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Home » Nigerian Cases » Supreme Court » Niwa V. SPDC (2020) LLJR-SC

Niwa V. SPDC (2020) LLJR-SC

Niwa V. SPDC (2020)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C. 

The appellant commenced suit No. FHC/PH/322/03: National Inland waterways Authority v Shell Petroleum Development Company of Nigeria Limited at the Federal High Court, Port Harcourt Division via an originating summons dated 12th May, 2004. Upon conclusion of argument on the originating summons, the Federal High Court delivered judgment on 22nd day of April, 2005 wherein the Court granted the reliefs sought by the appellant in part.

Dissatisfied with the judgment of the trial Court, the respondent herein (as defendant) appealed to the Court of Appeal against the said judgment except the part holding that there were irreconcilable conflict in the affidavit of the parties. The appellant herein (as plaintiff) cross-appealed against part of the judgment of the trial Court. After briefs were filed and exchanged, the appellant as cross-appellant at the Court below realized that he ought to have obtained leave before filing the cross appeal. He then filed a Motion on Notice on 28/3/06 for trinity Prayers.

​In its ruling on 10th July, 2006, the Court below dismissed the cross-appellant’s motion for

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lacking in merit. Thereafter, the appellant filed a similar motion dated 20th January, 2007 praying for the same reliefs as the one earlier dismissed by the Court below.

The Court of Appeal, in a ruling delivered on the 7th November, 2007, struck out the Appellant’s application on the ground that the trinity prayers made in the application dated 20th January, 2007 were similar to those made in the previous application dated 28th March, 2006 which was earlier refused by the Court. It also held that the Court had become functus officio after its ruling of 10th July, 2006 refusing the earlier application, It then adjudged the motion an abuse of Court process.

Dissatisfied with the rulings of the Court below, the appellant filed notice of appeal on 31st July, 2008. The said notice contains five grounds of appeal from which the appellant distilled four issues for the determination of this appeal. Briefs of argument were filed and exchanged.

On 12th November, 2019, when this appeal was heard, the learned counsel for the Appellant Adeyinka Aderemi Esq; adopted the brief of the appellant filed on 29/4/10 but deemed properly filed on 28/1/2011. At the

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said hearing, learned counsel abandoned issues two and four, thus conceding to the preliminary objection raised by the learned Senior counsel to the respondent against the two issues. What this means is that the Appellant argued this appeal based on issues one and three only. In the circumstance, issues two and four, having been abandoned are hereby struck out.

The remaining two issues, which I hereby renumber as 1 and 2 are as follows:-

  1. Whether the Court of Appeal was right to have held that the granting of leave to appeal is not sufficient to cure the defect in the Notice of Appeal that had earlier been filed without leave, having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 74 NWLR (pt 945) 249
  2. Whether the decision of the Court of Appeal refusing leave on grounds of incompetence operates as a bar on the appellant bringing the same application before the same Court subsequently.

The learned Senior counsel for the Respondent distilled two similar issues as that of the Appellant for the determination of this appeal, though couched differently. The two issues are:-

  1. Whether the decision of

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the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (2005) 14 NWLR (pt 945) 249.

  1. Whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiffs Motion in its decision of November 7, 2007 after the earlier similar application was dismissed for lack of merit.

Before I take a further step in this matter, may I state that the learned senior counsel for the Respondent had given notice of preliminary objection against issues two and four in the Appellant’s brief. However, at the hearing of this appeal, the learned counsel for the Appellant abandoned the two issues, thereby conceding the preliminary objection. At that point the learned Senior counsel withdrew the notice of preliminary objection. Accordingly, the notice of preliminary objection and the arguments made in respect thereof are hereby discountenanced. I shall then determine this appeal on the remaining two issues distilled by the appellant with concurrence of the Respondent.

ISSUE ONE:-

This issue is whether the Court of Appeal was right to have held that the granting of leave to appeal is

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not sufficient to cure the defect in the notice of appeal that had earlier been filed without leave having regard to the decision of the Supreme Court in the case of Williams v Mokwe (2005) 14 NWLR (pt 945) 249. This issue as couched by the respondent appears to be more apt. It states whether the decision of the Court of Appeal in its Ruling of July 10, 2006 was in disregard of the Supreme Court decision in Williams v Mokwe (supra).

The contention of the Appellant in this issue is that although the Appellant had filed notice of appeal without the leave of Court in the mistaken believe that there was no need for leave to be first sought and obtained; the lower Court ought to have regularized their position as was done by this Court in Williams v Mokwe (supra). That the Court below did not follow the decision in William v Mokwe (supra). Rather it distinguished it and held that leave cannot be granted retrospectively.

