Joseph Adeyinka & Ors V. Lydia Mojirola Abidoye (1997)
LawGlobal-Hub Lead Judgment Report
IGE, J.C.A.
This is an appeal against the Judgment of Omu-Aran High Court delivered on 28th day of October, 1993 in suit No. KWS/OM/4A/93. It was an appeal to Omu-Aran High Court on the decision of the Upper Area Court of Kwara State sitting at Omu-Aran. As a matter of fact this case originated from Upper Area Court Omu-Aran where the respondent as plaintiff applied to the court for an order of interim preservation of the properties of her Late Husband carted away by the appellants. The Upper Area Court granted the application and by common consent of the parties, custody of the properties was given to Mr. J.O. Ijaodola. Later the respondent began to come across the vehicles on the road hence they brought another application before the Upper Area Court praying the court to order the properties subject of the dispute to be kept in the custody of the registry of the High Court Omu-Aran. This second application was filed on 1/12/92 and fixed for hearing on 10/12/92. On 10/12/92 the counsel for the appellants then defendants sought an adjournment to file a counter affidavit.
The case was then adjourned to 2/2/93. From 2/2/93 the case was further adjourned to 29/4/93. On 29/4/93 counsel for the appellants still sought for an adjournment to file a counter affidavit. The adjournment was refused by the Upper Area Court and the application for custody of the properties in the High Court Registry was heard and granted with a variation that the properties should be deposited at the Upper Area Court.
The appellants were dissatisfied with the order of the Upper Area Court and they appealed to the High Court presided over by two judges of the Omu-Aran High Court. It is pertinent to mention that before the application for adjournment was refused, the counsel for the appellants had filed a series of preliminary objections which were over-ruled by the Upper Area Court. The appellants were dissatisfied with the rulings of the Upper Area Court delivered on 29/4/93 and therefore appealed to Omu-Aran High Court presided over by two Judges. Before the Omu-Aran High Court the appellants filed two grounds of appeal. The following are the two grounds of appeal-
“1. The Upper Area Court erred in law in over-ruling the defendants’ preliminary objection to the effect that the Upper Area Court had no supervisory and no appellate jurisdiction over the High Court.
- The Upper Area Court erred in law in not granting an adjournment to the appellants herein when they had not filed a counter affidavit because of the preliminary objection.”
After the arguments before the High Court and the review of counsels’ addresses presented before the Judges, Adeniyi J. delivered the judgment of the court by dismissing the appeal as lacking in merit. In a final analysis, the Judges held thus-
“Taking the above view together with the comments of trial court in its ruling at page 7 that it granted counsel for the defendants/appellants adjournment on 10/12/92 to file its counter affidavit and then adjourned the hearing of the motion for him to 24/9/93, we agree with the lower court that the defendants/appellants had been given sufficient time to file the counter affidavit. While there is glaring evidence of delay we are unable to find denial of justice, more so when the properties were then with the defendants/appellants.
The circumstances appear to me to have been duly considered before the application for adjournment was refused.
In Ceekay Traders Case (supra) holdings 2 and 3 support the refusal in the circumstances of this case.
We therefore endorse its decision to refuse further adjournment to enable counsel to file the counter affidavit which ought to have been filed. That refusal did not deprive the defendants/applicants the opportunity of a fair hearing which had already been given and abused. It can be inferred that the delay was being caused to prevent the custody of the properties from leaving the defendants/appellants. We find no substance in this ground which also fails.
As the appeal lacks merit, it is dismissed.
(sgd) (sgd)
D.I. Adeniyi J.F. Gbadeyan
Judge Judge
28/10/93 28/10/93”
It is against this decision that the appellants have further appealed to this court by filling 3 grounds of appeal and formulating 3 Issues for determination. I wish to quote the grounds of appeal along with their particulars because of the nature of the Issues formulated by the appellants in this case.
“1. Grounds of Appeal
The learned Judges of the High Court erred in law in not sustaining ground 1 of the Notice of Appeal Particulars of Error-In-Law
i. The doctrine of judicial precedent was violated.
ii. Sections 43 and 54 of the Area Courts Edict (Law) No.2 of 1967 were violated by the application which is the subject of this appeal.
- The High Court erred in law in not allowing Ground 2 of the appeal since there was no breathing space between when the preliminary objection was determined and the taking of the application in question.
