His Lordship found that:-

Notwithstanding the omission in the 1977 and the 1985 Rules of the opening words.

“It shall not be necessary for the respondent to give notice of motion by way of cross-appeal.”

From the corresponding Rule in the 1961 Rules a common thread of construction can still be detected in the several cases decided by the Supreme Court in all the cases ranging from; inter alia.

(i) L.C.C. v. Ajayi (1970) 1 All NLR 291;

(ii) L.C.C. v. Ogundemuren Suit No. SC 335/69 dated 26th November, 1971;

(iii) Oyekan v. B. P. Nigeria Ltd. (1972) 1 All NLR (Pt. 1) 47 to;

(iv) Adekeye v. Chief O. B. Akin-Olugbade (1987) 6 C 268; 3 (1987) NWLR (Pt.60) 214 and;

(v) Oguma Associated Co. Nig. Ltd. v. I.B.W.A. (1988) 1 NWLR (Pt.73) 658.

That thread, in its various shades, is that:-

(i) The provisions of the Rule were intended to facilitate a complaint by a successful party against a judgment of the court given in his favour and who seeks to support that judgment, if the party who lost… appeals and that these provisions could not be held to contemplate a situation wherein a respondent could seek a variation or confirmation of a judgment “on grounds other than those relied upon by the court” would be entitled to ask for the complete reversal in his favour of the finding of fact made or judgment of the court given against him on certain issues contested in the case. even though the applicant succeeded in the court below on a number of other issues per the review of the Ogundemuren case at P.21.

(ii) Another characteristic of 0.7 r. 13(1) is that it is applicable only where the respondent intends to retain the judgment but at the same time wants it varied; so where a respondent intends, for instance to dispute the jurisdiction of the court of trial or to contest the competency of the entire proceedings or to maintain the absence of a fundamental prerequisite, it seems he cannot come under this rule.  In that case, he has to file a substantive cross-appeal. The basis for this clear for a man cannot at the same time obtain an advantage by maintaining a particular stand-point and then seek to discard that same stand-point whilst keeping the advantage per the review of the L.C.C. v. Ajayi case at 21.

(iii) A party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary per the review of the African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. case at P.23-24 .

(iv) Since 1st September, 1977, any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and shall not do so by an application to affirm or vary the judgment on other grounds Williams v. Daily Times (supra) at 28.Taking advantage of the position of the law on the relevant rule of court as reviewed by Hon. Justice Kayode Eso JSC., in Williams v. Daily Times (supra) one may now apply the principle of law to the particular application for confirmation or variation contained in Exhibits B and C to the Affidavit in support of the respondents/applicants application in this case:-

The substance of the decision of the lower court in this case in spite of the arguments and counter-arguments of counsel for and against the striking out of the suit for non-compliance with the provisions of the Sheriffs and Civil Process Act and for lack of locus standi by the attorney of the plaintiff is that the court found the Instrument by which power of Attorney was granted to the agent of plaintiff to be invalid for lack of registration under the Land Instruments Registration Act, Cap. 515 – LFN 1990. It therefore dismissed the suit.

The purport of Exhibit A is not only to reject the fundamental and crucial finding of want of registration of the instrument but also to reject the decision to dismiss the suit. It however wants this court to dismiss the suit on the grounds that:-

(i) The Power of Attorney was not validly executed and did not bear the true signature of the donor.

(ii) The Power of Attorney was not authenticated by a Notary Public pursuant to section 118 of the Evidence Act.

Obviously, so long as the Applicants reject the finding as to want of registration and the decision to dismiss the suit on account thereof the proper course open to them on the myriad of authorities reviewed above is to appeal or cross-appeal under the provisions of 0.3 r.2.

Similarly, the purport of Exhibit B to the application is to reject the vital and fundamental decision of the lower court to dismiss the suit while taking the advantage of the finding of non-registration of the Power of Attorney upon which that decision is based.

The above authorities did not permit the applicants to do that. In the case of Exhibit B, applicants have an option. That option is either to support the ground of appeal of the respondent (together with any issue framed thereon) relating to the decision of the lower court to dismiss the suit or to appeal or cross-appeal that decision themselves. The result in either case would be the same.

However, an application for variation under 0.3 r.14 would not avail applicants. Having considered each of the two notices separately and taken a decision to reject each, it is no more necessary for me to consider the submission of Senior Counsel, Mr. Izinyon that applicants have to choose between notice Exhibit A and notice Exhibit B.

For the above reasons, I uphold the objection to the appellants/respondents to the grant of the application of defendants/respondents in this appeal for extension of time within which to file respondents notices seeking affirmation and/or variation of the decision of the lower court under 0.3 r.14 of the Rules of this court as well as the other ancillary reliefs prayed for in that application.

I award costs of N5,000 in favour of appellants/respondents.

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Other Citations: (2000)LCN/0852(CA)