3PLR – ALHAJA RALIAT OYENIKE SANNI V. ALHAJI IYANDA SHUAIB LATEJU & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

ALHAJA RALIAT OYENIKE SANNI

V.

ALHAJI IYANDA SHUAIB LATEJU & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 25TH DAY OF JUNE, 2012

CA/IL/55/2011 (R)

3PLR/2012/6 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

TIJJANI ABDULLAHI, JCA

IGNATIUS IGWE AGUBE, JCA

OBANDE FESTUS OGBUINYA, JCA

 

BETWEEN

ALHAJA RALIAT OYENIKE SANNI – Appellants

 

AND

1. ALHAJI IYANDA SHUAIB LATEJU (MAGAJI ABUDU for himself and on behalf of all members of Magaji Abudu Family)
2. DIRECTOR, BUREAU OF LAND KWARA STATE
3. ATTORNEY-GENERAL KWARA STATE – Respondents

 

REPRESENTATION

1. L. Akanbi Esq, for Appellant/Respondent. – For Appellant

AND

1. S. Ishola Esq. with I. O. Salahudeen for the 1st Respondents/Applicant.
2. G. Jibrin Chief State Counsel Ministry of Justice, Kwara State – for the 2nd & 3rd Respondents – For Respondent

 

ORIGINATING STATE

Kwara State: High Court (Afolayan J- Presiding)

 

CONNECTED AREAS OF PRACTICE

1. Litigation

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL– documents to be exhibited by applicant requiring the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal -whether a Cross-Appeal strictly depends upon an appeal having been filed- circumstances under which a Respondent must Cross-appeal -how a Respondent appealing should commence his appeal -meanings of ground of law -meaning of a question of fact in a ground of law- guidelines for the determination of the distinction and classification of Grounds of Appeal either of facts, mixed law and facts and/or Ground of law -principles guiding the court in determining whether a ground of appeal is one of law or of fact or mixed law and fact-prayers an intending appellant who wishes to seek leave of court on any ground of appeal after the expiration of the statutory periods prescribed must seek -effect of failure or neglect to include prayer for leave -what amounts to a misdirection in law -when absolute or unqualified right to appeal inures to a party seeking to appeal

 

PRACTICE AND PROCEDURE – INTERPRETATION OF STATUTES- section 24 of the Court of Appeal Act 2004-Sections 241(1)(b) and 242(1) of the 1999 Constitution as amended

 

PRACTICE AND PROCEDURE– JUDGMENT- test for determining whether an order or judgment is interlocutory or final in respect of the issues before it, as between the parties to the litigation- tests for determining the purport of interlocutory and final decisions -test to be applied in determining whether a judgment of a Court of first instance is final or interlocutory

 

PRACTICE AND PROCEDURE – JURISDICTION- fundamental nature of- when issue can be raised

—————————–

 

1. PRACTICE AND PROCEDURE – APPLICATION FOR TIME FOR APPEALING: Guiding principles and modalities for a competent application for time for appealing

“The Supreme Court had cause to pronounce on the provisions of Order 3 Rule 4(2) of the Federal/Court of Appeal Rules, 1981 and Order 7 Rule 4(2) of the Supreme Court Rules, 1977 which were in pari materia with the current Court of Appeal Rules above cited, in Ibodo v. Enaraofra & Ors. (1980) 5- 7 SC 42. In that locus classicus, which has been followed since then beginning from cases like Unilag & Anon v. Olaniyan & 2 Ors. (1985) 1 NWLR (Pt.7) 756 at 764-765 per Nnamani, JSC (of blessed memory) and John C. Okafor v. Bendel Newspaper Corp, & Anor, (1991) 7 NWLR (Pt206) 657 at page 665 paras. E-H: Per, Nnaemeka-Agu J.S.C); Aniagolu, JSC, who delivered the lead Judgment of the apex Court laid down the guiding principles and modalities for a competent application of this nature when he posited at page 53 inter alia:- “The second part (i.e grounds of appeal which prima facie show good cause), however requires also to be satisfied and whether this has been done must be seen against the background of the facts of the case in respect of which the grounds have been filed. The facts are gathered from the documents filed by the applicants and in particular the judgment of the Court of Appeal.” At P. 57 of the Report, the learned law Lord added thus:- “As I have already said the documents filed by the applicants would ordinarily be insufficient materials upon which this Court will come to a decision. The judgment of the High Court was not exhibited by the applicants. It cannot be over emphasized that where an applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the applicant and counsel; the judgments of the Courts below: the exhibits or so much of the exhibits on which the applicant will rely to argue his application; his proposed grounds of appeal; where necessary, the record of proceedings or so much of the record of proceedings as will enable the court to found on the substantiality of those grounds of appeal based solely or in the main, on the evidence given, the brief of the applicant’s argument and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to, be able to decide on the matters in contest in the application.” Per AGUBE, J.C.A. (Pp.56-57, Paras.C-G)

 

2. APPEAL – CROSS-APPEAL: Nature of a cross-appeal, instances when it can be filed and its purposes

“In Lagos, City Council v. Ajayi (1970) I ALL NLR 29 at 294; it was held that any appeal by a dissatisfied Respondent is a Cross-Appeal and this involves prima facie that there is a pre-existing appeal since it is only in that context that one conceives of a Respondent at all. However, the case of Oguma v. I.B.W.A. (1988) 1 NWLR 658 at 681 per Nnemeka-Agu, JSC; made it explicitly clear that: “A Cross-Appeal does not strictly depend upon an appeal having been filed; any person who has had a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a Cross-appeal without first waiting to be served with a Notice of Appeal by the unsuccessful party”. The purpose of a Cross-appeal therefore, according to the decision in Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR 47; is to correct any error that may stand in the way of a Respondent in the main appeal.” Per AGUBE, J.C.A. (P.62, Paras.C-G)

 

3. APPEAL – CROSS-APPEAL: Circumstances under which a Respondent must Cross-appeal

“The circumstances under which a Respondent must Cross-appeal have been stated in some decided authorities to include: 1. Where the effect of a reversal of any finding of fact of a trial Judge is to allow the appeal on a ground of fact found against the Respondent in the lower Court; and the Respondent wants a reversal of such an adverse finding. see Adekeye v. Akin Olugbade (1997) 3 NWLR 214; Sunmonu v. Ashote (1975) 1 NMLR 16; Oguma v. IBWA (supra) at 658; 2. Where the Respondent wishes to contest a different issue or cause of action other than the one raised by the Notice of Appeal served on him. See Western Steel Works v. Iron and Steel Workers Union (1987) 7 NWLR 284; A.C.S. Ltd. v. N.D.R. & General Works Ltd. (1977) 5 SC 235 at 237. 3. Where a Plaintiff/Claimant who was non-suited but challenges the order of non-suit and contends that the judgment should have been given in his favour instead. see Oyekun v. B.P. Nigeria Ltd. (1972) 7 All NLR (Pt.1) 45. Apart from the above circumstances the categories of situations for cross-Appeal are not closed.” Per AGUBE, J.C.A. (Pp.62-63, Paras.G-E)

 

4. APPEAL – CROSS-APPEAL: Way by which a respondent is expected to commence his cross-appeal

“In Lagos City Council v. Ajayi (supra) at 294; it was held that a Respondent appealing should commence his appeal in the same way and manner as the Appellant in a main appeal does under the Rules as there are no special provisions for bringing Cross-Appeals. Thus, a Cross-Appellant as in this case, wishing to appeal against any part of the Judgment of the Lower Court, shall commence the process by filing the Notice of Appeal in Civil Form 3 under Order 6 Rule 2 of the Court of Appeal Rules or apply for leave or for extension of time as the case may be, using Civil Form 5 under Order 7 Rule 7 or Form 4 under Order 7 Rules 1 and 10(2) of the Court of Appeal Rules. See the case of Etowa Enang & Ors. v. Fidetis Ikor Adu (1981) 11-172 S.C. 25 at 44 and Oguma v. I.B.W.A. (1988) 1 NWLR 658 at 681. In the latter case, their Lordships were of the view that, a Cross-Appeal is governed by the same Rules of procedure as any other appeal and therefore subject to the same statutory limitation as to time within which to appeal as imposed by the then Section 25 of the Court of Appeal Act or Section 31 of the Supreme Court Act, unless time has been extended; since the Cross-Appeal must not be necessarily headed as such for it is only vis-a-vis the Appellant’s appeal that is a cross-Appeal.” Per AGUBE, J.C.A. (P.65, Paras.A-G)

 

5. JUDGMENT AND ORDER – FINAL AND INTERLOCUTORY JUDGMENT: Nature of order and nature of application tests, and the defect in relying on the nature of the order as it relates to final and interlocutory judgment

“There is also, another test which looks at the nature of the Application to the Court from which the judgment or order emanated which focuses on the purpose of the Application, as for instance, where a High Court transfers one of the issues in a case pending before it to an Area or Customary Court for decision and report as such an order does not finally dispose of the substantive suit before the High Court. See Oguntimehin & Anon v. Tokunbo (supra) and DPP. v. Chike Obi (1961) All NLR 454 where the Supreme Court held that, a decision on a referral of interpretation on a Constitutional point under Section 295 of the Constitution, is a final decision which has completely disposed of the matter referred to it, even though, the matter may be interlocutory of the Court that made the reference. In Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924, also cited in (1985) 2 S.C. 1 at 30-33 which Eso, JSC, copiously reviewed in his lead judgment in Akinsanya v. UBA Ltd. (supra); the Supreme Court, per Karibi-Whyte JSC; propounded another principle which is a blend of the nature of order and nature of application tests when the Learned Law Lord held inter alia: “The ideal approach is to consider both the nature of the application and the nature of the order made in determining whether an order or judgment is interlocutory or final in respect of the issues before it, as between the parties to the litigation. Thus; where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties but only deals with an issue, both the application and the order or judgment must be interlocutory. However, where an application has the effect by the order, therefore, of finally determining the claim before the Court, the order may properly be regarded as final”. The defect in relying on the nature of the order made (though still workable test) as distinguished from the nature of the application from which the order is made is that the former ignores the issue or issues giving rise to the application and consequently the order, and fastens on the order which is the result of the application. To determine finally an issue before the Court which does not finally determine the rights of the parties, does not rank as determining the rights of the parties in the case and …. is not a final judgment”. The apex Court insisted in that case that, an interlocutory order on appeal ranks as an interlocutory appeal and that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties rather than an issue in the case. Where an issue is the subject-matter of an order on appeal, the determination of that Court which is a final decision on the issue or issues before it which does not finally terminate the rights of the parties, is interlocutory. From the foregoing dicta of their Lordships in the cases above cited, the bottom line in my humble view, is that, whether the test is that of the nature of application or of the nature of order, their Lordships of the apex Court have struck a harmonious cord and there appears to be convergence of opinion that, where a court of first instance decides a case which finally determines the rights of the parties and not merely an issue or issues such that, nothing is left again for that Court to decide between the parties; such is a final decision, judgment or order. On the other hand, where an application does not aim at terminating the claim or claims of the parties in dispute but only deals with an issue or issues both the application and order or judgment are interlocutory.” Per AGUBE, J.C.A. (Pp.68-71, Paras.E-A)

 

6. JUDGMENT AND ORDER – FINAL AND INTERLOCUTORY JUDGMENT: Tests for determining the purport of interlocutory and final decisions

“Akinsanya v. UBA Ltd (1986) 4 NWLR (pt 35) 222 at page 296 per Kayode Eso; who posited on this point upon considering the tests for determining the purport of interlocutory and final decisions as earlier analysed, inter alia: “In other words if the Court of first instance, orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of the issue arising in the cause or matter and there is no longer; any issue between the parties in that cause or matter that remains for determination in that court but it would be interlocutory if its order is that it has jurisdiction for these will be reference of the remaining issues in the itself”. See also Okokhue, Obadan (1989) 5, NWLR pt.120, 185 and C.G.D.G (Nig) Ltd v. Odurusan (2009) 5, NWLR, p.1135, 469.” Per AGUBE, J.C.A. (P.74, Paras.A-E)

 

7. JUDGMENT AND ORDER – FINAL OR INTERLOCUTORY JUDGMENT: Applicable test to be applied in determining whether a judgment of a Court of first instance is final or interlocutory

“In Oguntimehin & Anor. v. Tokunbo (1957) 2 FSC 56 at 57 just like Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35); ably cited by the learned counsel for the Appellant in support of his argument on this Ground, the Federal Supreme Court in the first case and Eso, JSC in latter case cited with approval the decision of the English Queens Bench Division in Bozson v. Altrincham U.D.C. (1903) 7 K.B. 548 on the test to be applied in determining whether a judgment of a Court of first instance is final or interlocutory; where Lord Alverstone C.J. opined thus: “It seems to me that the real test for determining this question ought to be this. Does the judgment or order, as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, as interlocutory order”. Following the above test which is popularly known as ” the nature of the order test”, which has been followed in most of the decisions of this Court and the Apex Court of this country, the Courts look at the nature of the order made by the Court of first instance and not on the nature of the proceedings. See Ebokam v. Ekwenibe & Sons (1999) 7 SCNJ 77 at 86; where the Supreme Court held that a decision or order is final when the rights of the parties in the claim before the Court have finally been determined and the matter would not be further brought back to that Court that made it. This test, it was further held, operates irrespective of whether or not the order of judgment is wrong or whether a Court of Appeal may order the matter to be sent back for hearing or retrial and the time of examining the test is when the order or judgment was given. On the other hand, where the decision only disposed of an issue(s) in the case living the parties still to proceed back to claim other rights in the Court; then that decision is interlocutory. See Ebokam v. Ekwenibe & Sons (supra) at 87.” Per AGUBE, J.C.A. (Pp.67-68, Paras.C-E)

 

8. APPEAL – GROUND OF APPEAL: Guidelines for the determination of the distinction and classification of Grounds of Appeal either of facts, mixed law and facts and/or Ground of law simpliciter

“F.B.N. Plc. V. T.S.A Ltd. (2010) 4-7 S.C (pt.1) at 228, where the Supreme Court held amongst others on the guidelines for the determination of the distinction and classification of Grounds of Appeal either of facts, mixed law and facts and/or Ground of law simpliciter in an objection of this nature thus: “When a party objects to a ground of appeal on the ground that it raises a question of fact or of mixed law and fact and that the requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal and not what the party raising the objection may have misconceived to be the question involved on the ground of appeal filed by the appellant the important yardstick for the classification of a Ground of Appeal is not the form of the question it raises but for instance:- (a) Where the Ground of Appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law; (b) Where the questions which the court is bound to answer in accordance with a Rule of Law arise out of statutory provisions and interpretation of documents, it is on law; (c) Therefore “Where the Ground complains of the lower Court’s use of wrong principle in the exercise of its discretion, the facts and circumstance in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law. See Tabai, JSC in Anukam v. Anukam (2.009) 1-2 S.C. 34 at 42.” See again per Eso, JSC, in Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 3 S.C 54 at pp. 58-61 and also Nnaemeka-Agu, JSC, in the case of Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 12 S.C 14 at Pp. 52-56.” Per AGUBE, J.C.A. (Pp.84-85, Paras.C-E)

