Edet Obot Nyah V. Udo Okon Noah (2006)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This case originated as suit No: 22/75 in the Abak District Court in which the respondent (as plaintiff) sued the appellant (as defendant) for declaration of title to a piece of land called Ekpene Edeng situated at Ikot Oku Ubara-Ediene Abak and injunction.
The District Court entered judgment against the appellant on 18/3/76. Though the appellant appealed within time he did not file his grounds of appeal until 9/2/88 when he brought a motion on notice for extension of time to file his grounds of appeal. It is a common ground that the appellant paid his appeal fees on 25/3/76 and the question whether or not any ground of appeal was filed earlier is better left alone as it was not raised before any of the courts below and it was not raised before the court. The motion on notice for extension of time to file grounds of appeal was supported by a 13-paragraph affidavit in which the reasons for delay in filing the ground of appeal were set out.
On 29/12/86 the respondent filed suit no HA/32/86 in the High Court, Abak claiming among other reliefs statutory right of occupancy of Ekpene Edeng land, the same subject matter of suit No. 222/75 in the Abak District Court.
On 30/5/88 the respondent filed a motion in the Abak High Court asking for a stay of proceeding in the application for extension of time to file grounds of appeal then pending in the Magistrate’s Court, Abak. Based on the petition of the respondent to the State Chief Judge, the Chief Registrar of the High Court wrote a letter claiming he was directed by the Chief Judge of the State to ask the Magistrate’s Court to strike out the appellant’s motion for extension of time to file his grounds of appeal in view of suit No HA/32/86 on the same subject matter. The letter was dated 29/2/88. On 23/3/88 the Chief Registrar wrote another letter to Magistrate’s Court claiming he was directed by the State Chief Judge to ask the Magistrate to proceed with the motion and to exercise his discretion in the matter. On 14/4/92 the learned Chief Magistrate ruled that the court had no jurisdiction to hear the appellant’s application in view of suit No. HA/32/86 in the High Court, Abak over the same piece of land.
The appellant, aggrieved, appealed to the High Court, Abak. The High Court dismissed the appeal and affirmed the decision of the Chief Magistrate’s Court, Abak, substituting the word “disallowed” for the words “struck out” used by the Chief Magistrate. Aggrieved by the decision of the High Court, the appellant appealed to this court on the following two grounds, shorn of their particulars:-
“Error in law
Ground 1:
The learned appellate Judge’s refusal to set aside the ruling of the Learned Chief Magistrate striking out an application for extension of time within which to file grounds of appeal and going ahead to disallowed the appeal in the circumstances of this case is a wrongful exercise of Judicial discretion which has resulted in serious miscarriage of justice against the appellant.
Ground 2: Error in Law
The learned appellate Judge erred in law in disallowing the appellant’s case when one of the grounds of appeal filed by the appellant to be considered by the learned Chief Magistrate was on jurisdiction of the customary court on the subject matter which was said to have situated in Abak Urban and whose exclusive original jurisdiction is vested in the High Court only.”
Consistent with the rules and practice of the court, the parties herein, through their respective counsel, filed and exchanged briefs of argument.
In his brief dated 27/9/2002 and filed on 15/11/02 the appellant’s counsel, in utter disregard to the rules relating to the formulation of issues for determination, framed six issues from his two grounds of appeal. He did not indicate what issue arose from either of the two grounds of appeal. The six issues are hereunder reproduced:-
“1. What is the effect of an appeal court not considering the proposed grounds of appeal when ruling on an application for extension of time within which to appeal?
- What is the most essential requirement for an extension of time within which to appeal?
- Whether the learned appellate Judge was right in affirming the lower court’s ruling striking out an application for extension of time to file grounds of appeal without considering in the interest of justice, the nature and purpose of the application, the affidavits and counter affidavits, the grounds of appeal filed the subject matter and the claim of the parties balance of interest of the parties, balance of convenience and the disadvantages which might be suffered by any of the parties concerned when the appellant had given notice of appeal and paid the appeal fee within the statutory period.
