Sanusi Aiyeriyina Alade V. Olalere Akanji Alemuloke & Ors. (1988)

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A. OPUTA, J.S.C. 

This appeal is important but from a negative angle. Its importance does not lie on what it will decide for it is not going to decide anything new anyway. Rather it is a typical example of an appeal which should not have been pursued through the entire gamut of our hierarchy of Courts – from the Customary Court to the High Court, then to the Court of Appeal and finally to the Supreme Court.

It is true that Section 213 of the 1979 Constitution, as amended, created the right of appeal from the Court of Appeal to this Court but care should be taken not to abuse that right. There should therefore be some sort of control over the exercise of this right otherwise this Court will be inundated, as is now being done, with a deluge of appeals which should not in all honesty have been allowed to come before the country’s final Court of last resort. We complain of congestion in our Courts and yet we cause that congestion, especially in our appellate Courts, by the unrestrained and unbridled exercise of the right of appeal.

In some countries issues of fact do not go beyond the Court of Appeal. In this country it is the policy of our Supreme Court to uphold the concurrent findings of the two Court below. Any appellant coming to the Supreme Court on issues of fact, and especially on issues of the credibility of witnesses, whom the Supreme Court never saw or heard, is undertaking an uphill task of considerable magnitude as he has to convince this Court that his case reveals such exceptional circumstances – (as the fact that the two judgments appealed against were perverse or that there was a radical error of law or procedure and that these led to a miscarriage of justice) – that will compel this Court to intervene to redress the balance in the interest of justice.

If learned counsel take this policy seriously perhaps they will think hard, and think again, before rushing to this Court on the facts. In some countries not all issues of law are allowed to go up to the country’s final Court. It is only issues of law of considerable magnitude and importance that are allowed to be tested and/or restated in the House of Lords (England) or the United States Supreme Court.

The primary responsibility of the Supreme Court should be that of developing and maintaining consistency in the law to be applied in our subordinate Courts and in interpreting the country’s fundamental law – its Constitution. These are two functions of cardinal importance and the Supreme Court should not be unduly distracted from these two important functions, distracted from its proper role by a deluge of unimportant if not frivolous appeals. It is beyond doubt that in the hurry of business, in the hurry to clear and dispose of the huge pile of pending appeals the most able panel of justices is bound to err and any error in the country’s final Court is disastrous.

Everything possible should therefore be done to minimize the possibilities of such errors.

In this case now on appeal, that has prompted the above comments, the facts had been examined, sifted and reviewed by three Courts namely:-

(i) the Ibadan City No.1 Grade “A” Customary Court;

(ii) the Ibadan Judicial Division of the Oyo State High Court exercising its appellate jurisdiction; and

(iii) the Court of Appeal Ibadan Division.

These three Courts consistently found for the Plaintiffs now Respondents on the facts. The trial Court believed the Plaintiffs and their witnesses and disbelieved the Defendants’ version. The two appellate Courts below did not disturb the findings of fact of the trial Court. And yet there were filed grounds of appeal – Grounds 3, 4 and 6 – on facts and mixed law and facts.

Luckily Mr. Okulaja for the Respondent raised a preliminary objection against these grounds which were filed without leave as required by Section 213(3) of the 1979 Constitution. Otunba Adesina Odedina then asked for an adjournment in his words “to regularise the position”. Of course the Court refused to grant such aimless and purposeless adjournment. What was the need of granting an adjournment to an appellant to ask for leave to resuscitate issues of fact already decided by three Courts That will be an abuse of process. Ground 3, 4, and 6 were then struck out and the appeal was to proceed on Grounds 1, 2 and 5.

The appellant should be satisfied and concluded by the determination of the 3 Courts below on the facts. Now coming to the law, it has to be observed that the same points taken up in the High Court and the Court of Appeal are being repeated in this Court. The Appellants have again an uphill task of convincing this Court that the two Courts below, which came to the same conclusion, were wrong on the law. I wonder what will satisfy the Appellants. All I know is that “the buck stops here” as there is no other Court to appeal to. It is also of interest to everyone that there should be an end to litigation – Interest reipublicae ut sit finis lilium – is as true today as it was when Littleton propounded the maxim (Co. Litt 303).