General Electric Company V. Harry Ayoade Akande & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHEL CHUKWUMA-ENEH, J.S.C.

The notice of preliminary of objection filed on 27/10/2009 by the 4th respondent in this matter has been raised against hearing of this appeal pursuant to order 2 Rules 9 and 20 of the Supreme court Rules and under the inherent jurisdiction on the following grounds:

“1. The Notice of Appeal is incompetent for failure to obtain necessary leave of court as required by Section 233(2) and, (3) of the Constitution of the Federal Republic of Nigeria 1999.

2. The Record of Appeal was not prepared by the Appellant and was not transmitted to this Honourable Court within 14 days from the date of judgment of the Court of Appeal.
3. The Appellant’s brief was not filed within time.
4. The parties on the Appellant’s Brief and other processes filed are not the same as the parties in the court.
5. The Appeal is an abuse of Court process.”

The preliminary objection is supported by an affidavit of 27 paragraphs sworn to by one Felix Aki of counsel. Also filed along with the aforesaid processes is the 4th respondent/objector’s brief in support of the preliminary objection. Before coming to the appellant’s case, Prof. Kasunmu, SAN, for the 1st respondent has filed no process. He has however, associated himself with the submission of the 4th respondent in this matter. There is proof of service on the respondents 2nd – 5th with the instant processes but none of them has found it convenient to neither react to them nor appear in court in argument for the same.

The appellant has filed a counter-Affidavit on 2/3/2010 of 25 paragraphs in answer to the 4th respondent’s supporting affidavit to the preliminary objection, also filed is its brief in the matter. I will revert to them anon.

The facts of this matter are not in issue and are as contained in the body of this Ruling.

Meanwhile, as I conceive it from an overview of this matter that the fate of the instant preliminary objection whatever may have informed the propriety of taking it at this stage of this proceeding hangs on resolving ground one above positively being the main ground for determination as per the 4th respondent’s brief of argument in this matter, that is, in regard to the competency of the instant Notice of Appeal dated 15/10/2008 as well as the nine grounds of appeal contained therein. The other grounds for the objection will take their cue from upholding ground one. In that vein, I should go straight to deal with that ground without much embellishment of the surrounding grounds. What I am otherwise trying to say here is that upon finding the instant Notice of Appeal and the nine Grounds of Appeal therein to be competent and duly filed then grounds 2, 3, and 4 of the grounds for raising the preliminary objection as set out above become otiose and utterly of no moment; in which case the record of appeal as prepared by the Registrar and remitted to this court and the appellant’s brief of argument filed pursuant to the entry of the appeal in this court would have procedurally fallen into proper place and thus render the question of abuse of process a non-issue as a ground for the instant objection.

However, the two issues for determination as raised by the 4th respondent in its brief in this respect read as follows:

“3.01: Whether appellant’s non compliance with the Constitution of the Federal Republic of Nigeria 1999 and the Supreme Court Rules for the proper exercise of its right of appeal and due presentation thereof render this appeal incompetent

3.02 Whether this appeal is an abuse of court process.”

Having raised these issues the 4th respondent with regard to the notice of appeal dated 20/10/2008 has submitted that the grounds of appeal contained therein are not grounds of law otherwise at best of mixed law and fact, which mandatorily require leave of court under Section 233(3) of the 1999 Constitution and that having failed to obtain leave of court as required under the said section the instant Notice of Appeal as well as the grounds of appeal contained therein has not been initiated by due process of law and upon fulfillment of the pre-condition to the exercise of the court’s jurisdiction. See: Madukolu v. Nkemdirim (1962) 2 NSCC (vol.2) 374 and so they are incompetent and should be struck out. To compound the issue under this ground the 4th respondent has posited that the decision of the lower court dismissing the appeal for want of diligent prosecution and being an abuse of the court process cannot be properly impugned without, firstly adverting to the facts upon which the decision is founded and that in the circumstances leave of court is required to render the instant appeal before this court being interlocutory in nature competent. In support of the foregoing submission it has relied on Comex Ltd. V. Nigeria Arab Bank (1997) 3 NWLR (Pt.496) 643 at 654 and Ajayi v. Omoragbe (1993) 6 NWLR (Pt.301) 512. Let me vouch here respectfully that there is a misconception of the clear distinction between interlocutory and final decision/order in this matter as perceived by the 4th respondent. Thus raising the question whether the decision has completely disposed of the appeal, this is as to the rights of the parties to the appeal. I shall to deal with it in the course of this ruling.

On the 2nd leg of the objection as espoused in ground 2 above, it is submitted that the record of appeal of the proceedings of the lower court has been compiled outside the time so limited for such exercise – thus characterizing the decision as interlocutory and subject to the provisions of Order 7 Rule (2) (b) and order 7 Rules 6 and 7 which allow only 14 days from the date of delivery of the decision to compile and transmit the record of appeal with the brief on it to this court. It is further submitted that the appellant contrary to the provisions of the said Rules has gotten the Registrar of the lower court though on depositing N3000.00 to compile the record of appeal even then belatedly and outside the time so limited for the same; it is also contended that following from the foregoing the appellant’s brief of argument has been filed outside 10 weeks as limited by the rules i.e. after service of the record of appeal on the appellant. And so it is urged that the record of appeal as well as the appellant’s brief of argument in the appeal before this court being in the circumstance incompetent should be struck out as well as the appeal itself.

On the third leg of the objection it is contended that the title of processes filed here do not bear the same names of the parties as in the lower court, and clearly that the appellant has not complied with order 2 Rule 8 of the Rules of this court. The processes so filed in this proceeding have also been challenged as to their competency for unilaterally omitting the 1st defendant Michael Omisade/Yinka Omisade as at the trial court, and who has not so far been substituted since his demise and for substituting power Holding company of Nigeria Plc. as the 5th respondent in this proceeding for National Electric Power Authority (NEPA) the 6th respondent in lower court, all these acts have been done, it is contended improperly without leave of court. The court is urged to discountenance the processes.

On the conduct of the appellant it is submitted that it has not acted in any way in good faith as in the instances above-stated as well as in regard to other numerous vexatious applications amounting to abuse of process that have been filed in this proceeding clearly with a view to stalling the hearing of this appeal expeditiously on the merits even then that the substantive suit is still pending at the trial court after decades of deliberate wrangling over irrelevances as delay tactics.