 

9. APPEAL – GROUND OF APPEAL: Important consideration in the determination of the nature of a Ground of Appeal

“…F.B.N v. Kayode Abraham (2008) 36 NSCQR 1058 at 1073 lines C-G; per Aderemi, JSC who posited in this respect thus: “The important consideration in the determination of the nature of a Ground of Appeal is not the form of the ground rather it is the question it raises.” Per AGUBE, J.C.A. (P.88, Paras.C-D)

 

10. APPEAL – GROUNDS OF APPEAL: Principles guiding the court in circumstances to determine whether a ground of appeal is one law or of fact or mixed law and fact

“The principles guiding the court in circumstances to determine whether a ground of appeal is one law or of fact or mixed law and fact are as follow: (1) Where the Court is being invited to investigate the existence of otherwise of certain facts upon which the awards of damages to the respondent was based, such a group is mixed law and fact. (2) A ground which challenges the findings of fact or issue of law and mixed fact considered by a trial Court is one of law and fact. (3) A question arising out of the evaluation of the evidence tendered at the trial is a ground of fact. (2) A complaint about wrongful admission of evidence is also a question of law. (4) A complaint in a group of appeal of failure of a court to discharged its judicial duty of considering or pronouncing on the issue before it involves a question of law alone: Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718; Ogbechi v. Onochie (1986) 2 NWLR (pt.23) 484; Anogbalu v. Oraelosi (1999) 10 SCNJ, (1990) 13 NWLR (Pt. 634) 297.” Per AGBE, J.C.A. (Pp.77-78, Paras.D-A)

 

11. APPEAL – GROUNDS OF APPEAL: Instances where a ground of appeal is a ground of law, facts and mixed law and facts

“Clearly that Ground touches on evaluation of evidence before the trial Court and as was rightly held in the case of B.A.S.F (Nig.) Ltd v. Faith Ent. Ltd. (Supra) at 862-863 paras A-P; Per Adekeye, JSC, where a Ground of Appeal challenges the findings of fact or issue of law and mixed fact considered by a trial Court, it is one of law and fact. On the other hand, a Ground of Appeal on a question arising out of the evaluation of the evidence tendered at the trial is a ground of fact. see also F.B.N plc. v T.S.A Ltd (supra); where the Supreme Court restated the position of law that: (d) Where the Ground suggests an invitation to the Court where an Appeal is lodged to investigate the existence or otherwise of certain facts made by the Trial Court or where the evaluation of the evidence tendered is exclusively challenged it is a ground of fact or at best a ground of mixed law and fact; (e) Where the question is one that will require questioning the evaluation of the fads by the trial Court before application of the law, it is a ground of mixed law and fact”. In Nwadike & Ors. v. Ibekwe & Ors. (Supra); Nnaemeka-Agu, J.S.C., again relying on the dictum of Eso, JSC in Ogbechie v. Onochie (supra) held that a ground which complains that the Judgment is against the weight of evidence is a ground of fact and that findings of fact are matters within the province of the Court of trial. He took a further view that in general terms, it can be said that all Grounds of Appeal which raise facts which warrant some determination either way are Grounds of fact. Finally, he posited that where, however, the question raised by the Ground is one of law as applied to disputed facts; or the Ground raises partly law and partly facts, it is a ground of mixed law and fact. See Clarke v, Edinburgh e.t.c. Tramways (1919) S.C. (H.L.) 35, Fatoyinbo v. Williams (1956) 87; Edwards (Inspector of Taxes) v, Bairstow & Anor. (1955) All E.R. 48 at 56; Cooper v. Stubbs (1925) 2 K.B. 277 and Currie v. Inland Revenue Commissioners (1921) 2 K.B. at 536.” Per AGUBE, J.C.A. (Pp.90-91, Paras.B-D)

 

12. APPEAL – GROUNDS OF LAW; FACTS AND MIXED LAW AND FACTS: Grounds to determine grounds of law; of facts simpliciter and of mixed law and facts

“Similarly, learned counsel for the Respondent has aptly cited B.A.S.F (Nig.) Ltd v Faith Ent. Ltd. (2010) All FWLR (pt.518) 840 at 862- 862, para H; A-P, where per Adekeye, JSC (concurring with the lead judgment), of the apex Court gave a detailed guide on which grounds are grounds of law; of facts simpliciter and of mixed law and facts, as follows:- A ground of law has the under mentioned meanings: a. A question in which the Court has no discretion to exercise because it has to be answered in accordance with principle of law. It is already predetermined and resolved by the law. b. A question which calls for the argument and determination of what the true position is in law such usually arises out of the uncertainty of the law. c. Interpretation of documents which is a question of facts but is strictly within the duty of a court. While the meaning of a question of fact in a ground of appeal relates to: (a) Any question not determined by the principle of law. (b) Any question that is to be answered by the jury rather than the judges.” Per AGUBE, J.C.A. (Pp.76-77, Paras.E-C)

 

13. COURT – JURISDICTION: Nature of the issue of a court’s jurisdiction; how and when it can be raised

“As was rightly argued in the Appellant’s Reply Address citing Ansa v. R.T.C.P. CN (2008) 7 NWLR (pt.1086) 427 at 448 para, G and N.D.I.C v C.B.N. (2002) 7 NWLR (Pt. 766) 292; the competence vel non of the motion filed by the 1st Respondent, goes to the fundamental/threshold issue of the jurisdiction of this Honourable Court to entertain the Application and it is trite on authorities too numerous to mention that it can be raised by whatever mode (upside down or inside out) or at any stage of the proceedings even for the first time herein or in the Supreme Court. Indeed, as rightly submitted by the learned counsel for the Appellant, this Court can even suo motu raise the issue where it is apparent from the surrounding circumstances that the motion is an abuse of court process. See Labour Party v. INEC (2009) 37 NSCQR 73 at 87 paras. E-G per Ogbuagu, J.S.C; who cited the cases of Adesanya v. The President (1981) 1 NCLR 386; FRN v. Lord Chief Ifezwu (2003) 15 NWLR (pt. 842) 113 and Chief Ehigbe Omokhafe & Ors. v. The Military Administrator Edo State of Nigeria (2004) 12 SCNJ 106; in support of his holding that: “… the issue of jurisdiction is said to be so fundamental, that it can/could be raised at any stage/time by any party or even by court.” Per AGUBE, J.C.A. (P.51, Paras.A-F)

 

14. APPEAL – LEAVE OF COURT TO APPEAL: Effect of failure by an applicant to include prayers for leave; the discretion of the court thereof

“That failure or neglect, to include prayer for leave, is a costly one because it constitutes an albatross around the competence of his application. Besides, the applicant’s application is rooted in an equitable remedy which, in turn, revolves around this court’s judicial and judicious exercise of discretion – the right or power of a judex to act according to the dictates of his personal judgment and conscience uncontrolled by the judgment or conscience of other persons, see Suleiman vs. C. O. P. Plateau State (2008) 8 NWLR (Pt.1089) 2998 at 318. Since the application involves exercise of discretion, it is incumbent on the applicant, by force of law, if he must earn the favourable discretion of this court, to avail it with sufficient material facts for its use, as launchpad, to exercise its discretion judicially and judiciously. The reason is plain. A court of law does not dish or dash out its discretion in vacuo, material facts being the desiderata for such judicious and judicial exercise, see Dongtoe vs. Civil Service Commission, Plateau State (2001) 9 NWIR (Pt. 717) 132; Menakaya vs. Menakaya (2001) 16 NWLR (Pt.738) 203; In Re: Mawa vs. NACBCFC Ltd. (2007)7 NWLR (Pt. 1032) 54; Ebe vs. C.O.P. (2008) 4 NWLR (Pt. 1076) 189, Ifekandu vs. Uzoegwu (2008) 15 NWLR (Pt.1111) 58. As the applicant’s main prayer, in his application, is for extension of time within which to cross-appeal against the verdict of the lower court, that judgment of the lower court he is seeking to cross-appeal against and his proposed ground of cross-appeal, duly encapsulated in a notice of cross-appeal, must accompany the application via an affidavit, see Adelekan vs. Ecu-Line Nv (2006)12 NWLR (Pt.993) 33; E.F.P. Co. Ltd vs. N.D.I.C (2007) 9 NWLR (Pt. 1039) 216; Oyegun vs. Nzeribe (2010) 16 NWLR (pt.1220) 568.” Per OGBUINYA, J.C.A. (Pp.95-96, Paras.F-G)

 

15. APPEAL – LEAVE OF COURT TO APPEAL OUT OF TIME: Trinity prayers to be sought when seeking leave of court on any ground of appeal after the expiration of the statutory periods prescribed

“It is pertinent to note that, in supporting the view that extension of time within which to file an appeal is different from extension of time within which to seek leave to appeal, the learned counsel for the Appellant/Objector cited the cases of Adeyemi v. Y.R.S. Ikeoluwa & Sons Ltd (1993) 8 NWLR (Pt 309) 27 and Dweye v. Ito Shan (1983) 2 SCNLR, 135 where it was variously held that a party seeking to appeal out of time must seek the trinity prayers and that the application must contain the three prayers otherwise it will be incompetent and struck out. The learned counsel for the Respondent has in my view rather supported the case of the Appellant/Objector, when he cited the authority of Adelakan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) at 48, paragraph B-D, where the Supreme Court expressly stated the position of the law on the trinity prayers thus:- “It is settled law that where an appeal requires leave of court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to apply for leave to appeal. In short, an intending appellant who wishes to seek leave of court on any ground of appeal after the expiration of the statutory periods prescribed under section 31 of the Supreme Court Act, 1960, must seek three substantive prayers, to wit: a. Extension of time to seek leave to appeal; b. Leave to appeal; c. Extension of time within which to appeal; see Premier Breweries Ltd. v. Anere Const. Co. Ltd (1987) 3 NWLR (Pt.62) 688; N.B.N v. N.E.T (1986) 3 NWLR (pt. 31) 667. Odofin v. Agu (1992) 2 NWLR (pt. 229) 350″. see further E.F.B Co Ltd v. NDIC (2007) 9 NWLR (pt.1039) 216; Oyegun v. Nzeribe (2010) 16 NWLR (pt.1220) 568.” Per AGUBE, J.C.A. (Pp.75-76, Paras.C-E)

 

16. APPEAL – MISDIRECTION IN LAW: What amounts to a misdirection in law

“…Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 12 S.C 74 at P.p. 52-56; where Nnaemeka-Agu, JSC, postulated on what amounts to a misdirection in law thus: “For the word misdirection originated from the legal and Constitutional right of every party to a trial by a jury to have the case which he had made either in pursuit or defence fairly submitted to the consideration of the tribunal (see Bray v. Ford (1595) A.C 44 at P. 49. In our system in which the Judge is Judge and Jury, misdirection occurs when the Judge misconceives the issues, whether of facts or law, or summarizes the evidence inadequately or incorrectly. See Chidiak w Laguda (1964) 1 NWLR 123 at P. 125. He may commit misdirection either by a positive act or by non-direction. But when his error relates to his findings it cannot properly be called misdirection; it could be an error in law.” See further B.A.S.F (Nig,) Ltd. v. Faith Ent. Ltd. (Supra) at 862-863 Paras A-P; where Adekeye, JSC further held on the vexed issue of nature of Grounds of Appeal that: “(4) A complaint in a ground of appeal of failure of a court to discharge its judicial duty of considering or pronouncing on the issue before it involves a question of law alone: Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 778; Ogbechi v. Onochie (1986) 2 NWLR (Pt.23) 484; Anogbalu v. Oraelosi (1999) 10 SCNJ, (1999)13 NWLR (Pt 634) 297″. Ayatogu v. Agu (1998) NWLR (pt.532) 129 at 141-142 paras H-A. also refers.” Per AGUBE, J.C.A. (Pp.86-87, Paras.C-C)

 

17. APPEAL – RIGHT TO APPEAL: Whether right to appeal also inures to the party, seeking to appeal where the Ground(s) of Appeal involve(s) questions of law alone; method by which it can be brought on appeal

“As regards Section 241(1) (b) which is the fulcrum of the 1st Respondent/Applicant’s Application, such absolute or unqualified right to appeal also inures to the party seeking to appeal where the Ground(s) of Appeal involve(s) questions of law alone in decisions in any Civil or Criminal Proceedings of the Federal High Court or any other High Court whether sitting at first instance or as an appellate Court on appeals emanating from Magistrates and other Lower Courts. By this provision there is no distinction between final and interlocutory decisions be they in Civil or Criminal Proceedings or whether the decisions arose from the Federal/High Courts’ Original or Appellate jurisdictions but the Ground of Appeal must be purely on issue or issues of law simpliciter. See the cases of Investors International (London) Ltd. v. First Bank of Nigeria plc. (2008) ALL FWLR (pt.405) 1770, 1782 paras, B-C; Blay & Ors. v. Solomon (1947) WACA 175; William Ude & Ors. v. Josiah Agu & Ors. (1961); Comex Ltd. v. N.A.B. Ltd. (1999) 3 NWLR (Pt 496) 643, 654.1 ALL NLR 65 and Falola v. U.B.N Plc. (2005) 7 NWLR (Pt 924) 405, 149 & 420-7. See also Section 241(1) (c)-(f) (i)-(v), which also provide for similar rights in the circumstances stated therein. Apart from the above provisions, all appeals by virtue of Section 242(1) must be by leave of either the Federal High Court or any High Court of those Courts or Court of Appeal. See Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 306 per Idigbe, JSC (of the blessed memory).” Per AGUBE, J.C.A. (Pp.71-72, Paras.A-A)

 

18. INTERPRETATION OF STATUTE – SECTION 24 OF THE COURT OF APPEAL ACT, 2004: Interpretation of section 24 of the Court of Appeal Act 2004

“Turning to the provisions of Section 24 of the Court of Appeal Act 2004 which deals with time for appealing, it is clear that Sub-Section(2)(a) and (4) thereof have stipulated that: “(2). The periods for the giving of notices of appeal or notice of application for leave to appeal are:- (a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision; “(4). The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section”. As for the Rules, Order 7 Rules 10(1), (2) and 11 provide as follows: “10(1). The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal. “11′ An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below.” Beginning from the provisions of Section 24(2) of the Court of Appeal Act above cited, the time for appealing against an interlocutory decision has been pegged at 14 days and the learned counsel for the 1st Respondent/ Applicant cannot seriously contend that the Section has not made it general that the leave of the Court must be sought before an aggrieved party can appeal where the party is seeking to appeal out of time as the 1st Respondent/Applicant is seeking to do at the expiration of the time stipulated by the Act. On the contrary Section 24(1) of the Act makes it mandatory that where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules. Order 7 Rule 7, 10(1) and (2) of the Court of Appeal Rules have therefore provided for the modus of bringing the application for leave to appeal as stipulated by the section 24(1) of the Act.” Per AGUBE, J.C.A. (Pp.72-73, Paras.B-F)

