Aina Osanyanbi & Ors V. Okeowo Lasisi & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
The plaintiffs’, now Respondents sued the Defendants’, now Appellants’ before a Lagos High Court on a Writ of Summons filed on 4 October 1985 claiming:
- The forfeiture of the Defendants tenancy in the piece or parcel of land situate lying and being at Magbon, Oreile-Agege in the Lagos State on the ground of misconduct by the defendants’ in that the defendants are challenging the title of the Plaintiffs’ (their landlords to the said piece or parcels of land).
- Possession of the said piece or parcel of land situate lying and being at Magbon Orile Agege as shown on Plan No. AL 48/1971 dated 17 September, 1971 drawn by S.A. Alaka, Licensed Surveyor.
3.Arrears of rent from 1959 to 1984 at the rate of N1.00 (one Naira equivalent of 10/-(Ten Shillings) per annum then totaling N25.00 (twenty-five naira) Nigeria currency. Annual Rental Value: N10.00
The Defendants counter-claim against the plaintiffs’ for:
- A Declaration that the defendants’/counter-claimants’ are entitled to the statutory Rights of Occupancy in respect of the land in dispute
as confirmed by several plans including Plan No. CD.36/71 dated 28 March, 1968 and drawn by Oku Daodu, Licensed Surveyor.
2.A perpetual Injunction restraining the plaintiffs’ and their agents from committing any acts of trespass or further act of trespass on the land in dispute or any part of the Osanyanbi family land.
- An Order dismissing the case of the plaintiffs’ in its entirety with substantial cost to be awarded in favour of the defendants’ counter-claimants’.
The plaintiffs’ called four witnesses in proof of their case while the defendants’ called three witnesses. Eleven documents were admitted as exhibits.
In a considered judgment delivered on 19 December 1996, Phillips J (as she then was) of a Lagos High Court entered judgment for the plaintiffs’ in these words:
“I hereby grant the plaintiffs possession of all that piece or parcel of land situate, lying and being at Magbon, Orile-Agege as shown edged Red in Exhibit P.10 tendered and admitted in evidence during the trial of this suit.
I also award the plaintiffs’ arrears, of rent to be paid by the defendants from 1959 1984 at the rate of N1.00 a year.
The defendants counter-claim fails in its entirety and I award N2,500.00 costs to the plaintiff.”
On 18 September 1997 the learned trial judge granted the defendants’ a stay of execution of the judgment pending the determination of the appeal that was filed on 5 March 1997.
By Motion on Notice filed on 18 July 2005, in the Court of Appeal the plaintiffs’/Respondents sought for an Order dismissing the appeal for want of diligent prosecution. After listening to Mr. R.Olusegun Raji, learned counsel for the respondents’/applicants’ and Mr. V.O. Ogunade for the Appellants’ the Court of Appeal observed in a Ruling delivered on 15 February, 2006 that:
Respondents counsel in order to facilitate the hearing of the appeal did the Compilation of the Record of Appeal..
The appellants’ despite service on them of Notice to file their brief of argument by the Court of Appeal Registrar have failed to comply with the stipulated period of the sixty days allowed by the rules. There is also no indication that the appellants’ have up to date filed any such proposed brief and in respect of which a motion for enlargement of time is being sought
“………..In the circumstance I therefore make an Order dismissing the appellants’ appeal in Appeal No. CA/L/41/05 for want of diligent prosecution…”
This appeal is against that Ruling.
In accordance with Rules of this Court both counsel filed and exchanged briefs.
Learned counsel for the appellant V.O. Ogunade Esq filed the appellants’ brief and a Reply brief on 2 August 2006, and 26 January, 2007.
Learned counsel for the respondents’ filed the respondents’ brief on 9 October 2006.
Learned counsel for the appellants’ formulated four issues for determination of the appeal.
1.Whether the Appeal Court was right when it did not give adequate consideration to the submission of the appellants’ that they were not served the respondents’ motion on Notice and only became aware of it some few days before it was to be heard.
- Whether the Appeal Court was right, when it did not give adequate consideration to the submission of the appellants’, that they were lured into several meetings by the Respondents’ to explore the possibilities of amicable settlement, which they faithfully
kept, while the respondents were secretly preparing the motion to dismiss the appeal.