- Whether the appellate Judge was right to conclude that the period of 12 years since the appeal was filed before the motion to file grounds of appeal is considered too long, unsupportable blameworthy and unreasonable when neither, the learned Chief Magistrate, not the learned Judge himself considered the reasons for the delay as contained in the appellant’s affidavit and grounds of appeal.
- Whether the “doctrine of standing by” did not apply in this case when it was abundantly shown in evidence and in one of the grounds of appeal that the appellant’s great grand father and father lived and died and were buried on the land and the appellant and his relations built permanent houses there before the Nigeria Civil War and still living there now.
- Whether it was necessary to inquire into the reasons of delay where a ground of appeal complains of lack of jurisdiction and whether there is justice in exercising jurisdiction where there is none.”
To compound the more, a situation already confused by the appellant’s counsel learned counsel for the respondent, in his brief of argument framed five issues from non-existent grounds of appeal for determination. The five issues are hereunder reproduced:-
- Whether a court can consider grounds of appeal in an appeal which itself is not proper before it.
- Whether a court can allow an extension of time to appeal whose essence would be to pre-empt the decision of another court in the matter.
- Whether the prospective appellant has all the time in the world within which to pursue his appeal.
- Whether grounds of appeal based on fact alone can be filed and argued at the Court of Appeal without leave of the court.
- Whether the Land Decree promulgated in 1978 affected the suit filed in the District Court in 1975.
Both learned counsel have exhibited such abysmal ignorance of our appellate practice and rules that they ought to be held liable to their clients in legal malpractice. Each displayed a disturbing lack of knowledge of the fundamental principles of formulation of issues for determination.
In the first place issues for determination not related to or based on grounds of appeal are not only incompetent but completely valueless and must be ignored by the appellate court. See Omo v. JSC, Delta State (2000) 7 SC (Pt. 11) 1; (2000) 12 NWLR (Pt. 682) 444. The respondent did not file a cross appeal and all he can do in the circumstance is to adopt the issues framed by the appellant from his grounds of appeal or give same a slant in favour of his own side of the case. Some of the so-called issues raised by the respondent are matters that should have been canvassed by way of preliminary objection pursuant to Order 13 r. 15 of the Court of Appeal Rules.
The five issues are valueless in the determination of this appeal and are consequently struck out.
The appellant’s counsel filed only two grounds of appeal from which he managed to raise a whole six issues for determination. He did not many any of the issues to any of the two grounds of appeal. Issues for determination must flow from or relate to the grounds of appeal and proliferation of issues should be avoided. See Ugo v. Obiekwe (1989) 2 SC (Pt. 11) 41; (1989) 1NWLR (Pt. 99) 566.
The principle of law is that the grounds of appeal should in no circumstance be less than the issues for determination. While the court may tolerate equal number of grounds and issues a situation where there are less grounds of appeal than the issues for determination cannot be tolerated. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. Indeed in Anie and Ors. v. Chief Uzorka and Ors. (1993) 8 NWLR (Pt.309) 1 SC the apex court held that….
” … the now firmly established principle of law is that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed.
Indeed it is now a very well established principle of law that except in special cases where the grounds of appeal so dictate it is undesirable to formulate an issue in respect of each ground of appeal.”
Be that as it may while the authorities abhor proliferation of issues, I do not have any authority (not that none exists) on the consequences of proliferation of issues on the appeal. This being the case I intend to wade through the six issues and find one or these relating to any of the grounds of appeal and capable of determining the appeal. See section 16 of the Court of Appeal Act, 1976 and Order 1 rule 19(1) of the Court of Appeal Rules, 2002. I think the issue in the appeal is narrow and issue 4 following from ground one can effectively determine the appeal one way or the other. It reads:-
“Whether the appellate Judge was right to conclude that the period of 12 years since the appeal was filed before the motion to file grounds of appeal is considered too long, unsupportable, blameworthy and unreasonable when neither the learned Chief Magistrate nor the learned Judge himself considered the reasons of the delay as contained in the appellant’s affidavit and grounds of appeal annexed thereto.”
I intend to consider only the argument of counsel relating solely to the said issue.
