Dr Okezie Victor Ikpeazu V. Dr Sampson Uchechukwu Ogah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PHILOMENA MBUA EKPE, J.C.A. 

This appeal emanates from the decision of the Federal High court in Suit No.FHC/ABJ/CS/7112016 coram Hon. Justice Okon Abang delivered on the 27th day of June, 2016. The Appellant herein being clc.ulv dissatisfied with the said Ruling also emanating from the same judgment, on pages 217 to 253 of the record has appealed to this court raising two grounds of appeal to wit:

Ground One:

The learned trial Judge erred in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

PARTICULARS OF ERROR

(i) The learned trial Judge was without the vires to sit on the interpretation of the Court of Appeal Rules, being Rules of a superior court of record.

(ii) Without prejudice to (i) supra, the interpretation given to Order 4 Rules (10) and (11) of the Court of Appeal Rules by the Lower Court is erroneous and misleading.

(iii) Order 4 (11) of the Court of Appeal Rules does not demarcate/bifurcate final and interlocutory appeals.

(iv) Without prejudice to (iii) supra, there was no interlocutory proceeding pending before the Lower Court.

(v) The Lower Court knew and was duly informed that the record of appeal in Appeal No. CA/A/390/2016 had been transmitted to the Court of Appeal, and a motion, seeking sundry interlocutory reliefs had also been filed before the Court of Appeal.

(vi) The interpretation of Order 4 Rules (10) and (11) embarked upon by the Lower Court was/is unprecedented, and the Lower Court did not support its proposition with any judicial precedent.

(vii) Deliberately, the Lower Court decided to encroach on the exclusive jurisdiction preserved for the Court of Appeal.

The learned trial Judge er.re d in law and came to a perverse decision by holding that Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011 only apply to final and not interlocutory proceedings, and that he still has jurisdiction to continue with the proceedings before him after the Court of Appeal has been fully seised of the entire proceedings.

Ground Two:

The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it, after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

PARTICULARS OF ERROR

(i) Binding decisions of the Supreme Court and Court of Appeal, including Ogunremi v. Dada (1962) 2 SCNLR 417, V AB Petroleum Inc. v. Momah (2013) 14 NWLR(Pt. 1374) 284 etc., were cited to the Lower Court on the trite proposition on when an appellate court is fully seised of an appeal.

(ii) Counsel to the 1st respondent honourably conceded to the trite legal position in (i) above, but the Lower Court chose to disagree with him.

(iii) Throughout the ruling of the Lower Court, no decision of the Court of Appeal or Supreme Court was cited by it to support the novel position that it was still vested with jurisdiction to continue with the proceedings.

(iv) The Supreme Court decision in Mohammed v. Olawumi (1993) 4 NWLR (Pt. 287) 254 was also cited to the Lower Court in order to avoid a situation of judicial impertinence.

(v) The Lower Court failed, refused and neglected to follow and be bound by both the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules, and the several decisions of appellate courts cited to it.

(vi) The Lower Court wrongly relied on the provisions of Order 7 of the Court of Appeal Rules which are not applicable to the matter before it.

(vii) In acting as aforesaid, the Lower Court, in its elaborate ruling, made further comments and conclusions depicting its prejudice against the Appellant. The learned trial Judge erred in law and breached the age-long doctrine of stare decisis by holding and insisting that it had jurisdiction to continue with the proceedings before it after the record of appeal had been transmitted to the Court of Appeal, and the Court of Appeal became exclusively seised of jurisdiction on the matter.

The Appellant also sought the following reliefs:

“1. To allow the appeal;

2. To set aside the ruling of the Lower Court dated the 8th day of July, 2016”.

From the grounds of appeal raised by the Appellant, a sole issue for determination was distilled thus:

Considering the clear provisions of Order 4 Rules (10) and (11) of the Court of Appeal Rules 2011, binding decisions of appellate courts on same as well as the age-long doctrine of stare decisis, whether the Lower Court was not in grave error by holding that it has jurisdiction to entertain and continue with proceedings on the same subject/applications after the record of appeal has been transmitted to this Honourable Court, and this court has been fully seised of the proceedings- Grounds 1 & 2.