- Whether the Appeal Court was right, when it refused the appellants the opportunity to present their counter affidavit, to the respondents’ motion on Notice for dismissal of appeal dated 15 July, 2005.
- Whether the Appeal Court was right when it refused the submission of the appellants to the effect that they were not served notice by the Court of Appeal Registrar to file their brief of argument.
Learned counsel for the respondents’ formulated only one issue for determination. It reads:
- Whether the appellants’ who were not willing, ready and diligent to prosecute their appeal were denied fair hearing by the learned trial justices of the Court of Appeal who heard the respondents’/appellants’ motion on Notice dated 15 July, 2005 for an order dismissing the appellants’/respondents’ Appeal for want of due and/or diligent prosecution
I shall refrain from deciding now, which of the issues shall be considered in this appeal. This is because the Preliminary objection argued in the respondents’ brief appears to have substance. If it succeeds the hearing of the appeal abates.
At the hearing of the appeal on 14 January, 2019 the parties were absent and unrepresented. The briefs were properly filed and served and there was proof of service of hearing Notice for the hearing of the appeal on both counsel. The appeal was deemed as argued.
Learned counsel for the respondents’, Mr. O. Raji argued a Preliminary objection in his respondents’ brief.
Learned counsel for the appellants’ responded in appellants’ reply brief.
Learned counsel for the respondents’ relied on two Grounds of objection in support of his Preliminary objection. On Ground one he submitted that:
(1) The appellants did not seek and obtain leave in respect of their grounds of appeal for effective argument of same before this Honourable Court.
On Ground, two he submitted that:
(2) The appellants did not notify the respondents’ or their counsel while compiling the record of Appeal to the Supreme Court thereby deducting some vital documents substantiating the respondents’ case.
On (1) learned counsel for the respondents’ relied on Igwe & Ors v Kalu (2002) 2SC (Pt.1) p.93
Ogbechie v Onochie (1986) 2 NWLR (Pt.23) p.484.
He submitted that learned counsel for the appellants’ failed to obtain leave before filing the five grounds of appeal which are on questions of mixed law and fact, contending that in the absence of leave the appeal should be struck out.
On (2) he submitted that learned counsel for the appellants failed to avail the respondents’ counsel of some documents making up the Record of Appeal. Relying on Okafor v Onedibe (2003) 9 NWLR (Pt.825) p.399, he submitted for transparency, honesty and genuineness, both parties are to have knowledge of every document necessary for compilation of and making up the records of appeal, but that was not the case while the appellants’ compiled the Record of Appeal. He urged the Court to sustain the objection as the appeal is incompetent.
On (1) learned counsel for the appellants submitted that the Supreme Court can do away with requirement for leave to appeal after the perusal of the records of proceedings when the justice of the case demands it.
On (2) He argued that it is not the duty of the appellants to notify the respondents’ or their counsel while compiling the Record of
Appeal but the Registrar’s who is the custodian of all official process. Reliance was placed on Orders 6 or Order 7 of the Supreme Court Rules.
Adewoga v Denegan (2001) FWLR (Pt.61) p.1776.
It is long settled that a Preliminary objection must be determined before the appeal is considered. The reason is simple. The purpose of a Preliminary objection is to convince the Court that the appeal is fundamentally defective. If the Preliminary objection succeeds the appeal would no longer be heard. It would be struck out.
I must further observe that a Preliminary objection is only filed when its success would bring the hearing of the appeal to an end. If the respondents complain about the grounds of appeal that are bad, but there are some grounds that can sustain the appeal, a motion on Notice and not a Preliminary objection should be filed against the defective grounds of appeal.
In this case the complaint is against all the grounds of appeal. A Preliminary objection is thus appropriate. See
Isah v INEC (2016) 18 NWLR (Pt.1544) p.175.
B.O.I. Ltd v Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (Pt.1615) p.220.
Section 233(3) of the Constitution states that:
(3). Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.
Leave means permission. Where the Grounds of Appeal involve questions of law alone no leave is required, and the Supreme Court would have jurisdiction to hear such an appeal, but where the Grounds of Appeal are based on facts, or mixed law and facts the Supreme Court would have jurisdiction to hear such an appeal if and only if leave was obtained. If leave is not obtained the appeal is incompetent and liable to be struck out.
See Nwadike v Ibekwe (1987) 4 NWLR (Pt. 67) p. 718
Obatoyinbo v Oshatoba (1996) 5 NWLR (Pt. 450) p. 531.
