Tejumade A. Clement & Anor V. Bridget J. Iwuanyanwu & Anor (1989)
LawGlobal-Hub Lead Judgment Report
OPUTA, J.S.C.
On the 31st January, 1989, the Court heard this appeal. After reading the Briefs of Argument filed by the parties and hearing learned counsel for the appellants elaborate some of the points agitated in his Brief, I formed the impression that there was no substance in the appeal. The appeal was accordingly dismissed. The Court did not even call upon Mr. Ezugha – learned counsel for the respondents. Reasons for judgment were then adjourned to today the 28th day of April, 1989. Hereunder are my reasons.
This is yet another classic example of one of those expensive luxuries in civil litigation which leaves the central issue in dispute untouched while concentrating on peripheral skirmishes. The present respondents were plaintiffs in the court of first instance. They sued the defendants in the Lagos High Court before Fafiade, J., claiming damages for negligence. The present appellants who were the defendants in the original action then took an objection to the plaintiffs’ action alleging that same was statute-barred – that it was brought after the statutory period of 3 years allowed and prescribed for such actions by the Lagos State Limitation Law. Fafiade, J. held that the plaintiffs’ action was not statute-barred.
The defendants then appealed to the Court of Appeal, Lagos Division, coram Ademola, Babalakin and Awogu, JJ .C.A. In a lead judgment to which the other Justices concurred, Awogu, C J.C.A. allowed the defendants’ appeal holding that the plaintiffs’ writ was filed on 2/3/83 when the receipt for the fees was issued and not on 1/3/83 when the plaintiffs handed over their summons and fees to the Registrar. The Court of Appeal then held that the plaintiffs were one day out and were thus caught by the Statute of limitation. Awogu, J .C.A. ruled and held:-
“It is obvious then that if the accident occurred on 1/3/80 the computation of the 3 years will be from 2/3/80 and will therefore expire on 1/3/83. As at that date the Respondents have not paid for the Writ of Summons. They did so on 2/3/83. Accordingly the claim was statute-barred as of that date. It was a day too late. The appeal is allowed and the Ruling of Fafiade, J. delivered on January 15th, 1986 is hereby set aside and in its place it is hereby ordered that the claim be dismissed because it is statute-barred.”
The plaintiffs, from the judgment of the Court of Appeal above, thus lost their case in limine and were understandably dissatisfied and aggrieved. They then appealed against the judgment of the Court of Appeal dismissing their claim. The plaintiffs’ Notice and Grounds of Appeal were exhibited and marked Exh. C. Now Exh. C contained at least one ground of law (Ground 3) and 3 other grounds of either of mixed law and fact or of fact simpliciter. For the ground of law, the plaintiffs appeal as of right under Section 213(2) of the 1979 Constitution as amended. For the grounds of fact or mixed law and fact the plaintiffs can only appeal with leave of the Court of Appeal or of the Supreme Court. The plaintiffs naturally then applied for that necessary leave to convert their prospective right of appeal to a present right which would invest them with the requisite power to appeal on fact or mixed law and fact. The Court of Appeal granted the plaintiffs the leave they sought, ruling as follows:-
“There is no doubt that if the application is made in the Supreme Court it will be mandatory for the applicant to exhibit the judgment of the lower Court, and the brief of argument. It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court. I have examined the grounds of appeal and it (sic) raises an interesting point of law. Leave is granted the applicant to appeal.”
It is against the above ruling granting the plaintiffs leave to appeal on so grounds of fact or of mixed law and fact that the defendants have now appealed to this Court. The 1st Ground of Appeal complained that:-
The learned Justices of the Court of Appeal erred in law and misdirected themselves when they held as follows:-
“This is an application for leave to appeal to the Supreme Court. It has been opposed by learned counsel for the respondent on the ground amongst other things that the judgment of the High Court and brief of argument have no been attached to the affidavit in support. There is no doubt that if the application is made in the Supreme Court it will be mandatory for the applicant to exhibit the judgment of the lower Court, and the brief of argument. It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court.”