At the hearing of the appeal learned counsel for the parties adopted and relied on their briefs of argument and each urged us to decide in his favour.
Once more I am constrained to comment on the incompetence of learned counsel in this appeal particularly learned counsel for the appellant, if I may say so with utmost respect. Learned counsel filed two grounds of appeal from which he purported to formulate six issues without linking any of the issues with either of the two grounds.
In his argument in his brief he argued not the issues but the two grounds of appeal.
Issue to be determined in an appeal is not the same as the grounds of appeal. The grounds of appeal accentuate the defects in the judgment sought to be set aside but issues for determination accentuate the crux of the reasons encompassing one or more grounds of appeal. See Oniah v. Onyia (1989) 1NWLR (Pt. 99) 514 at 516.
However in order to determine this appeal on the merit in the interest of justice I will glean from the tardy and muddled briefs of the parties such argument as relate to the issue I have adopted and on which I will determine the appeal.
In his brief learned counsel for the appellant contended that in considering the application for extension of time to file grounds of appeal the Chief Magistrate should not have relied on the Chief Judge’s letters, pendency of another suit in the High Court and delay in bringing the application. He argued that the High Court erred by affirming the decision of the Chief Magistrate based on the above considerations. Learned counsel referred to the records and said that even though the learned Judge conceded that reliance on the letter written at the direction of the Chief Judge was unconstitutional, His Lordship concluded that the grounds that complains of unconstitutionality of the letter will not succeed. See page 59 lines 10-12 of the records. He referred to page 56 lines 12-20 of the records and said that in affirming the decision of the Chief Magistrate based on the pending of suit No. HA/32/86 at Abak High court the learned Judge said:
“a scrutiny of the records shows that the learned Chief Magistrate did not base his exercise of discretion on this fact only but on the long passage of time between the application to appeal and the application to file the grounds of appeal.”
Counsel further referred to page 56 last line – page 57 line 2 where His Lordship held:
“The passage of 12 years since the appeal was filed before the motion to file grounds of appeal is considered too long, unsupportable, blameworthy and unreasonable.”
He said that the learned Judge failed to consider whether or not the learned Chief Magistrate considered the reasons for delay as set out in the supporting affidavits. He relied on IBWA v. Pavex International (2000) 4 SCNJ 200; (2000) 7 NWLR (Pt. 663) 105 ratio where Ejiwunmi, JSC said:
“It is the duty of an appellate court to consider and give the necessary appraisal to all the pieces of evidence forming part of the record before it.”
He relied on A. -G. of Bendel State v. A. -G. of the Federation and Ors. (1981)10 SC 1 at 135. He relied also on Ukwu v. Bunge (1991) 3 NWLR (Pt. 182) 677 at 680; Alagbe v.Abimbola(1978) 2 SC 39; Oba v. Egberongbe (1999) 6 SCNJ 101; (1999) 8 NWLR (Pt. 615) 485 and argued that the period of delay is immaterial if the applicant is able to show good reason for the delay. He contended that by affirming the decision of the Chief Magistrate the High Court shut the door of appeal against the appellant thereby occasioning a miscarriage of justice, He urged the court to allow the appeal and set aside the order of the learned Judge affirming the decision of the Chief Magistrate.
In his own argument in his brief, learned counsel for the respondent argued that in arriving at the decision earlier affirmed by the High Court, the learned Chief Magistrate considered the case of both parties and found for the respondent, particularly as the appellant had stayed for 12 years after the judgment without pursuing the appeal. He said it was abuse of process of court for the appellant to attempt to appeal after he had been served the process in suit No, HA/32/86 in Abak High Court. He said the court could not have acted on the Chief Judge’s letter, which was withdrawn. Learned counsel contended that at the time the application for extension of time was struck out there was no appeal before the court and therefore no grounds of appeal were filed. Neither the Chief Magistrate’s Court nor the High Court had any ground of appeal to consider. Learned counsel urged the court to dismiss the appeal and affirm the decision of the court below.