Nwaolisah v Nwabufoh (2011) LPELR. 2115
In NNPC v Famfa Oil Ltd (2012) All FWLR (Pt.633-635) P. 204.
I said that:
“At times the difference between a ground of law and a ground of mixed law and facts can be very narrow. Labelling a ground of appeal error of law, or misdirection may not necessarily be so. The application is irrelevant in determining whether a ground
of appeal is of law or mixed law and fact
The Court should examine the grounds and their particulars and identify the substance of the complaint. In that way the issue of whether a ground of appeal is of law or mixed law and fact would be resolved. Identifying a ground of appeal on facts is easier.”
In Ogbechie & Ors v Onochie & Ors 1986 NWLR (Pt.23) p. 484. Eso JSC adopted the explanation given by the authors of the Law Quarterly Review, Vol. 100 of October 1984 thereby providing an illuminating guide on this issue of classification of Grounds of Appeal of law, mixed law and facts or/and facts.
The authors explained as follows:
1.If the tribunal purports to find that particular events occurred, although it is seised of no admissible evidence that the events did in-fact occur, it is a question of law. But where admissible evidence has been led, its assessment is entirely for the tribunal; in other words, it is a question of fact.
- If the tribunal approached the construction of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, it is a question of law.<br< p=””
3.If the tribunal approaches the construction of a statutory word or phrase bearing an ordinary meaning on the erroneous basis that it is a legal term of art, it is a question of law.
- If the tribunal, though correctly treating a statutory word or phrase as a legal term of act, errs in elucidation of the word or phrase, it is a question of law.
- If the tribunal errs on its conclusion (that is, in applying the law to the facts) in a case where this process requires the skill of a trained lawyer, it is error of law.
6.If in a case where a conclusion can as well be drawn by a layman (properly instructed on the law) as by a lawyer, the tribunal reaches a conclusion which cannot reasonably be drawn from the facts as found, in that event, the superior Court has no option but to assume that there has been some misconception of the law. But the issue may admit of more than one possible resolution. The inferior tribunal’s conclusion may be one of the possible resolutions; Yet it may be a conclusion which the superior Court (had it been seised of the issue) would not have reached. Nevertheless, the inferior tribunal does not err in law.
The matter is one of degree, and a superior Court with jurisdiction to correct only errors of law will not intervene.
In Nwadike v Ibekwe (1987) 4 NWLR (Pt.67) P. 718,
This Court further explained that:
(a) It is an error in law if the adjudicating tribunal took into account, some wrong criteria in reaching its conclusion.
(b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law.
(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law.
(d) Where a tribunal states the law in point wrongly. It commits an error in law.
(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.
(f) If a judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law.
All that I have been saying explains in detail how to go about, or what should be considered
before the distinction is made. They make the exercise clear and easier to understand.
Now, the grounds of appeal filed by Mr. V.O.A. Ogunade, learned counsel for the appellant are as follows:
GROUNDS OF APPEAL
The learned Justices’ of the Court of Appeal erred in Law when they ruled that because the appellants did not prosecute the matter diligently the appeal ought to be dismissed.
(a) Justice is a two way traffic both to the plaintiff and the defendant.
(b) The Motion was not served on the defendants’/appellants’ as claimed by the plaintiffs’/respondents’.
(c) The defendants/appellants were only aware of the motion on Notice dated 15 July 2005 asking the Court to dismiss the appeal of the appellants for want of diligent prosecution a day before 15 February, 2006.
Learned Justices’ of the Court of Appeal erred in Law when they ruled that the defendants’/appellants went to sleep after filing their motion of stay.
(a) The defendants/appellants solicitor has been made to believe that they were lured into several meeting wherein the
defendants’/appellants’ faithfully kept faith in the reconciliation meeting while the plaintiffs’/respondents’ were pushing the motion to dismiss the appeal secretly.
The learned final Justices’ misdirected themselves by not giving the defendants’/ appellants’ the opportunity to present its counter motion to the plaintiffs’/respondents’ motion on notice dated 15 July, 2005.
The defendants/appellants has proved that they only became aware of the motion a day before hearing the plaintiffs/respondents’ motion dated 15 July, 2005 and would need time to react and that one more adjournment will be enough.