“PARTICULARS
(a) The combined effect of Sections 213(3), 6 and 215 of the Constitution of the Federal Republic of Nigeria 1979 is to make it constitutionally obligatory for an applicant for leave to appeal to the Supreme Court to comply strictly with the Supreme Court Rules 1985.
(b) The Court of Appeal has no jurisdiction to entertain an application for leave to appeal without recourse to the Supreme Court Rules 1985.
(c) That finding does not show an appreciation of the rationale and necessity for exhibiting upon such application the two judgments and a brief as required by the rules as well as other materials.
(d) It is erroneous to hold that an application for leave to appeal in the Court of Appeal need not comply strictly with the provisions of the Order 6 rule 2 of the Supreme Court Rules, 1985.”
Arising out of the above ground of appeal, the defendants/appellants in their Briefs formulated the following Questions for Determination:-
“2-1 Whether the Court of Appeal has jurisdiction to entertain an application for leave to appeal to the Supreme Court without recourse to the Supreme Court Rules 1985.
2-2 Whether the Court of Appeal was right in holding that an application for leave to appeal to the Supreme Court need not comply with the applicable rules of the Supreme Court.”
I think it is trite law that Rules of Court are Rules of Procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction conferred aliunde. This point was H clearly brought out by Brett, F.J. in Ogunremi & Anor.: Adeniyi v. Dada: Asiyunbi & Ors. (1962) 1 All N.L.R. 663 at p.671: see also Brett, M.R. in Cropper v. Smith (1883) 24 Ch.D. 305. Now the jurisdiction – the legal capacity or legal jurisdiction – to grant leave to appeal on grounds of fact or of mixed law and fact was conferred on the Court of Appeal not by the Supreme Court Rules 1985 but by Section 213(3) of the 1979 Constitution as amended. The self same Section 213(3) also conferred on the Supreme Court a similar jurisdiction to grant leave to appeal to it on grounds of fact or of mixed law and fact from judgments of the Court of Appeal. The jurisdiction of the Supreme Court in that regard is also not founded upon the Supreme Court Rules either. Of course the Court of Appeal had jurisdiction to grant the respondents the leave they asked for.
Section 213 of the 1979 constitution created two rights – one, the right covered by Section 213(2) that is the right to appeal as of right to the Supreme Court. Appeals on grounds of law simpliciter come under Section 213(2) of the 1979 Constitution. There the appellant appeals as of right. From Exh.C, the plaintiffs thus had a pending appeal on law before the C Court below.
The right to appeal on grounds of fact or mixed law and fact is a conditional right depending on a particular contingency – that is the granting of leave by either the Court of Appeal or the Supreme Court itself. Thus, from a purely constitutional and/or jurisdictional stand-point, it will be idle to argue that the Court of Appeal lacks the jurisdiction to entertain an application for leave to appeal to the Supreme Court. It definitely has that jurisdiction.
The next issue to consider is – What Rules of Procedure will govern the Court of Appeal when it is exercising its undoubted jurisdiction (under Section 213(3) of the 1979 Constitution) to grant an appellant leave to appeal on grounds of fact or of mixed law and fact It is obvious that Order 3 Rule 3(2) of the Court of Appeal Rules as well as its Civil Form 5 both relate to leave to appeal to the Court of Appeal from inferior Courts and not to leave to appeal from the Court of Appeal to the Supreme Court.
The Supreme Court Rules of 1985 are Rules made by the Chief Justice of Nigeria pursuant to powers enabling him so to do and conferred on him by Section 216 of the Constitution of the Federal Republic of Nigeria 1979. These Rules as the name implies are designed to control and regulate practice and procedure in and before the Supreme Court. In the same way, Section 227 of the self same 1979 Constitution gave the President of the Court of Appeal powers similar to those given to the Chief Justice of Nigeria by Section 216 to make Rules to regulate the practice and procedure in the Court of Appeal. In exercise of those powers the President has made the Court of Appeal Rules.
Now every Court is the guardian of its own record and the master of its own practice: see Tindal, C.J. in Scales v Cheese 12 M. & W. 685 at p.687: see also Gregory v. Brunswick 2 H.L. Cas. 415. The maxim is Cursus Curiae est Lex Curiae – the practice of a particular Court is the law of that Court. That is one reason why in matters of procedure and practice as in matters of discretion, an appellate court is usually slow to interfere or intervene unless satisfied that they were based on erroneous principles.