Grounds 1 and 2

The 1st Respondent on his_ part also raised a sole issue for determination thus:

Whether the trial court was right in the construction given to Order 4 Rules 10 and 11 and Order 7 of the Court of Appeal Rules, 2011 vis-a-vis the pending Motion for Stay of Execution pending appeal.

I shall determine appeal based on the sole issue couched by the Appellant.

The 2nd, 3rd and 4th Respondents did not file processes and therefore had nothing to urge.

The argument of the Appellant revolves around Order 4 Rules (10) and (11) of the Court of Appeal Rules and what he termed the sacred doctrine of stare decisis stating that when an appeal has been entered at the appellate court, the Lower Court lacks jurisdiction to entertain any further proceedings on the subject apart from transmitting the remnants of applications before it to the appellate court. That the Lower Court unnecessarily promoted arguments to circumvent the clear meaning of Order 4 Rules (10) and (11) of the said Rules. Learned counsel for the Appellant faulted the stance of the Lower Court when the judex called on both counsel for the parties to address the court on the interpretation of Order 4 Rules (10) and (11) referring particularly to page 228 of the record as follows:

“Learned senior counsel for Appellant/Applicant please kindly address the court whether the provisions of Order 4 Rule 11 of the Court of Appeal Rules applies to appeal against final decision that has been entered or whether it applies to or regulates appeal against interlocutory decision that has been entered or whether it applies to both the appeal against final and interlocutory decision that has been entered”.

Learned Appellant’s counsel further opined that the Lower Court was in grave error when it held that Order 4 Rules (11) only regulates an interlocutory appeal that has been entered in the Court’ of Appeal and that it does not regulate an appeal against a final decision which has been entered at the Court of Appeal. Learned counsel further reiterated the fact that no Lower Court has the right or vires to interpret the Rules of the Court of Appeal or the audacity to depart from a decision of a superior court. He then cited the case of OKEKE V. OKOLI (2000) 1 NWLR (PT. 642) 641 & 654, where the Court of Appeal thus held:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in this order, every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

Learned counsel further cited the following authorities to buttress his argument:

1. OSEMWINGIE & ORS. V. OSEMWINGIE & ORS. (2012) LPELR – 19790.
2. SUSWAN V. SAROR & ORS. (2012) LPELR- 9767.
3. DALHATU V. TURAKI (2003) 12 NWLR (PT.843) 310 @ 336.

Learned Appellant’s counsel concluded that it should be noted that no application was pending at the time before the Lower Court in accordance with the Rules for setting aside of the Order of the Abia State High Court. That the mere oral application by the 1st Respondent counsel to set aside the said order was only an off shoot of the Appellant’s interlocutory application mentioned in the counter affidavit to the Appellant’s application and did not constitute an application per se. He further concluded that none of the proceedings of the Abia State High Court is before the Lower Court.

In his reply filed and dated the 3rd day of August, 20 16; learned counsel for the Appellant submitted that the Respondent made a volte face when in one breath he acceded to submission of the Appellant that the Lower Court had lost jurisdiction since the Court of Appeal is already seised of the matter and in another breath made an attempt to justify the action of the Lower Court. He further submitted that a party cannot under any circumstance change his case on appeal. He then referred the case of AJIDE v KELANI (1985) 3 NWLR (pt. 12) 248 @ 269 and AKPAN v BOB (2010) 17 NWLR (pt.1223) 421 @523- 524.

Learned counsel again referred to the rationale reached at the Lower Court when it held thus:

“However, the turning point in this ruling is that Dr. Alex Izinyon (SAN) has conceded that where an appeal is entered in the court of Appeal, this court lacks jurisdiction to entertain an application for stay”.

