Oba Tijani Akinloye (Ojomu of Ajiran) V. Dali Adelakun (2000)
LawGlobal-Hub Lead Judgment Report
IGE, J.C.A.
The Appellant/Applicant filed only one ground of appeal which reads thus:
“1. The learned trial Judge erred in law when he held that Section 38 of the Fundamental Human Rights Provisions in the 1979 Constitution can be enforced against a private person by means of the Fundamental Human Rights Enforcement Procedure Rule.
Particulars of Error:
a. The provisions of the Fundamental Human Rights Enforcement Rules can only be employed against the Government and its agencies.
Further grounds of appeal shall be filed upon receipt of a certified true copy of the Ruling of the lower court.”
The Defendant/Applicant has now filed a motion on Notice asking for leave to amend the Notice of appeal dated 8th day of October, 1996 by substituting the proposed amended Notice of appeal annexed to the affidavit in support of this motion. Applicant also wants court to deem the Amended Notice of Appeal a copy of which is attached to the affidavit in support of the motion as properly filed.
Applicant’s third prayer is for extension of time to file the Appellant’s Brief.
Applicant has filed an affidavit of 8 paragraphs in support of this application and has attached a copy of the proposed amended notice of appeal. The grounds of appeal in the proposed amended notice read thus:-
“(1) The learned trial Judge erred in law when he held that Section 38 of the Fundamental Human Rights Provisions in the Constitution of the Federal Republic of Nigeria 1979, is enforceable between citizens of Nigeria.
Particulars of Error:
(a) The right reserved in Chapter IV of the Constitution seeks to protect the citizen against unlawful executive actions.
(b) The provisions of Section 38 and Chapter IV of the Constitution of the Federal Republic of Nigeria 1979 confer, a right only on the citizens of the country against executive or government action.
(2) The learned trial Judge misdirected himself on the facts, and erred in law when he ruled that the entire suit was not an abuse of the process of the court.
Particulars of Misdirection:
(a) The relief claimed by the Plaintiff in the suit before the trial Judge related to a right to occupy, possession and use of land situate at Okun Ibeju Village, Lagos.
(b) The subject matter in Suit LD/2845/93 is a vast area of land which includes the land in dispute in this Appeal.
(c) That the parties in the present Suit are the same as the parties in Suit LD/2845/93.
(d) The issues canvassed in the present Suit ought to be raised in the said Suit at the Lagos High Court.
(e) The Court was also aware that in the said Suit No./LD/2845/93, the plaintiff had employed the legal process to obtain various injunctive reliefs by interlocutory orders against the Defendant on the same matters in controversy.
(f) The plaintiff was clearly employing the lawful process of the Court herein in an illegitimate manner to harass and intimidate the Defendant and to create a multiplicity of Suits on the same subject.
Particulars of Error:
(a) It is an abuse of the process of the Court to initiate a multiplicity of Suits on the same subject between the same parties.
(b) Regardless of the merits, it is an abuse of the lawful process of Court to employ such process illegitimately to harass or intimidate the opposing party.
(3) The learned trial Judge erred in law when he held that the Affidavit of Lukman Adeyemo, sworn on 22/10/96 in support of the Appellant’s objection contravened the provisions of Sections 85, 87 and 88 of the Evidence Act.
Particulars of Error:
(a) The Deponent of the said Affidavit stated that he is a Litigation Clerk in Chief Rotimi Williams’ Chambers, the Solicitors to the Appellant, being aware of the facts deposed to by virtue of his position.
(b) The Deponent identified the source of his information deposed to in paragraph 3 of the Affidavit as Mrs. A. Williams, (SAN), and legal practitioner in the said Chambers, whom he believed.
(c) The Deponent identified his informant of the facts deposed to in paragraph 4 as T. E, Williams Esq. whom he believed.
(d) It is not a requirement of the Evidence Act for a Deponent to an Affidavit to establish an exact connection beyond the foregoing, between his informant and the facts deposed to.
The Respondent has filed a Notice of Preliminary Objection against the original Notice of Appeal dated 8th day of October, 1996 at pages 60-61 of the Records of Appeal as being incompetent. Applicant is also contesting that the Court has no jurisdiction to entertain the said appeal.
