3PLR – AYINLA MUKADAM V. LAARO AKANBI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AYINLA MUKADAM

V.

LAARO AKANBI

COURT OF APPEAL

ILORIN DIVISION

25TH MAY 2000

CA/E/72/98

3PLR/2000/37  (CA)

OTHER CITATIONS

7 NWLR (PT.664) 260

 

BEFORE THEIR LORDSHIPS

MURITALA AREMU OKUNOLA, JCA

PATRICK IBE AMAIZU, JCA

WALTER S. N. ONNOGHEN, JCA

 

BETWEEN

AYINLA MUKADAM (for himself and on behalf of BODUNRIN MAKADAM family)

 

AND

LAARO AKANBI (substituted by Mal.USMAN ABUBAKAR ALHERI)

 

REPRESENTATION

Mr Akin Akintoye Jnr, with Iyiola Olajubu – for the appellant

Mr A.O. Adelodun – for the Respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Constitutional right of appeal – power of court to hear procedural application to actualize applicant’s constitutional right.

PRACTICE AND PROCEDURE – APPEAL – Dismissal of appeal – whether results to an end of the appeal.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Functus officio – when an appellate court becomes functus officio.

PRACTICE AND PROCEDURE – Technicalities where it hinders the dispensation of justice – attitude of court thereto – Chime v. Chime (1995) 6 NWLR (Pt. 404) 734

 

MAIN JUDGEMENT

MURITALA AREMU OKUNOLA, J.C.A., (delivering the leading judgment)

 

This is an appeal against the ruling of the Kwara State High Court holden at Ilorin sitting in its appellate jurisdiction, coram T.A.Oyeyipo CJ, R. Elelu-Habeeb and M.A. Folayan JJ delivered on 29/10/97 wherein the court dismissed the preliminary objection attacking the jurisdiction of the court to entertain the motion for leave to appeal out of time filed on 15/10/97 by the respondent on the grounds of being functus officio. The Court proceeded thereafter to grant the application for leave to appeal and adjourned for the hearing of the appeal.

 

The fact of this case briefly put were as follows:

 

This case involves land dispute that arose from Upper Area Court Ilorin in 1971. At the Ilorin trial Upper Area Court judgment was entered for the appellant herein as plaintiff and against the respondent herein in the said judgment delivered on 17/11/94.

 

Being dissatisfied with that judgment, the respondent herein appealed within time to the High Court of Justice Ilorin by a Notice filed on 15/12/94. That appeal came up on 9/10/95 for hearing and was struck out on 10/4/96 for lack of diligent prosecution due to 2 successive applications for adjournments on the ground of illness by the appellant’s Counsel which the Court discountenanced. The order was made in the presence of both learned Counsel to the parties. The respondent thereafter filed a motion to relist the appeal which was dismissed on 9/7/96 in a considered ruling for failure of the respondent to ask for extension of time after the Court had taken arguments from both sides (vide pages 31-33 of the records) Another motion on Notice dated 12/11/96 was filed at the same Kwara State High Court, Ilorin for extension of time within which to appeal against the same judgment of the Upper Area Court in UAC/1/CUF/97/93 by the respondent on 14/11/96 (vide pages 34-40 of the records) after the respondent had complied with the order of possession made by the trial court. The appellant herein raised a preliminary objection to the hearing of the said application for leave and extension of time within which to appeal against the judgment of the Upper Area Court (hereinafter referred to as the trial court) in UAC/1/CUF/97/93 delivered on 19/11/94 and this objection was filed on 16/1/97 (vide pages 41-46 of the records). The ruling on the preliminary objection was delivered in favour of the appellants on 23/1/97 and the respondents motion filed on 13/11/96 was struck out (See pages 47-61 of the record) on the sole ground that the respondent was in contempt of the orders of the trial court asking him to yield the possession of the disputed land to the appellant.

 

Again on 15/10/97 the respondent, at the same Kwara State High Court holden at Ilorin, filed another motion on notice seeking leave of the court to appeal out of time against the same judgment of the UAC delivered on 17/11/94 (see pages 62-75 of the record). The appellant also responded by filing another notice of preliminary objection dated 20/10/97 to the said motion (see page 76 of the record). On 29/10/97 the High Court (Appellate Session) heard both parties and in a considered ruling dismissed the preliminary objection and proceeded to hear the motion of 15/10/97 and granted same (see pages 77-82 of the record).

