Constitution of Nigeria

Court of Appeal
High Courts

Home Page

Law Reporting

Laws of the Federation of Nigeria
Legal Education
Q&A
Supreme Court
Jobs at Nigeria-law

 

In The Supreme Court of Nigeria

On Friday, the 4th day of December 1992

 

  Before Their Lordships

 

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abubakar Bashir Wali

......

Justice, Supreme Court

Uche Omo

......

Justice, Supreme Court

Idris Legbo Kutigi

......

Justice, Supreme Court

Michael Ekundayo Ogundare

......

Justice, Supreme Court

Emanuel Obioma Ogwuegbu

......

Justice, Supreme Court

Shehu Usman Mohammed

......

Justice, Supreme Court

 

S.C. 250/1991

Between

 

Mrs F.M. Saraki

Dr. Sola Saraki

.......

Appellants

 

And

 

N.A.B. Kotoye

.......

Respondent

 

 

Judgement of the Court

Delivered by

Adolphus Godwin Karibi-Whyte. J.S.C.

 

The main issue in this appeal is straightforward. It is whether the Court of Appeal was right in dismissing the preliminary objection raised by the plaintiffs against the application for stay of proceedings in the High Court brought by the defendant. Defendant having appealed against the rejection by the learned trial Judge of evidence sought to be tendered, and having also rejected an application for stay of proceedings, applied to the Court of Appeal seeking the same relief.

 

The arguments can only be better understood and appreciated after the facts have been clearly stated and the issues put in their proper perspective.

 

The Facts:

 

This appeal has its origin in the two consolidated suits between the parties. These are LD/845/87 and LD/938/87. The 1st plaintiff is not a party to the action in LD/938/87. The defendant is the same in both suits. The declarations sought in both suits are for the shares standing in the name of the defendant in the Societe Generale Bank (Nig) Ltd, to be held in trust for the plaintiffs or (alternatively) for the 2nd plaintiff.

 

An order was also sought directing an inquiry into the dividends which may have been received in respect of the shares so held by the defendant in trust for the plaintiff, and injunction restraining the defendant from dealing with the said shares. An order rectifying the register of shareholders was also sought.

 

The defendant in Suit No. LD/938/87 counterclaimed for a Declaration that the shares standing in his name should be so declared. He also sought injunction restraining the plaintiff from dealing with the said shares. In the statement of claim it was averred that plaintiffs and defendant are close friends. Defendant came into the Bank through 2nd plaintiff and held all the shares allotted to him on behalf of 2nd plaintiff.

 

In their statement of claim, plaintiffs pleaded to the effect that 2nd plaintiff rendered financial assistance to the defendant, when he averred, in paragraphs 4, 5 of the second Amended Statement of Claim as follows –

 

"4.        The plaintiff came to know the defendant following his release from detention after the Military coup of 1966. The defendant was jobless and his legal practice was not yielding sufficient income for his needs and the plaintiff gave him financial and other assistance from time of time up to and including the period when the Bank was established to do banking business in Nigeria in 1976.

 

5.         At all times material to the investment of funds in the bank, the defendant had no surplus earnings or loan facilities to enable him make any investment and the understanding between the parties was that the plaintiff alone would fund the investment. It was in the contemplation of both parties that the investment was to assist the plaintiff in his efforts to continue giving financial assistance to the defendant. The plaintiff also intended that, depending on the level of dividends he would donate a reasonable percentage of the shares to his close friends including the defendant and sell the remainder to other Nigerian shareholders."

 

The defendant in answer to the above averments pleaded in his further amended statement of defence and counterclaim as follows –

 

"5.        The defendant denies paragraphs 4 and 5 of the 2nd Amended Statement of claim and avers as follows:-

 

(i)         The defendant who had, in the first Republic, been successively, a private legal practitioner, and a Minister of Trade and Industry, came to meet the plaintiff after his release from detention in 1968 whilst the plaintiff was then struggling to build a private medical practice.