The grounds of the objection are as follows:-
“(a) That the only ground of appeal contained in the aforesaid notice of appeal is not arguable, in that it does not arise from and/or relate to and/or form an issue in the decision appealed against and is therefore in nubibus.
(b) That the aforesaid notice of appeal is not capable of being amended in that it was ab initio incompetent.”
In his submission before the court, the learned SAN for the applicant after stating his prayers said that, the matter is a breach of fundamental human rights and he has come as a sinner to amend the only ground of appeal filed originally.
The Respondent opposed the application to amend the notice of appeal as frivolous. According to him the only original ground is not arguable and doesn’t arise from the Ruling appealed against. Counsel for Respondent further submitted that the issue involved is different from the procedure followed in maintaining the action. He cited the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 184 to support the principle that grounds of appeal must relate to the controversy between the parties. He went on to refer to Section 220(1) of the 1979 Constitution which is in pari materia with Section 241(1) of the 1999 Constitution. Counsel cited the cases of Olanrewaju Bank of the North Ltd. (1994) 8 NWLR (Pt.364) 622 and Amadi v. Okoli (1977) 7 SC P.57.
With reference to Ground 2 filed by the Applicant counsel for Respondent says applicant needed leave of the lower court or Court of Appeal before a ground of mixed law and facts can be argued in an interlocutory appeal.
In reply on point of law, Chief Williams said Ground 1 was arguable and that even if it is defective the court has the power to amend. He further referred to Order 7 rule 3 of the Court of Appeal Rules as a saving clause if the court considers that the applicant has failed to comply with the Rules of Court. He finally cited Section 241(1)(d) of the 1999 Constitution as covering the applicant’s appeal as of right.
The first issue to be resolved is, whether or not the ground of appeal originally filed by the appellant relates to the controversy between the parties and the Ruling complained of in the appeal. Originally the Plaintiff/Respondent filed a suit No. FHC/L/CS279/96 before the Federal High Court to enforce his fundamental human rights i.e.
Right of human person.
Right of freedom of movement.
Right of property.
Right of Private and family life.
The application was granted ex-parte. Before the motion was heard on notice, counsel for Defendant/Appellant raised a preliminary objection to the hearing of the suit on the following grounds:
“1. That this suit amounts to an abuse of court process.
- No action lies at the suit of an individual for the enforcement of Fundamental Rights against a private person.
- It is incompetent of this Court to entertain the reliefs sought by the applicant or to adjudicate on this matter.”
Arguments of parties were heard with reference to the above preliminary objection and the lower court delivered a Ruling on it on 26 September, 1996 which is the subject- matter of this appeal.
The ground of appeal complained of talks of the error in law made by the learned trial Judge when he held that Section 38 of the Fundamental Human Rights Provisions in the 1979 Constitution is enforceable between the citizens of Nigeria.
I have examined the issues before the learned trial Judge and the contents of the Ruling of the lower court, it is very clear that Ground 1 is not only arguable in the appeal, it is also relevant and competent to the appeal. Without prejudice to the substantive appeal I hold that there is a valid Notice of appeal before the court.
A valid notice of appeal is a document which is a condition sine qua non in an appeal. See the case of Amadi v. Okoli (1977) 7 SC 57 and Order 3 rule 2(1) of the Court of Appeal Rules of 1981.
If the only ground of appeal is incompetent, the question of an amendment will not arise. Also the question of extension of time to file a brief will not arise. There would have been no valid appeal before the Court.
Since I have ruled that there is a valid notice filed on 8th October, 1996 ab initio, the said Notice can be amended as proposed by the Applicant. I therefore overrule the preliminary objection and hold that amendment sought be allowed as per attached Amended Notice of Appeal marked Exhibit RBA/1.
Time is extended till 30 days from today for Appellant/Applicant to file his brief of argument. The Respondent is to file his own brief within 30 days after the service of Appellant’s Brief on him.
No order as to costs.
Other Citations: (2000)LCN/0671(CA)