Chief (Dr.) Pere Ajuwa & Anor V. The Shell Petroleum Development Company Of Nigeria Limited (2008)

LawGlobal-Hub Lead Judgment Report

OMOLEYE, J.C.A.

This is an application at the instance of the respondents/plaintiffs (hereinafter referred to as the applicants) praying this court for an order, dismissing or striking out the substantive appeal for being a flagrant abuse of court process, incompetent, invalid, null and void. The application is predicated on the following amended grounds:

“(i) The judgment of the lower court (per Okechukwu Okeke, J.) herein appealed against was delivered on February 24, 2006.

The defendant/appellant herein purportedly lodged an appeal against the said judgment vide its notice of appeal endorsed and filed in the registry of the lower court on the same date (i.e. February 24, 2006) at 10:45am.

(iii) The delivery of the judgment of the lower court which commenced at 10.15am lasted about three hours and was not concluded until about 12:30p.m.

(iv) As at 10.45am on 24/2/2006 when the defendant/appellant purported to have filed its notice of appeal there was no judgment of the lower court against which an appeal could have been lodged

(v) The appeal purportedly filed by the defendant/appellant herein constitutes a flagrant abuse of the processes of this Honourable Court and is invalid, incompetent, null and void.

(vi) As there is no valid pending appeal, this Honourable Court lacks the jurisdiction to entertain, hear and determine the said appeal.”

The application is supported by three sets of affidavits of sixteen paragraphs, eight paragraphs and seven paragraphs respectively. The other accompaniments of the application are the judgment of the trial court in suit No. FHC/YNG/CS/3/05 exhibit IJAW 1 delivered by O.J. Okeke, J. on 24/2/06, this is the judgment that is being appealed; the notice of appeal exhibit IJAW 4 containing twelve grounds of appeal, and a publication of the said judgment in THIS DAY newspaper.

The relevant portions of the applicants’ affidavits are:

paragraphs 1-15 of the 1st affidavit which read as follows:

“1. I am the 1st respondent/applicant herein and I am conversant with the facts of this case.

2. I have been duly authorized to depose to this affidavit on behalf of the respondents/applicants, and all facts to which I now depose are within my personal knowledge save where otherwise stated.
3. On Friday, 24 February, 2006, the Federal High Court (Coram; Okechukwu Okeke, J) delivered judgment in suit No. FHC/YNG/CS/3/05 in favour of the respondents/applicants against the defendant/appellant.
4. That same day (i.e. 24/2/06), the defendant/appellant purported to lodge an appeal at the judgment by filling a notice of appeal at the Registry of the Federal High Court, Port Harcourt,
5. On 10/5/07, this Honourable Court delivered a considered ruling in which it granted unconditional stay of execution of the judgment of the lower court as well as leave to the defendant/appellant to amend its notice of appeal and raise fresh issues.
6. Being dissatisfied, the plaintiffs/respondents lodged an appeal against the ruling of the Honourable court to the Supreme Court of Nigeria.
7. By a letter dated July 16,2007, one of our Solicitors, Chief Kingsley Ononuju applied for and obtained certified true copies of all court processes and proceedings in order to compile record of appeal for purposes of the appeal to the Supreme Court as aforesaid. The said letter and the Revenue Collectors’ Receipt evidencing payment of the prescribed fee therefore are the documents referred to as exhibits IJAW 2-3 in the 2nd affidavit in support of this motion.
8. Upon a close examination of the notice of appeal filed by the defendant/appellant, it was discovered the same was presented for filing and was endorsed as having been filed at 10.45am on 24/2/06. A certified true copy of the said notice of appeal is the document referred to as exhibit IJAW – 4 in the 2nd affidavit in support.
9. I was personally present in court when the judgment appealed against was delivered by the Honourable Justice Okechukwu Okeke an 24/2/06.
10. I am aware that the Honourable Justice Okechukwu Okeke who presided over the case and delivered the judgment is the presiding Judge of the Yenagoa Division of the Federal High Court where the case was originally instituted and he is ordinarily resident in Yenagoa, Bayelsa State.
11. Following the directive of the Honourable Chief Judge of the Federal High Court that the matter be heard in Port Harcourt, Rivers State by the Honourable Justice Okeke, he traveled from Yenagoa to Port Harcourt on each date the matter came up in court.
12. I know as a fact that on 24/12/06 when judgment was delivered, the actual delivery of judgment which commenced at about 10.15am lasted about three hours and was not concluded until about 12:30p.m.
13. I also know as a fact that as al 10:45am on 24/2/2006 when the defendant/appellant purported to have filed its notice of appeal, the delivery of the judgment was still ongoing.
14. I am informed by Tayo Oyetibo, SAN of counsel, in his Chambers on Monday 6/8/07 at about 2:30p.m. and I verily believe him that:

(i) As at 10:45am on 24/2/06 when the defendant/appellant filed the notice of appeal there was no judgment of the lower court against which an appeal could have been lodged.

(ii) The appeal purportedly filed by the defendant/appellant at 10.45am on 24/2/2006 when the delivery of the judgment was still ongoing constitutes a flagrant abuse of the processes of this Honourable court, and it is invalid, incompetent, null and void.

(iii) There is no valid pending appeal against the judgment of the lower court and this Honourable court lacks the jurisdiction to entertain, hear and determine the said appeal.

15. It will be in the interest of justice to grant this application.”

Paragraphs 1 – 6 of the 2nd affidavit, thus:

“1. I am one of the counsel representing the plaintiffs/respondents in this matter by virtue which position I am conversant with the facts hereof.