The learned Justices’ misdirected themselves in law when they refused to note defendants’/appellants’ statement to the effect that they were not served notice to file their brief of argument by the Court of Appeal Registrar.
The Court cannot shut out a party who has no notice of a proceeding against it.
The learned Justices’ misdirected themselves in law when they allowed the issue of technicality to defeat Justice of this case.
The use of technicality cannot be used to defeat substantial justice.
The appellant hereby gives notice that further grounds of Appeal shall be filed upon obtaining other processes filed in this suit.
Applying the principles laid out above, Ground 1 raises the question of not prosecuting the appeal diligently. This is a question of mixed law and fact.
Ground 2 questions the delay in filing appeal. This is a question of mixed law and fact.
Ground 3 raises the issue of not giving the appellant the opportunity to present its counter motion. This is a question of fact.
Ground 4 raises the issue of not being served Notice to file brief of argument. This is a question of fact.
Finally Ground 5 raises the issue of allowing the issue of technicality to defeat the justice of case, is a question of mixed law and fact.
All the grounds of appeal are grounds of mixed law and fact or fact. They are caught by Section 233 (3) of the Constitution.
Before I conclude, learned counsel for the appellant relied on Section 233(4) of the Constitution to support his argument that leave was unnecessary.
(4) The Supreme Court may dispose of any application for leave to appeal from any decision of the Court of Appeal in respect of any civil or criminal proceedings in which leave to appeal is necessary after consideration of the record of the proceedings if the Supreme Court is of opinion that the interests of justice do not require an oral hearing of the application.
Section 233 (3) of the Constitution is mandatory.
That is to say where the grounds of appeal are of mixed law and fact, leave must be obtained while its discretionary under Section 233 (4) of the Constitution.
This Court can exercise its discretion and dispense with leave where the grounds of appeal are mixed law and fact if satisfied that it is in the interest of justice.
This Court and indeed all Courts are Courts of justice and Equity. They should ensure at all times that substantial justice is done between the parties.
The role of Courts in this regard have been stated and repeated in a plethoric of cases. See
Bello v A.G. Oyo State (1986) 12 SC p.1
Ogumbi v Kosoko (1991) 8 NWLR (Pt.210) p.511
Panache Communications Ltd v Aikhomu (1994) 2 NWLR (Pt.327) p. 425.
Akilu v Fawehinmi (1989) 3 NWLR (Pt. 112) p. 643
Nishizawa v Jethwani (1984) 12SC p. 235.
Does the justice of this case require that this Court exercises its discretion and allow the appellant to appeal without obtaining Leave OR is it in the interest of justice to allow the appellant to appeal without obtaining leave
To answer this question the facts of this case must be laid bare.
The facts are these. The respondents own a piece of land at Magbon, Orile-Agege in Lagos State.
The appellants became their tenants. After sometime they challenged the title of the respondents’. So, the respondents as plaintiffs sued the appellants’/defendants for forfeiture, possession and arrears of rent. The case was initially filed in Court in 1985. In 1996 a Lagos High Court entered judgment for the respondents. All their reliefs were granted.
In 1997 the appellants’ filed an appeal and obtained a stay of execution of the judgment. After obtaining a stay of execution the appellants went to sleep.
So on 18 July 2005, eight years after the grant of stay of execution the respondents’ approached the Court of
Appeal for an order dismissing the appeal for want of diligent prosecution. The application was granted. The appeal was dismissed. This is an appeal against that Ruling, and all the grounds of appeal are caught by Section 233 (3) of the Constitution.
Is this a case where in the interest of justice this Court should exercise its discretion and allow the appellants’ to appeal as provided by Section 233 (4) of the Constitution. This is clearly not such a case.
The facts reveals that the appellants’ have used the Rules of Court to their own advantage. They have frustrated the respondents’ for over thirty years by denying them the use of their land. It would amount to monumental injustice to exercise discretion in favour of the appellants’ who are not deserving of it. It is the respondents’ that deserve justice and not the appellants.
This Court would never exercise discretion in favour of the appellants on these facts that cry out for justice for the respondents.
The response by learned counsel for the appellants to the Preliminary objection is without substance. There would be no need to consider the second ground of the Preliminary objection.
Since I have found that the five grounds of appeal are caught by Section 233 (3) of the Constitution, they are hereby struck out on the preliminary objection of learned counsel for the appellants.
Preliminary objection is sustained.
Appeal struck out.