Dickson Ogunseinde Virya Farms Limited V. Societe Generale Bank Limited & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
CLARA BATA OGUNBIYI, J.S.C.
The facts of this case are fairly straight forward. On the 15th of June 2005 the appellants had three pending applications before Court of Appeal Ibadan, as follows:
1). A motion for leave to appeal on grounds of mixed law and fact dated the 9th of February, 2005.
2). Motion for stay of execution dated the 2nd of March, 2005.
3). Motion to substitute the 3rd respondent dated the 16th of May, 2005.
On the 15th of June 2005 counsel for the Appellant herein withdrew the motion of 16th May, 2005 for substitution and same was struck out.
Thereafter as evident from the records of appeal, the other pending applications were brought to the attention of the Court by counsel for the 3rd Respondent, one Chief Mathew Adepoju in the following terms:
“Counsel for the Respondent Chief Adepoju says the application is incompetent since the three months period within which to appeal has elapsed. He says the motion be struck out.
Court: Regard to the fact that the three months period within which to appeal to the Supreme Court has elapsed, this Court no longer has
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jurisdiction to grant leave or extend the time within which to appeal. That can only be taken at the Supreme Court. The result is that the application of 19/2/005 for leave to appeal to the Supreme Court and that for stay of execution filed on 2/3/05 are struck out.
It is against that decision that the appellant herein has filed this appeal now before us.
In accordance to the rules of this Court briefs were filed by counsel on behalf of their clients as follows:
1). Amended Appellants Brief was settled by one A.R. Daramola Esq., and filed on the 14th March, 2017, but deemed properly filed on 14th March, 2017.
2). Amended 1st and 2nd Respondents Brief was settled by one Olayode O. Delano Esq. and filed on 13th March, 2017 but deemed properly filed also on 14th March, 2017.
3). 3rd Respondents Brief of Argument was settled by Alex Ejesieme, Esq. and filed on 20th March, 2017.
On the 13th November, 2017, all counsel adopted and relied on their respective briefs of arguments. On the one hand, the learned counsel for the appellant urged in favour of allowing the appeal and remit the applications dated 9th February,
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2005 and 2nd March, 2005 back to the lower Court for hearing.
On the other hand however, the learned counsel on behalf of the 1st and 2nd respondents prayed the Court to strike out the said applications which were not within the jurisdiction of the lower Court to grant and the counsel for the 3rd Respondent urges further that the appeal be dismissed for being incompetent and also an abuse of process.
Two issues were formulated on behalf of the appellants as follows :
1). Whether there is any justiciability on the part of the Justices of the lower Court in striking out applications dated 9th February , 2005 and 2nd March, 2005. See Ground one (1).
2). Whether failure of the justices of the lower Court to hear the appellants applications is not a breach of the principle of fair hearing. See Ground two (2).
The lone issue formulated on behalf of the 1st and 2nd Respondents reads as follows:
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
Lastly, and on behalf of the 3rd respondent, two issues were also formulated with the 1st issue being similar to that of the appellant,
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while issue no. 2 reads thus:
- Whether the Notice of Appeal, the initiating process in this appeal was signed in any manner known to law.
I seek to restate again that since the appellants issue 2 is similar to that of 3rd respondent; the issue is subsumed in the 1st issue which was brought about as a result of questioning the initiating process.
The two issues would be taken together with both having been subsumed or integrated one into the other.
The appellants by the fore-goings issues contend that the two applications struck out on the 15th June, 2005 were not justifiable in that the one of 9th February, 2005 in particular was not heard. Counsel submits that the lower Court ought to have taken argument on the application especially the one dated 9th February, 2005 since it was filed within the (3) months statutory period.
The Court of Appeal, in applying the decision of this Court in the case of Bowaje vs. Adediwura (1976) 6SC. 143, the learned Counsel submits, took argument of counsel on the applications for leave of the Court to appeal on point of facts and mixed law and fact, in the case of Chief K. Oje & Anor vs.
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Chief G. Babalola (1987) 4 NWLR (Pt.64)208; Unlike in the present case, counsel submits no argument whatsoever was taken by the lower Court.