2. I was present in Court when this matter came up for judgment on Friday, February 24, 2006 before the Honourable Justice Okechukwu Okeke at the Federal High Court, Port Harcourt.
3. When the court was yet to sit as at 9.30am on the said date and there was no indication that the learned trial Judge, the Honourable Justice Okechukwu Okeke had come in from Yenagoa, I personally enquired from the Court Registrar who informed me that he was still being expected.
4. The Honourable Justice Okechukwu Okeke commenced delivery of the judgment at about 10.15am but did not conclude the same until about 12:30pm.
5. The judgment is a very long one spanning thirty-nine (39) pages of typed script and I know as a fact that the delivery of the judgment was not concluded until about 12:30pm. A certified true copy of the judgment is herewith annexed and marked exhibit “IJAW-1”.
6. It was not until July 16, 2007 when I applied for and obtained certified true copies of all the court processes and proceedings in order to compile record of appeal for purposes of the plaintiffs/respondents’ appeal to the Supreme Court that it was discovered that the notice of appeal herein was purportedly endorsed and filed on 24/2/06 at 10.45am whilst the judgment was still being delivered the said letter and the Revenue Collectors’ Receipt evidencing payment of the prescribed fee for obtaining the CTCs aforesaid are herewith annexed and marked exhibits “IJAW -2” and “IJAW -3″ respectively.
7. A certified copy of the notice of appeal endorsed and filed on 24/2/06 at 10:45am is herewith annexed and marked exhibit IJAW 4” and paragraphs 1-5 of the 3rd affidavit, thus:

“1. I am a journalist in the employ of Leaders & Company Limited, the Publishers of THIS DAY NEWSPAPER having as my primary schedule the coverage of the Judiciary in Port Harcourt, by virtue whereof I am conversant with the facts herein deposed to.

2. In the normal course of my aforesaid duty, I was at the Federal High Court Port Harcourt presided over by, Honourable Justice Okechukwu Okeke on Friday, 24th February, 2006 to cover the proceedings in this matter i.e. suit FHC/YNG/CS/3/05.
3. I noticed that the court did not commence sitting on the said 24/2/06 until about 10.15am when the Judge started reading the judgment in the case however, the judgment was rather very long such that as at 12pm the judgment was yet to be completed.
4. I am definitely sure that the honourable court did not complete the delivering of the judgment as at 12pm because I was particularly conscious of the time 12pm on that day being a Friday when the normal deadline for the filing of my stories for publication in the following day’s edition of the newspaper is 12pm.
5. I know as a fact that the judgment was not concluded until about 12:30pm on that day when the honourable Judge stopped reading same, nevertheless, I was able to file same for publication in the following day’s edition of THISDAY Newspaper. Now produced and shown to me marked exhibit THISDAY & a copy of the relevant page of the newspaper.”

The appellant/defendant (hereinafter referred to as the respondent), being opposed to the application, filed and served two sets of counter-affidavits of forty-eight and twenty-two paragraphs respectively.

The relevant portions of the 1st counter-affidavit are paragraphs 1, 2, 4, 6, 7, 8, 11 – 22, 33, 35, 36, 46 and 47 which read as follows:

“1. I am a Solicitor in Akinjide & Co, Solicitors of NCR building (4th Floor), 6 Broad Street, Lagos. Akinjide & Co., Solicitors, together with other law firms, led by Chief Richard Akinjide, SAN, acted and acts for the SPDC in this matter both at the Federal High Court and in this Court of Appeal.

2. I was personally involved and appeared with Chief Richard Akinjide, SAN in all the proceedings in the Federal High Court including the proceedings in the Federal High Court including the proceedings of February 24, 2006 when judgment was delivered. In view of my total involvement in this matter, I know very well the facts of this case and the subject matter of the plaintiffs/applicants’ present motion.
3. I personally carried out the filing in the Federal High Court, Port Harcourt, of the SPDC notice of appeal dated February 24, 2006 which the plaintiffs/applicants now wrongly claim was filed before judgment was delivered.

None of the deponents of the affidavits in support of the plaintiffs’ /applicants’ motion was in the registry of the Federal High Court with me when I filed the said notice of appeal and the two motions.

5. ….
6. The defendant/respondent’s (SPDC) notice of appeal dated February 24, 2006, now contained in pages 433 to 441 of the record of appeal was filed by me after the judgment was delivered by Justice Okechukwu Okeke on February 24, 2006.
7. After the judgment was delivered, I filed the SPDC notice of appeal dated February 24, 2006 together with the SPDC motion ex parte for the stay of execution and the motion on notice for stay of execution of the said judgment of the Federal High court in this matter. The said motion on notice and the motion exparte are contained in pages 144 to 176 of the record of appeal.
8. On February 24, 2006, the day the Federal High Court, Port Harcourt, delivered judgment in this matter, I, Barrister Kenneth Obisike and Chief Richard Akinjide, SAN arrived the Federal High Court, Port Harcourt at about 8.45am ahead of the Courts’ normal 9am sitting time. We came to court with 30 (thirty) copies each of the notice of appeal, motion exparte and motion on notice for the stay of execution of judgment, which the defendant (SPDC) had instructed us to prepare and to have handy for filing to avoid any embarrassment, should the judgment go against the defendant (SPDC)……..
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11. The court sat at about 9.45am and after counsel announced appearances for both parties, the Honourable Judge deli vered the judgment in the matter.
12. On February 24, 2006, Chief Richard Akinjide, SAN, appeared for the defendant (SPDC) leading me, Barrister Kenneth Obisike and L. C. Okwara Esq. throughout the delivery of the judgment. All of us sat in court throughout the delivery of the judgment.
13. On February 24, 2006, Sheni Ibiwoye Esq appeared for the plaintiffs/applicants herein and led other lawyers.

