Chief C. O. Odumegwu Ojukwu V. Hon. Justice Kaine (Rtd) & Ors. (2000)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
Before his death on 13th September 1966, Sir Philip Odumegwu Ojukwu was the Chairman/Managing Director of Ojukwu Transport Company Limited. He left a will. He was equally survived by, amongst others, his children. The appellant before us, Chief C. O. Odumegwu Ojukwu is one of them. Others are Dr. J.O. Ojukwu and L. P. Ojukwu.
The trio were defendants in the suit which brought about the instant appeal.
The plaintiffs in the court below and now respondents, were appointed Executors/Trustees of the will of the late Sir Philip Ojukwu. It appears that the will, at the expiry of the civil war, was either lost or had become unavailable. All efforts to secure the will was to no avail. It also appears that there was agreement to reconstruct the will and have it admitted to probate. However, before the attainment of this agreed position, the appellant and 1st respondent applied for and obtained Letters of Administration to the estate of the late Sir Ojukwu. The action commenced by the plaintiffs/respondents claimed against the defendants/respondents and defendant/appellant as follows:-
(i) A revocation of the grant of Letters of Administration granted to the 1st and 2nd defendants and the same delivered up to probate registry for cancellation.
(ii) An order that the last will of Sir Odumegwu Ojukwu which was lost be reconstructed and admitted to probate.
(iii) An order that the plaintiffs/respondents with the 1st defendant/respondent be granted probate of the reconstructed will.
Trial into the suit was commenced by the then Chief Judge of the old Anambra State and subsequently continued by Justice A.O. Ezeani. Hearing into the case started on 3/3/94 after the new Anambra State had been created and the suit was assigned to the same Justice A.O. Ezeani. On that occasion only the 1st plaintiff was present in court. Other parties to the suit were absent. The first plaintiff testified and tendered exhibits E and F before the case was adjourned to 29/3/94, and 26/5/94. Subsequently, the case suffered six further adjournments before it was adjourned to 14/7/95 for judgment.
By a motion dated 21/6/95 but filed on 23/6/95, the appellant prayed the court for the following reliefs:-
(a) that it sets aside the proceedings of the court of 3/3/94 up to and including 2/6/95;
(b) to re-open the said proceedings, which judgment was adjourned to 14/7/95; to allow the 2nd defendant or his counsel cross-examine P.W.1 and D.W.1;
(c) lead evidence on the statement of defence and counter-claim filed in court; and
(d) “arrest” the judgment of Honourable Justice A.O. Ezeani adjourned for delivery on 14/7/95.
It is pertinent to note that only the plaintiffs/respondents filed counter-affidavits to the 2nd defendant/appellant’s motion.
Arguments were taken by the court, which in a considered ruling thereafter granted 2nd defendant/appellant’s prayer C only Prayers A, B and D were refused. The appellant is dissatisfied with the ruling of the lower court. He appeals to this court.
By his initial notice of appeal purportedly filed in this court pursuant to Order 3 rule 2 of the rules of this court, the appellant had a single ground of appeal.
This original ground of appeal is hereunder reproduced with its particulars.
Ground of Appeal:
(i) The learned trial Judge erred in law by refusing the prayer to recall P.W.1 and D.W.1, citing the case of H.A. Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt.48) 105, a decision not relevant or apposite to relief: No (ii) in the appellant’s motion dated 21/6/95, a refusal that has denied the appellant his fundamental rights, and occasioned a miscarriage of justice.
Particulars of Errors:
(i) Willoughby’s case (supra) does not apply because 2nd appellant’s counsel who was absent in court on the dates P.W.1 and D.W.1 testified, and for reasons stated in the affidavit, did not refuse to cross-examine P.W.1 and D.W.1;
(ii) The 2nd appellant’s prayer is to cross-examine P.W.1 and D.W.1 who had testified in the absence of 2nd appellant; there was no application to recall these witnesses to proffer additional evidence, or to repair the damaged case of 2nd appellant, which he has not opened nor closed;
(iii) To recall P.W.1 and D.W.1 for cross-examination will not cause any injustice to the parties which cannot be compensated in costs; it will not be a breach of Order 24 rule 17 of Anambra State High Court Rules, 1988;
(iv) If P.W.1 and D.W.1 are not cross-examined, the legal consequence is admission by 2nd appellant of all facts stated in their evidence;
(v) In the absence of the said cross-examination and evidence of 2nd appellant, the court will have no material on which to weigh the case of the parties on that imaginary scale explicit in Mogaji v. Odofin (1978) 1 SC. 91.
(vi) Non-cross examination of P.W.1 and D.W.1 breached the fundamental right of the 2nd appellant.
(vii) Further ground of appeal will be filed upon receipt of the record.
Subsequently, five additional grounds of appeal were filed by the appellant with leave of this court. These additional grounds with their particulars are as contained at pp. 42 – 45 of the Record of Appeal.