Learned counsel for the Appellant submitted that the distinction being put on the case is misconceived and has conveniently lost sight of the real issue determined by the Supreme Court in Williams v Mokwe. That although the Supreme Court

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took cognizance of the law that a notice of appeal which requires leave if filed without the requisite leave is a nullity, whether the appeal is interlocutory or trial, it still went ahead to grant the application.

Learned counsel referred the Court to the case of Nurudeen Oniwaya v Omolete Ikuomola & Ors CA/L/323M/2006 delivered on 1st February, 2007 per Ogunbiyi, Agbo and Galumje, JCA which declined to follow the decision inNational Inland Waterways Authority v Shell (the subject matter of this appeal) but followed Esiri v Idika (1987) 4 NWLR (pt 66) 502 and Williams v Mokwe (supra). He also drew the attention of the Court to the fact that out of the four grounds of appeal contained in the notice of appeal dated 3rd June, 2005, two were valid grounds of appeal as conceded by all. According to him, the notice of appeal was not void ab initio. He submitted that a single valid ground of appeal is all a notice of appeal requires to be competent. He urged the Court to resolve this issue in favour of the Appellant.

Learned Senior counsel for the Respondent, Chief Richard Akinjide, SAN in the brief he filed but argued by Chief Mrs. A. Williams

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Akinjide, SAN submitted that although the decision of the Supreme Court are binding and must be followed by the Court of Appeal, however, where the circumstances giving rise to the decision of the Supreme Court are different from the facts of the case before the Court of Appeal, the lower Court is not bound to follow the decision of the Supreme Court but may distinguish it as appropriate, relying on Adegoke Motors v Adesanya (1989) 3 NWLR (pt. 109) 250.

See also  Alhaji Kabiru Abubakar & Anor V John Joseph & Anor (2008) LLJR-SC

According to the learned SAN, the decision in Williams v Mokwe (supra) was inapplicable in the circumstances of this case and that the lower Court was right in refusing to follow it and rightly distinguished it. He contended that this Court granted leave in Mokwe’s case subsequent to the filing of notice of appeal because the leave sought was to appeal as a person interested in a final judgment. That the decision appealed against in Williams v Mokwe (supra) did not require leave, unlike in the present case.

The learned Silk submitted further that the application of the Appellant leading to the present appeal was brought on the premise that they needed leave of the Court of Appeal to appeal against that

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part of the judgment of the Federal High Court which the Appellant labeled “interlocutory.” Thus, the application brought by the appellant at the lower Court was premised on the nature of the decision appealed against vide Section 242(1) of the 1999 Constitution (as amended).

Learned Senior counsel concluded that Williams v Mokwe has nothing to do with the retrospective regularization of an appeal filed pursuant to Section 242 of the 1999 Constitution without prior leave of Court. That Williams v Mokwe dealt with Section 243 of the Constitution. He relies on the case of Ojemen & Ors v Momodu ll (1983) 1 SCNLR 788 at 203. He urged the Court to resolve this issue against the Appellant.

The doctrine of stare decisis literally means to stand by what has been decided, and not to unsettle things that have been established. It precludes judges of subordinate Courts from changing what has been determined, especially where the determination is by a superior Court. See Clement v Iwuanyanwu (1989) 4 SC (pt 11) 89 at 97. The point is that the lower Court is bound by the decision of a higher Court. Also, the Court will hold itself bound by its previous

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decisions except where it is satisfied that any of its previous decisions is erroneous or was reached per incurian, See Nigeria Agip Oil Company Ltd. v Chief Gifi Nkweke & Anor (2016) LPELR – 26060 (SC), Dalhatu v Turaki (2005) NWLR (pt 843) 310, Veepee Industries Ltd v.COCOA INDUSTRIES LIMITED​ (2008) NWLR (pt 1-705) 486.

There is no doubt that the principle of stare decisis is well entrenched in our jurisprudence and has helped to bring certainty to our laws as espoused by the Courts; else there would be confusion and anarchy in the judicial process. In Eperokun v University of Lagos (1986) NWLR (pt 34) 762, Oputa, JSC (of blessed memory), held as follows:-

“The Supreme Court of Nigeria does not enjoy any legal or Constitutional immunity from error. But having said this, I must hasten to add that before a decision of this Court can be reconsidered and overruled, the Court has to be satisfied that the decision is erroneous otherwise the best policy is stare decisis et non quieta … (to stand by the decision and not to disturb settled points). Otherwise again little respect will be paid to our judgments if we overthrow that one day which we resolved the day before.”