 

19. INTERPRETATION OF STATUTE – SECTION 241 (1)(B) AND 242 (1) 1999 CONSTITUTION AS AMENDED: Interpretation of Sections 241(1)(b) and 242(1) of the 1999 Constitution as amended

“In other to determine whether this Ground and the submissions thereon by the respective learned Counsel for the parties are well founded, it is necessary to have recourse firstly, to the provisions of Sections 241(1)(b) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); which were cited by the learned counsel for the 1st Respondent as buttressing his contention that the 1st Respondent/Applicant does not need leave of court or the trinity prayers for the grant of his application. Now, beginning from section 242(1) of the constitution, it provides thus: “Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.” Section 241(1) on the other hand, provides that: “An appeal shall lie from decisions of the Federal High Court or a High court to the court of Appeal as of right in the following cases … (a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” From the foregoing provisions of the constitution, it is clear that there is an absolute or unqualified right of a citizen of this country under Section 241(1)(a) of the Constitution to appeal against the decision of a High Court as in this case of the Federal High Court, in any civil or criminal proceedings where the courts sat as courts of first instance, whether the Grounds are of law simpliciter, fact alone or mixed law and facts provided the decision is final. See Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 306 per Idigbe, JSC (of the blessed memory), Aqua Ltd. v. Edo State Sport Council (1988) 4 NWLR 622 and Amorc v. Awoniyi (1994) 7-8 SCNJ 39 at 405.” Per AGUBE, J.C.A. (Pp.66-67, Paras.A-C)

 

MAIN JUDGMENT

 

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling):

 

This is an Application brought by way of Motion on Notice pursuant to Sections 15 and 24(4) of the Court of Appeal Act, 2004; Order 7 Rules 1 and 10 and Order 8 Rule 6 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of this Honourable Court. The Motion dated and filed on the 4th day of January, 2010 prays for the following reliefs:-

 

1. AN ORDER of the Honourable Court extending the time within which the 1st Respondent/Applicant may Cross-Appeal and file his Notice of Cross-Appeal against the decision or the High Court of Kwara state in suit No. KWS/301/2011 Between Alhaji Iyanda Shuaib Lateju (Magaji Abudu) for himself and on Behalf of all members of Magaji Abudu Family of Ilorin v. Alhaja Raliat Oyenike Sanni & 2 Ors., now pending as Appeal No. CA/IL/55/2011 before this Honourable Court.

 

2. AN ORDER of the Honourable Court deeming the 1st Respondent/ Applicant’s Notice of Cross-Appeal dated and filed at the Registry of the Lower Court on 29th December, 2011 and served on parties as properly filed and served.

 

3. AN ORDER of the Honourable Court extending the time within which the 1st Respondent/Applicant may compile and transmit Additional Records of Appeal in this Appeal.

 

4. AN ORDER of the Honourable Court deeming the Additional Records of Appeal already compiled and transmitted to this Honourable court on 29th December, 2011 in this appeal as properly compiled and transmitted.

 

5. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

 

The 1st Respondent/Applicant predicated the Application on the following Grounds:-

 

1. The 1st Respondent/Applicant is also dissatisfied with some parts of the decision of the High Court Kwara State appealed against in this appeal.

 

2. The learned Counsel representing the 1st Respondent/Applicant mistakenly adopted the process Respondent’s Notice of Intention in contending the part of the decision of the Lower Court the applicant is dissatisfied with.

 

3. On 1st November, 2011, the Motion on Notice filed by Counsel to the Applicant seeking extension of time to file 1st Respondent’s Notice was withdrawn and struck out on the ground that the counsel made a mistake in adopting that process as against Notice of Cross-Appeal.

 

4. The cost of N5,000.00 (Five Thousand Naira) awarded to the Appellant against the Applicant in favour of the Appellant/Respondent has duly been paid.

 

5. The proper process by which the 1st Respondent/Applicant can contend the part of the decision of the Lower Court he is dissatisfied with is the use of Notice of Cross-Appeal.

 

6. The time within which the 1st Respondent/Applicant can Cross-Appeal against the decision of the lower Court and/or file his Notice of Cross-Appeal against same has lapsed.

 

7. This Honourable Court has power to extend time for the 1st Respondent/Appellant to Cross-Appeal and/or file his Notice of Cross-Appeal against the decision of the Lower Court.

 

8. The 1st Respondent/Applicant has already filed and served his Notice of Cross-Appeal and this Honourable Court has power to deem the Notice of Cross-Appeal already filed and served as properly filed and served.

 

9. Upon filing or deeming as properly filed and served of his Notice of Cross-Appeal, the Respondent/Applicant has a duty to compile and transmit his Notice of Cross-Appeal as Additional Records of Appeal in this case.

 

10. The 1st Respondent/Applicant has already compiled and transmitted Additional Records of Appeal in this appeal.

 

11. This Honourable Court has power to deem the Additional Records of Appeal already compiled and transmitted by the 1st Respondent/Applicant in this appeal as properly compiled and transmitted.

 

12. The Appellant/Respondent’s Brief of Argument is not yet properly before the Court.

 

13. Time is not yet ripe for the 1st Respondent/Applicant to file Respondent’s Brief of Argument in which he can incorporate arguments in respect of his Cross-Appeal.

 

14. A grant of this Application would not prejudice any of the parties while the best interest of justice would be served thereof.

 

15. The 1st Respondent/Applicant’s Cross-Appeal is necessary for this Honourable Court to completely hear and determine all the issues that arose against the decision of the Lower Court.

 

In support of the Application, the Applicant through Hassain Busari, the Litigation Officer in the Chambers of Ishola & Sanni Consort (Al-Barka Chambers), the Law Firm representing the 1st Respondent in this Appeal; deposed to a five paragraphed Affidavit without any annexed Exhibits documentary or otherwise. The Affidavit is at best a rehash of the Grounds for the Application.

 

On the 6th day of January, 2012 when the Application was to be heard, the Appellant/Respondent raised a Preliminary/Objection against the Application for want of competence. Thereon, the Court having considered the contentious nature thereof ordered parties to file their respective Written Addresses to articulate their respective arguments for and against the Application. Consequently, the Appellant/Objector in her Address dated 10th day of March, 2012 and filed on the 12th of March, 2012 by L.L. Akanbi Esq. of Lateef Fagbemi SAN & Co. who settled the Address listed four (4) Grounds for the Preliminary Objection in paragraph 3.00 of his undated Address thus:-

 

“GROUNDS OF THE PRELIMINARY OBJECTION”

 

1. The application failed to (sic) Exhibited the relevant materials which will enable the Court to determine the propriety or otherwise of the application.

 

2. It is mandatory for the applicant to seek for the leave of the Court in his application or what is known as the trinity prayers.

 

3. The Grounds of Appeal as contained in his proposed additional record are not substantial and recondite.

 

4. The application is an abuse of Court process.”

 

He then formulated a sole Issue couched inter alia:- ” Whether the applicant’s application as presently constituted is not incompetent?”

 

The 1st Respondent/Applicant on the other hand in the Address settled by A.S. Ishola Esq. dated and filed on the 16th March, 2012 also distilled a single Issue for determination couched thus:-

 

“Whether from the contents of the Grounds of Appeal contained in the already filed 1st Respondent’s Notice of Appeal, the 1st Respondent ought to have brought the application by way of the trinity prayers”.

 

Upon receipt of the 1st Respondent/Applicant’s Written Address, the Appellant filed on 20/3/12 a Reply Address but dated 19th March, 2012.

 

Before going into the arguments and resolution of the issues formulated by the respective Learned Counsel for the parties, permit me to recount in brief the facts leading to this Application. The 1st Respondent/Applicant had in the Lower Court as Claimant, filed a suit seeking for declarations of title to land measuring 5.12 hectares situate at Agbabiaka Area, Ilorin, Kwara State, having been in possession of same from time immemorial in an undisturbed manner; that the right of the Claimant as stated above cannot be defeated merely by the subsequent issuance of Certificate of Occupancy No. 8183 to the 1st Defendant by the Kwara State Government represented by the 2nd and 3rd Defendants, due process to validate the issuance having not been followed; that the issuance of the Certificate of Occupancy in so far as it covers the land disputed, is wrongful, illegal, unconstitutional and a violation of the Land Use Act. He also prayed for orders setting aside the said Certificate of Occupancy upon the above stated grounds in that the Land belongs originally to Claimant and that the issuance of the Certificate of Occupancy is null and void, perpetual injunction restraining the 1st Defendant/heirs, assigns,  privies and whoever claiming through her from interfering with the peaceful possession and ownership of the land; Award of N500,000.00 (Five Hundred Thousand Naira) damages against the 1st Respondent for trespass on the land in question amongst other reliefs.

 

Issues were joined by the 1st Defendant/Respondent/Applicant by filing her Statement of Defence dated 21st December, 2010, same day where in paragraphs 29-30 thereof, she pleaded that, she shall contend on or before the trial of the suit that the Honourable Court lacked the jurisdiction to entertain the suit because the action was statute barred, by virtue of Limitation Law of Kwara State, and that the 1st Defendant shall contend that the Claimant’s suit is caught by issue Estoppel. The particulars of contentions were duly supplied.

 

Thereafter in a Motion dated 29th March, 2011, the 1st Defendant (now 1st Respondent/Applicant) prayed the Court to dismiss the suit for being an abuse of Court process on the Grounds that:-

 

1. The claimant’s suit is an abuse of court process.

 

1. The suit is caught by estoppel per rem judicatam;

 

iii.      There is no reasonable cause of action and

 

1. The Claimant’s cause of action, if any, is statute barred”.

 

The Motion was supported with an affidavit of 33 paragraphs and documentary exhibits including the judgment of this Honourable Court between the same parties in Appeal No. CA/IL/87/2006 and Written Address. The Claimants/Appellants/Respondents then filed their Counter-Affidavit supported with their Written Address. A Further Affidavit, hordes of documentary exhibits and Reply Address were further filed by the 1st Defendant/Objector/ now 1st Respondent/Applicant and upon adoption of their respective Addresses the learned trial Judge in his considered Ruling, held as follows:-

 

1. On the Claimant’s claim constituting an abuse of process it being caught by estoppel that:

 

“The conclusion I have therefore come to is that it is impressible to consider the issue of res judicata or issue estoppel which is the basis of the contention that the suit constitutes an abuse of Court process in the absence of a duly authenticated copy of the Judgment of the High Court especially in the light of the over whelming reliance by Mr. Afolabi on the findings of fact contained in the said Judgment.

 

I am therefore unable to consider the issue of whether or not this suit constitutes an abuse of process at this stage of the proceedings.

See pages 338 of the Records.

 

2. on the action being statute Barred that:-

 

“The rules of this Court demand in Order 27(4)(1) that matters pertaining to Statute of Limitation must be specially pleaded which is an indication that it is a matter for pleadings and trial. The conclusion I have therefore come to is that the issue of Limitation raised by the 1st Defendant in the peculiar circumstances of this case cannot be resolved on the pleadings but must go to trial. In the light of the foregoing, I hold that his application is premature and the same is struck out”.

 

Dissatisfied with the Ruling of the learned trial Judge, the Appellant/Respondent then appealed to this Honourable Court while the 1st Respondent/Applicant seeks through this Motion to appeal against certain aspects of the learned trial Judge’s Ruling which application is being challenged for incompetence.
ARGUMENT OF THE APPELLANT/OBJECTOR ON THE SOLE ISSUE FORMULATED AGAINST THE 1ST RESPONDENT’S APPLICATION WHICH IS “WHETHER THE APPLICANT’S APPLICATION AS PRESENTLY CONSTITUTED IS NOT INCOMPETENT”.

 

The Learned Counsel for the Appellant/Respondent/Objector answered the question posed above in the affirmative arguing that where an Applicant requires the Court to exercise discretion for grant of extension of time within which to appeal (as the Applicant herein) all the documents which will be necessary for the Court to see in order to decide on the application must be exhibited. He mentioned such exhibits to include the affidavit, the judgment of the Court below and in particular the Notice of Appeal which will enable the Appellant to determine the substantiality of the Grounds thereof and even the Record of proceedings where necessary for the Court to decide the matter in contest between the parties. For this submission he cited Adepele v. Akintola (1986) 5 NWLR (Pt 42) 448 at 456; per S. U. Onu, JCA (as he then was). Leaned Counsel argued further that the failure of Appellant herein to Exhibit the Notice of Appeal is fatal to her case since the Judgment contained in the proposed Additional Record of Appeal, is not yet before the Court until prayers 3 and 4 in the Motion paper are granted to enable the Court recon with them. He noted that a Cross-Appeal is a distinct Appeal and the fate of the main appeal may not affect the Cross-Appeal. Therefore where the steps to be taken in activating the jurisdiction of the Court are made mandatory in the main Appeal such steps are also mandatory in the Cross-Appeal since it is distinct and separate. Owners of the MV Arabela v. NAIC (2008) 11 NWLR (Pt.1097) 782 S.C also Odu v. Fawehinmi (2005) NWRL (Pt. 949) 578.

 

As for the second Ground of Objection, the Learned Counsel for the Appellant/Objector noted that it is hinged on the decision of the Apex Court in Akinsanya v. U.B.A Ltd. G986) 4 NWLR (pt 35) 272 per Kayode Eso, JSC, where Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 70) 924, was considered on the nature of order made as determining whether a decision is final or interlocutory submitting that the above case overruled the dictum of? Karibi Whyte, JSC, in Western Shel Works v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617. The case of Okokhue v. Obadan (1980) 5 NWLR (Pt. 120) 785 and C.G.D.G. (Nig) Ltd v. Odurusan (2009) NWLR (pt.1135) 465; were also cited to submit that the trial Judge’s decision which the applicant is appealing against is interlocutory as the appeal is not against the order of Court assuming jurisdiction which would have entitled the application to appeal without leave of this Court, the issue being that of law but that it is against the order striking out the Appellant’s application instead of dismissing same which is not a matter of law.

