General Electric Company V. Harry Ayoade Akande & Ors (2010)
LAWGLOBAL HUB Lead Judgment Report
CHRISTOPHER MITCHEL CHUKWUMA-ENEH, J.S.C.
The notice of preliminary of objection filed on 27/10/2009 by the 4th respondent in this matter has been raised against hearing of this appeal pursuant to order 2 Rules 9 and 20 of the Supreme court Rules and under the inherent jurisdiction on the following grounds:
“1. The Notice of Appeal is incompetent for failure to obtain necessary leave of court as required by Section 233(2) and, (3) of the Constitution of the Federal Republic of Nigeria 1999.
- The Record of Appeal was not prepared by the Appellant and was not transmitted to this Honourable Court within 14 days from the date of judgment of the Court of Appeal.
- The Appellant’s brief was not filed within time.
- The parties on the Appellant’s Brief and other processes filed are not the same as the parties in the court.
- The Appeal is an abuse of Court process.”
The preliminary objection is supported by an affidavit of 27 paragraphs sworn to by one Felix Aki of counsel. Also filed along with the aforesaid processes is the 4th respondent/objector’s brief in support of the preliminary objection. Before coming to the appellant’s case, Prof. Kasunmu, SAN, for the 1st respondent has filed no process. He has however, associated himself with the submission of the 4th respondent in this matter. There is proof of service on the respondents 2nd – 5th with the instant processes but none of them has found it convenient to neither react to them nor appear in court in argument for the same.
The appellant has filed a counter-Affidavit on 2/3/2010 of 25 paragraphs in answer to the 4th respondent’s supporting affidavit to the preliminary objection, also filed is its brief in the matter. I will revert to them anon.
The facts of this matter are not in issue and are as contained in the body of this Ruling.
Meanwhile, as I conceive it from an overview of this matter that the fate of the instant preliminary objection whatever may have informed the propriety of taking it at this stage of this proceeding hangs on resolving ground one above positively being the main ground for determination as per the 4th respondent’s brief of argument in this matter, that is, in regard to the competency of the instant Notice of Appeal dated 15/10/2008 as well as the nine grounds of appeal contained therein. The other grounds for the objection will take their cue from upholding ground one. In that vein, I should go straight to deal with that ground without much embellishment of the surrounding grounds. What I am otherwise trying to say here is that upon finding the instant Notice of Appeal and the nine Grounds of Appeal therein to be competent and duly filed then grounds 2, 3, and 4 of the grounds for raising the preliminary objection as set out above become otiose and utterly of no moment; in which case the record of appeal as prepared by the Registrar and remitted to this court and the appellant’s brief of argument filed pursuant to the entry of the appeal in this court would have procedurally fallen into proper place and thus render the question of abuse of process a non-issue as a ground for the instant objection.
However, the two issues for determination as raised by the 4th respondent in its brief in this respect read as follows:
“3.01: Whether appellant’s non compliance with the Constitution of the Federal Republic of Nigeria 1999 and the Supreme Court Rules for the proper exercise of its right of appeal and due presentation thereof render this appeal incompetent
3.02 Whether this appeal is an abuse of court process.”
Having raised these issues the 4th respondent with regard to the notice of appeal dated 20/10/2008 has submitted that the grounds of appeal contained therein are not grounds of law otherwise at best of mixed law and fact, which mandatorily require leave of court under Section 233(3) of the 1999 Constitution and that having failed to obtain leave of court as required under the said section the instant Notice of Appeal as well as the grounds of appeal contained therein has not been initiated by due process of law and upon fulfillment of the pre-condition to the exercise of the court’s jurisdiction. See: Madukolu v. Nkemdirim (1962) 2 NSCC (vol.2) 374 and so they are incompetent and should be struck out. To compound the issue under this ground the 4th respondent has posited that the decision of the lower court dismissing the appeal for want of diligent prosecution and being an abuse of the court process cannot be properly impugned without, firstly adverting to the facts upon which the decision is founded and that in the circumstances leave of court is required to render the instant appeal before this court being interlocutory in nature competent. In support of the foregoing submission it has relied on Comex Ltd. V. Nigeria Arab Bank (1997) 3 NWLR (Pt.496) 643 at 654 and Ajayi v. Omoragbe (1993) 6 NWLR (Pt.301) 512. Let me vouch here respectfully that there is a misconception of the clear distinction between interlocutory and final decision/order in this matter as perceived by the 4th respondent. Thus raising the question whether the decision has completely disposed of the appeal, this is as to the rights of the parties to the appeal. I shall to deal with it in the course of this ruling.