 

Dissatisfied with this ruling the appellant herein appealed to this honourable court on 3 grounds. From the 3 grounds of appeal the appellant has formulated the following issue for determination in this appeal, viz:-

 

“Whether the Ilorin High Court (sitting in its appellate jurisdiction) has jurisdiction to resuscitate and hear an appeal (vide motion for leave to appeal out of time etc) which it had previously struck out twice and dismissed once vide similar applications.”

 

The learned Counsel to the Respondent also formulated an issue from the grounds which but for style agrees in substance with the above issue formulated by Appellant. It goes thus:

 

“Whether the High Court appellate Session Ilorin was not right to have entertained the respondent’s application seeking for leave to appeal out of time from the decision of the Upper Area Court as it did on 29th day of October, 1997 and for granting same.

 

Both learned Counsel to the parties filed their briefs of arguments. Both learned Counsel to the parties adopted and relied on these briefs filed herein on behalf of their respective clients and went further to address us viva voce to highlight some points canvassed in the said briefs. Learned Counsel to the appellant Mr. Akin Akintoye Jnr leading Mr. Iyiola Olajubu adopted and relied on the appellant’s brief of argument filed herein on 5/5/99 pursuant to the order of this honourable court made on 20/4/99. Learned Counsel contended that he had nothing to add and urged the Court to allow the appeal. By way of reply, learned Counsel to the respondent Mr. A.O. Adelodun adopted and relied on the respondent’s brief filed herein on 3/6/99. Learned Counsel stated that he had nothing to add and urged the Court to dismiss the appeal. Reacting to the submission of Learned Counsel to the respondent the leading Counsel to the appellant replied that he had nothing to add.

 

I have considered the submission of both learned Counsel to the parties on the two segments of a common issue raised by them vis-a-vis the records and the prevailing law. It is necessary to give my views on points raised and canvassed by both learned Counsel to the parties in their briefs. The learned leading Counsel to the Appellant Mr. Akin Akintoye Jnr. by way of summary at page 10 of the Appellant’s brief submitted that the lower Court acted without jurisdiction when it overruled the preliminary objection of the Appellant herein to the application of the Respondent seeking leave to appeal out of time, granted the application and proceeded to adjourn the appeal for hearing. Learned Counsel to the Appellant predicated his submission on the following seven points, viz:

 

  1. The order striking out the initial appeal on 10/4/96 for want of diligent prosecution was not made in default and therefore actually ought to be dismissed without option to relist.

 

  1. The order dismissing the motion to relist the appeal struck out which was made on 9/7/96 was an order on the merit. And having not been appealed against nor set aside, it operates as a bar against subsequent applications attempting to resuscitate the appeal struck out.

 

iii.      Reference and reliance by the lower court to the order of striking out the motion for leave to appeal out of time made on 23/1/97 instead of the order of dismissal made on 9/7/96 in the Court’s ruling of 29/10/97 were erroneous and misleading and therefore led to a miscarriage of justice in the decision that the order was not on merit.

 

  1. An order of dismissal of a motion seeking to relist an appeal struck out has the effect of stating that the said proposed appeal cannot be brought before the same court except the said order is set aside or appealed against. There is no world of difference between the said motion and the said proposed appeal.

 

  1. That the lower court is functus officio after giving the order of dismissal of the motion seeking to relist the appeal struck out.

 

  1. That the lower court’s decision to grant the respondent’s application seeking leave to appeal out of time after it has struck out twice and dismissed once similar applications to resuscitate the appeal, is tantamount to sitting on appeal over its earlier decision.

 

vii.     That the cases of (1) Ikeakwu v. Nwamkpa (1967) NMLR 224; (ii) FMBN v. Fojule (1994) 3 NWLR (Pt. 331) 228 and Okeke v. Modu (1996) 6 NWLR (Pt. 470) 121 p.127 (all references are mine) relied upon by the lower court in its ruling of 29/10/97 are not applicable to the present case.

 

Learned Counsel to the appellant relied on many judicial authorities for the above submissions. These include among others the cases of Ikeakwu v. Nwamkpa (Supra); Yonwuren v. Modern Signs (1985) 1 NWLR (Pt. 2) 244 p.258; Sanusi v. Ayoola (1992) 11AND 12 SCNJ 142; Mohammed v. Olawunmi (1993) 4 NWLR (Pt 287) 255; Williams v. Hope Rising (1980) 1-2 SC 145;  Buwaje v. Adediwura (1976) 6 SC 143 as well as Order 2 Rules 1 AND 2 and Order 37 Rule 9 of the Kwara State High Court (Civil Procedure) Rules, l989.

