Sanni & Ors V. Oruku (2022)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Respondents were the Plaintiffs, at the trial Court. At their suit, inter alia, for declaration of title; the trial Court (per S. A. Adebajo, J.) on 21st July, 2001 affirmed the title of the Respondents in and over the disputed land. The Appellants were the defendants at the said trial High Court of Lagos State holden at Ikeja. Notwithstanding the trial Court adjudging the Appellants as trespassers on the disputed land and its order of perpetual injunction restraining them jointly and/or severally from committing further acts of trespass on the land the subject matter of this appeal, the Appellants, as defendants, remain on the land defiantly, albeit contemptuously.
In January, 2002 the learned trial Judge, S. A. Adebajo, J, finding that the defendants/Appellants were adjudged trespassers refused to grant an order staying the execution of his judgment in their favour. The application for stay of execution pending appeal was then dismissed. The purported appeal, on which the application for stay of execution pending the determination of the appeal, was premised on the Notice of Appeal filed on 10th August, 2001 containing only one ground; the omnibus ground complaining that “the judgment delivered on 27th day of July, 2001 is against the weight of evidence” as the only or sole ground of appeal. The Notice was settled by “TAIWO AJALA & Co”.
After Adebajo, J dismissed the application for stay of execution pending the determination of appeal; the lower Court on 28th October, 2002, upon further application of the Appellants, granted them a stay of execution for one year only to enable them expeditiously prosecute their appeal. The order for conditional stay had since November, 2003 lapsed. The Appellants later again, approached the Court of Appeal (the lower Court) to extend the said order. The lower Court, satisfied that the Appellants had “not shown seriousness to prosecute this appeal” and that (‘it is not in the interest of justice to extend the earlier grant” of conditional stay of execution, dismissed the application on 1st December, 2003. The Appellants continued to stay put on the land in dispute in defiance of the order of perpetual injunction slammed on them by the trial Court.
The Appellants would not pursue the diligent prosecution of their appeal. They had not, in 2008, transmitted Records for the hearing of the appeal. On 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of the Court of Appeal Rules, 2007, dismissed the appeal for indiligent prosecution: the Record of Appeal for the hearing of appeal (notice of which was filed on 10th August, 2001) having not been transmitted 7 years after. The order dismissing the appeal remains extant; subsisting and binding on the parties just like the judgment and orders of the trial Court.
The Appellants, subsequently, resorted to filing multiple applications on 5th February, 2009, 14th April, 2009, 7th July, 2009, 30th September, 2009 etc; which motions were freely withdrawn, and accordingly they were struck out by the lower Court on 19th January, 2010. The two motions filed on 14th April, 2009 seeking leave to amend the Notice of Appeal and extension of time within which to compile and transmit Records were in the first place filed in pretension that the appeal had not been dismissed for indiligent prosecution.
Several motions were since filed by the Appellants at the lower Court. It is in respect of the motion filed on 26th September, 2012 that the lower Court’s ruling on it has become the subject of this appeal. The Appellants in the said motion sought the following reliefs:
- “An order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
- An order of this Honourable Court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
- An order of this Honourable Court for extension of time within which the Applicants/Appellants may appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
- An order granting leave to this Honourable Court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.
The lower Court delivered its decision on the said motion, filed on 26th September, 2012. C. E. Iyizoba, JCA expressing the unanimous opinion of the Court stated inter alia:
The reasons given by the applicants for the delay are simply too frivolous to be given any serious consideration. They compiled record of proceedings that were not legible and waited for the Court to say so before they went back to compile legible records; another motion for departure filed on the 15th March, 2005 was thrown out for the same reason that some pages of the record were not clear. As submitted by learned counsel for the respondent in his written address, the same reasons were adduced and totally rejected when the said Notice of Appeal originally filed was dismissed by this Court. Adamu JCA, OFR observed as follows:-
“After hearing the parties, we are of the view that the appellants in the present appeal (which is 2002 appeal) have not been diligent in the prosecution of the Appeal. The appellant counsel have admitted that this Court in refusing his application to extend our order for stay of execution in their favour had since 2002 directed them to be diligent in the prosecution of their appeal which up till now they have not complied with; the other reason for their delay in the compilation of record namely that they could not obtain a legible copy of the newspaper exhibits they annexed to the said proposed record is shallow excuse because as it is they do not need to make it as part of the record. If they want to refer to it, they can do so as an exhibit, the original of which is normally forwarded to the Court when the record have been compiled either through the registry or by a departure from the rules …”
The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal while they continued selling the property already adjudged not to belong to them. I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had frittered away the 13 years available to them to pursue their appeal would be greatly prejudicial to the respondent. l am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time.