Counsel pointed out that the said decision of the Lower Court has not been appealed against and neither did the Respondents file any cross appeal to challenge it. Learned counsel also reiterated the fact that there was indeed no dichotomy between interlocutory and final appeals envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules, 2011. He emphasized on the clarity of the law in that regard by calling in aid the cases of MARWA v NYAKO (2012) 6 NWLR (pt 1296) 199 and CALABAR CCC v EKPO (2008) 6 NWLR (Pt.1083) 3 62 @ 39.

That the above Rule wholly takes control of every aspect of an appeal to the exclusion of the court below once the appeal is entered. Learned counsel concluded that paragraphs 4.12 to 4.14 at page 9 of the Respondent’s brief goes to no issue as the Respondent resorted to mere sentiments in an attempt to justify the pronouncement of the Lower Court when that court sought to comment on proceedings not before it. He referred to it as mere sentiment and cited the case of BUHARI v. OBANSANJO (2005) 13 NWLR (PT 941) 1 @198 para G- H.

While urging the court to disregard the argument of the Respondent in its entirety, he urged the court to allow the appeal.

He then urged the court to resolve the sole issue in favour of the Appellant and set aside the. “Bench Ruling” of the Lower Court dated 8th July, 2016.

Learned counsel for the 1st Respondent on his part also raised a sole issue for determination which to my mind is on all fours with the sole issue raised and argued by the Appellant in this discourse.

He submitted that the trial court was right in establishing a distinction between an interlocutory and final appeal envisaged in Order 4 Rules 10 and 11 of the Court of Appeal Rules. That the said Order which the trial court read in conjunction with Order 7 of the Court of Appeal Rules to arrive at the said decision cannot be faulted particularly since learned senior counsel for the Appellant did not cite any decision where the provisions have been so interpreted. He then urged the court to resolve the issue in favour of the Respondent and dismiss the appeal.

RESOLUTION

Notwithstanding the fact that the appeal before us has become a mere academic exercise, it is pertinent at this juncture to clearly adumbrate on the correct position of the law for the clarification of some knotty issues and the promotion of justice for the benefit of all and sundry. To begin with, let me reproduce ORDER 4 RULES (10) and (11) of the Court of Appeal Rules, 2011, the interpretation on which this entire appeal revolves.

ORDER 4 RULE 10:

RULE 10:

“An Appeal shall be deemed to have been entered in the court when the record of proceedings in the court below has been received in the Registry of the Court”.

RULE 11:

“After an appeal has been entered and until it has been finally disposed of the court shall be seised of the whole of the proceedings as between the parties thereto au d except as may be otherwise provided in this order every application therein shall be made to court and not to the court below, but any application may be filed in the court below for transmission to the court”.

It is on record that on the 8th day of July, 2016 both learned counsel for the Appellant and the 1st Respondent appeared before the Federal High Court. Learned Appellant’s counsel Chief Olanipekun SAN informed the court that the record of appeal had already been transmitted to the Court of Appeal and that the appeal had also been assigned an Appeal No. CA/A/390/2016 and that the Court of Appeal was fully seized of the matter. He then made heavy weather of Order 4 Rules (10) and (11) urging the Court to transit the proceedings of the application before it to the Court of Appeal. Learned counsel for the 1st Respondent who had brought an application before the Lower Court to set aside the order of the Abia State High Court for abuse of court process and contempt of court order disagreed with learned opposing counsel stating that the said application had already been argued on the 4th July, 2016 and urged the court to pronounce on it. The Lower Court however after very extensive arguments proffered by both learned counsel finally disagreed with the two learned senior counsel and suo motu adjourned all applications therein to abide the outcome of the main appeal in CA/A/390/2016.