 

On the question whether a Ground of Appeal raises questions of law alone, facts or of mixed law and facts, he relied on the cases of Olarenwaju v. Ogunleye (1997) 2 NWLR (Pt. 485) 12 at 24 paras G-H; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 537; Gbasha v. Love Bet (Nig) Ltd. (2005) 15 NWLR (pt. 949) 551 and C.B.N. v. Okogie (2002)1 NWLR (Pt. 768) 48 S.C; which analysed the principle ingrained in Grounds 1, 2, 3, & 4 of the Applicants Grounds of Appeal and their nature and submitted that the relief sought in the proposed Grounds of Appeal is the dismissal of the Appellant’s Application rather than the order striking out the Application as made by the Lower Court. He maintained that it is not a matter of pure law by Section 241 of the 1999 Constitution FRN (1999 as amended) which would have been the case if she was appealing against the assumption of jurisdiction by the Lower Court.

 

Learned Counsel again alluded to the provision of Section 24 of the Court of Appeal Act, 2004 which provides for the period of appealing against interlocutory decision and relying on the authority of Junaid v. Abacus Security Ltd. (2008) 44 WRN; contended that in the entire application there is no prayer for leave to appeal which makes it incurably bad. It was again the contention of learned counsel for the Objector/Appellant/Respondent that in a single Appeal, there could be so many issues of facts, law and mixed law and facts to be appealed against but all that the person appealing ought to do is to fulfil the conditions precedent for the appeal to be competent. He reiterated his submission on the nature of the Ground of Appeal based on the Order made by the lower Court, as canvassed earlier to emphasize that the extension of time to file an Appeal is different from extension of time within which to seek leave to appeal. Adeyemi v. Y.R.S. Ikeoluwa & Son Ltd. (1993) 1 NWLR (Pt. 309) 27; Oweye v. Ito Shan (1983) 2 SCNL& 735; on how a party seeking to appeal out of time must seek the trinity prayers otherwise the application would be struck out for incompetence, were further cited to buttress the above submission; adding that allowing the Applicant to make an oral application for leave to appeal when there is no such prayer in his application is simply to allow him file an incompetent appeal. Adeyemi v. Y.R.S. Ikeoluwa at 43 paras A-C, was again relied upon to urge us to strike out the Application.

 

Finally the learned counsel for the Appellant/Objector pointed out that apart from the Applicant showing good cause why she did not appeal within time her Grounds of Appeal must also show prima facie good cause why the appeal should be heard. These two conditions which have been provided for under Order 7 Rule 10 of the Court of Appeal Act, 2011, he submitted on authority of Ahmed v, Trade Bank Plc. (1996) 3 NWLR (pt, 497) 445 at 457 paras, F-G and Cooperative & Commerce Bank (Nig. Ltd) v. Ogwuru (1993) 3 NWLR (Pt.284) 630, must be satisfied conjunctively by the Applicant in order to succeed.

 

In conclusion, he posited that considering the nature of the proposed Grounds of Appeal and the Reliefs being sought, the Grounds of Appeal are not substantial. We were then urged to strike out the Grounds of Appeal.

1ST RESPONDENT /APPLICNAT’S ARGUMENTS.

 

Reacting to the arguments of the learned counsel for the Appellant/Objector, the learned Counsel for the 1st Respondent/Applicant pointed out that based on the sole Ground of Objection placed before us by the Appellant and in respect of which we ordered exchange of Written Addresses, that Ground is that:-

“The application is grossly incompetent due to the fact that leave of the Court for extension of time to seek leave to appeal and for leave to appeal’ were not included in the prayers in the motion paper”.

 

In essence, the learned counsel noted, the contention of the Appellant simply is that the Application is incompetent for failing to contain the Trinity Prayers. He maintained that since this is the position of the Records, the Appellant is wrong to have included other grounds which have not received the favour of this Honourable Court for according to him, if the learned Counsel for the Appellant had wanted to argue other grounds of objection, he would have referred back and made them known rather than incorporating them in his Written Address thereby taking the Court and 1st Respondent/Applicant by surprise. We were therefore urged to discountenance Grounds 1, 3 and 4 of the Grounds of Objection for the above reasons, aside from the Court having already decided/resolved the issue which the Appellant has still gone to include as his Ground 1.

 

On the substance of the arguments of the Appellant/Respondent’s learned Counsel, that Notice of Appeal and the Judgment sought to be appealed against have not annexed to the Application which failure is fatal to the application; the learned Counsel for the 1st Respondent/Applicant submitted that the submission of learned Counsel for the Appellant/Respondent is based on the misconception that the 1st Respondent must pray for the trinity prayers. He took the view that if the Application were for the trinity prayers ” then it would have been necessary for the Notice of Appeal/ Cross-Appeal to be exhibited and it would not be proper for the Notice to have even been filed before the necessity to seek leave and obtain same. Azazi v. Adhekegbe (2009) All FWLR (pt.494) 1545 at 1562.

 

Learned Counsel for the 1st Respondent/Applicant pointed out that the 1st Respondent/Applicant is appealing purely on points of law and that the Appeal being a Cross-Appeal (which ordinarily under the Court of Appeal Act and Court of Appeal Rules, 2011); has no stipulated time within which it would be filed, the prayers in the Motion as per Reliefs 2 and 4 for deeming orders have cured the defect of not attaching the Notice of Cross-Appeal as Exhibit to the Application. This, according to the learned Counsel for the Appellant, is because the Notice has already formed part of the Record of this Court, and the necessary filing fees and penalty having been paid; this Court ought to have taken judicial notice of it in the circumstances. Garba v. Omokhodien (2011) All FWLR (Pt. 596) 404 at 427 paras. E; was cited to submit that the deeming Order was meant to regularise the position which follows, that the Application is not an abuse of process, which he prayed us to so hold.

 

Addressing specifically on the Grounds of Cross-Appeal under the title “MANIFESTATIONS THAT THE NOTICE OF CROSS-APPEAL IS ON GROUNDS OF LAW; learned Counsel for the 1st Respondent/Applicant reiterated his earlier submission that the Appellant/Respondent misconceived or was under the erroneous impression that the 1st Respondent must come by way of the trinity prayers. He maintained that contrary to the submission of the learned Counsel for the Appellant, it is only where a party seeks extension of time in a situation where ordinarily he ought to seek leave to appeal in the first place that he would leave to come by way of the trinity prayers.

 

In other words, he reiterated, where a party like the 1st Respondent does not require leave in the first place, the prayers he must subscribe to are as contained in the present motion paper. For this submission he placed reliance on Adelakun v. ECU-Line NV (2006) 12 NWLR (pt.993) at 48 paras, B-D S.C; to urge us to hold that the learned Counsel for the Appellant/Respondent has misconceived and wrongly stated the position of the law and this Honourable should not be misled by such submissions. On the issue of nature of Grounds in the Notice of Cross-Appeal, learned Counsel cited the dictum of Adekeye, JSC in B.A.S.F (Nig) Ltd. v. Faith Ent. Ltd (2010) All FWLR (Pt. 518) 840 at 862-863; paras. H-A; where the Supreme Court gave detailed guide on which grounds are those of law; of facts simpliciter and mixed law and facts. Ayalogu v. Agu (1998) NWLR (Pt.532) 129 at 141-142 paras, was further cited to buttress his contention that the Appellant misconceived the position of law on the Grounds of Cross-Appeal filed by the 1st Respondent/Applicant.

 

Learned counsel then went ahead to analyse the Grounds of Cross-Appeal as couched beginning from GROUND ONE which he submitted that the complaint of the intending Cross-Appellant is that with the conclusion reached by the Judge, Exhibit C was not the Judgment of a Court of law, the law and not his discretion dictated that he should have dismissed the Application of the Appellant and not strike same out which this legal error committed by the Court below has formed the fulcrum of the complaint made in the Ground. This Ground he concluded is a pure Ground of law which is neither connected to facts nor in the nature of mixed law and facts and on the authorities of Akole v. Alonge (2009) All FWLR (Pt. 468) 295 at 128- 329 paras E-H, A-B and B.A.S.F. (Nig) Ltd. v Faith Ent. (Supra) page 862 para, H. Item (a).

GROUND TWO

 

On this Ground, learned Counsel for the 1st Respondent/Applicant argued that by the issue of statute barred on the 1st Respondent’s Statement of Claim which is the basis of the 1st Respondent’s Ground 2 of the Notice of Cross-Appeal, the error committed by the learned trial Judge is purely an error of law since on the authority of Muomah v. Spring Bank Plc. (2010) All FWLR (Pt.502) 1097 at 1107, the law is settled that matters of statute of Limitation can only and must only be determined on averments in the Statement of Claim. Relying again on B.A.S.F v. Faith Ent. (Supra) at page 863; it was submitted that what we are to determine on the Cross-Appeal would not require us to have recourse to facts either in an affidavit evidence or otherwise but simply whether the law permits the learned trial Judge not to determine the issue of Statute bar on the Statement of Claim or not.

GROUND THREE

 

Here the learned Counsel again argued that the Ground is of pure law because it complains of fair hearing of the 1st Respondent in that his right was violated which, in our determination, we are according to learned counsel to the 1st Respondent, to refer only to the Record of proceedings to find out whether the 1st Respondent was actually not accorded fair hearing as complained; the failure which would be in violation of Section 36(1) of the Constitution 1999. Per Adekeye, B.A.S.F. v. Faith Ent. (Supra) at 863 para F. refers.

GROUND FOUR

 

Here, it was conceded that a Ground of Appeal which is against the exercise of the Court discretion is a ground of mixed law and fact which requires leave of the Court to be validly argued (Azazi v. Adhekegba (supra) at 1565 paras. G but he submitted that what the learned trial Judge did in striking out the Application was not a matter of exercise of discretion but a complete error in law in the nature of misapplication of the law. He maintained that in a matter of Res Judicata or Statute Bar or by way of issue estoppel, the Court of trial had no discretion on the step to take upon the success or failure of the Application and where the Application failed as in this case, the trial Court was legally bound to dismiss the Application. The failure to so do, learned Counsel insisted, amounted to a grave error committed by the lower Court. B.A.S.F. v. Faith Enterprises (supra) at 862 para G-H; Azazi v Adhekegba (supra) at 1565 para. D, were again cited to submit further that where a Court has no discretion to exercise in an issue, anything wrongly done or any decision wrongly taken would not qualify as erroneous exercise of discretion but purely error of law. He prayed us to so hold.

GROUND FIVE

 

Learned Counsel on this ground contended that it is clear from the wordings thereof that it is an Omnibus ground which the Appellant has kept mute about and according to learned Counsel for the 1st Respondent/Applicant, same is competent. Following the consensus by the learned Counsel that Ground Five is valid, learned Counsel for the 1st Respondent further contended, he submitted that in the event that other grounds are found to require leave before they are filed, they would still be justified to allow the Application and the Cross-Appeal to be argued on the valid Ground Five alone on the authority of Azazi v. Adhekegba (Surpa) at 1565-1566 paras H-A.

Learned Counsel for the 1st Respondent on another wicket under the title “CONSTITUTIONAL BACKING FOR THE VALIDITY OF THE 1ST RESPONDENT’S APPLICATION’; submitted that by virtue of Section 24(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); since the intended Cross-Appeal involves questions of law alone, as borne out by all the Grounds of Cross-Appeal, the 1st Respondent did not require the leave of Court to appeal.

 

He repeated that it is not the law as the learned Counsel for the Appellant/Respondent attempted to say that at every time a prospective Appellant or Cross-Appellant intends to Appeal he must come by way of trinity prayers. According to learned Counsel for the 1st Respondent/Applicant, such leave can only be mandatory if an application in the first place requires leave otherwise this would be contrary to the intent of Section 24(1)(b) of the constitution and will also defeat the essence of Section 242(1) of the same Constitution if read in harmony with Section 24(1)(b) thereof.

 

Our attention was also drawn to the provision of Section 24 of the Court of Appeal Act, 2004 which he reproduced in submitting that it has not made a general provision that leave of the Court must be sought before one can appeal against interlocutory decision of the Court of first instance otherwise it would contradict Sections 241(1) (b) and 242(1) of the Constitution and accordingly that provision shall be null and void. He explained further that what Section 24 of the Court of Appeal Act connotes is that where the Appeal is interlocutory, and its grounds are grounds of law alone as happened in this Application, the Appellant or Cross-Appellant is required to give Notice of Appeal within fourteen days at which expiration, this Court shall be justified to extend time for such a party (Section 24 of the Court of Appeal Act, referred).

 

Learned Counsel went on to pose the questions as to which fourteen days the Cross-Appellant would be required to file his appeal and whether if the main Appeal is filed on the last available day or out of time, the Cross-Appellant would still be obliged to file the Notice of Cross-Appeal within fourteen days after the interlocutory decision or be obliged to bring an application for extension of time as done herein? He then proceeded to address on these posers because according to him, they believe that the application asking for extension of time is a surplusage and a step taken ex abundante cautella. In his view, Section 24 of the Court of Appeal Act shows that while the Notice of Appeal in an interlocutory Appeal is required to be given within fourteen days, there is no time-lag expressly stipulated for giving Notice of Cross-Appeal the implication which is that the application for extension of time is surplusage and consequently the objection by the Appellant is unnecessary.

 

Secondly, notwithstanding that the Cross-Appeal is independent; it is dependent on the substantive Appeal and where there is no substantive Appeal, a Cross-Appeal is an impossibility; the implication of the foregoing being that section 24 of the Court of Appeal Act is only applicable to the main Appeal and if the Section had intended to cover Cross-Appeal, it would expressly have stated so as the law is settled that the express mention of one thing is the exclusion of others.

 

Thirdly, the learned Counsel also posited that the definition of Appeal in Section 30 of the Act does not cover ” Cross-Appeal’ and “Cross-Appeal is not synonymous with “appeal’ and where “appeal’ is mentioned in the Court of Appeal Act, as in this case, it would be against the canon of interpretation to extend its meaning and connotation to “Cross-Appeal” except the Statute expressly so provides.

 

Fourthly, the learned Counsel for the 1st Respondent also alluded to Order 1 Rule 5 of the Court of Appeal Rules, 2011 and Order 9, Rule 1, Order 18 Rule 7; and Order 18, Rule 9(2) of the Court of Appeal Rules, 2011 to submit further that the definition of “appeal’ in the Rules do not equally connote “Cross-Appeal’. He further took the view that these express provisions of the Rules support the view that unlike what applies to “a main Appeal’ no time is yet stipulated within which a Respondent is mandated to file his Notice of Cross-Appeal and as such the present Application for extension of time within which to Cross appeal or file Notice of Cross-Appeal is therefore a surplusage which the 1st Respondent deserves commendation and not condemnation for.

 

Citing Uwazurike v. Attorney General of the Federation (2007) All FWLR (Pt 367) 834 at 845 paras. E-G it was again argued that the time within which a Respondent must file a Respondent’s Notice of contention under Orders 9, Rule 4 of the Court of Appeal Rules, 2011, further buttresses the point that the Court of Appeal Act and the Court’s Rules do not provide the time limit with which to file a Cross-Appeal. This, according to him, may be a lacuna in the law but it would be too extraneous for this Court to import time-frame not stipulated in the Statute. Learned Counsel asserted that all the authorities cited by the Appellant in his Written Address are good in their respective rights but do not apply to this case and in particular to the submissions of learned Counsel to the Appellant in paragraphs 5.07, 5.09, 5.14, 5.17, 5.18- 5.20 of the Appellant’s Address.