On the 2nd leg of the objection as espoused in ground 2 above, it is submitted that the record of appeal of the proceedings of the lower court has been compiled outside the time so limited for such exercise – thus characterizing the decision as interlocutory and subject to the provisions of Order 7 Rule (2) (b) and order 7 Rules 6 and 7 which allow only 14 days from the date of delivery of the decision to compile and transmit the record of appeal with the brief on it to this court. It is further submitted that the appellant contrary to the provisions of the said Rules has gotten the Registrar of the lower court though on depositing N3000.00 to compile the record of appeal even then belatedly and outside the time so limited for the same; it is also contended that following from the foregoing the appellant’s brief of argument has been filed outside 10 weeks as limited by the rules i.e. after service of the record of appeal on the appellant. And so it is urged that the record of appeal as well as the appellant’s brief of argument in the appeal before this court being in the circumstance incompetent should be struck out as well as the appeal itself.
On the third leg of the objection it is contended that the title of processes filed here do not bear the same names of the parties as in the lower court, and clearly that the appellant has not complied with order 2 Rule 8 of the Rules of this court. The processes so filed in this proceeding have also been challenged as to their competency for unilaterally omitting the 1st defendant Michael Omisade/Yinka Omisade as at the trial court, and who has not so far been substituted since his demise and for substituting power Holding company of Nigeria Plc. as the 5th respondent in this proceeding for National Electric Power Authority (NEPA) the 6th respondent in lower court, all these acts have been done, it is contended improperly without leave of court. The court is urged to discountenance the processes.
On the conduct of the appellant it is submitted that it has not acted in any way in good faith as in the instances above-stated as well as in regard to other numerous vexatious applications amounting to abuse of process that have been filed in this proceeding clearly with a view to stalling the hearing of this appeal expeditiously on the merits even then that the substantive suit is still pending at the trial court after decades of deliberate wrangling over irrelevances as delay tactics.
On issue two, that is, on abuse of process proper, it is submitted in this instance that the appellant has upon the foregoing antecedent factors resorted to all manner of improper use of judicial processes particularly when the real question the subject matter of the appeal has already been decided upon by the lower court and has relied on Saraki v. Kotoye (1992) 9 NWLR (pt.256) 188 and Owonikoko v. Arowosaiye (1997) 10 NWLR (pt 523) 61 at 78 paragraph C for so contending and that the appeal should thereby be dismissed.
The court is urged to uphold the preliminary objection and to dismiss the appeal for being incompetent and for being an abuse of court process.
The appellant has in its brief in response to this matter firstly examined all the grounds of appeal that is 9 (nine) in all, as per the notice of appeal dated 15/10/2008 (filed in this proceeding) and rightly in my respectful view has showed them to be grounds of law. The nine grounds of appeal without their particulars of errors read as follows:
“(1) Error in law:
The Learned Justices of the Court of Appeal erred in law when they dismissed the substantive appeal No.CA/15/27/2003 without hearing the said appeal.
(2) Error in law:
The Learned Justice of the Court of Appeal erred in law and violated the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria when they dismissed appeal No.CA/L/27/2003,
(3) Misdirection of Law:
The Learned Justices of the Court of Appeal misdirected themselves in law when they relied on Order 8 Rule 6 of the Court of Appeal Rules 2007 to dismiss the substantive appeal No. CA/L/27/2003.
(4) Error of Law:
The Learned Justices of the Court of Appeal erred in law when they dismissed appeal No.CA/L/27/2003 without hearing on the ground that the motive behind the interlocutory appeal is to stall the trial and proceedings at the lower court (the Federal High Court).
(5) Error of Law:
The Learned Justices of the Court of Appeal erred in law when they struck out the Motion dated 25th September, 2008 and dismissed the Appellant’s appeal No.CA/L/27/2008.