Learned counsel for the Appellant based his arguments on two planks: first that the records of the said appeal had already been transmitted to the Court of Appeal and any further applications should also be transmitted to the Court of Appeal for determination. The second plank of his argument is that the Lower Court was in grave error to have called for the interpretation of Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011. On the first point which is the issue of jurisdiction of the Lower Court after an appeal has been entered in the appellate court, I shall refer to the words of the said Order which stipulate that an appeal shall be deemed to have been entered in the court when the record of proceedings in the Lower Court has been received in the Registry of the Court. In the case at hand judgment was delivered on the 6th day of June, 2016 in FHC/ABJ/CS/71/2016. On the 1st day of July, 2016 the appeal was duly entered at the Registry of Court of Appeal and assigned an Appeal No.CA/A/390/2016.

The presumption is that the said appeal is deemed duly and properly entered in the Court of Appeal. The second arm or the said order is that after the appeal has been duly entered, and until it has been finally disposed of, the Court of Appeal shall be seised of the entire proceedings and any applications thereafter shall be made in the appellate court.

The Rules have also made provisions for any application to be filed in the court below but for onward transmission to the Court of Appeal. In the case of SHELL PETROLEUM DEV. CO. LTD. v. OJIOWHOR MONDAY AMADI & ORS. 2011 LPELR 3204. The Apex Court stated thus:

“The general rule is that after an appeal has been entered; all other applications can €¢ be made in the appellate court, even though application may be filed in the court below for proper transmission to the Appellate Court”.

The Supreme Court further expantiated the tact that even the Court of Appeal will cease to have juris to hear any application when the records of appeal will have been received in the . Supreme Court who then has the sole juris to deal with all matters both interlocutory and otherwise.

It is worthy of note that the rules of court are the guiding watchdogs of proceedings and must be strictly adhered to. See KAF ARU AROWOLO & ORS V. NAVY CAPTAIN ABIMBOLA ADESINA (2010) LPELR 4384.

Also in the case of ABRAHAM ADELEKE & OR. V. OYO STATE HOUSE OF ASSEMBLY & ORS. (2006) LPELR 7655,this court held that as soon as an appeal is entered in the appellate court, it becomes fully seised of the matter and from thence forward, the court becomes dominus litis having full and complete dominion over all processes filed and ensuing proceedings to the exclusion of the Lower Court.

Also an appeal is deemed as having been duly entered as soon as all salient records are transmitted to the registry of the appellate court which cannot be heard to be competing with the Lower Court over any application in respect of the appeal. See also DUKE V. DUKE (2014) LPELR 2309; AJIBADE AINA & ORS. V. TIKA TOR PRESS LTD. (1968) 1 ALL NLR 210.

Learned senior counsel for the 1st Respondent in his brief of argument at page 5 stated that where there is an interlocutory appeal and motion for stay of proceedings and records are transmitted to the appellate court, and there is evidence of such before the trial court, it ceases to have jurisdiction except where the application is filed before the Court of Appeal where the applicant is enjoined to show exceptional circumstances where the application cannot be filed in the trial court.

He then referred to Order 7 Rule 3 & 4 of the Court of Appeal Rules. Let me also make referenqe to the said Order which clearly states as follows:

RULE 3:

“Wherever an application has been refused by the court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal”.

RULE 4:

“Wherever under these Rules an application may be made either to the court below or to the Court, it shall not be made in the first instances to the Court,. except where there are special circumstances, which make it impossible or impracticable to apply to the court below”.

We do not require the services of any soothsayer to read in-between the lines of Order 7 Rule 3 of the Court of Appeal Rules 2011 as cited supra.

It simply means that where an application has been heard and refused by the Lower Court, then such an application may be made to the Appellate court within 15 days after its refusal. In this instance the application even though made in the court below has not yet been determined. The Lower Court merely adjourned all the applications before it to abide the decision of the Court of Appeal. Rule 4 enjoins the applicant to first make such an application to the court below except in special circumstances which makes it impossible or impracticable to apply to the court below.

