Bode Thomas V Fjsc (2016)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

By its motion on notice dated and filed on 6th July 2015, the respondent/applicant seeks the foHowing:- 1. An order striking out Grounds 1, 4, 5, 6 and 7 of the Grounds of Appeal in the Notice of Appeal in this Appeal being incompetent 2. An order striking out issues 1, 3, and 4 formulated and argued in the Appellant’s Brief of Argument for being incompetent. The Applicant also seeks such further or other orders as this Honourable Court may deem fit to make in the circumstances of its application. The application which is brought pursuant to Order 2 rule 28(1) of the Supreme Court rules and under the inherent jurisdiction of the court has the following grounds:- “1. Grounds 1, 4, 5, 6 and 7 of the Grounds of Appeal in the Notice of Appeal in this Appeal are either of mixed law and facts or of facts alone for which the prior leave of the court below or of this Honourable Court ought to have been sought and obtained. 2. The leave of the Court below or that of this Honourable court was neither sought nor obtained before Grounds 1, 4, 5, 6 and 7 of the Grounds of Appeal in the Notice of Appeal were filed, 3. Grounds 1, 4, 5, 6 and 7 of the Grounds of Appeal in the Notice of Appeal are, therefore, incompetent 4. Issue 1 formulated and argued in the Appellant’s Brief of Argument is based on Grounds 1 (one of the grounds complained of herein) and 2, 5. Issue 3 formulated and argued in the Appellant’s Brief of Argument is based on Grounds 4 and 5 while issue 4 thereof is based on Grounds 6 and 7. 6. Issues 1, 3 and 4 formulated and argued in the Appellant’s Brief of Argument, being distilled from or related to Grounds 1, 4, 5, 6 and 7, which are incompetent, are incompetent 7. This Honourable Court has the jurisdiction to strike out the five (5) incompetent Grounds of Appeal and Issues 1, 3, and 4 in the Appellant’s Brief of Argument, which relate to the five incompetent Grounds of Appeal/’ All the thirteen paragraphs in the supporting affidavit which the applicant relies upon have not been challenged by the appellant/respondent. Mr. J.B. Daudu, learned senior counsel for the appellant/respondent, chose to respond to the application on grounds of law alone. Wole Agunbiade learned applicant’s counsel contends very tersely that grounds 1, 4, 5, 6 and 7 in the appellant’s Notice not being grounds of law alone require leave of the lower court or this Court for their competence. Leave not having been sought and obtained in respect of the grounds, it is submitted, no legitimate issue can evolve from the incompetent grounds. Relying on the decisions in S.P.D.C. Ltd V. Amadi (2011) 14 NWLR (Pt 1266) 157 Odunukwe V. Ofomota (2010) 18 NWLR (Pt 1225) pages 417 and 418, Learned counsel urges that we so hold and discountenance theincompetent grounds of appeal as well as the issues purportedly distilled from the grounds. Learned senior counsel for the appellant/respondent submits that respondent’s application is not only a strange and unknown procedure but that same is incompetent. The applicant, it is argued, is only entitled to challenge the competence of the grounds by way of preliminary objection as provided for under Order 2 rule 9 of the Supreme Court Rules. Having not complied with the said provision, learned senior counsel submits, the application is incompetent and same be discountenanced. The two authorities S.P.D.C Ltd V. Amadi (supra) and Odunukwe V. Ofomata (supra), it is further submitted, are unavailing to the applicant. Cases, it is argued, are only authorities for what they decided. This Court in the two cases never decided that objection to the competence of some and not all the grounds in a Notice of Appeal are to be raised by a motion on notice and outside the procedure provided for by order 2 rile 9 of the Supreme Court Rules. Indeed, it is submitted, the propriety or otherwise of challenging the competence of some and not all the grounds of appeal in the appellant’s Notice as the applicant has done was never in issue in the two cases. In the case at hand, learned senior counsel insists, applicant should have proceeded on the basis of the objection already argued in its brief in response to the arguments in the appellant’s brief. Learned senior counsel supports his arguments with the decisions of this Court in Auto Import/Export V. Adebayo (2002) 18 NWLR (Pt 799) 554, Alhaji Sadit Ameen & ors V. Amos Amao & ors (2013) LPELR-20086 SC, Zenith Bank Pic V. Chief Arthur John & ors (2015) LPELR-24315 (sc) and Wassah & ors V. Kara & ors (2014) LPELR 24212 (sc) and concludes that in endorsing the procedure the applicant asserts this Court would work hardship on the litigants. Applicant’s incompetent motion, it is urged, be dismissed. Learned senior counsel for the appellant/respondent cannot be faulted that a case is only authority for what it decided. The doctrine of stare-decisis or precedent which provides for this principle operates where the issue determined by the court in an earlier case is the same or similar to the issue the court is subsequently approached to determine. Where, therefore, an issue had not been previously raised at and determined by the court, a decision arrived by the court cannot rule a subsequent one on totally different fact(s) and or law(s) from those in the earlier case. See Clement V. Iwuanyanwu (1989) 3 NWLR (Pt 107) 39. The issue the instant application raises is whether the provision of Order 2 rule 9 of the Supreme Court Rules 1985 (as amended) applies to any preliminary objection to the hearing of an appeal whether in whole or in part. Whereas learned applicant’s counsel opines it does not and that since their objection attacks only some and not the entirety of appellant’s grounds of appeal, the objection must be raised by way of motion on Notice and outside of what Order 2 rule 9 provides. Theirs, it is urged, necessarily comes under the more general provision of Order 2 rule 28 (1) of the rules of this Court. Learned senior counsel to the appellant/respondent has tenaciously argued to the contrary. He is right in my view. My reading of the authorities learned applicant counsel