 

We were also urged to discountenance all the submissions in the address as being misconceived, legally unfounded and completely unsupportive of the objection of the Appellant. He finally called on us to resolve the sole issue in favour of the 1st Respondent/Applicant and grant the Applicant.

RESOLUTION OF ISSUES.

 

In the resolution of the respective sole Issues formulated by each of the learned counsel for the respective parties; I must in the first place debunk the erroneous impression created by the learned counsel for the 1st Respondent in the 1st Respondent/Applicant’s Address, that the Appellant is circumscribed by the sole ground of objection as raised by the learned counsel for the Appellant to the motion which necessitated our ordering Written Addresses. This is so because the mere fact that the Appellant’s Objection is to the effect that the Application is grossly incompetent due to the fact that leave of the Court for extension of time to seek leave to appeal and for leave to appeal were not included in the prayers in the motion paper, the Appellant was therefore precluded from raising other salient points of law against the hearing of the application.

 

As was rightly argued in the Appellant’s Reply Address citing Ansa v. R.T.C.P. CN (2008) 7 NWLR (pt.1086) 427 at 448 para, G and N.D.I.C v C.B.N. (2002) 7 NWLR (Pt. 766) 292; the competence vel non of the motion filed by the 1st Respondent, goes to the fundamental/threshold issue of the jurisdiction of this Honourable Court to entertain the Application and it is trite on authorities too numerous to mention that it can be raised by whatever mode (upside down or inside out) or at any stage of the proceedings even for the first time herein or in the Supreme Court. Indeed, as rightly submitted by the learned counsel for the Appellant, this Court can even suo motu raise the issue where it is apparent from the surrounding circumstances that the motion is an abuse of court process. See Labour Party v. INEC (2009) 37 NSCQR 73 at 87 paras. E-G per Ogbuagu, J.S.C; who cited the cases of Adesanya v. The President (1981) 1 NCLR 386; FRN v. Lord Chief Ifezwu (2003) 15 NWLR (pt. 842) 113 and Chief Ehigbe Omokhafe & Ors. v. The Military Administrator Edo State of Nigeria (2004) 12 SCNJ 106; in support of his holding that:

 

“… the issue of jurisdiction is said to be so fundamental, that it can/could be raised at any stage/time by any party or even by court.

 

Furthermore, competence or incompetence of a process of Court as in this case where the Appellant raised the Issue of leave not being sought for extension of time within which to appeal and for leave to appeal, entails some other essential indices like the nature of grounds of appeal as stipulated by the Constitution, the time stipulated by both the Court of Appeal Act and the Rules of this Court to appeal and the effect of the expiration of such time. See for instance Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, Sections 15 and 24 of the Court of Appeal Act, Order 7 Rules 5-11 and Order 18 Rule 7 of the Court of Appeal Rules which have formed the fulcrum of the arguments of learned counsel on both sides in this Preliminary Objection.

 

On a careful perusal of the Record of Proceedings of this Court held on the 6th of March, 2012, there is no doubt that when the learned counsel for the 1st Respondent/Applicant attempted to argue the motion which has culminated in this Preliminary Objection, Mr. Akanbi for the Appellant stated thus:

 

“We are opposed to the Application on points of law. The Application is grossly incompetent in that the Applicant /Cross-Appellant did not seek the trinity prayers for the grant of his Application since he is cross appealing out of time.”

 

The Court then observed and ordered as follows:

 

“In view of the contentious nature of this Application, the parties are given 5 days each within which to submit Written Addresses ……….”

 

From the above excerpts of the Record of proceedings of this Court, it is clear that the objection by the learned counsel for the Appellant/Objector was generic and specific. In generic terms the learned counsel stated that they were opposed to the Application on points of law. On the specific side, the learned counsel then stated that the Application is grossly incompetent because the Applicant/Cross Appellant did not seek the trinity prayers.

 

Assuming that the learned Counsel for the Appellant/Objector only raised the objection on the failure of the 1st Respondent/Applicant/Cross Appellant was only on the failure of the Applicant to seek for the trinity prayers, I reiterate and agree with the submission of the learned counsel for the Appellant/Objector, that where other grounds of incompetence are inherent in the motion paper, the learned counsel for the Appellant reserves the right and duty as a minister in the temple of justice to point them out to the Court by way of Address so that the salient issues in the case can be effectually and completely determined once and for all.

 

I therefore discountenance the introductory aspect of the arguments of the learned counsel for the 1st Respondent and hold that the four Grounds of Preliminary Objection as appear in paragraph 3.00 of the Appellant/Objector’s Address against the motion of the 1st Respondent/Applicant are valid and the Court nay the Respondents are not taken by any surprise, since the 1st Respondent/Applicant has been served with the arguments of the Appellant and he has equally filed his Address in response to the arguments.

 

Turning to the Grounds of the Objection and the arguments in support thereof, it is necessary to first of all refer to the salient Sections of the Court of Appeal Act and Rules under which the Application of the 1st Respondent/Applicant are predicated. Beginning from Section 15 of the Court of Appeal Act, this section provides for the general powers of the Court of Appeal to make any order from time to time necessary for determining the real questions in controversy in an appeal before it including the powers to amend any defect or error in the Record of Appeal and amongst others to have full jurisdiction over the whole proceedings as if it is a Court of first instance.

 

Section 24 of the Court of Appeal Act, 2004, on the other hand, provides thus:

 

“24. Time for appealing

 

1. Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the periods prescribed by the provision of subsection (2) of this section that is applicable to the case.

 

2. The periods for the giving of notices of appeal or notice of application for leave to appeal are:-

 

1. In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

 

1. In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

 

3. Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.

 

4. The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section”.

 

As for the Rules, Order 7 Rules 7-11 provide as follows:

 

“7.     The application for leave to appeal from a decision of a lower Court shall contain copies of the following items, namely-

 

(a)     Notice of motion for leave to appeal (Form 5);

 

(b)     A certified true copy of the decision of the Court below sought to be appealed against;

 

(c)     a copy of the proposed grounds of appear; and

 

(d)     where leave has been refused by the lower Court, a copy of the order refusing leave.

 

8. Upon the service of any application on the Respondent, he may within seven days file a notice of intention not to contest the application and upon such notice the application may be heard by the Justices in chambers without oral argument.

 

9. Except with the leave of the Court, maximum of thirty minutes on each side will be allowed for oral argument on any application.

 

10. (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.

 

(2)     Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard, when time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.

 

11. An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.”

 

The Supreme Court had cause to pronounce on the provisions of Order 3 Rule 4(2) of the Federal/Court of Appeal Rules, 1981 and Order 7 Rule 4(2) of the Supreme Court Rules, 1977 which were in pari materia with the current Court of Appeal Rules above cited, in Ibodo v. Enaraofra & Ors. (1980) 5- 7 SC 42. In that locus classicus, which has been followed since then beginning from cases like Unilag & Anon v. Olaniyan & 2 Ors. (1985) 1 NWLR (Pt.7) 756 at 764-765 per Nnamani, JSC (of blessed memory) and John C. Okafor v. Bendel Newspaper Corp, & Anor, (1991) 7 NWLR (Pt 206) 657 at page 665 paras. E-H: Per, Nnaemeka-Agu J.S.C);

 

Aniagolu, JSC, who delivered the lead Judgment of the apex Court laid down the guiding principles and modalities for a competent application of this nature when he posited at page 53 inter alia:-

 

“The second part (i.e grounds of appeal which prima facie show good cause), however requires also to be satisfied and whether this has been done must be seen against the background of the facts of the case in respect of which the grounds have been filed. The facts are gathered from the documents filed by the applicants and in particular the judgment of the Court of Appeal.”

 

At P. 57 of the Report, the learned law Lord added thus:-

 

“As I have already said the documents filed by the applicants would ordinarily be insufficient materials upon which this Court will come to a decision. The judgment of the High Court was not exhibited by the applicants. It cannot be over emphasized that where an applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the applicant and counsel; the judgments of the Courts below: the exhibits or so much of the exhibits on which the applicant will rely to argue his application; his proposed grounds of appeal; where necessary, the record of proceedings or so much of the record of proceedings as will  enable the court to found on the substantiality of those grounds of appeal based solely or in the  main, on the evidence given, the brief of the applicant’s argument and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to, be able to decide on the matters in contest in the application”.

 

In the instant case, the learned counsel for the Appellant has rightly argued on Ground 1 while citing the case of Adapele v. Akintola (1986) NWLR (pt.42) 448 per Onu, JCA (as he then was) which is a re-echo of the dicta of their Lordships of the apex Court in Ibodo v. Enaraofia & Ors. (1980) 5-7 SC 42; Unilag & Anon v. Olaniyan & 2 Ors. (1985) 1 NWLR (Pt.1) 156 at 164-165 and John C. Okafor v. Bendel Newspaper Corp. & Anor. (1991) 7 NWLR (Pt 200) 657 at page 665 paras. E-H; and it would appear that the learned counsel for the 1st Respondent has conceded by citing Azazi v. Adhekegba (2009) ALL FWLR (pt. 484) 1545 at 7562 paras. D-E; to submit that if the Application ought truly to be by way of the trinity prayers, it would have been necessary to attach the proposed Notice of Appeal/Cross-Appeal as Exhibit and that it would not be proper for the Notice to have even been filed before the necessary leave is sought and obtained. He however contends that this is not a proper Application for the 1st Respondent to seek for the trinity prayers, because, according to him, the Grounds of Cross-Appeal are purely on points of law and there is no stipulated time within which the Notice of Appeal must be filed.

 

I must state straight away that the submissions of the learned counsel for the 1st Respondent is completely erroneous because from the Supreme Court authorities earlier cited, whether the Motion seeks for the trinity prayers or not, he must exhibit the Affidavit, the Judgment of the Court below, any Exhibits which the Applicant will rely to argue his Application; the proposed Grounds of Appeal and if necessary the Records of proceedings, from which the evidence therein contained will demonstrate the substantiality of the Grounds of Appeal and upon which the Appellant’s Brief can be founded and any other document from which the Court would be able to decide on the Issues at stake in the Application. See Adapele v. Akintola (supra).

 

The failure of the 1st Respondent/Applicant to annex the Notice of Appeal and the Judgment of the Court sought to be appealed against when this Application was brought is fatal to the 1st Respondent’s case in that as the learned counsel for the Appellant has rightly submitted, the Court would not have been able to determine the substantiality of the Grounds of Cross-Appeal. The learned counsel for the 1st Respondent/Applicant on another score has submitted that the prayers for deeming orders as per reliefs 2 and 4 on the motion paper have cured the defect of not attaching the Notice of Cross-Appeal in that, the notice has already formed part of the Records of this Court and that as the necessary filing fees and penalty have been paid; this Honourable Court ought to take the judicial notice of same. He has relied on Garuba v. Omokhodion (2011) All FWLR (pt. 596) at 427 para. E; where Chukwuma Eneh, JSC held that it is trite that the Court before whom a proceeding is pending or has been completed takes judicial notice of all the Court processes. There is no doubt that, the Additional Records of Appeal filed on the 29th December, 2009 preceded the filing of this application which is the subject of this objection and contain the 1st Respondent/Cross-Appellant’s Notice of Cross-Appeal dated 23rd of December, 2011 and filed the same day and also another Notice of the 1st Respondent/Appellant Cross-Appeal dated and filed on the 29th of December, 2011, and this court ought to take judicial notice of it.

 

However, this did not preclude the Applicant from abiding by the provisions of Order 7 Rule 7(7) of the Court of Appeal Rules which is to the effect that every application for leave to appeal from the decision of the Lower Court shall contain copies of the Notice of Motion for leave to appeal (Form 5); a certified true copy of the decision of the Court below sought to be appealed against and a copy of the proposed grounds of appeal. Furthermore, since by Rule 10(2) of order 7 of the Rules, it is mandatorily provided that every application for enlargement of time within which to appeal apart from being supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, how can the Court decide on whether: the grounds of appeal prima facie show good cause why the appeal should be heard, if the Notice and Grounds of Appeal do not accompany the motion paper? see Adapele v. Akintota (supra); Ibodo v, Enaraofia & Ors. (1980) 5-7 SC 42; Unilag & Anor. v. Olaniyan & 2 Ors. (1985) 1 NWLR (Pt.1) 156 at 164-165 and John C. Okafor v. Bendel Newspaper Corp. & Anon (1991) 7 NWLR (pt 206) 651 at page 665 paras. E-H; earlier cited.

 

Indeed as learned counsel for the Appellant has rightly argued that even the Additional Records of Appeal containing the Grounds of cross-Appeal are not yet properly before the court until prayers 2 and 4 of the motion paper are granted. The learned counsel for the 1st Respondent/ Applicant cannot therefore seriously contend at feast for the purpose of this objection that the defect of not attaching the Notice of Appeal has been cured with the prayers 2 and 4 for the deeming orders in the motion paper. This is because apart from the Proposed Grounds of Cross-Appeal which are still inchoate, the Judgment of the Lower court sought to be appealed against, has also not been annexed to the motion paper. Thus, prima facie the 1st Respondent/Applicant’s motion is incompetent for failure to exhibit the relevant materials which will enable the court to determine the propriety or otherwise of the application or even the substantiality of the Grounds of Cross-Appeal for the grant of same. This Ground is therefore in favour of the Appellant/Objector.

 

It is pertinent to note that the learned counsel for the 1st Respondent/Applicant had also canvassed a further erroneous argument that because the Court of Appeal Act 2004 (as amended) and the 2011 Rules thereof, have no stipulated time within which a Cross-Appeal must be filed, the 1st Respondent/Applicant Application for Cross-Appeal is a surplusage which even needs their being commended for their rare fit. The learned counsel for the Appellant on other hand, has aptly stated the position of the law on the authorities of Owners of MV Arabella v. NAIC (2008) 11 NWLR (pt. 1097) 182 SC and Odu v. Fawehinmi (2005) 15 NWLR (pt.949) 578; that it is trite that a Cross-Appeal is distinct and separate from the main appeal and it therefore follows that the mandatory annexure or exhibition of the proposed Grounds of Appeal and the Judgment of the trial Court against which he seeks to appeal, is a sine qua non.