 

(ii)        The defendant neither needed nor did he receive financial assistance from the plaintiff as the defendant, who had returned to his legal practice (on his release from detention in 1968) in the firm of Kotoye & Oluwa of which he was a Senior Partner, then owned a Duplex building which was yielding rent, two cars (a Mercedes Benz 220 S and a Peugeot 403) and resided in a four-bedroom house. The defendant had even during the period of his detention and thereafter been able to meet his financial commitment from his own resources.

 

(iii)       The plaintiff was not in a position to provide financial assistance to the defendant because the plaintiff was still struggling to put together a private medical practice and was not even in a position to provide himself with an appropriate or comparative standard of living as he was even then only able to manage to live in a one-bedroom apartment with a wife, two children and an aunt-in-law and went about in a battered 403 car which he had purchased second-hand."

 

This was the state of the pleadings when the case came up for trial. Plaintiff gave evidence and closed his case. On the 30th and 31st May, 1991, the defendant in his evidence-in-chief testified denying the evidence that at any time plaintiff gave him financial assistance. He proceeded to give oral and documentary evidence of the various financial assistance, he gave to 2nd plaintiff and members of his family over the years. Defendant tendered a letter written to him by 2nd plaintiff in acknowledgment of financial donations from defendant to him and his medical clinic while plaintiff was in detention. Learned Counsel to plaintiffs objected to this evidence.

 

In his ruling on the objection, Olusola Thomas. J. rejected the letter and so marked it. He also ruled that all other evidence on the same issue already admitted were on the objection of learned Counsel to the plaintiffs to be expunged from the records.

 

The defendant, dissatisfied with these decisions of the learned trial Judge refusing to admit evidence on the issue, appealed to the Court of Appeal against the two rulings dated 30th and the one dated 31st May, 1991; separately on the 7th June, 1991.

 

Simultaneous with the filing of the appeals, defendant applied to the learned trial judge for "An order staying further proceedings in the consolidated cases before the High Court of Lagos State (Olusola Thomas. J.) pending the determination of the appeal lodged herein against the Ruling (sic) of the said court dated 30th and 31st day of May, 1991 respectively."

 

The trial judge rejected the prayer, but nevertheless stayed the proceedings pending the result of a similar application to the Court of Appeal.

 

In the Court of Appeal

 

Defendant brought another application for stay in the Court of Appeal following his appeal to that court. Before defendant moved his motion plaintiffs came by way of a preliminary objection in a Motion dated 12th June, 1991 seeking the following orders –

 

(i)         All proceedings in the appeal shall be stayed until the hearing of any appeal by either party from the final judgment in the substantive trial or until the expiration of three months after the date of final judgment, whichever is later,

 

(ii)        the motion dated 1/6/91 be struck out.

 

The contention of the appellants was founded on the provisions of section 227 of the Evidence Act, and decisions of this Court that it is undesirable to appeal against an interlocutory decision of a court, when the substantive action was still pending. In such a case the Court of Appeal should strike out an application for stay of proceedings in the substantive action.

 

It was also argued that the application for stay of proceedings is in the circumstance, untenable, vexatious, frivolous and an abuse of the process of the Court. It was submitted that if granted, it will constitute a scandal to the administration of justice and bring it into ridicule.

 

It was finally submitted that since the substantive action was almost concluded, defendant would not suffer any irreparable harm if this application was granted. This is because refusal of this application will cause irreparable harm to the plaintiffs.

 

The Court of Appeal, refused the application and held, that

 

(i)         the application for stay of further proceedings in the substantive action pending determination of the appeal against the ruling was not an abuse of the process of the Court

 

(ii)        the defendant has a constitutional right to appeal which cannot be denied him by any court.

 

(iii)       The defendant has a right to be heard however weak his case may be

 

(iv)       section 226 of the Evidence Act is irrelevant to the plaintiff's application.