(6) Error of Law:
The Learned Justices of the Court of Appeal erred in law when they struck out the Appellant’s Motion dated 25th September, 2008 without hearing the Motion.
(7) Error of Law:
The Learned Justices of the Court of Appeal erred in law when by striking out the Motion dated 25th September, 2008 without hearing, they violated the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
(8) Error of Law:
The Learned Justices of the Court of Appeal erred in law when they proceeded to consider and decide on the oral application, made by the Appellant’s Counsel, for adjournment which had been withdrawn.
(9) Error of Law:
The Learned Justices of the Court of Appeal erred in law when they held that the Motion dated 25th September, 2008 was incompetent.”
The appellant has joined issues with the 4th respondent in all the above grounds for the objection and I shall go on to deal with them seriatim.
I have therefore gone through all the processes filed by the parties in this matter particularly their respective affidavits and submissions as per their briefs and I think, I should firstly examine the contention that the instant Notice of Appeal and the grounds contained therein are incompetent and should be struck out.
Firstly Notice of Appeal as a court process is where the right of appeal is given by statute an initiating process. It encapsulates the complaints of the appellant against the decision appealed from. It must be noted that an appeal is incompetent where the Notice of Appeal is defective in the sense that there is no valid ground of appeal raised therein. Also it is trite that under Section 233 of the 1999 constitution appeals could be as of right or with leave of court. See Section 233(2) and (3), where, however, no such leave as required to file a ground of appeal under Section 233(3) supra of the 1999 Constitution has been obtained the ground of appeal is incompetent where filed without leave of court. See: Atuyeye & Ors. V. Ashanu (1987) 1 NSCC (Vol.18) 117.
Against the foregoing background I examine the Nine Grounds of Appeal raised in the instant Notice of Appeal:
ON GROUNDS 1 & 2: Reading them with their respective particulars of error have showed they hinge their complaints on denial of fair hearing by the lower court resulting in dismissing the appeal even when not listed for hearing on that day’s cause list. They are clearly grounds of law. See: Onucha v. Nwabueze (2000) 2 NWLR (Pt.750) 172 at 182-183 N-B and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744 -746.
GROUND 3: Reading it with its particulars it clearly has complained of the lower court misdirecting itself by relying on Order 6 Rule 6 of the Court of Appeal Rules as otherwise empowering it to “strike out a notice of appeal when an appeal is not competent” and so the lower court has improperly dismissed the appellant’s substantive appeal not listed for hearing, without hearing the appellant. This has raised an issue of law and so, a ground of law. See: Nwadike v. Ibekwe (supra).
GROUND 4: This ground has complained of not hearing the appellant which is a ground of law. In a situation where the appellant is complaining of dismissing the appeal suo motu on the ground that the motive behind the interlocutory appeal is to stall the trial and the proceedings of the lower court without hearing the appellant on the issue is clearly a question of law and cannot arise from an exercise of discretion.
GROUND 5: This ground without more has questioned the power for striking out specifically the application filed on 25/9/2008 and the dismissal of the substantive appeal in this matter in other words it questions the jurisdiction for dealing with the matter. This court in Nwaigwe v. Okere (2008) 13 NWLR (Pt.1105) 445 at 475 BC has held that challenging the jurisdiction of a court as has been done here is a ground of law, so ground 5 is a ground of law.
GROUNDS 6 & 7: The grounds have complained of the striking out of the appellant’s notice of motion (dated 25/9/2008) without hearing the appellant and in contravention of Section 36(1) of the 1999 constitution, there cannot be any iota of doubt that the grounds have raised questions of law.
GROUND 8: This ground questions the jurisdiction of the lower court to consider an oral application for adjournment when there is no proper application for the same at the time before the court as it has been withdrawn, This ground clearly has raised questions of law and so a ground of law.
GROUND 9: This ground of appeal has challenged the competency of the lower court to hold an application of 25/9/2010 incompetent, the ground clearly has raised a question of law.
From the foregoing resume the above grounds of appeal as I have carefully traversed and reviewed herein leave no one in any doubt that all the grounds are grounds of law.