Like I stated earlier, no application had been decided upon in the Lower Court and the special circumstance here is the fact that the appeal had already been entered in the Court of Appeal and by Order 4 Rules 10 and 11 the Federal High Court had ceased to have jurisdiction to entertain any application in that court.

The learned judex of the- trial court however claimed jurisdiction to entertain the application before it. In his words at page 244 of the records he stated thus:

“The summary of my finding here is that I have jurisdiction to entertain a motion for stay of execution of the judgment of this court whether or not an appeal has been entered because it is an appeal against final decision that has been entered and not appeal against interlocutory decision that has been entered this distinction must be made because once an appeal against interlocutory decision of the trial court has been entered at the Court of Appeal, the trial court ceases to have jurisdiction to take any application filed before it but where it is an appeal against final decision that has been entered at the Court of Appeal,€¢ there is nothing pending at the trial court that the Court of Appeal is to be seised of except the motion for stay of execution of the judgment that statutorily the trial court is enjoined to entertain it first”.

I am indeed not enthused by that decision of the trial court. It appears that the Lower Court has made a summersault of the law and his decision to continue until the application based on a final decision of the Lower Court is€¢ indeed most appropriate. In an application against a final decision, once the appeal is entered in the appellate court, there is indeed nothing before that court to be heard or determined as the records would have left the court below having been transmitted to the appellate court. I do not agree with learned senior counsel that there is no distinction between interlocutory and final decisions as envisaged in the Rules. It merely stands to reason that the Lower Court could have jurisdiction to continue with the substantive suit even when an interlocutory application is pending in the appellate court. This does not apply to final decisions. The Lower Court was clearly wrong to have assumed jurisdiction in that regard. Although Order 4 Rules 10 & 11 of the Court of Appeal Rules 2011 which I too hold tenaciously to did not make any distinction between interlocutory and final appeals. However, the practice is that if an appeal is entered in the court of appeal against a final decision, the court below ceases to have jurisdiction as all records would have been transmitted to the appellate court. The Lower Court therefore had no business entertaining any such applications even by way of adjourning any matters to abide the outcome of the main appeal.

With regard to the second plank of appellant’s argument that the Lower Court ought not to have called on learned senior counsel to interpret Order 4 Rules 10 and 11 of the Court of Appeal Rules, I am in tandem with the argument of Learned Senior Advocate for the Appellant that the Lower Court has no jurisdiction to interpret the rules of a superior court when the wordings of the said rules are albeit clear and unambiguous. The Lower Court clearly acted ultra vires by that singular act.

It is my ardent view that whenever a rule or legislature is clear and unambiguous, there is indeed no need for any further interpretation. All the Lower Court needed to do was to simply give effect to it and not to embark on any canon of interpretation.

In the case of FEDERAL REP. OF NIGERIA V. CHIEF JOSHUA C. DARIYE (2011) LPELR 4151. This court stated as follow:

“It is trite that once the provisions of the Constitution or statute are clear and unambiguous, a court should deploy the literal rule of interpolation and give them their ordinary grammatical meanings without any interpolation or embellishment. The reason for adopting or employing the literal ca!”on of construction is simple. The function of the court, or its alter ego, the Judges, is jus dicere, not jus dare, that is, to declare the law not to make one. This timeless literal rule, which triumphed over the golden rule after months of ancient struggle for superiority, does not allow a court to stray away or sniff around for meanings of provisions beyond the legislation itself. The rule has been recognized in a legion of cases, see A. – G., Fed. v. Abubakar (supra);

Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1 001) 76; Nigerian Army v. Aminu-Kano (supra); Action”.

From the totality of all of the above summation the sole issue is hereby resolved in favour of the Appellant against the 1st Respondent. Consequently, this appeal is deemed meritorious and is hereby allowed.

Accordingly, the decision of the Lower Court delivered on the 8th day of July, 2016 is set aside. Cost of N100,000.00 is awarded in favour of the Appellant against the 1st Respondent.

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Other Citations: (2016)LCN/8977(CA)