Taiwo Ajani V. Situ Giwa (1986)
LawGlobal-Hub Lead Judgment Report
UWAIS, J.S.C.
The appellant was the plaintiff in an action which he instituted in 1970against the respondent as defendant. In paragraph 30 of his further amended statement of claim the plaintiff claimed for himself and on behalf of Agbaruru family as follows –
“(1) A declaration that the plaintiff is the person entitled to certificate of occupancy to be granted under the Land Use Decree No.6 of 1978 in respect of all that parcel of land situate, being and lying at Igbo-Ifa, Irawote in Isalu Quarters in Iseyin Town in the Iseyin Local Government Area in Oyo State of Nigeria which parcel of land is shown and edged “Blue” in Survey Plan No. BK 6806A dated 8th December, 1970 and drawn by A. Togonu-Bickersteth, Licensed Surveyor and Survey Plan No. OB 881 dated 24th September, 1973 and drawn by O. Bamgbose, Licensed Surveyor filed with the plaintiffs original statement of claim in this suit.
(2) the sum of five Hundred Naira (N500.00) being general damages for the trespass which the defendant and his servants or agents have since the year 1966 been committing to the said parcel of land.
(3) An injunction restraining the defendant, his servants, agents and/or privies from committing any further trespass to the said parcel of land and from disturbing or molesting the plaintiff and/or any member of Agbaruru family and/or any person claiming through them in their worship of Ifa Oracle on the said parcel of land.”
The case had a chequered history. It was either mentioned or part heard before four different Judges in the Oyo Judicial Division. It finally came before a fifth Judge – Apara J – on 27th June, 1977. Even though a case was fixed for hearing on that day, counsel for the defendant was not in court. Counsel for the plaintiff therefore stated as follows-
“….the counsel for the defendant has not been as co-operative as one would have expected in handling this case. Mr. Falade is the counsel for the defendant. Because of his unco-operative attitude, this is the fourth time the case has to start de novo before the fourth Judge in this (Oyo) Judicial Division ”
and the Judge remarked as follows-
“This is a 1970 case. In view of Mr. Popoola’s observations above, this case will start today. If Mr. Falade is still interested in the case as counsel for the defendant, whatever stage we reach in the case when he puts in an appearance, he knows what to do. Before I arrived at this Judicial Division, this case had already been fixed for hearing for today, tomorrow and Wednesday. In fact it is the only case fixed for hearing for the whole of this week. This is the more reason why I will start hearing the case today.”
Accordingly, the plaintiff’s case opened. The Plaintiff gave evidence and the hearing continued through to Wednesday. The defendant was present throughout the hearing. On Tuesday 28th June, 1977, Mr. Falade the defendants counsel was in court. He cross-examined the plaintiff and the 1st Plaintiffs witness who testified on the third day – Wednesday 29th June, 1977. By consent of Mr. Popoola and Mr. Falade the hearing in the case was adjourned to continue on the 12th and 13th July, 1977. Series of adjournments followed thereafter and the plaintiff’s case was not closed until 4th December, 1978 – about one and a half years after it was opened. As Mr. Falade was absent in court on the day the plaintiffs case was closed, the learned trial Judge adjourned the case till 3rd January, 1979 for further hearing and to enable Mr. Falade to appear for the defendant. On the adjourned date instead of opening the case, Mr. Falade applied to recall Mr. Olawuyi Bamgbose, who was the plaintiffs 4th witness. The application was granted by the trial Court and the case had to be further adjourned till 27th February, 1979. On the adjourned date the parties were present and so also Mr. D Popoola. But Mr. Falade was absent. The learned trial Judge then minuted thus –
“There is a letter from Mr. Falade asking that this case be stood down till 10.30 a.m. as he is appearing in a Motion in Ibadan Court today. It is now 10.50 a.m. and Mr. Falade is not yet in court. The situation is explained by the court to the Defendant personally. He is told that he can proceed with his case and call as many witnesses as he likes, having been present in court while the plaintiff’s case was being put before the court. The defendant refuses to proceed with his case in the absence of the counsel. ”
It is to be observed that the minutes made no mention of the presence in court of the 4th plaintiff’s witness who was to be further cross-examined. Mr. Popoola then applied to proceed under Order 26 Rule 18 of the High court (Civil Procedure) Rules, Cap. 44 of the Laws of Western Region of Nigeria, 1959, to address the court. His application was granted and he addressed the court. The learned trial Judge then reserved judgment till the 19th March, 1979.