I, therefore, agree with the appellant that the nine grounds of appeal contained in the Notice of Appeal dated 15/10/2008 being grounds of law they do not require leave of court as prescribed by Section 233(3) of the 1999 Constitution; and so the provisions are inapplicable in the circumstances. It also follows that the Notice of Appeal dated 15/10/2008 is valid and competent as well as extant. See: Akinloye v. Adelakun (2000) 5 NWLR (Pt.657) 530 at 535 paragraph C – I); and also that the instant appeal is properly and competently pending in this court having been initiated by due process. See Madukolu v. Nkemdilim (supra). It is trite law that where all the grounds of appeal as contained in a Notice of Appeal are incompetent no question of amendment would otherwise have been contemplated as the notice of appeal is fundamentally defective and the appeal is incompetent. Nor in that case would the appellant’s record of appeal and brief of argument already filed thereby be of any consequence as there would have been no valid appeal before this court upon which the processes could be predicated. The other side of the coin in my conclusion is that the instant Notice of Appeal and the grounds of appeal therein are competent and so the instant record of appeal and the appellant’s brief of argument have been duly filed within the time as allowed by the Rules.
I have reached the foregoing findings notwithstanding the 4th respondent’s contention that the appeal before this Court is interlocutory in nature that is, if I have gotten its submission right and so that the instant appeal before this court is founded upon a decision/order which has been reached in that regard.
The 4th respondent has respective fully misconceived the instant appeal from the court of Appeal which has arisen from the dismissal of the appeal before it hence the appeal to this court has been initiated by the instant notice of appeal dated 15/10/2001. Again, also the 4th respondent has completely misconceived the essence of final or interlocutory judgment or order although distinguishing the two situations could be very tricky. The test however has been expounded in a number of decisions including the case of Dawodu v. Ologundudu (1986) 4 NWLR (pt.33) 104 at 110-112 per Nnaemeka Agu JSC, Omonuwa v. Oshodin & Anor. (1985) 2 SC.1 at page 31 per Karibi-Whyte in which he has followed the decisions in Salaman v. Warner (1891) 1 KB.577 and Afuwupe & Ors. V. Shodipe & Ors. (1957) 2 FSC 62 at 68. A decision is final where the dispute between parties has been completely brought to an end or where the decision has finally disposed of the rights of the parties in a matter otherwise it would be interlocutory. The instant appeal before the lower court has been dismissed with costs which decision has terminated the appeal and so, as far as the rights of the parties are concerned with regard to the subject matter of the appeal, they have been finally determined whether rightly or wrongly is out of the question. And so, the decision in this instance is final not interlocutory. See Omonuwa v. Oshodin & Anor. (supra). Meaning that no leave of court is required under Section 233 of the 1999 Constitution and Section 25(1) of the Court of Appeal Act. is inapplicable. The period within which to appeal the decision should be 90 days being a final judgment and not 14 days as applicable to interlocutory appeals and it also subject to the provisions of Order 7 Rules 6 and 7 of the Rules of the Supreme Court and 90 days to file a Notice of Appeal. In the circumstances, I find the Notice of Appeal and the grounds of appeal competently so filed and it follows that the Record of Appeal and the appellant’s brief of argument as per grounds 2 and 3 of the grounds for the objection having no basis are totally misconceived.
Equally, the insinuation that the appeal is an abuse of process is also misconceived.
The only issue left is the issue of title of the processes filed by the appellant in this matter particularly in a case as the instant case where on both sides of the divide there are still living parties to sustain the appeal. I do not see this defect if at all as so fundamental as to vitiate the appeal. Also I see omitting of the parties as in the trial court as a curable defect to be rectified at the trial court. Besides, it is trite law and well founded that misjoinder or non-joinder of parties (unless otherwise of necessary or desirable parties) does not vitiate an action when there are still living parties willing to prosecute the case on both sides of the matter. Having found that the notice of appeal and the grounds contained therein have been properly initiated by due process, I find the other grounds for the objection as unsustainable and totally misconceived. However, the parties are directed to file all outstanding briefs of argument in this matter for expeditions hearing of the appeal soonest.
In sum, I see no merit in the preliminary objection; it is accordingly overruled with no order as to costs.
SC.337/2008 (R)