 

In Lagos, City Council v. Ajayi (1970) I ALL NLR 29 at 294; it was held that any appeal by a dissatisfied Respondent is a Cross-Appeal and this involves prima facie that there is a pre-existing appeal since it is only in that context that one conceives of a Respondent at all. However, the case of Oguma v. I.B.W.A. (1988) 1 NWLR 658 at 681 per Nnemeka-Agu, JSC; made it explicitly clear that:
“A Cross-Appeal does not strictly depend upon an appeal having been filed; any person who has had a judgment in his favour but seeks to reverse the judgment or part of it or any important finding therein can file a Cross-appeal without first waiting to be served with a Notice of Appeal by the unsuccessful party”.

 

The purpose of a Cross-appeal therefore, according to the decision in Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR 47; is to correct any error that may stand in the way of a Respondent in the main appeal.   The circumstances under which a Respondent must Cross-appeal have been stated in some decided authorities to include:

 

1. Where the effect of a reversal of any finding of fact of a trial Judge is to allow the appeal on a ground of fact found against the Respondent in the lower Court; and the Respondent wants a reversal of such an adverse finding. see Adekeye v. Akin Olugbade (1997) 3 NWLR 214; Sunmonu v. Ashote (1975) 1 NMLR 16; Oguma v. IBWA (supra) at 658;

 

2. Where the Respondent wishes to contest a different issue or cause of action other than the one raised by the Notice of Appeal served on him. See Western Steel Works v. Iron and Steel Workers Union (1987) 7 NWLR 284; A.C.S. Ltd. v. N.D.R. & General Works Ltd. (1977) 5 SC 235 at 237.

 

3. Where a Plaintiff/Claimant who was non-suited but challenges the order of non-suit and contends that the judgment should have been given in his favour instead. see Oyekun v. B.P. Nigeria Ltd. (1972) 7 All NLR (Pt.1) 45. Apart from the above circumstances the categories of situations for cross-Appeal are not closed.

 

The learned counsel for the 1st Respondent/Applicant had gone into academic arguments that Section 24 of the Court of Appeal Act is only applicable to the main appeal and that if that Section had intended to cover ‘Cross-Appeal’ it would have expressly stated so on the legal maxim: “Expressio Unius est exclusio alteriu” which is that “The expression of one thing is the exclusion of another”. Furthermore, he had also alluded to the definition of ‘appeal’ under Section 30 of the Court of Appeal Act 2004 (as amended) which according to him does not include ‘Cross-Appeal’, for, in accordance with the maxim above quoted since ‘appeal’ was mentioned in that statute, ‘Cross-Appeal’ is not synonymous with ‘appeal and it would be against the canon of interpretation to extend the connotation to include ‘Cross-Appeal ‘.

 

He had also cited the provision of Order 1 Rule 5 of the Court of Appeal Rules 2011 which does not also mention ‘Appeal’ as connoting ‘Cross-Appeal, in submitting that where the Rules intend ‘Cross-Appeal’ it has expressly been mentioned. We were referred to Orders 9 Rule 1, 18 Rule 7 and 18 Rule 9 (2) of the Rules which according to him support his contention that unlike what obtains in a main appeal no time is yet stipulated within which a Respondent is mandated to file a Notice of Cross-Appeal. With due respect to the learned Counsel for the 1st Respondent/Applicant, although he has quoted the legal maxim above reproduced rightly, his submissions thereon are however not well founded as no authority was cited in that direction to buttress such contention that the mention of ‘appeal ‘ in the Act and Rules exclude ‘Cross-Appeal ‘ and that no time is yet stipulated within which a Notice of Cross- Appeal should be filed and as such, in his view; he can bring the Cross-Appeal at anytime he likes.
Contrary to the views expressed by the learned counsel for the 1st Respondent/Applicant, judicial authorities although not oblivious of the fact that there are no special provisions for the bringing of Cross-Appeals, have however differed from the position taken by the learned counsel’s arguments on this issue. In Lagos City Council v. Ajayi (supra) at 294; it was held that a Respondent appealing should commence his appeal in the same way and manner as the Appellant in a main appeal does under the Rules as there are no special provisions for bringing Cross-Appeals. Thus, a Cross-Appellant as in this case, wishing to appeal against any part of the Judgment of the Lower Court, shall commence the process by filing the Notice of Appeal in Civil Form 3 under Order 6 Rule 2 of the Court of Appeal Rules or apply for leave or for extension of time as the case may be, using Civil Form 5 under Order 7 Rule 7 or Form 4 under Order 7 Rules 1 and 10(2) of the Court of Appeal Rules. See the case of Etowa Enang & Ors. v. Fidetis Ikor Adu (1981) 11-172 S.C. 25 at 44 and Oguma v. I.B.W.A.  (1988) 1 NWLR 658 at 681.

 

In the latter case, their Lordships were of the view that, a Cross-Appeal is governed by the same Rules of procedure as any other appeal and therefore subject to the same statutory limitation as to time within which to appeal as imposed by the then Section 25 of the Court of Appeal Act or Section 31 of the Supreme Court Act, unless time has been extended; since the Cross-Appeal must not be necessarily headed as such for it is only vis-a-vis the Appellant’s appeal that is a cross-Appeal.

 

This brings us to Ground 2 of the Appellant’s preliminary Objection which is that it is mandatory that the Applicant should seek leave of this Court in his Application or what is known as the trinity prayers. In other to determine whether this Ground and the submissions thereon by the respective learned Counsel for the parties are well founded, it is necessary to have recourse firstly, to the provisions of Sections 241(1)(b) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); which were cited by the learned counsel for the 1st Respondent as buttressing his contention that the 1st Respondent/Applicant does not need leave of court or the trinity prayers for the grant of his application.

 

Now, beginning from section 242(1) of the constitution, it provides thus: “Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.”
Section 241(1) on the other hand, provides that: “An appeal shall lie from decisions of the Federal High Court or a High court to the court of  Appeal as of right in the following cases …

 

(a)     Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;

 

(b)     Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”

 

From the foregoing provisions of the constitution, it is clear that there is an absolute or unqualified right of a citizen of this country under Section 241(1)(a) of the Constitution to appeal against the decision of a High Court as in this case of the Federal High Court, in any civil or criminal proceedings where the courts sat as courts of first instance, whether the Grounds are of law simpliciter, fact alone or mixed law and facts provided the decision is final.

 

See Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 306 per Idigbe, JSC (of the blessed memory), Aqua Ltd. v. Edo State Sport Council (1988) 4 NWLR 622 and Amorc v. Awoniyi (1994) 7-8 SCNJ 39 at 405.   In Oguntimehin & Anor. v. Tokunbo (1957) 2 FSC 56 at 57 just like Akinsanya v. UBA Ltd. (1986) 4 NWLR (Pt. 35); ably cited by the learned counsel for the Appellant in support of his argument on this Ground, the Federal Supreme Court in the first case and Eso, JSC in latter case cited with approval the decision of the English Queens Bench Division in Bozson v. Altrincham U.D.C. (1903) 7 K.B. 548 on the test to be applied in determining whether a judgment of a Court of first instance is final or interlocutory; where Lord Alverstone C.J. opined thus:

 

“It seems to me that the real test for determining this question ought to be this. Does the judgment or order, as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, as interlocutory order”.

 

Following the above test which is popularly known as ” the nature of the order test”, which has been followed in most of the decisions of this Court and the Apex Court of this country, the Courts look at the nature of the order made by the Court of first instance and not on the nature of the proceedings. See Ebokam v. Ekwenibe & Sons (1999) 7 SCNJ 77 at 86; where the Supreme Court held that a decision or order is final when the rights of the parties in the claim before the Court have finally been determined and the matter would not be further brought back to that Court that made it.

 

This test, it was further held, operates irrespective of whether or not the order of judgment is wrong or whether a Court of Appeal may order the matter to be sent back for hearing or retrial and the time of examining the test is when the order or judgment was given. On the other hand, where the decision only disposed of an issue(s) in the case living the parties still to proceed back to claim other rights in the Court; then that decision is interlocutory. See Ebokam v. Ekwenibe & Sons (supra) at 87.

 

There is also, another test which looks at the nature of the Application to the Court from which the judgment or order emanated which focuses on the purpose of the Application, as for instance, where a High Court transfers one of the issues in a case pending before it to an Area or Customary Court for decision and report as such an order does not finally dispose of the substantive suit before the High Court. See Oguntimehin & Anon v. Tokunbo (supra) and DPP. v. Chike Obi (1961) All NLR 454 where the Supreme Court held that, a decision on a referral of interpretation on a Constitutional point under Section 295 of the Constitution, is a final decision which has completely disposed of the matter referred to it, even though, the matter may be interlocutory of the Court that made the reference.

 

In Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924, also cited in (1985) 2 S.C. 1 at 30-33 which Eso, JSC, copiously reviewed in his lead judgment in Akinsanya v. UBA Ltd. (supra); the Supreme Court, per Karibi-Whyte JSC; propounded another principle which is a blend of the nature of order and nature of application tests when the Learned Law Lord held inter alia:

 

“The ideal approach is to consider both the nature of the application and the nature of the order made in determining whether an order or judgment is interlocutory or final in respect of the issues before it, as between the parties to the litigation. Thus; where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties but only deals with an issue, both the application and the order or judgment must be interlocutory. However, where an application has the effect by the order, therefore, of finally determining the claim before the Court, the order may properly be regarded as final”.

 

The defect in relying on the nature of the order made (though still workable test) as distinguished from the nature of the application from which the order is made is that the former ignores the issue or issues giving rise to the application and consequently the order, and fastens on the order which is the result of the application.

 

To determine finally an issue before the Court which does not finally determine the rights of the parties, does not rank as determining the rights of the parties in the case and…. is not a final judgment”.

 

The apex Court insisted in that case that, an interlocutory order on appeal ranks as an interlocutory appeal and that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties rather than an issue in the case. Where an issue is the subject-matter of an order on appeal, the determination of that Court which is a final decision on the issue or issues before it which does not finally terminate the rights of the parties, is interlocutory.

 

From the foregoing dicta of their Lordships in the cases above cited, the bottom line in my humble view, is that, whether the test is that of the nature of application or of the nature of order, their Lordships of the apex Court have struck a harmonious cord and there appears to be convergence of opinion that, where a court of first instance decides a case which finally determines the rights of the parties and not merely an issue or issues such that, nothing is left again for that Court to decide between the parties; such is a final decision, judgment or order. On the other hand, where an application does not aim at terminating the claim or claims of the parties in dispute but only deals with an issue or issues both the application and order or judgment are interlocutory.

As regards Section 241(1) (b) which is the fulcrum of the 1st Respondent/Applicant’s Application, such absolute or unqualified right to appeal also enures to the party seeking to appeal where the Ground(s) of Appeal involve(s) questions of law alone in decisions in any Civil or Criminal Proceedings of the Federal High Court or any other High Court whether sitting at first instance or as an appellate Court on appeals emanating from Magistrates and other Lower Courts. By this provision there is no distinction between final and interlocutory decisions be they in Civil or Criminal Proceedings or whether the decisions arose from the Federal/High Courts’ Original or Appellate jurisdictions but the Ground of Appeal must be purely on issue or issues of law simpliciter. See the cases of Investors International (London) Ltd. v. First Bank of Nigeria plc. (2008) ALL FWLR (pt.405) 1770, 1782 paras, B-C; Blay & Ors. v. Solomon (1947) WACA 175; William Ude & Ors. v. Josiah Agu & Ors. (1961); Comex Ltd. v. N.A.B. Ltd. (1999) 3 NWLR (Pt 496) 643, 654.1 ALL NLR 65 and Falola v. U.B.N Plc. (2005) 7 NWLR (Pt 924) 405, 149 & 420-7.
See also Section 241(1) (c)-(f) (i)-(v), which also provide for similar rights in the circumstances stated therein.   Apart from the above provisions, all appeals by virtue of Section 242(1) must be by leave of either the Federal High Court or any High Court of those Courts or Court of Appeal. See Nafiu Rabiu v. The State (1981) 2 NCLR 293 at 306 per Idigbe, JSC (of the blessed memory).

Turning to the provisions of Section 24 of the Court of Appeal Act 2004 which deals with time for appealing, it is clear that Sub-Section(2)(a) and (4) thereof have stipulated that:

 

“(2). The periods for the giving of notices of appeal or notice of application for leave to appeal are:-

 

(a)     In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

 

“(4). The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section”.

 

As for the Rules, Order 7 Rules 10(1), (2) and 11 provide as follows:

 

“10(1). The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.

 

(2)     Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.

 

“11′   An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below.”

 

Beginning from the provisions of Section 24(2) of the Court of Appeal Act above cited, the time for appealing against an interlocutory decision has been pegged at 14 days and the learned counsel for the 1st Respondent/ Applicant cannot seriously contend that the Section has not made it general that the leave of the Court must be sought before an aggrieved party can appeal where the party is seeking to appeal out of time as the 1st Respondent/Applicant is seeking to do at the expiration of the time stipulated by the Act. On the contrary Section 24(1) of the Act makes it mandatory that where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules. Order 7 Rule 7, 10(1) and (2) of the Court of Appeal Rules have therefore provided for the modus of bringing the application for leave to appeal as stipulated by the section 24(1) of the Act. In the instant case, where in the lower Court, the 1st Defendant (now 1st Respondent/Applicant sought for the dismissal of the Claimant (now Appellant’s) Claim in limine for the reasons advanced in the Application and the learned trial Judge in his Ruling, refused the Application on the ground that it was premature thereby striking same out; that Ruling was interlocutory. See Akinsanya v. UBA Ltd (1986) 4 NWLR (pt 35) 222 at page 296 per Kayode Eso; who posited on this point upon considering the tests for determining the purport of interlocutory and final decisions as earlier analysed, inter alia:

 

“In other words if the Court of first instance, orders that a matter before it be terminated (struck out) for it has no jurisdiction to determine the issue before it, that is the end of the issue arising in the cause or matter and there is no longer; any issue between the parties in that cause or matter that remains for determination in that court But it would be interlocutory if its order is that it has jurisdiction for these will be reference of the remaining issues in the itself”.
See also Okokhue, Obadan (1989) 5, NWLR pt.120, 185 and C.G.D.G (Nig) Ltd v. Odurusan (2009) 5, NWLR, p.1135, 469.

 

Accordingly, the 1st Respondent/Applicant was expected to appeal or cross-appeal against the ruling/decision of the Court below within 14 days and where the time had elapsed, as in this case, and the Applicant now brings this Motion, he must necessarily seek leave of either the Court below or this Court for extension of time because in the first place, the decision sought to be appealed against is interlocutory and not a final decision, so as to enable Applicant benefit from the provisions of Section 241(1)(a) of the Constitution.

 

He can only benefit from applying to file his Motion for extension of time within which to Cross-Appeal without leave of either the Lower Court or the Court of Appeal, under Section 241(1)(b) of the Constitution, if his Ground or Grounds of Cross-Appeal are purely Grounds of Law. In this case, the learned counsel for the Appellant has rightly submitted that the 1st Respondent/Applicant is not appealing against the assumption of jurisdiction by the lower Court which ordinarily would have entitled him to an appeal out of right and without necessarily seeking for the leave of this Honourable Court but he is appealing against the striking out of the Appellants’ Application rather than a dismissal of same.