 

By way of reply learned leading Counsel to the respondent Mr Yusuf O. Ali SAN by way of summary at page 9 of the respondent‘s brief urged the court to resolve the lone issue in this appeal against the appellant and to uphold the ruling of the High Court and to dismiss the appeal BECAUSE:

 

  1. The learned judges (appellate session) were right to have refused the appellant’s submission on preliminary objection that sought to rob them of jurisdiction to entertain the appeal at the Court below.

 

  1. The reasons advanced for the refusal to decline jurisdiction is correct, convincing and in accordance with the applicable laws and the laid down judicial authorities which an appellate Court will not interfere with.

 

  1. The Court below was not functus officio to have entertained and granted the motion for extension of time.

 

  1. The appeal of the respondent pending before the Court below has not been determined at all or on merit.

 

  1. Undue technicality should not be allowed to take away the constitutional right of the respondent to pursue his appeal at the lower court.

 

Learned leading counsel for the respondent predicated the above submissions on many judicial and statutory authorities. These included among others the cases of Data v. FCDA (1994) 4 NWLR (Pt. 340) 549 pp.556-557 Folorunsho v. Shaloub (1994) 3 NWLR (Pt. 333) 413; Okeke v. Modu (1996) 6 NWLR (Pt. 470) 121 p.127; Ikeakwu AND Ors. v. Nwamkpa (1967) 4 NSCC 83 p.86; FMB v. Fojule (1994) 1 NWLR (Pt. 331) 228 p.238; Chime v. Chime (1995) 6 NWLR (Pt. 404) 734 pp.750-751; Erhahon v. Erhahon (1997)) 6 NWLR (Pt. 510) 667 p.681 as well as Order 44 Rule 11 of the Kwara State High Court (Civil Procedure) Rules 1989 Supra.

 

I have considered the submissions of both learned Counsel to the parties on the lone issue in this appeal vis-a-vis the records and the prevailing law. In my considered view, the submissions boil down to the following sub-issues viz:

 

  1. Whether an appeal struck out not on the merit can be brought back vis-a-vis application for extension of time to appeal.

OR

Whether such an appeal or motion can be relisted.

 

  1. Whether the Court can entertain another application for leave to appeal after the applicant had satisfied the conditions which led to its earlier striking out.

OR

Whether the application for leave to appeal brought before the Court and struck out as in the instant case for various technical reasons can be adjudged to have been dealt with on merit thereby making the court functus officio.

 

  1. Whether the lower court was right in overruling the preliminary objection it had upheld before or entertaining the motion it had earlier on struck out.

 

It is necessary to examine all the sub issues – which can be sub-sumed into the first sub issue – whether an appeal struck out for want of diligent prosecution can be brought back through an application to relist or a motion for extension of time to appeal? It is the outcome of this principal sub-issue that will determine the lone issue in this appeal. Both Learned Counsel to the parties addressed the Court copiously on this principal sub-issue. Learned Counsel to the appellants by way of summary on page 10 of the appellant’s brief submitted that the order striking out the initial appeal on 10/4/96 for want of diligent prosecution was not made in default and therefore actually ought to be dismissed without an option to relist. Learned Counsel to the appellant submitted that the order dismissing the motion to relist the appeal struck out made on 9/7/96 was an order on the merit and having not been appealed against nor set aside operates as a bar against subsequent applications attempting to resuscitate the appeal struck out. Learned Counsel relied on Order 44 Rule 11 of the Kwara State High Court (Civil Procedure) Rules 1989 (hereinafter referred to as Kwara High Court Rules). Learned Counsel submitted that there was no option to relist in the Rules and yet the respondent brought a motion to relist the said appeal which was also dismissed. Learned Counsel submitted that the order of dismissal of the motion to relist an appeal struck out has the effect of barring the appeal before the same court except the said order is set aside or appealed against. Learned Counsel cited Ikeakwu v. Nwamkpa AND Yonwuren v. Modern Sign Supra. At this juncture, I refer to the earlier submissions (supra) by the Appellant’s Counsel in the other applications dealt with by the lower court.

 

By way of reply Learned Counsel to the respondent Yusuf Ali SAN at pages 4-7 of the respondent’s brief submitted that what was dismissed was the motion to relist the appeal and not the appeal itself and this was done because of the failure of the Respondent to ask for extension of time to file the appeal. Learned Counsel also referred to the ruling of the 23/1/97 where the lower court struck out the motion for leave to appeal on the sole ground that the respondent was in contempt of the Order of possession of the disputed land made by the trial Upper Area Court. Learned Counsel submitted that no pronouncement was made on the issue of the court being functus officio hence there was no need for an on (sic) same. Learned Counsel cited Data v. FCDA Supra. On the provision of Order 44 Rule 11 of the Kwara State High Court Rules relied upon heavily by the Learned Counsel to the Appellant, Learned Counsel to the respondent submitted that the provision dealt with the hearing of the substantive appeal which is not the case in the instant case which dealt with motion. Learned Counsel urged the Court to discountenance the submissions on the Kwara State High Court Rules based on faulty interpretation of same.

