Hon. Abraham Adeolu Adeleke (Speaker) & Anor. V. Oyo State House of Assembly & Ors. (R2) (2006)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This Ruling is sequel to the arguments canvassed in respect of the motion on notice dated 8th February, 2006 and filed on 10th February, 2006 on behalf of the 2nd – 19th respondents/applicants. They prayed ‘for an order striking out the notice of appeal dated the 3rd day of February 2006 and filed on 6th February 2006’. The lone ground for the application is that it constitutes an abuse of the process of the court. In support of the application, one Isiaka Amodu deposed to an affidavit of 12 paragraphs. It is apt to reproduce paragraphs 4-11, both inclusive.
They read as follows:
“4. That I know that the appellants/respondents herein filed motion on notice at the lower court seeking the leave of that court to appeal against the same ruling of Ige, J. F delivered on 28th December, 2005. A copy of their application is attached as exhibit A.
- That we have been served with the hearing notice of the said application which is coming up on 13th February, 2006. A copy of the hearing notice is attached as exhibit B.
- Meanwhile, the records of proceedings remitted to this court refers to another notice of appeal filed by the same appellants herein over the same ruling on 31st January 2006.
- That though the said notice of appeal has not been served on the respondents, a summons to parties to settle records on 17th February,2006 was served which shows that appeal is different from the one over which the record herein was compiled as the record herein has been compiled and served on us by the 7th of February, 2006. A copy of Civil Form 6 is attached as exhibit C.
- Furthermore, the notice of appeal at pages 58-65 was filed on 6th February, 2006 while the conditions of appeal had been perfected since 3rd February, 2006.
- If leave is granted, there will be two appeals by the appellants over the same ruling.
- That the said application is still pending at the lower court.
- That I verily believe that this present notice of appeal was filed to harass and embarrass the respondents herein.”
In opposing the application, Biodun Amole, a Legal Practitioner, deposed to a counter affidavit of 9 paragraphs. It is desirable to reproduce paragraphs 6 and 7 of same for ease of reference. They read as follows:
“6. That contrary to the depositions in paragraphs 4 and 5 of the said supporting affidavit the appellants/respondents herein had withdrawn the motion on notice referred to by the defendants/applicants herein and same had been struck out on 13th February, 2006 by the lower court. A copy of the Enrolment Order is attached herewith and marked exhibit APR 1.
- The notice of appeal for which leave was sought in the motion referred to in paragraph 6 above was in respect of a different ruling, given on the same day, in the suit from which this appeal arose. Notice of appeal attached and marked exhibit APR2.
It is deducible from the tone of the affidavit in support that the applicants herein felt that if the lower court granted the application dated 28-12-05 for leave to appeal, there will be two appeals over the ruling of 28-12-05. The averment in paragraph 9 of the affidavit in support which starts with ‘if leave is granted’ is uncertain. As events turned out, the motion on notice attached as exhibit ‘A’ was withdrawn and struck out at the lower court on 13-2-06. This is manifest in exhibit APR1 attached to the counter-affidavit. And so, no leave was granted by the lower court to appeal. Applicants say that a notice of appeal filed on 31-1-2006 was designed to harass and embarrass them. From their own showing in their affidavit in support, the application which appears to be based on imagination headed for the rocks. The application should have been withdrawn since it rested on a shifting sand which was knocked off its bottom.
Arguing the application, Mr. Lana, the Attorney General of Oyo State, submitted that two processes filed by the same party against another party in the same proceedings will constitute an abuse of court process. He cited the cases of Nigeria Intercontinental Merchant Bank v. Union Bank of (Nig.) Ltd. (2004) All FWLR (Pt. 209) 1126 at 1145-6 G-A; (2004) 12 NWLR (Pt. 888) 599; Agwasim v. Ojichie (2004) All FWLR (Pt. 212) 1600 at 1609-1610 G-A, (2004) 10 NWLR (Pt. 882) 613; A.P.P v. Ogunsola (2004) All FWLR (Pt.207) 727 at 741, (2002) 5 NWLR (Pt. 761) 484.