In the meanwhile, Mr. Falade brought a motion on the same 27th February, 1979, asking for “an order for the defendant to give evidence and to call witnesses in support of his case.” The motion was heard on the 14th March, 1979 with Mr. Falade again absent, although his brief was held by another counsel. The learned trial Judge ruled as follows-
“Having considered the submissions of both counsel in this application, I agree with the points made by Mr. Popoola. In addition to this, the applicant’s affidavit supporting this application does not at all explain the reason for the absence of his counsel in court on 27/2/79, consequent upon which he refused to proceed with his case on that day. Another counsel is arguing this action (sic) for the applicant today, perhaps more light to assist this Court would have been thrown in, if Mr. Falade himself has sworn to an additional affidavit to explain his absence in court on 27/2/79. As matters now stand, I hold that this application lacks merit and it is therefore dismissed.”
No further action was taken by Mr. Falade or the defendant. On the 19th March, 1979 the reserved judgment of the learned trial Judge was delivered. Judgment was given for the plaintiff in terms of paragraph 30 of his further amended statement of claim, which I have earlier quoted in this judgment. The defendant then appealed from the decision of the trial Court to the Court of Appeal. Two grounds of appeal were originally filed in that court together with the notice of appeal. Later 3 more grounds were added. At the hearing of the appeal another motion was filed by the defendant to substitute all the five grounds with 4 new grounds of appeal. Leave was granted by the Court of Appeal. A preliminary objection was raised by counsel for the plaintiff against the 3rd and 4th Grounds so substituted. The objection was upheld in respect of the 4th ground and it was struck-out. However with regard to the 3rd ground of appeal the Court of Appeal indicated that it would incorporate the ruling in the judgment to be given later in the appeal. It therefore heard full argument in respect of all the remaining three grounds of appeal. The grounds read as follows –
“1. – The lower Court erred in law and in fact to have given judgment to the Plaintiff as per his Writ of Summons when he, Defendant, was not allowed by the Court to give evidence nor call witnesses in respect of his (Defendant’s) pleading properly filed in Court and served on the Plaintiff.
- The whole proceedings is null and void and of no effect because it offends against the law of natural justice in that the Defendant is not allowed to state his case as required by law.
- the lower Court erred in law and on the facts in not exercising its discretion judicially or at all to grant the Defendant’s application for an order to enable the Defendant to give evidence and to call witnesses in proof and support of his case in this suit and thereby came to a wrong decision which occasioned miscarriage of justice.
Particulars of Errors
(i) at the close of the plaintiffs case, the Defendant’s counsel applied to recall Mr. Bamgbose, the plaintiff’s Surveyor who testified as the plaintiffs 4th witness, which application the court granted.
(ii) before the Defendant took advantage to recall the said 4th plaintiffs witness, the court again, closed the Plaintiffs case and also prevented the Defendant to give evidence and call witnesses.
(iii) the Defendant’s failure to proceed with his case was not due to his fault personally.
(iv) Although the Defendant immediately filed an application for an order to enable him to give evidence and to call witnesses, his said application was, without proper consideration in the circumstance, refused.
(v) In its subsequent judgment, the Court held that although certain assertions were made in the statement of Defence, no witnesses testified on oath in support of any of the assertions.”
The preliminary objection raised by the plaintiffs counsel on the 3rd ground of appeal was based on the premise that the complaint in the ground did not arise from the judgment of the trial Court but as a result of the earlier ruling given by it. Counsel then argued that the ground concerned an interlocutory matter and as such leave of the Court of Appeal ought to have been obtained in accordance with the provisions of section 15 subsection (1) of the Federal Court of Appeal Act, 1976 before there could be a competent appeal on the ground before the lower Court. The provisions of Section 15(1) read-
“Where in the exercise by the High Court of a State, or as the case may be, by the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
In considering the argument on the preliminary objection the Court of Appeal (per Dosumu, J.C.A.) observed as follows-
“At the early stage of the hearing, Mr. Alawode (for the plaintiff) submitted that the order being interlocutory, the appellant could not appeal against it without leave of either the lower Court or this Court. It seems to me, however that since the appeal is based on point of law only, no leave is necessary (see Section 220 of the 1979 Constitution as amended). We have moved away from the judgment in Afinmo v. Jimoh & Ors. (1973) 4 WSCA. 221 (at page) 226 which the counsel relied upon.”