Although a proposed Notice of Appeal was exhibited which on the face of it may satisfy the second condition, having failed to satisfy the Court on the first condition, I hold that this application lacks merit. It is hereby dismissed with N20,000.00 costs against the Applicants and in favour of the Respondent.
The decision was delivered on 18th November, 2014. Against the decision the Appellants appealed as of right on four (4) grounds of appeal. Out of these 4 grounds of appeal only Ground 3 complaining that the Appellants were denied fair hearing appears to be valid and competent for the purpose of invoking the jurisdiction of this Court by dint of Section 233(2)(c) of the Constitution – enabling an appellant complaining that his right guaranteed under Chapter IV of the Constitution has been violated to appeal as of right.
Grounds 1, 2 & 4 in the purported Notice of Appeal filed on 24th November, 2014, raising questions of pure facts, require leave first sought and obtained under Section 233(3) of the Constitution to be competent. The said grounds filed as of right, without the mandatory leave, are incompetent and accordingly struck out. Issues 1 and 2 formulated from the incompetent grounds 1, 2 & 4 are therefore incompetent and are hereby struck out.
My Lords, I had earlier in this judgment pointed out that on 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of its extant 2007 Rules, had dismissed the appeal of the Appellants (filed on 10th August, 2001). The appeal dismissed was appeal No. CA/L/37/2002, notice of which was filed to challenge the decision of the trial Court delivered on 27th July 2001 in the suit No. ID/2595/1992. Notwithstanding the several numbers appearing on the Appellants’ processes; that is CA/L/37/2002; CA/L/619/2020, CA/L/619M/2002 and CA/L/704/2018 the fact remains that this appeal is the continuation of the suit No. ID/2595/1992 in respect of which the High Court of Lagos State, sitting at Ikeja (coram: S. A. Adebajo, J.), delivered its final judgment on 27th July, 2001. In its judgment, particularly at pages 759 & 760 of the Record, the lower Court was not in any doubt that its decision delivered on 18th November, 2014 was in relation to the judgment of the trial Court delivered on 27th July 2001 (in the suit No. ID/2595/1992).
The effect of the lower Court’s order dismissing the appeal No. CA/L/37/2002 on 25th February, 2008 is that the life of that appeal had been extinguished and terminated and that the said appeal had been removed from the cause list of the lower Court: KRAUS THOMPSON ORGANISATION v. NIPPS (2004) 17 NWLR (pt. 901) 44 (SC) at 59. Unless the order of dismissal was set aside or quashed by a Court of competent jurisdiction, no Court has jurisdiction to revive or resuscitate it: BABAYAGI v. BIDA (1998) 2 NWLR (pt. 538) 367; INEC & ORS v. PRINCE CHIJIOKE B. NNAJI & ANOR (2004) 16 NWLR (pt. 900) 473 at 482; ASALU v. DAKAN (2006) ALL FWLR (pt. 325) 90, KRAUS THOMPSON ORGANISATION v. NIPPS (SUPRA).
In the instant case the lower Court having become functus officio, by its earlier order dismissing the appeal; it lacked jurisdiction to deal with the matter vide of the Appellant’s subsequent application filed on 26th September, 2012 – the ruling on which is the subject of the instant appeal:OLOWU v. ABOLORE (1993) 5 NWLR (pt.293) 255 (SC) at 270; FBN PLC v. TSA IND. LTD (2010) LPELR – 1283 (SC).