The learned counsel in further submission re-iterates that where a party has no input as to the date a matter is adjourned at the lower Court; such party cannot be made to bear the brunt of the act of the lower Court. The applicants, the counsel argues, have no control over the diary of the lower Court, hence the adjournment before it is of its discretion; that the exercise of such discretion when made unjustly, parties should not be made to suffer the consequential effect of the unjust exercise or bear the pains thereof.
Counsel submits again that any matter to which an affidavit of urgency is attached, stating reasons why the application should be heard on time, ought to be given a short adjournment.
In the matter at hand, the lower Court adjourned for a long period of four months – February to May, 2005: Counsel submits that such adjournment is very unreasonable and in – ordinate.
The learned counsel submits with emphasis again that the decision of the lower Court in the present matter, by striking
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out the applications of 9th February, 2005 and 2nd March, 2005 is misconceived, premature and portrays bias against the Appellants. The lower Court, counsel contends never availed the appellants the opportunity of arguing their applications on the peculiarity and therefore did not act justifiably in striking out the appellants applications on 15th June, 2005.
Submitting on issue 2, appellants’ counsel argues that his clients were not given hearing on the two applications struck out, especially the application of 9th February, 2005. Hence the failure amounted to denial of fair hearing and breaching the appellants’ right as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Counsel cites in support, the case of Agbahomovo vs. Eduyegbe (1999) 3 NWLR (Pt. 594) Page 170 at 184 -185. A further authority is the case of Igboho L.G. vs. Boundary Settlement Commissioner & Anor (1988) 1 NWLR (Pt.69) page 189 at 201 – 202 per Nnamani JSC and Amoo vs. Alabi (2003) FWLR (Pt.174) Page 198 at 213 – 214 per Iguh, JSC.
The Proceeding of 15th June, 2005, counsel submits, shows clearly that the appellants were not heard at all.
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It is the reaction of counsel that this is a breach of the principle of Audi alteram partem and a grave violation of the appellants/applicants’ right to fair hearing. Hence the Court should find that the lower Court failed to give the applicants the necessary fairness in the determination of the applications before it.
The learned counsel urges this Court on the totality to allow this appeal and remit the appellants applications dated 9th February, 2005 and 2nd March, 2000 back to the lower Court for hearing in the circumstance.
In response to the two issues raised by the appellants, the learned counsel for the 1st and 2nd respondents made a joint and brief submission thereon in terms of the lone issue he raised. The learned counsel submits on the totality that the lower Court was perfectly within the exercise of its powers when it struck out the said applications which were not within its jurisdiction to grant ex facie.
The 3rd respondent’s counsel formulated two issues for determination. For all intents and purposes. I am of the firm view that only the 1st issue is relevant to this appeal as it is in line with the grounds of appeal filed. In
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respect of the 2nd issue raised however, it is not shown to arise from the two grounds of appeal on the amended notice of appeal filed on 10/3/2017. The said issue as a consequent is of no relevance and it is discountenanced.
In his submission in reply to the appellants’ issues therefore, the counsel for the 3rd respondent relates copiously to Section 27 of the Supreme Court Act, 2004 of Sub-sections (2) and (3) which counsel argues are clear and unequivocal. Counsel submits further that on the 15th June, 2005 when the Court struck out the two pending applications, it had no jurisdiction at that point to adjudicate thereon, hence same were struck out, following the observation made by the counsel who appeared for the 3rd Respondent.
The learned counsel on the totality urges that this appeal be dismissed as being incompetent and also an abuse of process.
The determination of this appeal can easily be disposed of on the lone issue raised by the 1st and 2nd Respondents which raises the question thus:
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
The two main complaints by the
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appellants are: – (1) that they were never given the opportunity to argue their applications on the merit and (2) that they were not given a fair hearing, therefore.
It is pertinent to say that by the provision of Section 27 of the Supreme Court, Act, 2004, where a person desires to appeal to this Court, he shall give notice of appeal or notice of his application for leave to appeal in such manner as be directed by rules of Court within the period prescribed by Subsection (2) of the said section that is applicable to the case.
Section 27 Subsection (2) provides for the period prescribed for the giving of notice of appeal or notice of application for leave to appeal which relates to an appeal in a civil case. In other words it provides for fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
Subsection (3) of Section 27 of the Act also provides that where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) above, be allowed a further period of fifteen days
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from the date of the hearing of the application by the Court below to make an application to this Court.