In keeping with rules of this court, parties to this appeal had filed and exchanged briefs. There is also the appellant’s reply brief. All the counsel to the respondents are at one as to the competence of the appeal. The three learned counsel advanced arguments in these briefs as to the legality of the appeal itself.
These arguments can briefly be summarised as follows:-
(i) That the appeal is an interlocutory appeal. Whether or not the court of appeal upholds the appeal, the learned counsel argue, the substantive case would still have to go back for same to be finally determined by the trial court. The counsel variously rely on the following cases; Ocean Steamship (Nig) Ltd v. Olumutiwa Sotuminu (1987) 4 NWLR (Pt.67) P. 996 at 1002; Nwokedi v. UBN Plc (1997) 8 NWLR (Pt.517) 407 at 421.
(ii) Flowing from the interlocutory nature of the appeal itself, and the original notice and ground of appeal giving rise to the appeal, it was incumbent on the appellant to seek and obtain leave of court before such appeal could be entertained. By virtue of S.221 (1) of the 1979 Constitution, interlocutory appeal on ground of mixed law and fact is incompetent where leave of court had not been obtained. Counsel referred to amongst others, the following authorities: Ifediorah & Ors v. Ume (1988) 2 NWLR (Pt.74) 5; Oluwole v. LSDPC (1983) 5 SC. 1; Nwadike v. Ibekwe(1987) 4 NWLR (Pt. 67) 718; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt. 276) 410 at 446. The three counsels submitted that the instant appeal being an interlocutory one is thus incompetent. Leave of this court or even the lower court had not been obtained.
(iii) That the leave subsequently granted appellant to file and argue additional ground of appeal by this court cannot avail the appellant to make an otherwise illegal appeal competent. The fact is that the original ground of appeal filed without leave of the court was never a ground known to law. There could only be additions to a ground that the law recognised and as such existed.
Learned respondents’ counsel accordingly ask that the appeal be discountenanced. Appellant’s counsel addressed the issue of the appeal’s competence in their reply brief. Appellant’s counsel submits that distinguishing a ground of law from one of fact is not as easy as learned respondents’ counsel made it to look. Counsel submits that the lone original ground of appeal deals with wrong application of the case of H. A. Willoughby v. International Merchant Bank (Nig) Ltd. (1987) 1 NWLR (Pt. 48) 105. Counsel also contends that particulars of error of the lone ground of appeal further reveal the concept of breach of fundamental right by refusal of the trial court to allow appellant to cross-examine witnesses that had testified in appellant’s absence. Since the original ground of appeal is competent, the additional grounds further filed would thus be valid. Appellant’s counsel submits that the appeal is competent and the preliminary objection should be struck out.
Now, let us answer the all important question: Is the appeal competent such that this court can entertain same? Put differently, is the instant appeal commenced by the due process of the Law?
I am in complete agreement with the two sides in the instant appeal that only where the appeal is shown to have been commenced in the manner provided by law would same be available for the court’s scrutiny. This must be so because a principle that has become trite, has over a sufficient period of time, evolved, making it mandatory to do an act only in the way specified by legislation. Any manner other than that provided by the law would be adjudged spurious and therefore unacceptable. An act done pursuant to but however not in keeping with the intent, tenor and format of a given statute is not only irregular, it becomes false.
Such an act only superficially resembles and simulates the genuine one as envisaged, provided for and defined by the law. The act which is a sham, a counterfeit, must invariably be discountenanced. It did not proceed from a reputed origin. See Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506 at 589. Obimonure v. Erinosho (1966) 1 All NLR 250: Management Enterprises Ltd v. Otusanya (1988) 2 NWLR (Pt.55) 179 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
So many decisions have been given on the import of s. 221 (1)(b) of the 1979 Constitution. There are those decisions from this very court. The Supreme Court too had had occasions to consider the issue of appeal from interlocutory decisions of the High court and the necessity of securing leave before the appeal becomes legitimate. In these decisions, the principle has been evolved that where the appeal is from the interlocutory decision of the High court and ground of appeal is not one of law alone, failure to obtain leave of either the High Court or the Court of Appeal as the occasion warranted would be fatal to the appeal itself see CCB (Nig) Plc v. Attorney-General Anambra State (1992) 8 NWLR (Pt.261) 528; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) 163; Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796; Nwadike v. Ibekwe(1987) 4 NWLR (Pt.67) 718; Tilbury Constructions Ltd v. Ogunniyi (1988) 2 NWLR (Pt.74) 64; Ardo v. Ardo (1998) 10 NWLR (Pt.571) 700; SBN Plc v. Kyentu (1998) 2 NWLR (Pt. 536) 41; Lori v. Akukalia (1998) 12 NWLR (Pt. 579) 592; Registered Trustees C.A.C. v. Uffiem (1998) 10 NWLR (Pt. 569) 322.