In effect, the appeal having, on 25th February, 2008, been dismissed, and the dismissal order subsisting having not been set aside, there was no longer any lis pendens on which any interlocutory application may be predicated upon: YONWUREN v. MODERN SINGS (NIG) LTD (1985) LPELR -3529 (SC). It may be argued, though puerile in the circumstance, that the Appellants, by their motion filed on 26th September, 2012, seeking inter alia extension of time within which to appeal against the decision of trial Court delivered on 27th July, 2001 in the suit No. ID/2595/1992, were seeking leave to lodge fresh appeal. An appeal within an appeal is bad enough particularly both appeals are against a single final decision. The latter may be an abuse of process. It becomes worse when the latter appeal hangs on the earlier incompetent appeal. Like a coat on a hanger, once the hanger collapses the coat falls with it. It was held in ADERIBIGBE v. ABIDOYE (2009) LPELR – 140(SC) that once the notice of appeal is incurably defective or incompetent, no additional grounds of appeal can hang on it. A defective or incompetent notice of appeal cannot be remedied or redeemed since it is dead on arrival, that is void ab initio. The application filed on 26th September, 2012 was brought in the appeal that had since been dismissed and notionally removed from the cause list of live appeals. The Appellants naturally should expect a new sprouting wine to burst the old discarded wine skin bottle. The Appellants could not legitimately bring this application in or under the appeal that had since been dismissed, the lower Court having become functus officio by the fact that the same lower Court had on 25th February, 2008, dismissed the earlier appeal against the same decision involving the same parties. The dismissal order, remaining extant, subsisting and binding on the parties herein had foreclosed the steps being taken in the said application. By that fact the application was, itself, clearly an abuse of the process of the Court. The lower Court seemed to acknowledge the fact that the Appellants’ earlier appeal had been dismissed and there was no longer any pending appeal. It alluded, at page 770 of the Record in its ruling, to the fact that “the appeal originally filed was dismissed by this Court”. Commenting on the despicably reprehensible conduct of the Appellant, the lower Court continued –
The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal.
The motion filed on 28th September, 2012 was filed in the appeal that had since been dismissed for want of prosecution. (i.e. failure to transmit Record for the hearing of the appeal). The Appellants did not avail themselves of Order 8 Rule 20 of the Court of Appeal Rules, 2007 for the appeal to be restored. The Appellants motion filed on 28th September, 2012 was brought in nicodemusly, or in surreptitious manner, to revive the dead appeal. In the circumstance the dismissal order remains final. They were thus placing something upon nothing and expecting it to stand. It will not.
The net summary of all I have been saying is that from the incompetent application (of 28th September, 2012) no competent decision arose therefrom to warrant the complaint of the Appellants that they were denied fair hearing (which even on the merits it does not lie in their mouth to so complain as the Records clearly show that the lower Court duly and fairly considered the affidavits and written addresses of the parties, respectively filed and exchanged, in its ruling the subject of this bogus appeal). The findings of fact by the lower Court, at pages 851 – 855 of the Record, that the application was frivolous, mischievous and that for 13 years after the judgment of the trial Court, the adjudged trespassers had engaged themselves in one frivolous application or the other which they repeatedly withdrew while at the same time or contemporaneously they were continuing their illegal occupation of the disputed land, parts of which they were illegally selling in the pretext of a pending appeal were not challenged in any viable ground of appeal.
Even if this appeal were competent; the Appellants did not establish, in any satisfactory manner, that they were denied fair hearing by the lower Court in the procedure, the application was filed on 28th September, 2012 and the decision on it was delivered on 18th November, 2012. It is incumbent on every appellant to establish the error of the Court below he complained of in his appeal; the burden being an extension of the principle of law placing the burden on whoever asserts the existence of facts he alleges to establish same in order to be entitled to judgment on the said assertion: Sections 131 and 132 of the Evidence Act, 2011. Every judgment, prima facie being correct on the presumption of regularity the burden of showing the contrary is on the appellant: BHOJSON PLC v. DANIEL – KALIO (2006) 2 SC (pt. II) 91 citing with approval WILLIAMS v. JOHNSON (1937) 2 WACA 248; KISOEDU & ORS v. DOMPREH & ORS (1935) 2 WACA 264; FOLORUNSHO v. ADEYEMI 1 NMLR 128. The Appellants throughout the whole gamut of their brief of argument failed to show or establish in what way(s) the decision complained of (if any) violated their right to fair hearing.
In view of all I have been saying; this appeal is a mere exercise in gross and frolic, some abuse of the Court’s process and accordingly it is hereby dismissed. The down right shenaniganism of the Appellants and their counsel, Chief Taiwo Ajala which smacks of outlawry has got to stop. Accordingly, the Appellants, their agents, privies and predecessors-in-title, in respect of or in relation to the land in dispute, shall forthwith vacate the land. Their counsel, Chief Taiwo Ajala shall within 21 days from today depose, under his hand, on affidavit verifying the Appellants’ compliance with the order directing them to forthwith vacate the disputed land and the affidavit, filed at the trial Court in the suit No. ID/2595/1992, shall be served on the Respondents through their counsel.
The Respondents are entitled to the needless costs they had been made to throw away defending this mischievous and malevolent appeal. Accordingly, costs assessed at N3,000,000.00 shall be, and are hereby, awarded against the Appellants, jointly and severally, in favour of the Respondents.
The appeal, a clear and gross abuse of Court’s process is dismissed in its entirety.