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See also Paul Odi v Osafile (1985) 1 NWLR (pt 1) 17; Johnson v Lawanson (1971) All NLR 56.

In the instant appeal, the Appellant is basically complaining that the Court below failed and/ or neglected to observe or abide by the stare decisis doctrine. Putting it poignantly, the appellants are saying that the Court below refused to follow the case ofWilliams v Mokwe (2005) 14 NWLR (pt 945) 249 which was cited to it. To be able to adequately resolve this matter, there is need to carefully examine the facts and decisions in Williams v Mokwe (supra) vis-a-vis the facts and decisions of the lower Court in the instant appeal. The need becomes more relevant because the law is trite that each case must be determined upon its own peculiar circumstances as no two cases can be completely the same. They can be similar. See The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v Eke-Spiff & Ors (2009) 7 NWLR (pt 1139) 97.

In Williams v Mokwe (supra), the Respondent was not a party to the proceedings at the trial Court. But before judgment, it appealed to be joined. For some inexplicable reasons, the application for joinder dated 8th

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July, 1994 was not heard and determined by the trial Court. Judgment was entered eventually in favour of the Appellant who was the plaintiff at the trial Court. Even though not a party, having not been joined, respondent G. C. Mokwe & Sons Ltd being dissatisfied with the decision of the trial Court, filed its notice against the judgment on 28/7/94. Respondent also filed its application for leave to appeal at the trial Court a day after it had filed its notice of appeal on 29/7/94. Respondent on 24th June, 1995 applied to the Court of Appeal under Section 222(a) of the 1979 Constitution for leave to appeal as a party interested against the trial Court’s judgment dated 28/7/94. The application which was not opposed by the appellant was granted as prayed on 5th February, 1996 more than six months after the respondent had filed its notice of appeal.

The appeal was heard and allowed by the Enugu Division of the Court of Appeal. A review was ordered after the trial Court’s decision appealed against had been set aside. Being dissatisfied, the appellant appealed to the Supreme Court. It was argued that the Court of Appeal’s order dated 5/2/96 granting leave

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to the respondent to appeal against the decision of the trial Court following respondent’s application subsequent to the filing of notice of appeal to that effect was illegal.

In dismissing the appeal, the Supreme Court observed that appellant had neither opposed respondent’s application at the Court of Appeal for leave and for the deeming of the respondents’ irregularly filed notice of appeal as properly filed nor appealed against the said order. In affirming the decision of the Court of Appeal, the Court per Kalgo, JSC first referred to the decision of that Court thus:-

“The appeal was heard by the Court of Appeal and in its judgment Niki Tobi, JCA (as he then was) who read the leading judgment said:

“It is clear from the record book that the motion in question (for leave to appeal) was moved by learned counsel for the appellant on 5/2/96, A. U. Chilota, counsel for the respondent did not oppose the motion. This Court accordingly granted it as prayed. Leave was therefore granted the appellant. The order was given way back on 5/2/96. The respondent had all the opportunity to appeal if he was not satisfied. But there was no appeal. He now raises

See also  Alban Pharmacy Limited V Sterling Products International Inc (1966) LLJR-SC

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the issue in his brief filed on 28/10/96, I do not think the law allows him to do so. The objection on the competence of the appeal therefore fails.

This Court concluded as follows:-

“The facts elicited in the above quotation were perfectly correct according to the proceedings in this case, and I entirely agree with the Court of Appeal that without an appeal, the orders, the objection to the competence of the appeal on that ground cannot be taken. That should be the end of the matter.”

In its judgment, the Court below held that the facts in Mokwe’s case (supra) cannot bind the instant case. The reasons given are that:-

  1. The judgment appealed against in Williams v Mokwe (supra) was a final judgment while the instant appeal is interlocutory.
  2. The applicant in William v Mokwe was not an original party in the case and only came in after judgment as a party interested while the appellant herein was the plaintiff who filed the suit.
  3. The respondent to the application for leave in Williams v Mokwe did not oppose the application while in this matter the respondent has been adamant in his objection.

​Let me state here categorically that since an appeal is a creative of statute, a party seeking to appeal against either a final or interlocutory decision must meticulously follow the laid down rules and procedure provided by the statute. Now, issues relating to appeals from the Federal High Court or High Court of a State to the Court of Appeal are provided for in Section 241, 242 and 243 of the 1999 Constitution of the Federal Republic of Nigeria [as amended). Whereas Section 241 relates to appeals as of right, Section 242 provides for appeals with the leave of the Court.