Mr. Tayo Oyetibo, SAN was not in court when the judgment was delivered and he only appeared in court after judgment had been delivered.

14. Mr Tunde Aribido, Legal Manager & Company Secretary of the defendant/respondent (SPDC) and Mr. Sesan Akinsanya, Head, Corporate Dispute Resolution of the defendant/respondent (SPDC) were also in court and witnessed the delivery of the judgment throughout and saw me sitting with Chief Richard Akinjide, SAN and L. C. Okwara throughout the delivery of the judgment.
15. The delivery of judgment lasted for about 40 to 45 minutes. The learned trial Judge read only the highlights of the judgment. The learned trial Judge did not read all the details of the judgment. The delivery of the judgment did not exceed 10:30am.
16. Though the entire judgment of the Federal High Court is 39 pages (thirty nine) as shown in pages 272 to 400 of the record of appeal, the opinion of the learned trial Judge was less than 7 (seven) pages starting from the last paragraph of page 32 to page 39 of the judgment contained in pages 303 to 400 of the record of appeal.

The Registry of the Federal High Court made mistake in the numbering of the judgment (not the content) in the record of appeal. The Registry put page 400 immediately after page 309 instead of continuing from page 310.

17. I was in court throughout the delivery of the judgment and I remained in court until the Honourable Judge rose.
18. After the judgment was delivered and the Judge rose, Chief Richard Akinjide, SAN, remained in the court while I proceeded to the office of one Mrs. Uzoegbu, a Registrar in the appeal section of the Federal High Court, Port Harcourt where I presented (a) the notice of appeal (b) motion on notice and (c) motion ex parte for her to initial the processes I wanted to file.
19. After looking through the said sets of documents, Mrs Uzoegbu initialed the three sets of documents including the notice of appeal dated February 24, 2006 at about 10:45am and handed them back to me to enable me proceed with the filing process of those documents.
20. After Mrs. Uzoegbu initiated the three sets of documents including the notice of appeal, I went back to the court room upstairs to collect money far filing from Chief Richard Akinjide, SAN. Chief Richard Akinjide, SAN, then asked me to go to his Guest House at the Shell Residential Area, Port Harcourt/Aba Road, Part Harcourt, to collect from his bedroom the money far filing the three sets of documents. I left the Federal High Court, Part Harcourt for Shell Residential Area, Part Harcourt/ Aba Road, Part Harcourt, at about 11:00am.
21. I came back to the court from Shell Residential Area, Part Harcourt/ Aba Road, Port Harcourt at about 12:40pm and informed Chief Richard Akinjide, SAN, that I was back. I then proceeded to the cashier’s section of the Federal High Court to make payment for filing of the notice of appeal and the two motions.
22. I completed the filing of notice of appeal and the two motions by paying the prescribed filing fees. The notice of appeal and the two motions were stamped at about 1 p.m. It is not true that the notice of appeal was lodged and filed at 10:45 a.m. an February 24, 2006.
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33. Since the ruling and orders of this Honourable court made on May 10, 2007, the plaintiffs/applicants filed:

(a) Notice of appeal to the Supreme Court against the ruling of May 10, 2007;

(b) Motion an notice dated May 22, 2007 seeking “An Order staying further proceedings in this appeal pending the determination of the appeal filed by the respondent/applicant to the Supreme Court against the ruling of this court delivered on 10th May, 2007″.

(c) While the motion in (b) is pending, the plaintiffs/applicants again filed the present motion seeking to dismiss the substantive appeal.

34. …
35. The plaintiffs/applicants now have two (2) pending matters, in Court seeking similar reliefs, one before this Honourable Court and the second before the Supreme Court, all in respect of the defendant (SPDC) on appeal.
36. It is in the interest of justice that the substantive appeal be timeously heard on the merit in accordance with the Court Order for accelerated hearing of the defendant (SPDC) appeal.
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46. The plaintiffs brought this application in bad faith.
47. It is in the interest of justice the plaintiffs’ present application be refused”

While the relevant paragraphs of the 2nd counter-affidavit are paragraphs 1, 2, 4, 5, 6, 9, 10, 11, 12, 16, 19 and 21 thus:

“1. I am the Head, Corporate Dispute Resolution of the defendant/respondent (SPDC). I was assigned to oversee the conduct of this case, suit No: FHC/YNG/CS/3/05 in the Federal High Court which gave rise to the present appeal, Appeal No.: CA/A/209/2006. I also oversee the conduct of the present appeal for the SPDC.

2. In view of my position and employment with the defendant/respondent (SPDC) and my special assignment to oversee the conduct of the case both at the Federal High Court and in this Honourable Court, I am fully conversant with the facts of this case, and particularly, the delivery of the judgment in this case on February 24, 2006 at the Federal High Court, Port Harcourt.
3. …
4. Mr. Tunde Aribido, Legal Manager & Company Secretary of the defendant/respondent (SPDC) and myself were personally in court when the judgment in this matter was delivered on February 24, 2006 by Honourable Justice Okechukwu Okeke.
5. On that day, February 24, 2006, I met in court Chief Richard Akinjide, SAN and Barrister Kenneth Obisike. Chief Richard Akjinjide, SAN appeared for the SPDC together with Barrister Kenneth Obisike and Mr. L. C. Okwara.
6. Before the judgment date, February 24, 2006, the defendant (SPDC) had, based on some past experiences in which some litigants had immediately upon delivery of judgment taken steps to levy execution on the defendant with the aim of embarrassing the defendant (SPDC) and frustrating the exercise of its constitutional right of appeal, instructed Chief Richard Akinjide, SAN to prepare ready and bring to court (1) notice of appeal;

(2) motion on notice for stay of execution of the judgment; and (3) motion ex parte for stay of the execution of the judgment of the Federal High Court, to be filed in the Federal High Court immediately after judgment was delivered; should the judgment go against SPDC.