Learned counsel pointed it out that there are two appeals initiated by notices of appeal filed on 31-1-06 and 6-2-06 respectively, by the same party. Shorn of all irrelevancies, it is the contention of the applicants that such a step was an abuse of the process of court. Learned counsel felt that the original notice of appeal should have been amended instead of filing a new one. He pointed out some gaps in the compilation of the record of appeal. Such relate to settlement of record and signing of bond.
Learned counsel further referred to Order 3 rule 2, Court of Appeal Rules, 2002. He asserted that where notice of appeal does not contain the address of even one of the parties, it must be struck out. He referred to Olaniyan Waheed v. Oguntoke Hassan & 5 Ors. Suit CA/l/HR/EPTA/3/03 delivered on 23-7-03. He observed that respondents 3-18 have no specified addresses for them as dictated by the Rules and such rendered the notice of appeal incompetent and it should be struck out. He urged us to so hold.
Mr. S. A. Ajewole, learned counsel for the 1st respondent ‘aligned’ himself with the submissions of the Attorney General. On abuse of court process, he referred to Best Western Co. Ltd. & Ors. v. Udomisor (2002) FWLR (Pt. 97) 744 at 761-762 F-A; A.R.C. v. J.D.P Construction (Nig.) Ltd. (2003) FWLR (Pt. 153) 251 at 270 B-D, (2003) 13 NWLR (Pt. 838) 609. Learned counsel asserted that where court process is abused the proper order is one ‘dismissing the process’. He urged that notice of appeal be dismissed. He referred to Onyeabuchi v. I.N.E.C. (2002) FWLR (Pt. 103) 453 at 469, (2002) 8 NWLR (Pt. 769) 417.
Chief Wole Olanipekun, SAN, who appeared for the appellants/respondents submitted that justice is not interested in scoring debating points. He referred to Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at p. 251. Senior counsel contended that the applicants who filed notice of intention to contend that decision should be affirmed on grounds other than those relied upon by lower court on 10-2-06 cannot be heard to complain that there are two notices of appeal and they do not know which one to react to.
Senior counsel asserted that it is not illegal to file many notices of appeal in the same matter. He stressed that it has never been and cited the case of Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 at p. 42. He felt that an appellant can withdraw one notice of appeal and rely on the remaining notices of appeal. He opined that an application to withdraw one and rely on the other or others can be made as no rule prohibits the filing of more than one notice of appeal.
Senior counsel pointed it out that the notice of appeal dated 3-2-06 was filed at the Registry of the lower court on 6-2-06. The record was transmitted to this court by the lower court. He submitted that if there are gaps in the record, which the appellants/respondents do not concede, there is a presumption of regularity by virtue of S.150(1) Evidence Act. He felt that the appellants cannot be punished for any error that might have been committed by the lower court’s Registry in the compilation of record with regard to settlement of records, bonds and the like. He cited Duke v. Akpabuyo Local Govt. (2005) 19 NWLR (Pt. 959) 130 at 150-151. Senior counsel felt that complaints relating to settlement of record is non sequitor, and failure to sign bond will not vitiate the hearing of an appeal. He referred to Admin Gen. v. Ogogo (2006) 2 NWLR (Pt.964) 366 at 381. Senior counsel observed that no part of the record is said to be missed out. And any missing part can be compiled by any party who complains. He cited Soleye v. Sonibare(2002) 10 NWLR (Pt. 775) 380; Geco-Prakla (Nig.) Ltd. v. Ukiri (2004) 1 NWLR (Pt. 855) 519 at 535-6. He felt that signing of bond is the prerogative of the Registrar, lower court and that applicants have not shown what they have suffered.
Senior counsel observed that it should be ubi jus ibi remedium. Senior counsel observed that the address for service on the respondents in the appeal is there on page 65 of the record. He stressed that the motion is not based on the fact that there is no address for service. It is not a ground for the application and the Hon. Attorney General is in court representing the applicants. Senior counsel felt that the decision cited on the point is an election petition matter and even then, an obiter of Adekeye, JCA.
Senior counsel finally submitted that under the Rules of Court, conditions of appeal are not tied to any particular notice and grounds of appeal and ten records cannot be compiled for ten notices of appeal. He felt that vide Order 3 rule 19, germane documents should only be brought to this court. He felt that the application has been brought mala fide and urged that same be dismissed.