Pursuant to Section 243(b) of the Constitution (supra), Section 25 of the Court of Appeal Act as well as Order 3 Rule 4 of the Court of Appeal Rules, being an Act of the National Assembly and Rules of principles, have direct impact on the right of appeal created by the Constitution.

Section 25 of the Court of Appeal Act provides:-

“Section 25(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 period prescribed by the provision of Subsection (2)

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of this section that is applicable to the case.

(2) The periods for the giving of notice 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 appeal and three months where the appeal is against a final decision.

(b) 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 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.”

Order 3 Rule 3(5) of the Court of Appeal Rules provide:-

“If leave to appeal is granted by the Court or by the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 25 of the Act.”

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Order 3(4) –

“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.”

A careful perusal of the above provisions, particularly Section 25(1) of the Court of Appeal Act, shows that a party desiring to file an appeal as of right will do so by filing a notice of appeal to that effect within the time prescribed. Another notice provided for in that same section is notice of application for leave to appeal in decisions not covered under Section 241 of the Constitution. Thus a party seeking to appeal against an interlocutory decision which requires leave, is required to file a notice of his application for leave to appeal. At that stage, he is not required to file a notice of appeal. At best, he can exhibit his proposed notice of appeal to the affidavit in support of his application for leave to appeal. An application for leave to appeal must first be sought and obtained before filing notice of appeal.

​Order 3 Rule 4 of the Court of Appeal Rules reproduced above states that if leave is granted by the Court or by the High Court, the appellant shall file a notice of appeal within the time prescribed by Section 25 of the Act. ​

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It follows that if leave is refused by the Court, no notice of appeal shall be filed.

My Lords, in Williams v Mokwe (supra), this Court approved the grant of leave subsequent to the filing of the Notice of Appeal. Now, a careful examination of the decision in that case will reveal that the leave sought in that case was leave to appeal as a person interested. The decision appealed against in Mokwe’s case (supra) did not require leave, being a final decision unlike in the present case which is an appeal against an interlocutory decision.

The application of the Appellant leading to the present appeal was brought on the premise that they needed leave of the Court of Appeal against that part of the judgment of the Federal High Court which even the Appellant has labeled “interlocutory”, Thus, the application brought by the Appellant at the Court below was premised on the nature of the decision appealed against vide Section 242(1) of the 1999 Constitution.

I agree with the submission of the learned Senior counsel for the Respondent that the substance of the distinction between William v Mokwe (supra) and the instant appeal lies in the fact

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that inWilliams v Mokwe (supra), the appeal was a valid appeal as of right by virtue of Section 241(1) (a) of the 1999 Constitution. The leave subsequently granted in Mokwe’s case (supra) was only to regularize the legal standing (locus standi) of the appellant in that case since he was ab initio not a party in the matter. Another reason why the decision in Williams v Mokwe cannot be faulted is that it relates to the power of the Supreme Court to regularize an irregularity i.e where a valid appeal is filed irregularly. Having filed an appeal against a final judgment of the High Court, the requirement of leave to appeal as a person interested was totally a different question.

​I need to emphasize that where an appeal can only be lodged with the leave of Court under Section 242 of the 1999 Constitution, no right of appeal exists ab initio. Leave is a condition precedent to bringing the appeal. Section 242 of the Constitution did not create any right of appeal. The only right created by Section 242 of the 1999 Constitution is the right of the prospective appellant to apply for leave to appeal. As far as the Ruling of the lower Court made on 10/7/2006 is

See also  The Hon. Justice E.O. Araka V The Hon. Justice Don Egbue (1993) LLJR-SC

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concerned, I agree that grounds 1 and 2 in the notice of appeal relating to an interlocutory decision were incompetent, leave having not been sought and obtained before filing same. The Court below held on page 357 of the record as follows:-

“In the instant case where the appellant had filed a notice of appeal which, in respect of grounds 1 and 2 thereof required leave, being neither grounds of law alone nor in respect of the aspect of the lower Court’s decision that is final, the notice of appeal is to that extension, as submitted by Chief Akinjide SAN for the respondent, incompetent.”

However at the close of the judgment, the Court below held the Notice of Appeal to void ab initio. I disagree. I will explain. Both parties to this appeal, including the Court below agree that grounds 3 and 4 in the notice of appeal are competent and relate to the final decision of the trial Court which did not require leave. This means that the notice of appeal was competent because there are two competent grounds which could sustain the appeal.