7. …
8. …
9. The court sat at about 9:45am. Chief Richard Akinjide, SAN announced appearance with Kenneth Obisike and L. C. Okwara for the SPDC after the counsel, who held the brief of Mr. Tayo Oyetibo, SAN, who was not in court, had announced appearance for the plaintiff. After counsel announced appearances for both parties, the Honourable Judge delivered the judgment in the matter.
10. The delivery of the judgment did not last up to one hour.

The learned trial Judge did not read the entire judgment rather he summarized the judgment and read only The highpoints of the judgment. The delivery of the judgment did not exceed 10:30am.

11. Kenneth Obisike who along with another lawyer, L.C Okwara, appeared with Chief Richard Akinjide, SAN for the defendant on the day of the judgment. Kenneth Obisike who later filed the notice of appeal together with the motions was in court throughout the delivery of the judgment until the court rose.

12 After the judgment was delivered and the Judge rose, I remained in court with Chief Richard Akinjide, SAN while Barrister Kenneth Obisike proceeded downstairs to initial and file (a) the notice of appeal (b) motion on notice and (c) motion ex parte already prepared and brought to court.

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16. SPDC is the judgment debtor in the present appeal whereas the plaintiffs/respondents are the judgment creditors and ought be more interested in ensuring that the defendant’s appeal make progress so that they can take the fruit of their judgment should the appeal fail.
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19. It is in the interest of justice that the substantive appeal be timeously heard on the merit.
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21. It is in the interest of justice that this application be refused.”

In response to the counter-affidavits of the respondent, the applicants filed a reply affidavit of eleven paragraphs. The relevant portions of it are paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 thus:

“1. I am one of the counsel representing the plaintiff respondents in this matter by virtue of which I am conversant with facts herein deposed to in reaction to the 1st and 2nd counter affidavits filed by the defendant/appellant on 16/10/07 against the respondents’ motion dated 13th September, 2007.

2. Contrary to the assertions contained in appellant’s aforesaid counter affidavits, I categorically state as a matter of fact as follows:

(i) I was, in the court room as the trial Federal High Court sitting at Port Harcourt on 24th February, 2006 as one of the counsel to the plaintiffs.

(ii) The learned trial Judge, Hon Justice Okechukwu J. Okeke actually commenced the delivery of the judgment in this case on the aforesaid date at about 10: 15am around which same time he started sitting and not about 9: 45am as suggested by the defendant.

(iii) The learned trial Judge read the whole judgment in full from the front page 1 to the concluding page 39 thereof, word for word and letter for letter, as a result of which it took his lordship more than two (2) hours to conclude the delivery of the judgment at about 12: 30p.m.

(iv) In reading the judgment verbatim et literatim as aforesaid, the learned trial Judge was complying strictly with the established practice of Federal High Court Judges whereby judgments are read in full.

(v) The allegation by the defendant that the learned trial Judge only read the highlights of the judgment and that it lasted for about 40 to 45 minutes is outrightly false because the Honourable trial Judge did not, in the judgment in question, depart from the aforementioned established practice of reading judgment in full.

3. Paragraphs 20 – 23 of the 1st counter affidavit are obviously a poor after-thought contrived to mislead this Honourable Court, as it is self-evident on the process itself that it was in fact filed as soon as it was initiated at 10:45am which is the standard, regular practice.
4. With reference to paragraph 24 of the 1st counter affidavit, the service copy of the notice of appeal served on the plaintiff’s counsel did not bear the time of filing which was as it should be as it is only the original of the process with the court that bears the time it was filed.
5. The endorsement as to the filing of the notice of appeal shown on the relevant page of the record of appeal served on the plaintiff was not legible enough to ascertain with exactness the time stated thereon thus it was only in July, 2007 when I obtained a certified true copy of the notice of appeal directly from the Court of Appeal, Abuja that the endorsement as to time showed clearly that the process was actually filed on 24/2/06 at 10: 45a.m. The endorsement can be clearly seen on exhibit IJAW-4 attached to my earlier affidavit in this matter dated 13th September, 2007.
6. I am informed by Uduma Ukare, Esq. of counsel for the plaintiff on 17-10-07 and I verily believe him that at the time of the settlement of record of appeal at the Registry of the trial court, counsel were not given the relevant processes including the notice of appeal for scrutiny which could have afforded him the opportunity of seeing the time endorsed on the notice of appeal by the Registrar. It was a merely formal meeting of counsel with the relevant officer of the trial court to settle the documents to be included in the compilation of the record of appeal.
7. All the steps taken and processes filed by the plaintiffs both in this Honourable court and the Supreme Court are in line with the relevant Rules of both courts and established practice and procedure of both courts and relevant judicial authorities, and certainly none of such steps or process was calculated to cause any delay of this appeal.
8. In addition to the foregoing, paragraphs 6 and 7 of the 1st counter affidavit are not true as the notice of appeal was filed before the judgment of the court below was delivered.”

On 23/10/07, when this application came up for hearing, Tayo Oyetibo SAN, learned senior counsel for the applicants identified the applicants’ application dated and filed on 13/9/07. Learned senior counsel in arguing the application relied on and adopted the averments in the three affidavits in support of the motion, the reply to the two counter-affidavits of the respondent as well as the other accompaniments of the motion.