 

It is pertinent to note that, in supporting the view that extension of time within which to file an appeal is different from extension of time within which to seek leave to appeal, the learned counsel for the Appellant/Objector cited the cases of Adeyemi v. Y.R.S. Ikeoluwa & Sons Ltd (1993) 8 NWLR (Pt 309) 27 and Dweye v. Ito Shan (1983) 2 SCNLR, 135 where it was variously held that a party seeking to appeal out of time must seek the trinity prayers and that the application must contain the three prayers otherwise it will be incompetent and struck out.

 

The learned counsel for the Respondent has in my view rather supported the case of the Appellant/Objector, when he cited the authority of Adelakan v. Ecu-Line NV (2006) 12 NWLR (Pt.993) at 48, paragraph B-D, where the Supreme Court expressly stated the position of the law on the trinity prayers thus:-

“It is settled law that where an appeal requires leave of court and time within which to lodge the appeal has also expired as in  the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to apply for leave to appeal. In short, an intending appellant who wishes to seek leave of court on any ground of appeal after the expiration of the statutory periods prescribed under section 31 of the Supreme Court Act, 1960, must seek three substantive prayers, to wit:

 

1. Extension of time to seek leave to appeal;
2. Leave to appeal;
3. Extension of time within which to appeal; see Premier Breweries Ltd. v. Anere Const. Co. Ltd (1987) 3 NWLR (Pt.62) 688; N.B.N v. N.E.T (1986) 3 NWLR (pt. 31) 667. Odofin v. Agu (1992) 2 NWLR (pt. 229) 350″. see further E.F.B Co Ltd v. NDIC (2007) 9 NWLR (pt.1039) 216; Oyegun v. Nzeribe (2010) 16 NWLR (pt.1220) 568.

 

Similarly, learned counsel for the Respondent has aptly cited B.A.S.F (Nig.) Ltd v Faith Ent. Ltd. (2010) All FWLR (pt.518) 840 at 862- 862, para H; A-P, where per Adekeye, JSC (concurring with the lead judgment), of the apex Court gave a detailed guide on which grounds are grounds of law; of facts simpliciter and of mixed law and facts, as follows:-

 

A ground of law has the under mentioned meanings:

 

1. A question in which the Court has no discretion to exercise because it has to be answered in accordance with principle of law. It is already predetermined and resolved by the law.

 

1. A question which calls for the argument and determination of what the true position is in law such usually arises out of the uncertainty of the law.

 

1. Interpretation of documents which is a question of facts but is strictly within the duty of a court.

 

While the meaning of a question of fact in a ground of appeal relates to:

 

(a)     Any question not determined by the principle of law.

 

(b)     Any question that is to be answered by the jury rather than the judges.

 

The principles guiding the court in circumstances to determine whether a ground of appeal is one law or of fact or mixed law and fact are as follow:

 

(1)     Where the Court is being invited to investigate the existence of otherwise of certain facts upon which the awards of damages to the respondent was based, such a group is mixed law and fact.

 

(2)     A ground which challenges the findings of fact or issue of law and mixed fact considered by a trial Court is one of law and fact.

 

(3)     A question arising out of the evaluation of the evidence tendered at the trial is a ground of fact.

 

(2) A complaint about wrongful admission of evidence is also a question of law.

 

(4)     A complaint in a group of appeal of failure of a court to discharged its judicial duty of considering or pronouncing on the issue before it involves a question of law alone: Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718; Ogbechi v. Onochie (1986) 2 NWLR (pt.23) 484; Anogbalu v. Oraelosi (1999) 10 SCNJ, (1990) 13 NWLR (Pt. 634) 297″.

 

The contention of the learned counsel for the Appellant/Objector that the Grounds of Appeal of the Cross-Appellant are not on issues of law alone even though the 1st Respondent/Would-be-Cross-Appellant/Applicant has christened them as Grounds raising issues of law only. He has further stated the correct position of law as enunciated in Olanrewaju v. Ogunleye (1997) 2 NLWR (Pt 485) 12 at 24 paras. G-H; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt 450) 537; Gbasha v. Lovebet (Nig.) Ltd. (2005) 15 NWLR (Pt.949) 557 and C.B.N v. Okojie (2002) 8 NWLR (Pt.768) Pg. 48, S.C; that:

 

1. Whether a Ground of Appeal is of law alone or fact or facts or mixed law or facts does not depend on the appellation ascribed to it by the Appellant or Cross-Appeal as in this case but upon a careful perusal and analysis of entire ground and its particulars;

 

2. It is recognised that the line of distinction between a ground of law simpliciter, or facts or of mixed law and facts is very tine but that does not convert a ground of mixed law and facts into a ground of law simply because the learned Counsel christens it as such:-

 

3. Where Grounds of Appeal attack the decision of the learned trial Judge as being perverse or enjoin the doing of substantial justice as contained in the Grounds 1 and 3 of the 1st Respondent/Applicant’s Proposed Notice of Cross-Appeal; such Grounds are at best, Grounds of mixed law and facts because substantial justice cannot be done without considering the totality of the Affidavit evidence adduce by parties in the case;

 

4. A Ground of Appeal which challenges the exercise of the discretion of the learned trial Judge to dismiss the application before him instead of striking it out as in Grounds 1, 2 and 4 of the 1st Respondent/ Applicant’s Proposed Grounds’ of Cross-Appeal, they are grounds of mixed and facts which require the leave of a Court before they can be filed and argued.

 

From the foregoing, the learned counsel for the Appellant/Objector has therefore reiterated that, what the applicant is appealing against by the nature of the proposed grounds of appeal, particularly Grounds 1, 2, 3 and 4 is the refusal of the learned trial Judge to have dismissed the application but he rather struck out same. On the other hand, the learned Counsel for the 1st Respondent/Applicant has undertaken an analysis the nature of the Grounds and submitted that Grounds 1-4 are Grounds of Law and as for Ground 5 he purports that because the learned counsel for the Appellant has kept quiet on same; there is an agreement that the Ground is valid. In the circumstance, he has stated that, following the consensus that Ground 5 is valid even if other Grounds are found to require leave before they could be filed, we can still allow the Application and for the Appeal to be argued on Ground 5 alone.

 

Now, taking into the consideration the dictum of Adekeye, JSC in B.A.S.F (Nig,) Ltd v, Faith Ent. Ltd. (Supra) can we in all honesty hold that the Grounds of Cross-Appeal dated and filed on the 29th day of December, 2011; as couched and found in pages 5-8 of the Additional Records Appeal are all Grounds of Law? The answer can only be found upon a careful perusal and consideration of the totality of the Proposed Grounds of Cross-Appeal and their respective particulars as laid down in the above cited authorities, particularly Olanrewaju v. Ogunleye (1997) 2 NLWR (Pt.485) 12 at 24 paras. G-H; Obatoyinbo v. Oshatoba (1996)5 NWLR (Pt 450) 537; Gbasha v. Lovebet (Nig.) Ltd. (2005) 15 NWLR (Pt.949) 551 and C.B.N v. Okojie (2002)1 NWLR (Pt. 768) Pg. 48, S.C; Ground One States thus: “The learned trial Judge of the Court below erred in law and took a perverse position via his Ruling of 3rd day of June 2011 when, rather than dismissing the application of the 1st Cross-Respondent, he further postponed determination of whether the case of the Cross-Appellant was res judicata or caught by issue estoppel to trial after he had rightly found that Exhibit C is not the judgment of Afolayan, J of the High Court of Kwara State in suit No. KWS/150/2003.

PARTICULARS

1. The 1st Cross-Respondent herein rested her pleas of issue estoppel, res judicata and abuse of court process on the judgment of the High Court, Ilorin in Suit No. KWS/150/2003.

 

2. The Court below rightly found that exhibit C which the 1st Cross-Respondent herein relied on did not represent the judgment of Afolayan J; of Kwara State High Court in Suit No. KWS/150/2003.

 

3. Following the finding of the court below that Exhibit C is not judgment of any Court, the trial court ought to have ruled that the plea of res judicata and issue estoppel raised by the 1st Cross-Respondent failed and thereby dismissed the application.

 

4. Failure of the trial court to dismiss the application of the 1st Cross-Respondent has no basis in law and occasioned miscarriage of justice against the Cross-Appellant”.

 

Ground Two:

 

The learned trial Judge erred in law and misdirected himself for failing or refusing to determine the issue of statute bar on the Cross-Appellant’s Statement of Claim.

 

PARTICULARS

 

1. Matters of statute of limitation can only be validly and legally determined on the Cross-Appellant’s statement of claim.

 

2. The learned trial judge ought to have relied on the Statement of Claim in determining whether the case was statutes bared or not.

 

3. Failure or refusal of the learned trial judge to hold and reach the conclusion that the matter was not statute bared is not supported by law based on the averments in the statement of claim.

 

4. The averments in the Statement of Claim glaringly and pointedly depict that cause of action in the matter arose in July, 2010.

 

5. Limitation law is not applicable where the relief(s) claimed is not for recovered of possession of land.

 

6. The Cross-Appellant’s claims before the lower Court do not pertain to recovery of possession; hence the limitation law is not applicable to the matter.

 

Ground Three:

 

The learned trial Judge erred in law and violated right to fair hearing of the Cross-Appellant when he failed to consider and reach a decision on the contention of the Cross-Appellant that his case as constituted before the trial Court and given the available evidence and the /aw, is neither res judicata, caught by issue estoppel nor statute barred.

 

PARTICULARS

1. The Cross-Appellant duly joined issues with the 1st Cross-Respondent that this case is neither res judicata, caught by issue etoppel nor statute barred.

 

2. The trial Court did not consider the position of the Cross-Appellant that his case was not caught by res judicata, issue etoppei nor statute barred.

 

3. The trial Court was bound to resolve all the issues raised and argued before it by cross-Appellant one way of the other.

 

4. Failure of the court to resolve all the issue raised by the Cross-Appellant before it, one way of the other, violated right to fair hearing of the Cross-Appellant and occasioned miscarriage of justice to the Cross-Appellant.

Ground Four:

 

The learned trial Judge erred in law when he struck out the application of the Appellant/1st Cross-Respondent rather than dismissing it in its entirety.

 

PARTICULARS

1. The pleas or res judicata, issue estoppel and statute barred raised by 1st cross-Respondent did not succeed at the trial.

 

2. Order of dismissal is the appropriate order that ought to be made by trial court against the application.

 

From my assessment of Grounds 1-4, there is no doubt that Ground One complains of error of law committed by the Court below in failing to dismiss the Application of the Appellant-Cross/Respondent following the discovery of the learned trial Judge that Exhibit C (the judgment of the Ilorin Division of the High Court of Kwara State, per Afolayan, J. in suit No.KWS/150/2003), which was the basis of the Cross-Respondent’s plea of res judicata or issue estoppel and want of cause of action and so on; was neither the judgment of Afolayan J. nor that of any Court at all. Particular 4 of the Ground also complains of the failure of the trial Judge to dismiss the 1st Cross-Respondent’s Application as having occasioned in miscarriage of justice against him.

 

Although a perverse verdict or finding is one contrary to the evidence led by the parties and the question whether there was miscarriage of justice would entail having to go through the Record of proceedings and in particular the Affidavit Evidence of the parties in the Application which was struck out rather than being dismissed as complained by the Ground of Appeal; I am satisfied that this Ground is one of pure law or at best mixed law and facts.

 

This is because, the Ground complains of the failure of the learned trial Judge to apply the law to the facts of the case as ascertained by him or misunderstood the law as to whether after finding that the plea of res judicata, and issue estoppel failed, he ought to dismiss the Cross-Respondent’s Application rather than simply striking it out. See the recent case of F.B.N. Plc. V. T.S.A Ltd. (2010) 4-7 S.C (pt.1) at 228, where the Supreme Court held amongst others on the guidelines for the determination of the distinction and classification of Grounds of Appeal either of facts, mixed law and facts and/or Ground of law simpliciter in an objection of this nature thus:

 

“When a party objects to a ground of appeal on the ground that it raises a question of fact or of mixed law and fact and that the requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal and not what the party raising the objection may have misconceived to be the question involved on the ground of appeal filed by the appellant the important yardstick for the classification of a Ground of Appeal is not the form of the question it raises but for instance:-

 

(a)     Where the Ground of Appeal shows that the Trial Court or Appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law;

 

(b)     Where the questions which the court is bound to answer in accordance with a Rule of Law arise out of statutory provisions and interpretation of documents, it is on law;

 

(c)     Therefore “Where the Ground complains of the lower Court’s use of wrong principle in the exercise of its discretion, the facts and circumstance in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the alleged wrong principle and therefore one of law. See Tabai, JSC in Anukam v. Anukam (2.009) 1-2 S.C. 34 at 42.”

 

See again per Eso, JSC, in Ogbechie & Ors. v. Gabriel Onochie & Ors. (1986) 3 S.C 54 at pp, 58-61 and also Nnaemeka-Agu, JSC, in the case of Paul Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 12 S.C 14 at Pp. 52-56;

 

As for Ground Two which complains of error and misdirection in law in that the learned trial Judge failed or refused to determine the issue of statute of limitation on the Cross-Appellant Statement of Claim, the particulars of error and misdirection clearly point and call to issue the question/argument and determination of what the law is on statute of limitation. Again, it is a question of which the Court below had no discretion to exercise because the issue of statute of limitation ought to be answered in accordance with settled principle of law. See B.A.S.F (Nig.) Ltd v. Faith Ent Ltd. (Supra). Also from all the particulars of the Ground, it is patently clear that the Cross-Appellant complains of the abdication of the learned trial Judge’s adjudicatory responsibility and misconception of the issue of law before him when he failed to either determine the issue of statute of limitation from the Cross-Appellant’s Statement of Claim; to reach a conclusion that the matter was statute barred; that the cause of action arose in July, 2010 or that the Cross-Appellant’s claims before the lower Court do not pertain to recovery of possession and thus the inapplicability of the Limitation Law to the matter.