The number of decisions on the issue is indeed legion. Perhaps because of the volume of these authorities, parties to this appeal seem to have agreed on what the law is as to appeals such as the instant one.
The instant appeal has unmistakably arisen from the interlocutory decision of the lower court. As submitted by plaintiffs/respondents’ counsel, whatever happens before us, the case would still have to go back for the rights and obligations of the parties before the trial court to be exhaustively determined. It is this feature of the appeal that led to the Supreme Court’s pragmatic approach in defining what an interlocutory decision which invariably leads to interlocutory appeal is in Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924; see also Ajani v. Giwa (1986) 3 NWLR (Pt.32) 796. Thus, where the decision appealed against did not “finally” determine the case of the parties at trial such a decision would in law be an interlocutory one. It gives rise to an interlocutory appeal.
In the objection raised by the respondents, the only issue that remains in controversy after appellant had filed his reply brief is as to the nature of the original ground of appeal. It perhaps need to be recalled that this original ground had already been reproduced earlier on in this judgment.
Appellant’s sole original ground is christened one of law. We are invited by appellant’s notice of appeal and this very ground to hold that the trial Judge in the discharge of his judicial function had committed an error of law. Truly, appellant’s counsel needs to be reminded, as submitted variously by counsel to all the respondents, that a ground of appeal does not necessarily qualify as a ground of law simply on the basis of the ground being so called. See ACB Plc v. Obmiami Brick and Stone (1993) 5 NWLR (Pt.294) 399 at 421 and Metal Construction (West African) Ltd v. Migliore (1990) 1 NWLR (Pt.126) 299. The determining factor in assessing whether or not a ground of appeal is one of law, mixed law and facts or facts alone is the complaint for which the ground had been put in place. What complaint an intending appellant sets out to make is invariably deciphered from an examination of the ground itself.
It has over a period of time become generally accepted that where the ground of appeal is based on complaint of errors emanating from a conclusion on undisputed facts, the ground is a ground of law. However, if the errors complained of are founded on disputed facts and by the complaint the correctness of the ascertained facts is being challenged, the ground is one of mixed fact and law. Invariably, where the trial court is asked to exercise its discretion and the appellant’s complaint as contained in his ground of appeal relates to the exercise of the courts discretionary powers, the ground would be adjudged one of mixed law and fact. The ground of appeal cannot be otherwise adjudged because an exercise of discretion involves consideration of the competing facts relied upon by the parties. See Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
In the instant case, the appellant as defendant had prayed the lower court to exercise its discretion in his favour. He sought to re-open a case that had been closed and adjourned for judgment. He asked to be allowed to have witnesses who had testified and were discharged to be recalled. He sought to be allowed to cross-examine these witnesses. He prayed further to put his case across. Why all these prayers? Appellant alleged that he had not been effectively served the court processes and as such all proceedings that when he was not legally aware should be set aside. Whether or not the appellant was served the court processes was a question fact. The court arrived at its decision not to allow P.W.1 and D.W.1 to be recalled and cross-examined by appellant after the court’s assessment of competing facts.
A ground of appeal which questions the trial court’s conclusion drawn from disputed facts cannot certainly be one of law. Nor can a complaint on the exercise of the court’s discretion be made through the agency of a ground of appeal of law alone. It is for this reason that I hold that appellant’s sole original ground of appeal is one of mixed law and fact at best. Applying the principles of law I tried to narrate in the foregoing to the case at hand, since appellant’s sole ground of appeal has been adjudged not one of law simpliciter, the appeal before us cannot be entertained. I agree with learned respondents’ counsel that the appeal is incompetent.
It must be stated that the right of appeal is a creature of a statute. Intending appellants must comply with the law, in this case S. 221(1)(b) of the 1979 Constitution which creates the right of appeal and defines how to translate same into reality.
The appellant’s initial ground of appeal, though filed within time as agreed by both sides to this appeal, cannot avail appellant in his later application and the subsequent indulgence granted him to file additional grounds of appeal. A person can only be permitted to add unto something in existence. Where nothing exists of the quality, constitution, form or gender with that other which is sought to be added, no addition can truly be made.
It is only the eventual lot that would be heaped. In the instant case, since the initial ground of appeal never existed for same had been filed with out the leave of the court as required by law, further addition to same cannot tally or hold. By the time the addition was sought to be made, besides, time had ran out of appellant. It was an interlocutory appeal and the additional grounds purportedly filed subsequently were filed out of the 14 days range which the law allowed.
In essence this appeal cannot be enquired into by this court. The preliminary objection by respondents’ counsel is well taken and is hereby sustained. Accordingly the appeal is hereby struck out.
Respondents are entitled to cost. N2,000.00 is hereby awarded to each set of respondents making accumulative total of N6,000.00 against the appellant.
Other Citations: (2000)LCN/0871(CA)