Learned senior counsel for the applicants submitted that the notice of appeal filed by the respondent against the judgment of the trial court constitutes an abuse of court process. It was contended that the judgment was delivered and concluded at about 12.30pm on 24/2/06, while the notice of appeal was filed at about 10:45am that day. Therefore, at the time of filing the notice of appeal, there was no judgment in existence against which the respondent could exercise its right of appeal pursuant to the provisions of section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999.

Referring to the averments in paragraphs 13 and 14 of the applicants’ 1st supporting affidavit, paragraphs 4 and 5 of the 2nd affidavit and paragraphs 3. 4 and 5 of the 3rd affidavit, learned senior counsel for the applicants noted that the facts therein are in complete contradiction of the assertions of the respondent in paragraphs 6, 7, 11 and 15 of the respondent’s 1st counter-affidavit and paragraphs 9 and 10 of the 2nd counter-affidavit. The crux of the contradiction according to the applicants, learned senior counsel is that the said notice of appeal was filed by the respondent at about 10:45am on 24/2/06. Whereas the respondent asserted that it was filed at about 1:00p.m. that day. It was the fun her contention of the learned senior counsel for the applicants that the entirety of the thirty-nine (39) typed paged judgment of the lower court was read by the learned trial Judge. This is opposed to the claim by the respondent’s learned senior counsel that only the highlights of the judgment were read.

In the face of this very serious conflicting facts, learned senior counsel for the applicants urged that this court ought to invoke its power under the provisions of section 16 of the Court of Appeal Act and order for oral evidence for the resolution of the conflict.

On this line of submission. reference was made to the cases of:

(1) Jadesimi v. Okotie-Eboh (1986)1 NWLR (Pt. 16) p. 264;

(2) Ezegbu v. FA.T.B. Ltd. (1992) 1 NWLR (Pt.216) p. 197 at pgs. 102-104;

(3) Falobi v. Falobi (1976) 9-10 SC p.1;

(4) Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) p. 33 at pgs. 41-42;

(5) Mark v. Eke (2004) 5 NWLR (Pt. 865) p. 54 at p. 81; and

(6) Gen. & Aviation Services Ltd. v. Thahal (2004) 10 NWLR (Pt.880) p. 50 at p. 91.

The learned senior counsel for the applicants urged this court to declare that the appeal purportedly lodged by the respondent was a nullity and order the calling of oral evidence vide a “subpoena” issued on the Registrar of the court below to clarify the conflict in the different assertions of the parties.

In response, learned senior counsel for the respondent, Chief Richard Akinjide, SAN contended that this application being grossly misconceived should be refused by this court. He was of the opinion that all the cases cited in support of the application are inapplicable and irrelevant to the applicants’ case.

Learned senior counsel for the respondent submitted that this court is to adjudicate upon the substantive appeal as an appellate, court, hence, it is improper for it to make an order for additional evidence. This court is legally bound to rely on the record of the proceedings of the lower court in that regard. Reliance was placed on the averments in the two separate counter-affidavits filed by the respondent in opposition to the application. The first counter affidavit was deposed to by one Kenneth Obisike, a counsel in the chambers of the learned senior counsel for the respondent. The said Kenneth Obisike was the person who filed the notice of appeal in the lower court. This is distinguishable from the affidavits filed by the applicants in support of their application in the sense that there is no deposition to the effect that the applicants or their representative were present at the registry of the lower court at the time the notice of appeal was filed and filing fees paid. There is therefore a presumption of regularity in favour of the respondent. What is more, since there is no deposition by the applicants to contradict the assertion of the respondent that the notice of appeal was filed at 1pm on the day the judgment of the lower court was delivered, that fact is deemed admitted by the applicants. No role was played by the applicants on those separate occasions, that is, the time the notice of appeal was filed and the time filing fees were paid. Most importantly, the registry officer who assessed and fixed the filing fees was not the one who accepted and initialed the process as duly filed.

According to the learned senior counsel for the respondent, an appeal is consummated at the time of the filing of the notice of appeal, that is on the payment of filing fees and not by the mere acceptance and or initialing of same. Reliance was placed in this regard on the cases of:

(1) Okpoido v. Udoikpong (1999) 5 NWLR (Pt.604) p. 595 at p. 605;

(2) Seven-Up Bottling Co. Ltd. v. Yahaya (2001) 4 NWLR (Pt.702) p. 47 at p. 55 para. G; and

(3) Dike v. Okorie (1990) 5 NWLR (Pt.151) p. 418.

Learned senior counsel for the respondent submitted that the grant or refusal of this application by this court is a discretionary one. This just like other judicial discretions will be evenly balanced in the interest of justice. In this case, it is in the interest of justice for this court to exercise its discretion in favour of the respondent, it is therefore not needful for this court to invoke the provisions of section 16 of the Court of Appeal Act to order the calling of oral evidence as there is no conflict to resolve in the affidavit evidence of the parties in support of and in opposition to the application under consideration.

Reference on this proposition was made to the case of: L.S.D.P.C. v. Adold Stamm Int’l (Nig) Ltd. (2005)2 NWLR (Pt. 910) p. 603 at p. 617.

According to the learned senior counsel for the respondent, this application is a ploy to waste time and delay the hearing and determination of the substantive appeal. The substantive appeal is in furtherance of the constitutional rights of the respondent to appeal the judgment of the lower court and is not in any way an abuse of the process of court. He referred to the case of: Magit v. University of Agric., Markurdi (2005) 19 NWLR (Pt.959) p. 211.

In that case, the Supreme Court held that a counsel can be armed with a notice of appeal in anticipation of the likelihood of losing a case, and file same on the day the judgment is delivered. This court was therefore urged to refuse this application.

