S. Oyeniya & Anor V. Bola Familusi (1999)
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AMAIZU, J.C.A.
The preliminary objection raised by Chief Odeyemi, of counsel is sequel to a motion on notice brought to this Court by the defendants in the lower court, hereinafter called the applicants, praying the court for the following orders:
“1. Extension of time within which to apply for leave to appeal against the judgment of Orilonise. J. of the High Court of Kwara State sitting at Ilorin delivered on 20th May, 1998.
- Leave to appeal against the judgment.
- Extension of time within which the applicants are to file their notice and grounds of appeal against the said judgment of Orilonise J. delivered on 20th May, 1998.
And for such other order(s) as this Honourable Court may deem fit in the circumstance of this application.”
The respondent was served with a copy of the application. He reacted by filing a “Notice of Preliminary Objection”. It is this “Notice of Preliminary Objection” that is the subject of this ruling. The said notice reads:
“Take Notice that this honourable court will be moved on … day of … 1999 at the hour of 9 0′ Clock in the forenoon or so soon thereafter as counsel for the applicants in this application may seek the court’s order that the respondent’s application filed on 11/5/99 be struck out or dismissed. And, for such further or other orders as this honourable court might deem fit to make:
Grounds for the Application
i. The judgment which is the subject-matter of the proposed appeal had been executed.
ii. The executed judgment was delivered since 20/5/98 and leave to appeal was not filed until 11/5/99 after attachment of applicant’s movable property.
iii. This honourable court lacks jurisdiction to grant the respondent’s prayers, being prayers made in vacuo.
iv. The respondent’s said application did not comply with the rules of court under which it was brought.”
Before us, Chief Odeyemi, of counsel reminded the Court that the judgment the subject-matter of the application, was executed on 18/5/99. He referred to Exhs. 1 and 2 to the affidavit in support of the Notice of Preliminary Objection. It is his view that in consequence of the execution, any order made by the court now will be an order made in vacuo. He cited the cases of Etim Ekpenyong & Ors. v. Inyang Effiong Ntong & Ors. (1975) 2 SC 71 at 80 and Emmanuel Odufuwa & Ors. v.Mrs. Ayo Johnson (1971) 1 All NLR 142 at 145.
The second objection is that the application is incompetent because it does not comply with the provisions of Order 3 Rules 3(2) and 3(7d) of the Court of Appeal Rules, 1981, as amended. He referred to paragraph 20 of the affidavit in support of the application. He observed that it is averred therein that an application for leave to appeal was earlier made in the lower court. He then contended that in compliance with the Rules of this court the applicants should have attached a copy of the said application which was struck out to the present application.
Lastly, the learned counsel referred to the provisions of Order 3 Rule 3(2) of the Court of Appeal Rules, 1981, as amended. He observed that it is impari materia with the provision of Order 2 Rule 28(2) of the Supreme Court Rules, 1985. He reminded the court that in interpreting the latter provision, the Supreme Court in the case of Innocent Ibero & Ors. v. Eleazor Obioha (1994) 1 NWLR (Pt.322) 503; (1994) 1 SCNJ p. 44 at p. 51 held that under the rule ”except in a substantive appeal no brief of argument is required for any application except that for leave to appeal or for enlargement of time to appeal.” He urged the court to strike out the application.
In his reply, Bamigboye Esq., of counsel, contended that the preliminary objection is frivolous. He urged the court to over-rule same. The learned counsel referred to the counter-affidavit dated 22/9/99 in which he answered the objection of the respondent. He submitted that the execution or non-execution of a judgment is collateral to the substantive appeal. In his view, the execution or non-execution of the judgment cannot therefore fetter the court’s power to grant reliefs that would enable the substantive appeal be heard. He cited the case of Mobil Oil (Nig.) Ltd. & Anor. v. S.T. Assan; (1995) 8 NWLR (Pt. 412) 129; (1995) 9 SCNJ 97 at 113-114. The learned counsel then reminded the court that what was executed has monetary value. The fact therefore that an execution has been levied does not obliterate the applicants’ right to appeal. He submitted that the subject-matter of every appeal is the judgment of that court. He cited the case of Jimoh Akinfolarin & Ors. v. Solomon Oluwole Akinnola (1994) 4 SCNJ 30; (1994) 3 NWLR (Pt.335) 659. The learned counsel referred to paragraphs 4 – 14 of the counter-affidavit dated 22/9/99, wherein the circumstances under which the execution was levied were stated.