In J. A. Aderibigbe & Anor v Tiamiyu Abidoye (2009) LPELR – 140 (SC) page 20, paragraphs D – F, this Court

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per I. T. Muhammad, JSC (as he then was) held as follows:-

“A notice of appeal can be competent and valid if it contains at least one valid ground of appeal. See Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999, Erisi & Ors v ldika & Ors (1987) 3 NWLR (pt 66) 503 at 576. A bare Notice of Appeal without any ground of appeal is valueless and incompetent. See Akeredolu & Ors v Akinremi & Ors (1986) 4 SC 325 at 372. It is incurably bad. The defect cannot be cured by an amendment. See Global Transport Oceanic Co., SA & Anor v Fixed Enterprises Nig. Ltd. (2001) 2 SCNJ 224.”

It is my well considered opinion which is in line with the decision of this Court that grounds 3 and 4 in the notice of appeal adjudged to be valid ought to have sustained the notice of appeal. The two grounds saved the notice of appeal from being void ab initio. The notice, in my opinion after excising the offending grounds 1 and 2 from it, was competent after all, the motion was in respect of grounds 1 and 2 which stemmed from an interlocutory decision. Thus, the decision of the Court below succeeded in knocking down grounds 1 and 2 which were

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incompetent. Since grounds 3 and 4 were competent, the notice of appeal was competent and the appeal could be heard on those two competent grounds. I resolve this issue partially in favour of the appellant.

ISSUE TWO

The issue here is whether the Court of Appeal was right in declining jurisdiction to entertain the plaintiffs’ motion in its decision of November, 7, 2007 after the earlier similar application was dismissed for lack of merit on 10th July, 2006. Parties are ad idem that the facts leading to the Ruling of 10/7/2006 are similar to those which gave rise to the ruling of 7/11/2007. In refusing to rehear the said application, the Court below on pages 421 – 423 made the following conclusion:-

“The motion was refused after the usual judicial examination and scrutiny of the affidavit evidence adduced and relied on by the parties thereto. It should be remarked that applications such as the said motion are normally and ordinarily heard, considered and determined on the basis of the averments contained in the affidavits filed by the parties, oral submissions/arguments of counsel at the hearing which may include reference to judicial authorities

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and the state of the law on the issues involved… The motion was therefore heard on the merits of the affidavit evidence placed before the Court by the parties supported by the oral argument or submissions proffered by learned counsel. This is beyond contention since it is the agreed state of events in respect of the earlier motion. Consequently, I have no difficulty whatsoever in finding that in such circumstances, the said motion was heard on the merits by the Court on the 15th of May, 2006… Having exercised the discretion with finality, there can’t or better still, should not be another and eventually endless applications for the exercise of the same discretion based entirely on the same evidence and authorities that were fully considered in the previous application.”

In view of the above findings, the Court below concluded as follows on page 427 of the record:-

“In the result, the present motion, which seeks to reopen the reliefs decided therein finally, and have the decision reviewed and reconsidered by the Court is an abuse of the Court process. With the decision delivered on the 10th of July, 2006, which remain effective, the Court lacks

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the legal and judicial competence to entertain it because it amounts to a review of that decision.”

Having just concluded the resolution of issue 1 which is based of the ruling of 10th July, 2006. I have had sufficient interaction with the facts leading to that ruling. I am therefore in a very comfortable position to compare the motion leading to that ruling with the motion in respect of the ruling of 7th November, 2007. As was held by the Court below, the prayers and reliefs are the same. I agree entirely that the ruling of 10/7/06 was final as far as the lower Court is concerned. The second application which led to the ruling of 7/11/07 was indeed an abuse of Court process. The Court below, having earlier decided on the same motion, had no competence to entertain it again as it would amount to sitting on appeal over its earlier decision. Where an action is an abuse of process of Court, this Court in numerous decisions has held that the process is liable to be dismissed. See Igbeke v Okadigbo & Ors (2013) 12 NWLR (pt 1368) 225, Saraki v Kotoye (1992) LPELR- 3016 (SC), African Reinsurance Corporation v JDP Construction Nig, Ltd. (2003) LPELR – 215 (SC).

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I have no difficulty in resolving this issue against the appellant.

The final outcome of this appeal is that the appeal before the Court of Appeal shall be heard on the merit based on the two competent grounds 3 and 4 in the notice of appeal. Grounds 1 and 2 relating to interlocutory decision remain incompetent as decided by the Court below. Part of the decision of the lower Court holding that appellant’s notice of appeal was void ab initio is hereby set aside.

Appeal allowed in part. I make no order as to costs.


SC.4/2008(J)

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