In his reply on points of law, the learned senior counsel for the applicants argued that filing of a process commences with its presentation. Under section 2(1) of the Evidence Act, a document is defined as a matter expressed by letters or figures. Hence, the endorsement on a document of the time of its filing by the registrar of the court forrns part of the document. Learned senior counsel distinguished the case of: Magit v. University of Agric., Markurdi (supra) from the instant case. According to him, in the Magit’s case, the Supreme Court dealt with the right of an appellant to file the notice of appeal on the day the judgment was delivered, that is, after the conclusion of the judgment; while the case in hand relates to a notice of appeal filed when the judgment was still being delivered.

Accordingly, the case of: Okpoido v. Udoikpong is not helpful to the case of the respondent. For issues have been joined by parties as regards the actual time the judgment of the lower court was delivered. The conflict must therefore necessarily be resolved by this court.

The bone of contention in this application is whether the notice of appeal lodged by the respondent in the lower court was properly filed. The applicants’ learned senior counsel’s contention was that the notice of appeal was filed by the respondent while the judgment was still being read by the learned trial Judge. If that was the case, technically there was no judgment in existence to appeal against and the purported notice of appeal filed by the respondent amounted to an abuse of the process of court.

It is however, the stance of the respondent’s learned senior counsel that the said notice of appeal was filed after the conclusion of the delivery of the said judgment by the learned trial Judge.

It is well settled and our law reports are replete with decided cases of the Supreme Court and this court on what amounts to an abuse of court process. An abuse of court process is said to exist when a party deliberately and improperly uses, employs or initiates court process or multiplicity of the judicial process to the frustration, irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject-matter between the same parties or their privies on the same issues.

In Udeze v. Chidebe (1990) 1 NWLR (Pt.125) p. 141 at p. 157 Nnaemeka Agu, J.S.C. opined as follows:

“So the present suit is just an ingenious attempt to relitigate the same issues on same subject-matter and between the same parties and their privies. Effect must be given to the time-honoured principle that: “nemo debet bis vexari pro uno est eaden causa”.

See also the cases of:

(1) Utih v. Oroboko (1996) 3 NWLR (Pt.434) p. 36;

(2) Savage v. Uwaecltia (1972) 1 All NLR p. 255;

(3) Ogboru v. Ibori (2004) 7 NWLR (Pt.871) p. 192 at pgs. 220-221, paras. G-B; and

(4) A.C.E. Plc v. Nwaigwe (2000) 1 NWLR (Pt.640) p. 201. In the instant case, the contention of the applicants is not hinged on an allegation of multiplicity of action but that the respondent had improperly initialed a process of court, that is, the filing of the notice of appeal. Parties joined issues as regards the exact time of the day the said notice of appeal was filed. This is borne out in the copious averments of parties in their various affidavits and counter-affidavits already reproduced above. The applicants’ learned senior counsel contended that on 24/2/06, as shown by the endorsement of the Registrar of the lower court on the purported notice of appeal, filing of same was done at 10:45a.m. when the judgment was still being read by the learned trial Judge. According to the learned senior counsel for the applicants, the learned trial Judge concluded the reading of the judgment at about 12:30pm. On the other hand, learned senior counsel for the respondent said that the notice of appeal was actually filed at about 1:00p.m. that day.

I have given due consideration to the submissions of and the legal authorities relied upon by the learned senior counsel for both parties in this application.

It is trite that as soon as a paper is submitted to or deposited in the registry of court with the proper court officer assigned with that responsibility, the paper is deemed to have been properly filed. The assessment and payment of filing fees are in furtherance of the processing of such papers as required by the relevant rules of the Court. Black’s Law Dictionary. Seventh Edition defines “file” amongst others to mean.

“To deliver a legal document to the court clerk or record custodian for placement into the official record.”

In my opinion, the moment a process is handed over to the Registrar of court in charge, the process is deemed filed. For there will be nothing to assess for the purposes of the payment of filing fees if the process was not first received by the Registrar of the court and initialed in that regard. The payment of the requisite filing fees therefore, is to validate the filing of the process presented and enable the Registry of court carry out all other administrative duties in respect thereof. The fulcrum of the decision in the case of: Seven Up Bottling Co. Ltd. v. Yahaya (supra) is that, it is the duty of an unofficial appellant to pay the appropriate fees to enable the court’s function to start. Payment of the filing fees is meant to set a process in motion. The process will be improper or incompetent or invalid and the court will equally be incompetent to deal with the process if the payment is not made.

As earlier on adverted to, there is no dispute regarding the payment of the requisite filing fees in respect of the respondent’s notice of appeal.

Before proceeding further, I will like to refer to the content of the said notice of appeal exhibit IJAW 4. This is important so as to ascertain the legal propriety of the filing of the notice of appeal. The notice of appeal under consideration shows that it contains twelve (12) grounds of appeal.

The case of: Magit v. University of Agric., Makurdi (supra) is indeed quite instructive in determining whether there was in existence a judgment of the lower court at the time of the filing the notice of appeal in the instant case. The applicants’ senior counsel is in agreement that a notice of appeal can be filed on the day a judgment is delivered. This fact is then not in dispute. In the Magit’s case, the respondent’s contention was that the appellant had no right to file a notice of appeal on the day the judgment was delivered in the court below. The Supreme Court outrightly rejected this line of argument.

My Lord Ogbuagu, JSC in that case held at page 238, paras. E-H that:

” … It is not uncommon that counsel who perceive/anticipate that they are going to lose a matter or appeal, before coming to court on the date of ruling or judgment, arm themselves with a prepared notice of appeal.