purports to rely on leaves me in no doubt that the issue raised by the instant application had neither been agitated before nor were same determined by the court in the cited cases. The views expressed by the court in the cases being orbiter cannot, therefore, determine the issue in contention herein. In Ajide V. Kelani (1985) 2 NSCC (Vol. 16 Part II) 1298, this Court contended with the very issue it is now asked again to determine. Therein, the respondent had argued that Order 2 rule 9 provides only for objections which, if successful, dispose of the appeal in its entirely. At page 1305 of the Law report, this Court, inter-alia, dwelt on the kind of procedure Order 2 rule 9 facilitates thus:- “The object of the rule is to give an appellant before the hearing of his appeal notice and grounds of any preliminary objection to the hearing of the appeal in order to enable him meet the objection at the hearing of the appeal. The rule is a safeguard against embarrassing an appellant and taking him by surprise. Although no form has been prescribed for taking a preliminary objection under the rule, the fact that the rule requires the notice and the grounds of objection to be filed with the registrar implies that the notice and the grounds of objection must be in writing. Now, such interpretation ought to be placed on the rule as will promote its object. I find myself unable to accept the first limb of the submission of Chief Williams that the rule should be interpreted to limit scope to a preliminary objection to the hearing of an appeal in its entirety. In my opinion, such narrow interpretation will not promote the object of the rule in respect of a preliminary objection to the hearing of an appeal in part. This is so because a preliminary objection to the hearing of an appeal in part may turn out to knock down the substance of the appeal and thereby leaves the appellant to chase the shadow at the hearing of what remains of the appeal. For this reason justice and common sense require g respondent to comply with the rule to enable the appellant to meet the objection to the hearing of the appeal whether in whole or in part. Accordingly, I hold that the rule applies to any preliminary objection to the hearing of an appeal whether in whole or in part. (Underlining supplied for emphasis). In the instant case parties have not made out the fact that this Court has overruled itself by departing from its foregoing decision. Being on the same facts and law as presently agitated, the decision must rule the fortunes of parties herein. By this very decision, Mr. Daudu learned senior counsel for the Appellant/respondent is certainly right that Order 2 rule 9 of the Supreme Court rules provides for any objection whether to the competence of some or all the grounds in a Notice of appeal. It does not matter whether the objection, if upheld, would stop the hearing of the appeal in part or in its entirely. it is not in doubt that the instant application is in writing and on notice. It has, therefore, met the most overriding condition Order 2 rule 9 requires any objection whether to the competence of some or all the grounds in the notice of appeal should satisfy. Learned senior counsel for the respondent/appellant insists that because the objection is wrongly brought under Order 2 rule 28(1) of the rules of court, rather than Order 2 rule 9 of the same rules, the application is incompetent and has to be discountenanced. I am unable to agree with the learned silk for that is not the position of the law. By his very notice of motion, the respondent is raising a jurisdictional issue the resolution of which saves both the parties and the court waste of their precious time. To proceed without resolving the fundamental issue the respondent raises one way or another is to risk working in vain. Courts do not work in vain. See Ogigie V. Obiyan (1997) 10 NWLR (Pt 524) 179 and Odua Invest Ltd V. Talabi (1997) 10 NWLR (Pt 523)1. Under Order 2 rule 9 an appellant competence of whose ground(s) of appeal is being objected to must be put on notice and in writing at least three days before the hearing of the appeal. Order 2 rule 28, on the other hand, requires that all applications in this Court whether for the relief provided for by Order 2 rule 9 or otherwise shall be by notice of motion supported by affidavit. The application shall also state the rule under which it is brought. If anything, the applicant herein can only be said to have omitted specifically stating that his application is being urged pursuant to Order 2 rule 9. The requirement that parties state the rules of court by virtue of which they assert a relief is technical and merely prescribes procedural steps for the guidance of the parties and the court. Our essence as a court is to do substantial justice. Once a remedy is provided for by any written law and it is properly claimed by a party, the remedy cannot be denied the party simply because he has wrongly stated the rule of court under which the relief is sought See Folabi V. Falobi (1976) 1 NMLR 169 and Edewor V. Uwegba (1987) 1 NWLR (Pt 50) 313. It is for this reason that I am unable to agree with Mr. Daudu S.A.N that this application is incompetent. To the contrary, it is competent and I hereby so hold. However, the merit or otherwise of the application is different from its competence and must draw from the submissions of parties for and against the competence of the grounds of appeal being challenged. Counsel on both sides did not come this far in their submissions before us. It is thus impracticable to give a decision one way or another on the merit of the application itself. The application challenges the jurisdiction of the court to hear and determine the appeal as constituted. A decision on the application is necessary as the court can only proceed when it is competent to do so. To facilitate the imperative and in keeping with the practice that has evolved over time in this Court, the applicant is hereby ordered to argue the objection in its brief as the respondent in the appeal for the appellant to respond to same in his reply brief. Parties are ordered to bear their respective costs.

SC.228/2013