The other hurdle facing the appellants on the two Questions for Determination outlined above, is the obvious fact that Rules of Practice of one court are specifically made for that court and will not as a general rule be applicable to another court unless it is so expressly stated and incorporated by its own Rules. This formed part of the decision of this Court in Tukur v. Government of Gongola State (1988) 1 N.W.L.R. (Pt. 68) 39 at p.50. In the Supreme Court Rules, specific provisions are made, in Order 6 Rule 2, to cover applications for leave to appeal to the Supreme Court. The Court of Appeal Rules dealing with appeal from the High Court and other inferior courts did not specifically provide for (in its Order 3 dealing with Civil Appeals) the procedure in applications for leave to appeal from the Court of Appeal to the Supreme Court. The jurisdiction to grant such leave having been vested in the Court of Appeal by the constitutional provision of Section 213(3) of the 1979 Constitution, it is desirable that the President of the Court of Appeal makes definite Rules to regulate the exercise of that particular jurisdiction or else incorporates by reference, the provisions of Order 6 Rule 2 of the Supreme Court Rules 1985. In the absence of either specific Rules being made or Order 6, Rule 2 of our Supreme Court Rules 1985 being incorporated, it is my view that as we fall back on English Rules to fill in some lacuna in our own Rules so also the Court of Appeal may fall back on Order 6, Rule 2 of the Supreme Court Rules of 1985. This is a very different thing from saying, as was alleged in the defendants/appellants’ “Particulars” of their Grounds of Appeal that:-
“The combined effect of Section 213(3), 6 and 216 of the Constitution of the Republic of Nigeria 1979 is to make it constitutionally obligatory for an applicant for leave to appeal to the Supreme Court to comply strictly with the Supreme Court Rules 1985.”
The above assertion is not a correct statement of the true legal position.
In CA/L/65/84 Tijani v. Elabanjo decided by the Court of Appeal on 29th day of April, 1985 (unreported), there was also an application for leave to appeal to the Supreme Court on grounds of fact under Section 213(3) of the 1979 Constitution. The Court coram (Ademola, Nnaemeka-Agu and Uthman Mohammed, JJ.C.A.) dismissed the application giving as its reasons:-
(i) No special circumstances have been shown to grant leave to appeal on question of facts raised in the grounds of appeal.
(ii) The application is not supported with the necessary particulars and materials upon which the discretion of the Court could be exercised under the relevant Rules of the Supreme Court.
In that application, Idigbe, in opposition stressed that the applicable Rules was Order 6 Rule 2, Rules of the Supreme Court, 1985 and the applicable authority Ukpe Ibodo v. Iguasi Enarofia (1980) 5-7 S.C.42. The grant of leave is at the discretion of the court. That being so an appellate court cannot question the exercise of that discretion unless it so appears that it was in fact exercised not judicially and judiciously.
The question of the applicable Rules notwithstanding, the Court of Appeal in Tijani v. Elabanjo supra could have dismissed the application under Reason No.1 above. Tijani v. Elabanjo supra is thus not a direct and unequivocal answer to the question whether it is obligatory that in applications for leave to appeal on grounds of fact or mixed law and fact, the Court of Appeal must follow and comply strictly with Order 6, Rule 2 of our 1985 Supreme Court Rules. The 3rd Question for Determination as formulated in the defendants/appellants Brief is:-
“2-3 Whether the Court of Appeal was right in entertaining and granting such application (for leave to appeal to the Supreme Court) in the absence of the judgment of the lower Court and the brief of argument to support the same and other essential documents as required by the said rules”
Ground 2 of the Grounds of Appeal with its Particulars setting out the supposed “essential documents as required by the said rules” is reproduced hereunder for ease of reference:-
“2. The learned Justices of the Court of Appeal erred in law in granting leave to the applicant to appeal to the Supreme Court.