Particulars of Error-In-Law
i. The appellants could not have filed a counter affidavit against the motion until after their preliminary objection was determined in view of Supreme Court decision in Co-operative and Commerce Bank Nig. Plc v. A.G. of Anambra State and Another (1992) 8 NWLR (Pt.261) 528; (1992) 10 SCNJ 137 especially at page 151 cited to them.
ii. It was obligatory on the Upper Area Court to have granted an adjournment so as to give an opportunity to the appellants to file a counter affidavit; and
iii. The fact that the appellant; counsel had another case stood down before the High Court, Omu-Aran ought to have led to an adjournment.
- The High Court erred in law in holding that the appellants did not lose anything by the order.
Particulars of Error-In-Law
i. The proper issue was whether it was right or wrong of the Upper Area Court to grant the application after the appellants’ counsel had obtained permission to go to the High Court.
ii. A lower court cannot expect a superior court to wait for her (the lower court).
iii. Once the counsel for the appellants was granted leave to go to the High Court the case before the Upper Area Court had to be adjourned, whether willingly or reluctantly.
iv. Assuming the counsel for the appellants herein was not granted leave, which we vehemently deny, the counsel had no choice ethically but to attend to the High Court, considering the hierarchy of courts.
v. The doctrine of fair hearing was violated by the Upper Area Court in continuing the proceedings behind the appellants herein and the order made was null and void.”
The following Issues were formulated for determination –
i. “Was it competent for the Upper Area Court to direct the properties in question to be deposited with the High Court.
ii. Was it proper for the Upper Area Court to have refused an adjournment to file a counter affidavit immediately the defendants’ preliminary objection was over-ruled; and
iii. Was it proper of the trial Upper Area Court to hear the application behind the defendants and their counsel when the trial Upper Area Court was aware that the defendants’ counsel went to the High Court for another matter?”
The respondent in this appeal has adopted the 3 issues as formulated by the appellants for determination hence I shall deal with this appeal by considering those Issues as formulated by the appellant’s vis-a-vis their grounds of appeal.
On the day the appeal was being heard it was brought to the notice of the counsel for the appellants that the three Issues formulated by the appellants referred to the decision of the Upper Area Court rather than the decisions of the lower court. Counsel said he has formulated Issues arising from his grounds of appeal.
I must say that it is trite law that the grounds of appeal should always relate to the judgment appealed against so also the Issues formulated in the Brief of argument must arise and relate to the grounds of appeal – See the cases of Anie v. Uzorka (1993)8 NWLR (Pt. 309) 1 S.C.; Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25; Pelfarco Ltd v. Waos Ltd. (1997) 10 NWLR (Pt. 524) 222; and Omagbemi v. Guinness Nig. Ltd (1995) 2 NWLR (Pt. 377) 258 at 266. Besides the grounds of appeal arising from the decision of the court below, the Issues formulated must be referable and relate only to the lower court which has given the decision appealed against. In other words, the party appealing against the decision of the High Court in its appellate capacity cannot and is not allowed to refer directly to the error committed by the court of first instance. See the case of Agro Millers Ltd v. C.MB. (1997) 10 NWLR (Pt. 525) 469 at 475.
In the instant case, the appellants are appealing against the decision of the Omu-Aran High Court when they filed their 3 grounds of appeal. The grounds of appeal correctly referred to the error committed by the Judges of Omu-Aran High Court sitting in their appellate jurisdiction. When it now came to the point of formulating Issues, the appellants started to refer to the errors committed by the Upper Area Court Omu-Aran which was the trial court. I am afraid this is against the law and practice of this Court. The Court of Appeal in Nigeria has its own rules and regulations. Section 219 of the 1979 Constitution of Nigeria has spelt out the jurisdiction of the Court of Appeal and I quote the relevant Provision hereunder” Subject to the provisions of this Constitution, the Federal Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”
There is no where in our laws where the Court of Appeal can assume jurisdiction directly over the Upper Area Court of Omu-Aran. I therefore have no hesitation whatsoever to discountenance the 3 Issues formulated by the appellants in this case because they have not flown from a lawful river i.e. the grounds of appeal. The Issues are therefore struck out. In view of the fact that the Court of Appeal can only consider issues on an appeal and not grounds of appeal, I therefore hold that there is nothing to consider in this case hence the appeal is dismissed as having no basis.
This appeal is therefore dismissed with N2, 000.00 costs against the appellants in favour of the respondent.
Other Citations: (1997)LCN/0320(CA)