Sometimes, the omnibus ground is the only ground with the statement that “additional grounds will/may be filed on the receipt of the records of proceedings and/or the copy of the ruling or judgment”. As soon as the ruling or judgment is delivered they walk into the registry and file the process, I notice and perhaps, ensure that service of the notice or process is served/effected on the opposite side on the same day. Such appeals are never rendered void because of their having been filed on the same date the ruling or judgment was delivered … ”

Further to the above findings, my Lord Belgore, JSC (as he then was) at pages 251-252 held that:

” … Counsel sometimes have some inkling of where a judgment might go and prefer to lodge an instant appeal after its delivery. This manner of giving notice of appeal can only amount to an abuse of court process if filed before judgment is delivered. But the notice of appeal filed even the very first minute after judgment is delivered can never be an abuse of process … ” (The italicized is mine for emphasis).

In my humble opinion, the premise is not so much on the time or date a notice of appeal is filed, rather it is germane that a judgment must be in existence, it having been delivered, before a notice of appeal in respect thereof can be filed. Hence, I have no difficulty in agreeing with the applicants’ learned senior counsel that filing a notice of appeal before judgment is delivered amounts to an abuse of court process.

Assuming without conceding as submitted by the learned senior counsel for the respondent, that the notice of appeal in question was actually filed at about: 1:00pm on the day in question and after the judgment of the lower court had been delivered. one is left to wonder how such a detailed notice of appeal containing twelve 26 grounds of appeal with their respective elaborate particulars could have been prepared and made ready for filing at that time. Indeed paragraph 8 of the respondent’s 1st counter-affidavit deposed to by Mr. Kenneth Obisike a counsel in the firm of the learned senior counsel for the respondent says it all. For ease of reference, I will quote same hereunder as follows:

“On February 24, 2006, the day the Federal High Court, Port Harcourt, delivered judgment in this matter, I Barrister Kenneth Obisike and Chief Richard Akinjide, SAN, arrived the Federal High Court Port Harcourt at about 8:45am ahead of the courts’ normal 9am sitting time. We came to court with 30 (thirty) copies each of the notice of appeal, motion ex-parte and motion on notice for the stay of execution of judgment, which the defendant (SPDC) had instructed us to prepare and to have handy for filing to avoid any embarrassment, should the judgment go against the defendant (SPDC).”

There is a poser regarding the manner the notice of appeal under consideration was expeditiously prepared and filed. With due deference to the very learned and revered senior counsel for the respondent, I am not unaware of the fact that his long established and state of the art law firm is more than capable and well equipped with human and legal material resources to cope with the preparation of documents of the magnitude as those under consideration in the instant matter. However, it is rather curious how the respondent, (SPDC) could have briefed their solicitors with the nitty-gritty, and detailed information of a judgment yet to be delivered to enable the firm of solicitors come up with such an elaborate notice of appeal as the one under consideration. What we are talking about in this application is not just a notice of appeal with an omnibus ground.

Not only that, two other processes that is, a motion ex-parte and a motion on notice for the stay of execution of the impending judgment had been prepared and filed along with the notice of appeal. All of these processes are so vast and very detailed. How was the respondent able to furnish their solicitors with the findings of the learned trial Judge in the judgment that was on its way to be delivered? In the notice of appeal containing twelve grounds of appeal, references were made to the judgment not yet delivered nor handed to the respondent or its solicitors. This is quite amazingly curious. I will stop at that, and refrain from proffering any answer to the above poser.

The above notwithstanding, the grouse of the applicants is with the manner the notice of appeal was filed by the respondent. I am aware that this court in its earlier ruling delivered on 10/5/07, heard and granted the motion on notice filed by the respondent for stay of the execution of the judgment of the lower court. The applicants have appealed to the Supreme Court against the said judgment. The following orders “inter alia” were made in the said ruling:

“(a) leave granted to the defendant/respondent (SPDC) to amend its notice of appeal and leave to raise and argue fresh issues in the appeal; unconditional stay of execution of the judgment and order (S) of the Federal High Court;

Accelerated hearing of the defendant’s appeal;

The appellant (SPDC) to file its brief of arguments within 14 days of the order;

the plaintiffs/applicants herein to file their respondents’ brief of arguments.”

The fact that the respondent had understandably complied with the said orders as touching on it, while the applicants are yet to obey same by filing their respondents’ brief of argument and indeed the issues of the applicants’ notice of appeal to the Supreme Court against the ruling of 10/5/07 of this court and their motion for stay of further proceedings in this appeal pending the determination of the applicants’ appeal in the Supreme Court in my respectful view have no bearing with the substance and intendment of the instant application.

This application is challenging the validity of the main appeal, vide the original notice and grounds of appeal. If the Original notice of appeal is found to be incompetent, the earlier orders granting leave to the respondent to amend that original notice of appeal, leave to raise and argue fresh issues in the appeal, the accelerated hearing of the appeal, the brief of argument of the appellant already filed and indeed the unconditional stay of execution of the said judgment would have no legs upon which they could stand. All those structures would be bound to definitely give way and collapse. For if the initial notice of appeal is incompetent, this court would have no jurisdiction to adjudicate upon the appeal and all other interlocutory applications steming from it. The instant application of the applicants is indeed questioning the jurisdiction of this court to adjudicate upon the appeal. Jurisdiction is a radical and crucial question of competence.