PARTICULARS
(a) In the absence of the judgment of the Court of first instance, the Brief of Arguments and the materials required by Order 6 rule 2 (c) (g) (h) and 2 of the Supreme Court Rules 1985 the Court of Appeal could not properly exercise its discretion in this matter.
(b) The Court of Appeal failed to be guided by the authoritative pronouncement of the Supreme Court in the case of Ukpe Ibodo & Ors. v. Enarofia & Ors. 1980 (5-7) S.C.42 at 57 and 58, that the requirements of Order 6 are the prerequisites for the proper exercise of the Court’s discretion.
(c) Leave to a willful appeal to the Supreme Court is not granted as a matter of course and a wilful failure to comply with the rules is fatal.
(d) There were no exceptional circumstances shown by the applicant on the application to justify the grant of leave on issues of mixed law and facts.”
The case of the defendants/appellants as argued in their Brief and elaborated by the oral submission of their counsel is that failure to exhibit all the documents mentioned in Order 6, Rule 2 of the Supreme Court Rules 1985, especially those mentioned in Rule 2 sub-rules (1e), (1g), (1h) and sub-rule 2 was fatal 10 the application of the plaintiffs/respondents. Reliance was also placed on the decision of this Court in Ibodo v. Enarofia supra. This Court has of late, been as it were, so bombarded with submissions that “the Court of Appeal failed to follow the authoritative pronouncement of the Supreme Court” in one or other of its decisions, or that pronouncements by this Court in certain cases were made per in curiam (see U. T. C. Nigeria Ltd. v. Chief J.P. Pamotei & Ors. (1989) 2 N.W.L.R. (Pt.103) 244, that it becomes necessary to restate, redefine and re-emphasise the branch of our law dealing with what constitutes the ratio decidendi of a given case, precedents, and stare decisis.
The ratio decidendi of a case is the reason for the decision, the principle of the decision. A court lower in the judicial hierarchy is bound by the ratio decidendi of a higher court not necessarily the obiter dictum. That seems to be the first rule designed, no doubt, to ensure uniformity in decision-making, foster stability, and enhance the development of a consistent and coherent body of law as well as assure equality of treatments for litigants similarly situated – see Eperokun v. University of Lagos (1986) 4 N.W.L.R. (Pt.34) 162 at p.193.
Having said this, it now becomes essentially necessary to find out what it is that is binding on the lower court. Is it every pronouncement, every word uttered by a superior court that is binding The doctrine here is generally referred to as the doctrine of stare decisis. Stated fully, it is Stare decisis et non quieta movere, meaning literally – To stand by what has been decided and not to disturb and unsettle things which are established.
Stare decisis thus means to abide by former precedents where the same points come again in litigation. Stare decisis pre-supposes that the law has been solemnly declared and determined in the former case. It thus precludes the judges of the subordinate courts from changing what has been determined. In other words, they should keep the scale of justice even and steady not liable to waiver with every Judge’s opinion. Under the doctrine of Stare decisis, lower courts are bound by the theory of precedent.
Now a precedent is an adjudged case or decision of a higher court considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Thus, prior cases which are close in facts or legal principles to the case under consideration are called precedents. The two cases (the one under consideration and the other to be used as precedent) must be close in facts – the facts must be similar for the doctrine to apply. This is so because as Chief Justice Stone observed in 1936:-
“With the common law, unlike the civil law and its Roman law precursor, the formulation of general principles has not preceded decisions. In its origin, it is the law of the practitioner rather than the philosopher. Decision has drawn its inspiration and its strength from the very facts which frame the issues for decision. Once made, the decision controls the future judgments of courts in like or analogous cases.”
In other words, it will be dangerous to consider any pronouncement of any Court even the Supreme Court in vacuo and without reference to the peculiar facts of the cases in which those pronouncements were made as those facts framed the issues that were decided.
As I said earlier on, courts attempt to decide cases on the basis of principles established in prior cases. These now serve as authorities. But an accepted principle may not necessarily decide the outcome of a dispute. Principles are wider than Rules. Rules apply in an all or nothing dimension.