It is the learned counsel’s view that the respondent was reckless in levying the execution. He submitted that a litigant should not be better-of by doing a wrong thing than if he had done the right thing.
The learned counsel referred to the averments in support of the application. It is his view that the question of refusal by the lower court to grant the applicants’ application for leave to appeal against its judgment does not arise because the application was inadvertently filed in that court, consequently, the court did not go into its merit. He submitted that in the light of the history of the application the provisions of Order 3 Rules 3(2) and 3(3) of the Court of Appeal Rules, 1981 as amended do not apply. He cited the case of Thomas Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt.433) 628; (1996) 2 SCNJ p. 172 at 188. The application, he contended, is governed by the provision of Order 3 Rules 4(1 & 2) of the Court of Appeal Rules, 1981. It is his view that under the said provision it is not necessary to file a brief of argument together with an application for leave to appeal.
It is trite that an order or a judgment of a court of competent jurisdiction remains valid and binding unless and until it is set aside by the trial court itself or by an appeal court. See Jimoh Akinfolarin & Ors. v. Solomon Oluwole Akinnola (supra). Under the Constitution an appeal lies from a decision of a High Court to this court as of right or with leave of that High Court or the Court of Appeal. In the application before us, it is not in dispute that a Fiat Lorry Tanker with registration number AY 972 LND belonging to the judgment debtors (the applicants) was attached on 16th of May, 1999. It is also not in dispute that the said Tanker was sold by public auction on the 18th of May, 1999, for Three Hundred and Eighty Thousand Naira (N380,000.00) in settlement of the judgment debt. It is argued by Chief Odeyemi of counsel, that because an execution has been levied on that movable property, this court cannot hear the application for leave to appeal against the judgment of the lower court. It is submitted that if the application is heard, any order made by this Court will be an order made in vacuo.
In my view, it has to be borne in mind that what is before this Court is simply an application for leave to appeal against the judgment of the lower court. The application is regulated by the provisions of the Constitution and the Rules of this Court. It is further my view that in considering the application this Court should resist going into the merits of the proposed appeal. It follows that once the applicants have complied with the procedure for bringing the application the application should be considered on its merit. In that light, the cases of Etim Ekpenyong & Ors. v. Inyang Effiong Nyong & Ors. (1975) 2 SC 71 at 80 and Emmanuel Odufuwa & Ors. v. Mrs. Ayo Johnson (1971) 1 All NLR 142 at 145 are not relevant.
Before I deal with the second objection, I have to correct the impression that the application was brought pursuant to the provisions of Order 3 Rules 3(3) and 3(7d) of the Court of Appeal Rules, 1981. It is clearly stated in the application that it is: “brought under Order 3 Rule 3(2) and Order 4, Rules 4(1) and (2) of the Court of Appeal Rules, 1981.”
I observe that before us, the learned counsel for the applicants, Bumigboye Esq .. stated that he brought the application under Order 3, Rules 4(1) and (2) of the Court of Appeal Rules, 1981. I think there is a mistake somewhere. Be that as it may, I have still to consider the objection. Order 3 Rule 3(7d) of the Court of Appeal Rules, 1981, provides that an application for leave to appeal against the decision of a lower court shall contain, among other things, where leave has been refused by the lower court, a copy of the order refusing leave. In order to determine whether it is necessary to comply with this provision in this application, I will delve briefly into the history of the application.