In one breath learned counsel for the respondent complained that the appellant delayed for 12 years after the judgment without pursuing the appeal. In another breath counsel said it was abuse of process of court for the appellant to attempt to appeal after he had been served the process in suit No. HA/32/86. In effect learned counsel is saying that the appellant failed to pursue his appeal for 12 years and of the same time he seeks to appeal after service on him of the process in suit No. HA/32/86. The two assertions can not be correct at the same time, there is either an appeal or an attempt to appeal. There is need to determine whether there is a pending appeal or the appellant merely sought to appeal.
In paragraph 3 of the affidavit in support of the motion for extension of time to file grounds of appeal the appellant deposed as follows:
“That judgment was delivered against me on the 18th of March, 1978 and there in open court, I gave verbal notice of appeal and paid N4.00 being appeal fee and also paid filing fee on the same date and was issued receipt No. RCR 84 852 of 25/3/76. The respondent did not controvert the above averment.”
See page 7 of the records. There was an appeal pending and for a period of 12 years the appellant appeared to have abandoned it nor did the respondent move the court to dismiss same.
There was a letter allegedly written by the Chief Registrar on the instruction of the State Chief Judge. The letter reference No. JUD/b.148/vol.1/16 of 29/2/88 directed the Magistrate to strike out the application in view of suit No. HA/32/86 over the same subject matter. There was a subsequent letter asking the Magistrate to ignore the earlier letter and determine the application based on his discretion.
Even though it was recalled, the letter is a dark spot in the administration of justice. In directing the Magistrate to strike out the motion based on the petition of the respondent the State Chief Judge unlawfully interfered in the judicial process, more so as the appellant was not heard and their matter was not before His Lordship.
It is of no moment that the letter was withdrawn. Its effect on the Magistrate was not withdrawn, it is a case of likelihood of bias, not necessarily actual bias. In its terse ruling on the application the Magistrate’s Court said, inter alia.
“Even without such instruction coming from the State Chief Judge, this court will lack the jurisdiction to entertain a matter which is pending at the High Court.
This application is struck out ….”
The High Court, in affirming the decision of the Magistrate substituted the words “disallowed” for the words “struck out”.
Seeking a justification for the ruling affirmed the Judge went into the realm of speculation. His Lordship said:-
“Although the learned acting Chief Magistrate did not specifically say so, he considered the long passage of time between the application to appeal and the application to file grounds of appeal.”
See page 56 of the records. The Magistrate Court relied on the letter written at the instance of the State Chief Judge as well as the pendency of suit No. HA/32/86. His Lordship and the parties are bound by the record. His Lordship has no business going outside the records to make a guess at what the Magistrate must have considered. Also it appears the court below got issues mixed up with regards to application to appeal and application to file grounds of appeal. The appeal was already pending and the only application was for filing of grounds of appeal. See page 7 of the records. To justify the decision of the Magistrate the court below quoted, with approval, the finding of the Magistrate’s Court that:-
“one such consideration is that this case stated in 1976 and from that period till now, the parties in the case have had various counsel representing them.”
The above can not be relied on to affirm a decision striking out the motion to file grounds of appeal. Again His Lordship speculated that “the lower court must have taken into consideration the argument of counsel for respondent with respect to the delay in filing the motion.”
What is relevant is what the Magistrate actually said and not what he must have said as that lies in the realm of speculation and guesswork.
I concede that 12 years delay per se is long, but the court cannot determine what is undue delay by reference only to the period of delay. The facts averred in the affidavit giving reasons for the delay were completely ignored by the Magistrate, believing he had no jurisdiction in view of suit No. HA/32/86. If in fact he had no jurisdiction to entertain the motion he would not be required to consider the facts in support of the merit of the motion. However, in affirming the Magistrate’s Court decision, the learned Judge of the High Court took a step further by relying on what the Magistrate must have done, and not on what the Magistrate actually did. The lower court went beyond bounds. In Sodipo v. Lemminkainen OY (1986) 1NWLR (Pt. 15) p. 220 at 224 Karibi-Whyte, speaking for the apex court said:
“In our adversarial system of administration of justice, the role of the Judges is to act as an unbiased umpire and to determine the issues before him in accordance with the facts placed before him. In the effort he may draw legitimate inferences arising from such facts. In the discharge of those functions the Judge is circumscribed within the facts before him and is not expected without supporting facts, to go a step further than he is required for the determination of the issue before him.”