Either the decision falls within the antecedent portion of the Rule, in which case it must be dealt with as the Rule dictates; or it does not, in which case it is unaffected by the Rule. Rules dictate results, come what may. Principles do not operate that way. Principles merely incline a decision one way, but not conclusively Principles survive intact even when they do not prevail in any particular instance.
As principles are distilled from the facts of the case in which they were promulgated; as principles draw their inspiration and strength from the very facts which framed the issues for decision; it follows that when the facts are not similar, the principle need not apply or be applied to the new case. Principles therefore do not provide any patterns for definite situations. They (as their name implies – principium means the point of beginning) merely constitute the starting point of legal reasoning. The ratio decidendi of a case which creates the precedent establishes a principle which does not fore-close further inquiry especially when the facts are different.
Now coming to the case now on appeal and applying the principles of stare decisis and precedents, one soon observes many differences. In Ibodo v. Enarofia this Court was interpreting Order 1, Rule 5 and Order 7, Rule 4(2) of the Supreme Court Rules, 1977 dealing with enlargement of time within which to appeal.
When an appellant is appealing out of time, the onus on him to persuade the court to exercise its discretion in his favour is obviously much, much higher than when the application (as in this case) is for leave to argue grounds of facts or of mixed law and fact in an appeal already pending on a ground or on grounds of law. The facts and circumstances of Ibodo’s case are therefore quite different from those of the case now on appeal. That being so, the principle of Ibodo’s case depending on its peculiar facts may not be too strictly insisted upon in this case.
As I observed earlier on, in Ibodo’s case supra, the application was for extension of time within which to appeal and for extension of time within which to apply for leave to appeal. An application for extension of time within which to apply for leave to appeal pre-supposes that the time within which to appeal had expired.
This is an entirely different situation from what happened in this case where the appellants/applicants appealed within time, had a competent, pending as well as a subsisting appeal on a ground of law and only applied for leave under Section 213(3) of the 1979 Constitution to appeal on questions of fact and mixed law and fact. The facts and circumstances of the case now on appeal can thus be easily distinguished from those in Ibodo v. Enarofia supra.
Again the rationale in Ibodo v. Enarofia supra is that the grant of leave to appeal being something discretionary, any application for such leave will contain all documents and facts upon which the discretion asked for, can judicially and judiciously be exercised. I will here refer to and adopt the dictum of Nnamani, J.S.C. in University of Lagos v. Olaniyan (1985) 1 N.W.L.R. (Pt.1) 156 at p. 166 that “Ibodo’s case has not laid down rigid rules……..it is not in every case that all the materials mentioned therein – record of proceedings, judgments etc. – must be annexed to an application.” In this case, the High Court over-ruled the defendants’ objection that the 3 years period of limitation of action had run out before the writ was filed. The defendants’ appeal against that Ruling was allowed. Now the plaintiffs appealed against that judgment of the Court of Appeal. What further documents, what further judgment does the Court of Appeal that was seized of all the relevant documents when it was considering the defendants’ appeal need, to enable it decide on whether or not the plaintiffs who appealed within time on both law, mixed law and facts and facts simpliciter may be allowed leave to appeal on facts or mixed law and facts The answer was given by the Court of Appeal per Akpata, J.C.A. thus:-
“It appears to me unnecessary for us to insist that the judgment of the lower Court which this Court has pronounced upon should be exhibited before this Court.”
I fully agree. It would have been a waste of time, effort and money to annex and exhibit all the documents and judgments mentioned in Ibodo v. Enarofia supra in this case. That would amount to following that decision blindly, literally and foolishly.
The 3rd Question for Determination as formulated by the defendants/appellants further complained that no Brief of argument in support of the application was filed. A short answer to that is that under Order 6, Rule 11, the Court of Appeal can “waive compliance with the provisions of this Order (Order 6 dealing with Filing of Brief of Argument) in so far as they relate to the preparation and filing of Brief of Argument.” When a court has power to do a thing and does that very thing in exercise of that power, it will be idle and purposeless to complain.
It was for all the reasons given above that I, on the 31st day of January, 1989 dismissed this appeal without even calling upon learned counsel for the respondent.
SC.137/1988