 

I have considered the submissions of both learned Counsel to the parties on these sub-issues taken together by both learned Counsel to the parties. The submissions raise the issue as to the number of times an applicant can bring an application once it has not been decided on the merit as in the instant case? This poser had come for consideration and determination by the Supreme Court to the effect that there is no rule of law which limits the number of times an applicant can bring an application once it has not been decided on the merit. See Folorunsho v. Shaloub (1944) 3 NWLR (Pt. 333) 413; Oguntayo v. Adetutu (1996) 7 NWLR (Pt.458) 94 p.98 paras F-G. In the instant case it can be seen from the records that the appeal which was struck out on 10/4/96 for lack of diligent prosecution was filed within time. Similarly a motion brought on 9/7/96 to relist the appeal was dismissed because there was no relief for leave to appeal out of time in the said application. It can also be noted that the above dismissal of the motion to relist on 9/7/96 was not for the dismissal of the appeal on merit which make the principle of res judicata inapplicable to deny the lower court the vires to hear the respondent’s appeal which is still pending in that court. That being the position, I am of the considered view that the lower court cannot be said to be functus officio to deal with procedural applications like the one granted in this matter as there was no element in this case that made the lower court to be functus officio. See IGP v. Sydney Mark (1957) NNLR 89; Okeke v. Modu (1996) 6 NWLR (Pt. 470) 121 p.127 and Cardoso v. Daniel (1986) ALL NLR 317 p.367. This stance is predicated on, the Supreme Court decision in Ikeakwu AND Ors. v. Nwamkpa (1966) 4 NSCCC 83 page 83 where Brett JSC (as he then was) delivering the judgment of the Court held inter alia as follows:

 

“All appellate jurisdiction is statutory, and the power to adjudicate on an appeal, by allowing or dismissing it, includes the power to decline to adjudicate on the merits where an appeal is not properly before the Court. This Court frequently exercises such a power. In such a case the usual course is to strike out the appeal, and although an order dismissing it, it does not thereby become a decision on the merits and does not necessarily preclude a subsequent decision on the merits if the matter can be re-opened by an appropriate procedure.”

 

It needs to be observed that each time the application is struck out for one technical reason, the particular defect is rectified before the motion is represented. See also the Supreme Court in the case of Beckelman v. Nwachi (1965) 4 NSCC 88 per Bairamian JSC delivering the judgment of the Court held inter alia that, when an appeal is dismissed and the order of dismissal drawn up, that is the end of the appeal, but if no order has been drawn up and entered, the court remains the master of the situation and in its discretion may allow the appeal to proceed. See FMBN Ltd. v. Fojule (1994) 1 NWLR (Pt.331) 228 at 238.

 

It can be observed that in the instant case, no order of dismissal has either been drawn up or entered on the appeal hence the trial Judges of the High Court Ilorin (appellate session) are therefore in order to have granted the application at pages 80-81 of the printed record in the following terms:

 

“The appellant’s appeal was struck out on 10/4/96 for lack of diligent prosecution. A spirited attempt made on 23/1/97 to relist the appeal was dismissed. In our firm view therefore what was dismissed in this matter was not the appeal but a motion to relist the appeal. We think there is a world of difference between an appeal and a motion to release (sic) an appeal.”

 

I cannot but agree with the above holding of the High Court in its appellate jurisdiction. The view of the High Court Supra agrees with the current trend of the Supreme Court in Nigeria not to allow technicality to prevent a matter from being decided on its merit as the Court is preoccupied with ensuring that substantial justice is done in every case. See Chime v. Chime (1995) 6 NWLR (Pt. 404) 734 pp. 750 – 751; Okenwa v. Military Government Imo State (1996) 6 NWLR (Pt. 455) 394 p.413, ANI v. NNA (1996) 4 NWLR (Pt. 440) 101 CA.

 

In the light of the foregoing authorities the principal sub-issue which encompasses all the sub issues in the lone issue is resolved in favour of the respondent. I therefore hold that the lower court was right in overruling the preliminary objection it had granted before since the appellant had purged himself of the contempt that denied him of the court’s discretion to entertain the motion by delivering possession of the disputed land to the respondent. This accounted also for the lower court entertaining the motion which it had earlier struck out.