M. F. Lana Esq, Hon. Attorney General, in reply referred to Adegoroye vs. Ajayi (2003) FWLR (Pt. 171) 1591 at 1604 B-C. He observed that bundle of record must relate to the appeal before the court. He felt that the case of Tukur v. Govt of Gongola State is not apposite and that all the cases cited by the Senior counsel are not relevant. He submitted that issue of jurisdiction cannot be waived and urged us to dismiss the notice of appeal.
It was strenuously observed by the Attorney General that since two notices of appeal were filed by the appellants, such a step constitutes an abuse of court process. With due respect to the Hon. Attorney General, the cases cited by him relate to filing of suits by the same party against another party in two different courts; to his irritation, annoyance and expense. It is an abuse of process of court to institute multiplicity of actions between the same parties over the same subject matter in different courts. The second action will, ordinarily, be vexatious and equate to an abuse of the process of court; prima facie. See Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6; Williams v. Hunt (1905) 1 K.B. 512. I need to remind the applicants herein that abuse of court’s process in this realm has nothing to do with filing of more than one notice of appeal by an appellant in the same appeal.
The applicants agree that notice of appeal was filed on 31-1-06. Conditions of appeal were imposed and perfected on 3-2-06. So also, the bond dated and filed on 3-2-06. The notice of appeal dated 3-2-06 and filed on 6-2-06 is in the record transmitted to this court by the lower court in compliance with the Rules of court which mandate an appellant to file his notice of appeal at the Registry of the lower court. If there are gaps in the compilation of records, that is the business of the lower court’s Registry whose inactions or faults should not be counted against the appellants. There is a presumption of regularity by an official of that Registry however. Refer to S.150(1) Evidence Act, Cap. 112, LFN, 1990. Appellants cannot be punished for any error of officials of the Registry. See Duke v. Akpabuyo Local Govt. (supra).
Failure to sign bond will not militate against the hearing of an appeal. See Admin. Gen. v. Ogogo (supra).
It has not been shown that any part of the record-germane documents are not therein contained.
I now move to the salient issue for consideration. The issue is whether it is improper to file more than one notice of appeal in respect of the same matter. It is clear that it is not illegal to file many notices of appeal in the same matter. I agree with Senior counsel for the appellants/respondents that it has never been. The case of Tukur v. Govt. of Gongola State (supra) is clearly apposite. It is directly in point and on all fours. Nothing stops an appellant from filing more than one notice ex abundantia cautela. Where more than one notice of appeal is filed, the others may be superfluous but not invalid. An appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal based on the other remaining notice of appeal. It is erroneous to say that the Rules of this court did not permit the filing of more than one notice of appeal when the Rules did not prohibit the filing of more than one notice. An appeal is not incompetent because it is brought by more than one notice of appeal. See Akeredolu & Ors. v. Akinremi & Ors. (No.2) (1986) 2 NWLR (Pt.25) 710; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244; Iteshi Onwe v. The State (1975) 9-11 SC 23.
It is clear beyond paradventure that filing of more than one notice of appeal in a matter does not render the appeal incompetent. And such a step can never equate to an abuse of court’s process. It has never been.
The applicants desired to cling to a straw by raking up the point touching on addresses not being stated in the notice of appeal. I say so because their application is not based on the fact that there is no address for service. The only ground for the application is that the notice of appeal is incompetent. Ground touching on address has come in from the blues. The other side should not be taken by surprise. The respondents’ address is on page 65 of the record and they are being represented by the Hon. Attorney General; not on protest. The fact of representation shows that they were duly served and mandated the Attorney General to appear for them. The essence of address is to enable the respondents to be served. This is not an election matter as in Waheed v. Hassan (supra) wherein proceedings are sui generis. Even in election matters in recent times, technicality is being closely watched. The trend now is directed at doing substantial justice.
In short, the appeal is competent and this court is imbued with requisite jurisdiction to deal with it. The application challenging competence of the appeal is hereby refused. It is accordingly dismissed.
I make no order on costs.
Other Citations: (2006)LCN/1904(CA)