 

See Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 12 S.C 74 at P.p. 52-56; where Nnaemeka-Agu, JSC, postulated on what amounts to a misdirection in law thus:

 

“For the word misdirection originated from the legal and Constitutional right of every party to a trial by a jury to have the case which he had made either in pursuit or defence fairly submitted to the consideration of the tribunal (see Bray v. Ford (1595) A.C 44 at P. 49. In our system in which the Judge is Judge and Jury, misdirection occurs when the Judge misconceives the issues, whether of facts or law, or summarizes the evidence inadequately or incorrectly. See Chidiak w Laguda (1964) 1 NWLR 123 at P. 125. He may commit misdirection either by a positive act or by non-direction. But when his error relates to his findings it cannot properly be called misdirection; it could be an error in law.”
See further B.A.S.F (Nig.) Ltd. v. Faith Ent. Ltd. (Supra) at 862-863 Paras A-P; where Adekeye, JSC further held on the vexed issue of nature of Grounds of Appeal that:

 

“(4)   A complaint in a ground of appeal of failure of a court to discharge its judicial duty of considering or pronouncing on the issue before it involves a question of law alone: Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 778; Ogbechi v. Onochie (1986) 2 NWLR (Pt.23) 484; Anogbalu v. Oraelosi (1999) 10 SCNJI, (1999)13 NWLR (Pt 634) 297”. Ayatogu v. Agu (1998) NWLR (pt.532) 129 at 141-142 paras H-A. also refers.

 

From the foregoing authorities, Ground Two of the Proposed Grounds of cross-Appeal is purely a Ground of Law simpliciter.

 

As for Ground Three which complains of violation of the Cross-Appellant’s right to fair hearing by failing to consider and reach a decision as to whether the Cross-Appellant’s case as constituted before the trial Court and given the available evidence and the law, is neither res judicata, caught by issue estoppel nor statute barred; all the particulars relate to abdication of the learned trial Judges judicial responsibility by his failure to pronounce on all issues raised by the Cross-Appellant thereby breaching the Cross-Appellant’s fundamental right to fair hearing as entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This Ground which raises a constitutional issue is also without any iota of doubt, a Ground of Law. See Ifediora & Ors. v. Ben Ume & Ors (1988) 3 SCNJ (pt 2) 192.

 

Ground Four of the Proposed Grounds of Cross-Appeal also complains of error in law committed by the learned trial Judge when he struck out the Application of the Appellant/1st Cross-Respondent rather than dismissing it in its entirety. The two particulars thereof complain basically or about misunderstanding and misapplication of the law or failure of the Court to discharge its judicial function when he struck out the application of the Appellant/1st Cross-Respondent. See F.B.N v. Kayode Abraham (2008) 36 NSCQR 1058 at 1073 lines C-G; per Aderemi, JSC who posited in this respect thus:

 

“The important consideration in the determination of the nature of a Ground of Appeal is not the form of the ground rather it is the question it raises…

 

I have had a careful examination of the four grounds of appeal and I am clear on any mind that they all relate to an alleged misunderstanding by the lower Court of the law or a misapplication of the law to the accepted factual contents of the claims as reproduced supra. Therefore, where as in the instant case, the Grounds of Appeal reveal a misunderstanding by the Court below or misapplication of the law to the settled and admitted factual contents of the claim such grounds are pure grounds of law. See (1) Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484, (2) Metal Construction (WA) Ltd. v Migliore (1990) 1 NWLR (Pt. 126) 299 and (3) P.N Udom Trading Ltd. v. Sunday Abere (2001) 11NWLR (Pt.7233) 114”.

 

From the dictum of the emeritus Law Lord of the apex Court and others above cited and after a careful perusal of Grounds 1-4 of Cross-Appeal as couched; including their nature and particulars, I am of the considered view and upon being well guided by those authorities, that where all of these Grounds herein, complain of:-

 

1. Misunderstanding by the trial Court of the law and/or misapplication of the law to facts already established or proved and admitted;

 

2. Error of omission or commission and injudicious exercise of the learned trial Judge’s judicial duty; and above all

 

3. Breach of the Appellant’s Constitutional right to fair hearing by certain conducts of the learned trial Judge at the hearing of the application for dismissal of the Claimant/Appellant/Cross-Respondent’s claim; the Grounds are almost all of Law and not of mixed law and facts as purported by the learned counsel for the Claimant/1st Cross-Respondent except for Ground One which can either be a ground of law simpliciter or of mixed law and facts depending on the context it construed. See again Ifediora & Ors. v. Ben Ume & Ors. (1988) 3 SCNJ (Pt.II) 192. The 1st Respondent/Applicant/Would be Cross-Appellant therefore would not have needed to seek leave to appeal against at least Ground One.

Finally, Ground Five complains that: “The part of the decision of the trial court complained against herein is against the weight of evidence”. In my candid view, irrespective  of the fact that the learned counsel for the Objector/Appellant/1st Cross-Respondent did not allude to that Ground, the learned Counsel for the 1st Respondent/Applicant cannot seriously contend on the authority of Azazi v. Adhekegbe (Supra) at 1565-1566 paras. H-A; that Ground 5 can be filed and argued without leave of his Court. Clearly that Ground touches on evaluation of evidence before the trial Court and as was rightly held in the case of B.A.S.F (Nig.) Ltd v. Faith Ent. Ltd. (Supra) at 862-863 paras A-P; Per Adekeye, JSC, where a Ground of Appeal challenges the findings of fact or issue of law and mixed fact considered by a trial Court, it is one of law and fact. On the other hand, a Ground of Appeal on a question arising out of the evaluation of the evidence tendered at the trial is a ground of fact. see also F.B.N plc. v T.S.A Ltd (supra); where the Supreme Court restated the position of law that:

 

(d)     Where the Ground suggests an invitation to the Court where an Appeal is lodged to investigate the existence or otherwise of certain facts made by the Trial Court or where the evaluation of the evidence tendered is exclusively challenged it is a ground of fact or at best a ground of mixed law and fact;

 

(e)     Where the question is one that will require questioning the evaluation of the fads by the trial Court before application of the law, it is a ground of mixed law and fact”.

 

In Nwadike & Ors. v. Ibekwe & Ors. (Supra); Nnaemeka-Agu, J.S.C., again relying on the dictum of Eso, JSC in Ogbechie v. Onochie (supra) held that a ground which complains that the Judgment is against the weight of evidence is a ground of fact and that findings of fact are matters within the province of the Court of trial. He took a further view that in general terms, it can be said that all Grounds of Appeal which raise facts which warrant some determination either way are Grounds of fact. Finally, he posited that where, however, the question raised by the Ground is one of law as applied to disputed facts; or the Ground raises partly law and partly facts, it is a ground of mixed law and fact. See Clarke v, Edinburgh e.t.c. Tramways (1919) S.C. (H.L.) 35, Fatoyinbo v. Williams (1956) 87; Edwards (Inspector of Taxes) v, Bairstow & Anor. (1955) All E.R. 48 at 56; Cooper v. Stubbs (1925) 2 K.B. 277 and Currie v. Inland Revenue Commissioners (1921) 2 K.B. at 536.

 

Accordingly, this particular Ground is a Ground of mixed law and facts which requires leave for it to be filed and argued. In the final analysis, where the Proposed Grounds of Cross-Appeal in this case are an admixture of Grounds of Law and Grounds of facts simpliciter or mixed law and facts, leave of this Honourable Court ought to be sought to appeal on those Grounds. Let me advise that in circumstances where the Grounds of Appeal and particulars thereof are recondite in that it is difficult to distinguish which grounds are of facts, or of mixed law and facts or grounds of law simpliciter, a discerning and an unwary Advocate should always necessarily seek the leave of either the Court below or Court of Appeal to obviate situation where an otherwise germane Notice of Appeal be struck out with an Application of this nature for non-compliance with the Rules.

 

Turning to Ground 3 of the Preliminary Objection which complains that the Grounds of Appeal contained the 1st Respondent/Applicant’s Proposed Additional Records of Appeal are not substantial and recondite, nothing can be further from the truth as most of the Grounds as have been shown earlier raise substantial issues of law which if resolved in favour of the 1st Respondent/Applicant, may tilt the balance of justice and guarantee the success of the appeal in his favour.

 

At this juncture what the Rules require in an Application of this nature is for the 1st Respondent/Applicant to furnish this Court with Grounds of Appeal which prima facie show good cause why the appeal should be heard. In other words, whether the appeal is likely to succeed or fail is not a major consideration for the grant of the Application. All that the Applicant needs to do is to demonstrate from the Grounds of Appeal filed that, the Appeal is arguable or that the Court from whence the appeal emanated committed some error or errors of law or failed to exercise its discretion judicially or on wrong principles or as in this case; failed to discharge or abdicated its judicial responsibility in the course of adjudication. See Holman Bros. (Nig.) Ltd v. Kigo (Nig.) Ltd. (1980) 8-11 S.C 43 at 62-63; Mobit Oil Ltd. v. Agadaigbo (1988) 2 NWLR 383; University of Lagos v. Olaniyan (1980) 5-7 S.C. 42 at 57-58; Balarebe Musa v. Hamza & Ors. (1982) 5 S.C. 172; Ibodo v. Enarofia (1980) 5-7 S.C. 42; Okafor v. Bendel Newspaper Corp. (1991) 7 NWLR (Pt. 206) 651 and Chief E.A. Lamai v. Chief M.C.K. Orbih (1980) 5-7 S.C. 29.

 

On the whole, after a careful analysis of the Grounds of Cross-Appeal as filed by the 1st Respondent/Applicant, I hold the considered view that, they are ordinarily substantive enough and show good cause why this application should be granted. However, the Application of the 1st Respondent/Applicant is chronically defective and infected with the virus of non-compliance not only of the Rules of Court which ordinarily this Court could have waived (assuming it can so do in the interest of justice); but of a statutory provision which is mandatory. By his failure to annex the necessary materials like the judgment of the lower Court and the Notice and Grounds of Cross-Appeal to the Application and to seek for the trinity prayers after the expiration of the statutory period stipulated under Section 24(2) of the Court of Appeal Act, for:-

 

(a)     Extension of time to seek leave to appeal;

 

(b)     Leave to appeal and

 

(c)     Extension of time within which to appeal as decided by the Supreme Court in the cases of Adelakan v. Ecu-Line NV (2006) 72 NWLR (Pt.993) at 48, paras, B-D; Premier Breweries Ltd. v. Anere Const, Co. Ltd. (1987) 3 NWLR (Pt.62) 688; N.B.N v. N.E.T (1986) 3 NWLR (Pt. 31) 667 and Odofin v. Agu (1992) 3 NWLR (pt.229) 350, I agree with the learned Counsel for the Appellant/Objector that this application is patently incompetent and constitutes an abuse of Court process. The Appellant/Objector’s Preliminary Objection therefore succeeds and the Application is accordingly struck out. Parties shall bear their respective costs.

 

TIJJANI ABDULLAHI, J.C.A.:

I have had the privilege of reading in draft the lead Ruling of my learned brother, Agube, JCA, just delivered.

 

His Lordship has, as usual, dealt with all the live issues that call for determination in this application. I am in complete agreement with my noble law Lord that the application is grossly incompetent and same is accordingly struck out by me. I abide by the order as to costs contained therein.

OBANDE OGBUINYA, J.C.A.:

 

I have had the opportunity to read, in advance the all-embracing and well-articulated leading ruling delivered by my learned brother, Ignatius Igwe Agube, JCA. I agree with his reasons and conclusion that the first respondent’s/applicant’s application is incompetent.

 

My learned brother, succinctly, dissected the applicant’s five grounds of notice of cross appeal. I will, therefore, desist from unnecessarily duplicating his well-invested efforts by re-examining those five grounds again. Suffice to observe, however, by way of recap, that my noble Lord, rightly, after painstaking and meticulous analyses, christened grounds one – four as grounds of law and ground five as ground of mixed law and fact. This means that the applicant’s entire notice of cross-appeal hosts grounds of appeal that consist of grounds of law and mixed law and fact. On the premise of that judicial mixture, as it were, it seems clear to me that the applicant’ notice of   cross-appeal, grounded on an interlocutory decision of the lower court, departs from the province of the provision of section 241(1) (b) to the domain of the prescription of section 242(1) of the 1999 Constitution, as amended.

 

That migration by the applicant’s grounds of appeal robs him, the applicant, or his right to appeal/cross-appeal as of right as entrenched in section 241(1)(b) of the constitution. On that score, the applicant needs to factor the prayer for leave of this court into his application so as to imbue it with competence, particularly as the lower court’s decision was not a final one, see Ault & Wiborg (Nig) Ltd. vs. Nibel Ind. Ltd. (2010) 11 NWLR (Pt.1220) 486. That failure or neglect, to include prayer for leave, is a costly one because it constitutes an albatross around the competence of his application. Besides, the applicant’s application is rooted in an equitable remedy which, in turn, revolves around this court’s judicial and judicious exercise of discretion – the right or power of a judex to act according to the dictates of his personal judgment and conscience uncontrolled by the judgment or conscience of other persons, see Suleiman vs. C. O. P. Plateau State (2008) 8 NWLR (Pt.1089) 2998 at 318. Since the application involves exercise of discretion, it is incumbent on the applicant, by force of law, if he must earn the favourable discretion of this court, to avail it with sufficient material facts for its use, as launchpad, to exercise its discretion judicially and judiciously. The reason is plain. A court of law does not dish or dash out its discretion in vacuo, material facts being the desiderata for such judicious and judicial exercise, see Dongtoe vs. Civil Service Commission, Plateau State (2001) 9 NWIR (Pt. 717) 132; Menakaya vs. Menakaya (2001) 16 NWLR (Pt.738) 203; In Re: Mawa vs. NACBCFC Ltd. (2007)7 NWLR (Pt. 1032) 54; Ebe vs. C.O.P. (2008) 4 NWLR (Pt. 1076) 189, Ifekandu vs. Uzoegwu (2008)  15 NWLR (Pt.1111) 58.

 

As the applicant’s main prayer, in his application, is for extension of time within which to cross-appeal against the verdict of the lower court, that judgment of the lower court he is seeking to cross-appeal against and his proposed ground of cross-appeal, duly encapsulated in a notice of cross-appeal, must accompany the application via an affidavit, see Adelekan vs. Ecu-Line Nv (2006)12 NWLR (Pt.993) 33; E.F.P. Co. Ltd vs. N.D.I.C (2007) 9 NWLR (Pt. 1039) 216; Oyegun vs. Nzeribe (2010) 16 NWLR (pt.1220) 568.

 

Startlingly, the applicant, either intentionally or inadvertently, failed to present these two vital processes, being inevitable materials, by dint of his affidavit before this court. This court is manned by human beings who are, naturally, dispossessed of the magic powers of clairvoyants/soothsayers. In the glaring absence of these pivotal material processes, this court is hamstrung vis-a-vis exercise of its discretionary power judicially and judiciously as ordained by law. The abysmal pitfall created by the absence of these two all-important processes in the application renders it nude and, irredeemably, incompetent in the eyes of the law. In the circumstance, this court’s jurisdiction to entertain the applicant’s ruined/doomed application is denuded, paving expansive way for the success of the appellant’s/respondent’s terminal preliminary objection.

 

It is for these reasons, coupled with fuller reasons adduced in the leading ruling, that I, too, strike out the application. I abide by the consequential orders made in the leading ruling.