For all intents and purposes, I seek to say that at the time the said applications were struck out on the 15th of June 2005, they were both in fact incompetent and the Court of Appeal had no jurisdiction to entertain same. This is bearing in mind that the jurisdiction to grant an application for leave is limited to the 3 months period as stipulated by Section 27 of the Act Supra. Again see the cases of Bowaje v. Adediwura (reference supra) and Owoniboys Tech Service Ltd v. John Holt Ltd (1991) 6 NWLR (Pt.199) pages 550 at 559.
Jurisdiction as entrenched in various judicial authorities implies the power or authority of a Court to adjudicate over a particular subject matter. It is the nature of the claim that determines the jurisdiction of a Court.
The law is well established also that all the Courts, in this country without exception, have no power to prescribe jurisdiction to themselves. Neither, do they have the power to expound or reduce on their areas of jurisdiction. It is constitutionally prescribed. See case of Gafar v. Government of Kwara
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State & 2 Ors (2007) 1-2 SC.189.
As rightly submitted by the 3rd respondent’s counsel herein, the appellants cannot be heard to complain that they were denied fair hearing because the applications that were struck out were incompetent. The principles of fair hearing can apply only in a case where a party has the right to be heard on a Court process but was denied. To the contrary, if a party has no right to be heard in respect of a process because it did not comply with the Rules of Court, the party cannot be heard to invoke the Principles of fair hearing. See Sosanya v. Onadeko (2005) 2 SC (Part 11) 13.
The appellants counsel had submitted vehemently also in respect to the application for stay of execution which was struck out. It is trite and a well established general principle of law that stay of Proceeding/Execution will not be entertained unless an appeal has been lodged. See the case of NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221, and Fatoyinbo v. Osadeyi (2002) 5 SC Part 11)1.
In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. Accordingly in the absence of a
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pending appeal (and indeed a valid motion for leave to appeal) the lower Court in the case at hand did not have jurisdiction to grant the relief sought.
The appellants counsel had argued in strong terms that there was a denial of fair hearing, I seek to say that it is not on every occasion where an application is refused hearing that it would amount to a breach of fair hearing. As a matter of fact, when an application, in which the Court has no jurisdiction to entertain, is maintained, some will amount to an abuse of Court process. The lower Court in the case at hand was perfectly within the exercise of its powers therein when it struck out the said applications.
The law is well entrenched further that the Appeal Court has the discretion to take on a point suo motu and the general principle is that the parties must be given an opportunity to be heard. However authorities have shown that the failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice.
An example is the case of Saude v. Abdullahi (1989) 4 NWLR Part 116 page 387 at page 408 where
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this Court held:
“There is no doubt that the Court of Appeal committed a serious misdirection in the lead judgment when it in appropriately raised and considered new issues in the appeal before it. The question is: what is the effect of the misdirection, unless the misdirection is so grave as to have occasioned a miscarriage of justice, an Appeal Court will not ordinarily interfere with decision of the lower Court.”
Following from the foregoing authority therefore, the question to pose in the matter herein is, was there a miscarriage of justice done to the appellants The answer I hold is in the negative. This is predicated on the fact that, ex-facie and abinitio, the lower Court never had the jurisdiction to either entertain/grant the applications brought by the appellants.
See the case of Odiase v. Agho (1972) 3 SC. 73 where it was held that a fundamental issue of jurisdiction is one of the circumstances where a Court can indeed take a point suo motu.
With the striking out of the application for leave to appeal therefore, it became clear that no valid appeal exists in the eyes of the law. As a result, the application for stay of Execution
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became an incompetent process before the Court which was liable to be struck out.
The striking out of the two incompetent applications, on 15/9/2005 by the Court below was in the circumstance done within the ambit of the law. The said issue is hereby resolved against the appellants and in favour of the respondents.
The appeal on the totality is devoid of any merit and same is hereby dismissed on the ground of being an abuse of Court process.
There shall be no order made as to costs.
Appeal is dismissed and no order is made as to costs.
SC.209/2005