In the case at hand the learned Judge did not draw any inference from the facts but preferred to rely on what the Magistrate must have said, but which the Magistrate did not say.
Now I come to suit No. HA/32/86 on the basis of which the Magistrate made the ruling endorsed by the learned Judge. It is the case that prompted the letter asking the Magistrate to strike the motion for extension of time to file grounds of appeal. The Magistrate’s, the learned Judge and of course learned counsel for the respondent claim that the appellant’s motion is abuse of process as it was filed after the appellant had been served the process in the said suit. Now abuse of process of court consists of an improper use of the issue of judicial process or process already issued to the initation or annoyance of the opponent. Multiplicity of actions which involved the same subject matter and parties amounts to abuse of process of the court and a court has the duty to stop such abuse. See Okorodudu v. Okoromadu (1977) 3 SC 21; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681.
Where an abuse of the process of the court is established the peremptory order is striking out and no reason is required to be given.
See N. V Scheep and Anor v. The M. V “S. Araz” and Anor. (2000) 82 LRCN 3131 at 3186 and 3187; (2000) 15 NWLR (Pt. 691) 622.
The appellant’s appeal was pending at the time suit No. HA/32/86 was filed. He may have been tardy in the prosecution of the appeal but it was not struck out. So there are two matters pending simultaneously, one is the appeal, even if dormant, the first in time and the suit coming second in time. The suit from which the appeal arose was filed by the respondent and the suit No. HA/32/86 was also filed by the respondent.
Both deal with the same piece of land. The parties are the same. The respondent did not take steps to have the appeal struck out, he did not wait until the appeal is determined before going to file another action in the High Court. If there be abuse of process of court it is the later suit that constitutes abuse of process. And it does not matter at what hierarchy of court the suit is filed. Suit No. HA/32/86 relied on by the Magistrate to decide he had no jurisdiction to entertain the application and upon which the learned Judge relied in affirming the decision of the magistrate court ought to have been struck out as abuse of the process of court. In the judgment the learned Judge did concede that an appeal was pending.
His words:
“As a matter of law, the appeal before the Chief Magistrate’s Court ought to have been struck out for want of diligent prosecution long before the motion for leave to file grounds of appeal was filed. Thus the application of the appellant filed on 10th February, 1986 to resurrect a moribund appeal with due knowledge of the pending of the suit in the High Co un was tantamount to institution of another action and thus amount to an abuse of court process”
See page 58 of the records. With due respect to the learned Judge the motion to file grounds of appeal in a pending appeal is not “another action.” What is “another action” is suit No. HA/32/86 on the same subject matter. The motion to file grounds of appeal was filed in a pending appeal. I share the view expressed by the learned Judge that appeal should have been struck out for want of diligent prosecution. However it was not struck out and it still pending.
His lordship relied on Adesokan v. Adegorolu (1991) 3 NWLR (Pt. 179) 293 where the Court of Appeal held:-
“To institute an action during the pendency of another one claiming the same reliefs amounts to abuse of process of court. It does not matter whether the matter is an appeal or not. As long as the previous action has not been finally decided any subsequent action would constitute an abuse of process of court.”
The learned Judge misapplied the above authority. The authority is in favour of the appellant for suit No. HA/32/86 was filed during the pendency of the appeal and both deal with the same subject matter.
What constitutes undue delay must necessarily vary from case to case. It cannot be determined in isolation of the facts averred in the supporting affidavit. No matter how stupid or unreasonable the facts may seem the court has a duty to consider them and either accept or reject them.I have considered the case for each party as well as the authorities cited by counsel in their submissions. I resolve the issue in favour of the appellant. Consequently I allow the appeal and set aside the judgment of the learned Judge sitting at the High Court, Abak delivered on 30/6/97 in suit No. HA/5m/92. The application is to be heard by another Magistrate Court in the State.
Respondent is to pay costs fixed at N10,000.00 to the appellant.
Other Citations: (2006)LCN/1955(CA)
