Tejumade A. Clement & Anor V. Bridget J. Iwuanyanwu & Anor (1989)

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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.