The judgment of the lower court was delivered on the 20th of May, 1988. An application for leave to appeal against the judgment was filed in the lower court after 90 days from the date the judgment was delivered. This fact is clearly brought out in paragraph 20 of the applicants’ affidavit in support. The paragraph reads:
“That this application would also have been filed much earlier but the junior counsel inadvertently filed the earlier application at the High Court, Ilorin, and a subsequent application filed before this honourable court did not include all the necessary prayers and was struck out on 22/4/99.”
It is evident from the above that the application filed in the lower court was due to the negligence or inadvertence or an error on the part of counsel. In the case of Alhaji Salawu Ladejo Adepele & Ors. v. Lasisi Akintola & Ors. (1986) 5 NWLR (Pt. 42) p. 448, Ibadan Division of this Court held that where an application requires a court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which will be necessary for the court to see in order to decide on the application must be exhibited. In my view, what the decision intends to achieve is to make sure that an applicant for leave to appeal produces all documents that will help a court arrive at a meaningful decision. That being the case, an application for leave to appeal filed inadvertently by a litigant in the lower court which was later withdrawn does not qualify as one of such document to be attached to a subsequent application to this Court for leave to appeal. In other words, what Order 3 Rule 3(d) of the Court of Appeal Rules has in mind, is that only documents relating to an application for leave to appeal heard by the lower court on merit and thereafter refused should be attached to a subsequent application to this Court for leave to appeal. I add that there is a difference between an application which is refused after it was heard on merit and an application which was struck out for non compliance with the rules of the court. The last objection is that the applicants did not file a brief of argument with the application. The learned counsel referred us to the provision of Order 3 Rule 3(2) of the Court of Appeal Rules, 1981, and Order 2 Rule 28(2) of the Supreme Court Rules, 1985. It is the learned counsel’s submission that the two provisions are in pari materia. We were also referred to the case of Innocent Ibero & Ors. v. Eleazor & Ors. Eleazor Obioha; (1994) 1 NWLR (Pt.322) 503; (1994) 1 SCNJ 44 at 51 where the Supreme Court in interpreting the latter provision held that a brief of argument is required for an application for leave to appeal or for enlargement of time to appeal.
Being a decision of the Supreme Court, this Court ought to be bound by the decision. We have to bear in mind however the observation of Bello, JSC (as he then was) in the case of Chief Ifeanyichukwu Nwobodo v. Chief Christian Chukwuma Onoh & Ors. (1984) 1 SCNLR 1: (1984) 15 NSCC 1 at 14. According to the learned Justice of the Supreme Court:
… a court should not blindly adhere to the ratio decidendi of a previous case founded on the interpretation of a former statute without having “first carefully examined that statute and meticulously compared it with the statute governing the case for determination by the court in order to ascertain whether the two statutes mentioned are in pari materia. It is only when the two statutes are similar and identical that the interpretation placed on one can be a precedent to the interpretation of the other.”
In the light of the above decision, this court has to be sure that the provisions of the rules of the Supreme Court relied upon by that court in coming to the decision are inpari materia with the provisions of the rules of this Court under which the present application is brought, before following the decision.
The present application is governed by the Court of Appeal Rules, 1981 as amended. The said Rules do not have a provision similar to the provision of Order 6 Rule 2(1) of the Supreme Court Rules, 1985. The Rule reads:
“An application for leave to appeal or for enlargement of time within which to appeal or to seek leave to appeal shall be supported by a Brief and shall include the following … ”
It is clear in this provision that an applicant for leave to appeal etc. shall support his application with a Brief. As there is no such express provision in the Rules of this Court the case relied on by the respondent is not relevant. In consequence, I hold that the preliminary objection raised by Chief Odeyemi, counsel has no merit. Accordingly, it is overruled.
Other Citations: (1999)LCN/0638(CA)