A defect in competence snuffs out the life of adjudication from the court. Where a court lacks jurisdiction over a matter, it lacks the “vires” to entertain and deliberate on it. The issue of jurisdiction is germane, so much so, that it is settled law that it cannot even be compromised by parties or the court. Parties cannot for instance by consent or agreement confer jurisdiction on a court where a court has none. The court cannot also elongate its scope of jurisdiction beyond that conferred on it by the statute which created it. See the cases of:

(1) Madukolu v. Nkemdilim (1962) 1 All NLR p. 588, (1962) 2 SCNLR 341;

(2) Ezomo v. Oyakhire (1985) 1 NWLR (Pt.2) p. 193;

(3) African Newspapers of Nigeria v. F.R.N (1985) 2 NWLR (Pt. 6) p. 137; and

(4) Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) p. 382.

Jurisdiction is therefore the lifeline of every judicial proceedings before any court or tribunal without which the entire proceedings, trial, findings, orders and pronouncements are rendered futile, invalid, null and void “ab initio” however brilliantly they must have been conducted. See the cases of:

(1) Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266

(2) Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) p. 163; and

(3) Oke v. Oke (2006) 17 NWLR (Pt.1008) p. 224. The point I am making is that a proper or valid notice of appeal is the foundation upon which the main appeal and all other adjuncts can be sustained.

Therefore based upon my above line of reasoning, I am of the opinion that the manner in which the notice of appeal under consideration was filed is quite curious, dissatisfying, disputable and leaves much to be desired.

It is trite that a court of law is empowered and competent to prevent the improper use of its machine to oppress and vex an adverse party in any litigation. Where a court of law is prayed to invoke any or all of the grounds of frivolousness, vexatiousness or abuse of court process, the court is always mindful and must ensure that the right of both parties to fair hearing as embedded in section 36 of the 1999 Constitution is not tampered with. It is only in extreme cases based on justifiable and good cause that an application for the dismissal of an action based on the grounds of unreasonableness, frivolousness, vexatiousness or an abuse of court process would be granted. For the effect of the success of such an application will either terminate or put in abeyance the remedy or relief sought by the adversary. This position of the law was well captured in the case of: Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt.258) p. 229 per Niki Tobi, J.C.A. (as he then was) at p. 243 paras. C-F.

“But a litigant cannot be allowed by a court to invoke the ground at will or by the spontaneous exercise of his whims and caprices. He cannot even urge a court to invoke the grounds without cause. There must be a clear legal cause, the proof of which lies on the party seeking the invocation of any of the grounds.

It is not the province of the law for a party to use the grounds as neutral spare parts waiting anxiously to lubricate the main machine wherever a pall is either worn out or lost in the process of locomotion. That is not the proper use of any of the grounds. It is much more than that. A party urging a court of law to invoke the grounds or any of them must be able to prove specific act or acts that are tantamount to the invocation of any or all the grounds. It is only then that a court of law can come to his aid. Otherwise, no.

A court of law which is called upon to invoke any or all the above grounds should remind itself that a successful application runs contrary to the tenor and intendment of the fair hearing position in section 33 of the 1979 Constitution. I say this because the moment the action is struck out on any or all the above grounds, the matter terminates without giving the plaintiff a chance to prove the merits of his case. Therefore, where an applicant fails to satisfy the court why a matter before it should be terminated mid-stream, the plaintiff should be given an opportunity to prove his case. And because of the volatile, punitive and onerous nature of the grounds in relation to a successful application vis-a-vis the termination of the action, the burden is heavy, very heavy on an applicant to prove the merit of his application. It is not a playing matter”.

However, it is an established principle of law that it is the overriding interest of doing substantial justice to all parties in an action that is the preoccupation of the law courts. A party complaining of a wrongful act of an adversary as in the instant application, has to show that the compliant has occasioned him prejudice or a miscarriage of justice. The courts have shifted away from the orthodox method of narrow technical approach to justice. The weight of judicial opinion is now predominantly in favour of the court doing substantial justice. See the cases of:

(1) Osalumhense v. Agboro (2005) 16 NWLR (Pt.951) p. 204; and

(2) Ejeka v. State (2003) 7 NWLR (Pt.819) p. 408.

It is at this point in time patently clear and there is no dispute as to the existence of the judgment of the lower court exhibit IJAW 1 in this matter. The respondent is obviously displeased with the said judgment and desirous of appealing against it. This desire is its constitutional right under the Constitution.

The question to ask at this juncture is will it be in the interest of justice to shut out the respondent from exercising its constitutional light to appeal against the judgment for whatever reason? I do not think so. I also fail to see how the interest of the applicants had been or would be prejudiced or injured if the respondent is given the opportunity to ventilate its grievance as it is rightly entitled in law.

There is no doubt in my mind despite my reservations regarding the manner in which the respondent filed the notice of appeal under consideration and the seeming irritability of same, that the success of this application will definitely run foul of the tenor and intendment of the fair hearing provisions in section 36 of the 1999 Constitution.

For the moment, the notice of appeal is either struck out or dismissed on the ground of abuse of court process, the appeal is put on hold or becomes terminated outrightly without giving the respondent a chance to prove the merits of the appeal against the judgment of the lower court. The constitutional right of the respondent can not be scuttled, I honestly do not think it is worth the while to either put on hold or terminate “in limine” the main appeal by striking it out or dismissing it as the case may be especially when the appeal has not been heard and determined on its merits.

It is for the above reasons that I hold that the end of justice will be best met if the respondent is given the opportunity to proceed with the main appeal. The situation on hand does not merit the invocation of the power of this court under the provisions of the section 15 of the Court of Appeal Act, 2004 which is in “pari materia” with section 16 of the old Act, to call for oral evidence for the resolution of the alleged conflict as urged by the learned senior counsel for the applicants. The application should be refused and it is hereby refused. The application is dismissed.

I make no order regarding costs.

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Other Citations: (2008)LCN/2633(CA)