 

In sum, the appeal lacks merit and it is dismissed. The ruling of the lower court delivered on 29/10/97 wherein the appellant’s preliminary objection was dismissed is hereby affirmed. The respondent’s motion filed on 15/10/97 is hereby granted. The appeal is accordingly remitted to CJ of Kwara State High Court for accelerated hearing. Costs of N2000.00 is awarded in favour of the respondent.

 

PATRICK IBE AMAIZU, J.C.A.

 

I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Okunola, J.C.A.

 

I agree entirely with his reasoning and conclusion that this appeal lacks merit and should be dismissed.

 

The lower court in its ruling of 23/1/97 stated thus

 

“In the final analysis the result is that the applicant’s motion for leave to relist his appeal that was struck out on 9/4/96 for want of diligent prosecution is incompetent and it is struck out. The preliminary objection succeeds and the applicant’s motion filed on 13/11/96 struck out”.

 

In my considered view, the striking out of the motion only removed from the cause list of cases the motion, for hearing and determination. When the respondent filed a fresh motion on 14/10/97 seeking the same relief the lower court was right in hearing it because that motion was brought back to the cause list. The ruling of the lower court on 29/10/97 is therefore in order as it has the jurisdiction to hear the motion.

 

For the above reason and other reasons in the lead judgment, the appeal lacks merit. The appeal is dismissed. I abide by consequential order made in the lead judgment including the order on costs.

 

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

 

I have had the advantage of reading in draft the lead judgment of my learned brother M.A. OKUNOLA, J.C.A. just delivered.

 

I agree entirely with his reasoning and conclusion that this appeal lacks merit and should be dismissed.

 

I am firmly of the view that all the steps taken by the lower court are backed by the law and are therefore proper. That court is not functus officio as contended by learned counsel for the appellant. The appellant appears to be desperately doing everything possible to prevent the respondent exercising his constitutional right of appeal even after purging himself of alleged contempts. I think this attitude is very wrong and should not be encouraged by this court. The days of technical justice are long gone in the courts of this country “substantial justice” having ascended the throne of justice – see Chime v. Chime (1995) 6 NWLR (Pt. 404) 734 at 750 – 751; Okenwa v. Military Government Imo State (1996) 6 NWLR (Pt.455) 394 at 413.

 

The lower court has the powers to hear the procedural applications leading to the actualization of the respondent’s constitutionally guaranteed right of appeal – see Ikeakwu v. Nwamkpa (1966) 4 NSCCC 83 at 86 where BRETT J.S.C. stated inter alia:

 

“All appellate jurisdiction is statutory and the power to adjudicate on an appeal, by allowing or dismissing it, includes the power to decline to adjudicate on the merits where an appeal is not properly before the court. This court frequently exercises such a power.

 

In such a case the usual course is to strike out the appeal, and although an order dismissing it, it does not thereby become a decision on the merits and does not necessarily preclude a subsequent decision on the merits if the matter can be re-opened by an appropriate procedure.”

 

I also dismiss the appeal and abide by the consequential orders made in the lead judgment including the order as to cost.

 

Appeal dismissed. Ruling of the Kwara High Court in Suit No. KWS/15M/96 delivered on 29th October 1997 is hereby affirmed.

 

Cases referred to in the judgment

ANI v. NNA (1996) 4 NWLR (Pt. 440) 101.

Beckelman v. Nwachi (1965) 4 NSCC 88.

Buwaje v. Adediwura (1976) 6 SC 143.

Cardoso v. Daniel (1966) 1 ALL NLR 25.

Chime v. Chime (1995) 6 NWLR (Pt. 404) 734.

DATA v. FCDA Supra.

Erhahon v. Erhahon (1997)) 6 NWLR (Pt. 510) 667.

FMBN v. Fojule (1994) 1 NWLR (Pt. 331) 228.

Folorunsho v. Shaloub (1994) 3 NWLR (Pt. 333) 413.

IGP v. Sydney Marke (1957) NNLR 89.

Ikeakwu AND Ors. v. Nwamkpa (1967) 4 NSCC 83 p.86.

Mohammed v. Olawunmi (1993) 4 NWLR (Pt 287) 254.

Okeke v. Madu (1996) 6 NWLR (Pt. 470) 121

Oguntayo v. Adetutu (1996) 7 NWLR (Pt.458) 94.

Okenwa v. Military Government Imo State (1996) 6 NWLR (Pt. 455) 394.

Sanusi v. Ayoola (1992) 11AND 12 SCNJ 142.

Williams v. Hope Rising Voluntary Funds Society (1981) 1-2 SC 145.

Yonwuren v. Modern Signs (1985) 1 NWLR (Pt. 2) 244.

 

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