In its consideration of the substantive appeal the Court of Appeal rejected the argument of counsel for the defendants on grounds 1 and 2 which it found to be lacking in substance. But on ground 3 the Court held that the trial court was unfair to the defendant for refusing to grant his application to give evidence and call witnesses. In so holding, it relied on Maxwell v. Keun (1928) 1 K.B. 645 at p.653 and Fanz Holdings Ltd. v. Mrs. Patricia Lamotte, (1977) NNLR 163. The plaintiff (hereinafter referred to as the appellant) has appealed from the decision of the Court of Appeal. He has filed three grounds of appeal and also formulated in his brief of argument the issues which this court is to determine. They are –
“(a) Whether the Court of Appeal was right in holding that ground 3 of the grounds of appeal of the defendant/appellant (now respondent) in the appeal before it is a ground of law.
(b) Whether the Court of Appeal was right in considering the said ground 3 when it was common ground between the parties that it was incompetent and when the application for leave which the learned counsel for the defendant/appellant made at the hearing was not ruled upon.
(c) Whether the Court of Appeal, having held that it was the defendant who declined to give evidence or call witnesses when invited to do so by the trial court and that there was no breach of the rules of Natural Justice at the trial, was right in proceeding to hold that the trial Court’s refusal of the defendant’s application to re-open the case was not a proper exercise of judicial discretion.
(d) Was the Court of Appeal entitled to raise an issue suo motu and decide upon it without giving counsel for both sides any opportunity of addressing it on the point.”
In arguing the first issue Mr. Alawode, learned counsel for the appellant, contended that in considering the preliminary objection raised, the Court of Appeal was in error to hold that ground 3 raised question of law alone and, that no leave was required before the defendant (hereinafter referred to as respondent) could appeal to that court on the point. He argued that the ground raised issues of mixed law and fact and that it was incompetent unless leave to appeal was obtained under the provisions of Section 221 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979.
I think there is merit in the submission.
Section 220 subsection (1) is relevant and Section 221 subsection (1) of the Constitution provide –
“220 (1) An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases –
(a) final decision in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be, contravened in relation to any person;
….
“221 (1) Subject to the provisions of Section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or Court of Appeal.”
On a careful examination of ground 3, it is very clear, even ex facie, that the issue raised therein was based on question of mixed law and fact. Furthermore, the ruling in respect of which the complaint in the ground relates was not a final but interlocutory decision since it (the ruling) did not finally dispose of the rights of the parties in the suit. It is the judgment of 19th March, 1979 that finally determined the case between the parties – see Blay v. Solomon, 12 WACA 175 and William Ude & Ors. v. Josiah Agbu & Ors., (1961) 1 ALL NLR 65.
Consequently, appeal on that ground could not possibly have been as of right under Section 220 of the Constitution. It therefore follows that leave had to be obtained in terms of Section 221 subsection (1) of the Constitution before there could be a valid appeal on the ground before the Court of Appeal. The lower court was therefore in error when it held that the ground was competent and it went on to allow the appeal before it on the strength of the ground alone. Since the decision of the Court of Appeal was solely based on the 3rd ground of appeal and not grounds 1 and 2, this appeal must succeed.
I deem it unnecessary to consider the points raised in the third and fourth issues for determination as they relate to grounds 1 and 2 before the Court of Appeal (which that court considered to be devoid of merits) because the appeal has finally been determined by our decision on the first and second issues. However, it is pertinent to point out that the decision in Chief Ajisola Afinmo & Ors. v. Oba Jimoh & Ors. (1973) 4 WSCA 221 at p.226 is still good law in view of the provisions of Section 221(1) of the Constitution.
What was principally decided in the case was that before there can be competent appeal from interlocutory decision of the High Court leave of the High Court or the appellate Court must be obtained. According]y this appeal is allowed and the decision of the Court of Appeal is set-aside together with the remittal order for the case to be re-tried in the High Court. The judgment of Apara, J. is restored. The respondent will pay N300.00 costs to the appellant.
ESO, J.S.C. (Presiding): I have had the advantage of a preview of the judgment which has just been delivered by my learned brother Uwais, J.S.C, and I am in agreement with the judgment. I abide by the order allowing the appeal, and restoring the judgment of Apara J. in the High Court of Oyo State. I also abide by his award of costs.
SC.72/1985