 

In this Court

 

Plaintiff  has appealed to this Court against the ruling of the Court of Appeal refusing his application. The two grounds of appeal relied upon are as follows:-

 

(i)         The Court below erred in law in dismissing the plaintiffs' Motion on Notice.

 

Particulars of Error

 

(a)       It is plain that by reason of the provisions of section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court.

 

(b)       In the premises, the defendant's application to stay proceedings pending the said appeal is frivolous, vexatious and an abuse of the process of the court.

 

(ii)        The court below erred in law in failing to uphold the plaintiff's submission that the filing of an appeal against a ruling on admissibility of evidence is, in the absence of very special circumstances, an abuse of process. It is plain that by reason of the provisions of section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court."

 

Submissions of Counsel

 

It seems to me from the grounds of appeal filed, that the ground of challenge to the ruling of the Court of Appeal is founded, first, on the meaning and effect of section 227 of the Evidence Act; secondly, that the exercise of the right of appeal by the defendant against the decisions of the High Court dated 30/5/91 and 31/5/ 91 is an abuse of the process of the Court. This is well brought out in the three questions for determination formulated by the plaintiffs which are as follows –

 

(i)         Whether an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended.

 

(ii)        Whether the exercise by the defendant of his right to appeal from decisions of the High Court dated 30.5.91 and31/5/91 was an abuse of the process of the court.

 

(iii)       If the answer to question (i) is in the affirmative –

 

(a)       Whether the Court of Appeal ought to have ruled that the hearing of the appeals must be postponed to such date as an appeal from the final judgment (if any) comes up for hearing and determination and

 

(b)       Whether an application for stay of proceedings pending an appeal from a ruling on admissibility of evidence whilst the trial is not yet ended, must always be treated as an abuse of process.

 

Learned Counsel to the parties filed briefs of argument which they adopted and relied upon in their oral argument before us. I have already reproduced the issues for determination formulated by Chief Williams S.A.N., learned Counsel to the plaintiffs who is the appellant, in this proceedings, Mr. Ayanlaja also adopted these issues.

 

The appeal before us is against the ruling of the Court of Appeal striking out the preliminary objection by the plaintiffs against the application of the defendant seeking a stay of proceedings in the substantive action still pending in the High Court. Concisely stated, this is an appeal by the plaintiff against the decision of the Court of Appeal refusing his application to dismiss an application for stay of proceedings brought by the defendant.

 

Before Chief Williams opened his argument, Mr. Ayanlaja raised a preliminary objection to the hearing of the appeal by the plaintiffs on the grounds that the appeal was incompetent.

 

Arguing in support of the objection, learned Counsel conceded that plaintiffs raised the issue of the application of section 227 of the Evidence Act in his preliminary objection in the Court below. He however submitted that the preliminary objection was disposed of on other points raised without consideration of the effect of section 227 of the Evidence Act.

 

Learned Counsel pointed out that since the decision of the Court of Appeal was not based on section 227 of the Evidence Act, it was not possible for any party in the case to appeal to the Supreme Court on a ground questioning the effect of section 227 of the Evidence Act, and that it was wrongly decided.

 

It was also submitted that the Court of Appeal neither decided nor did the judgment appealed against concern the admissibility vel non of evidence within the provisions of section 227 of the Evidence Act. Accordingly the grounds of appeal filed could not constitute a challenge of the decision of the Court of Appeal. It was therefore submitted that the two grounds of appeal contained in the notice of appeal do not relate to the decision of the Court of Appeal. They are therefore incompetent and should be struck out. Learned Counsel cited and relied on Egbe v. Alhaji Abubakar Alhaji & Ors (1990) 1NWLR (Pt.128) 546 at p.590.

 

In further submission learned Counsel cited and relied on A-G, Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt.92) 1 and pointed out that although the issue which plaintiff wants determined by this Court is an important point of law, there must be a competent appeal before the Court on which such point will be founded. It was argued that since the power of the Court to hear appeals is derived from section 213 of the Constitution, an appeal can only lie when there is a decision of the Court below.

 

It was finally submitted on this point, that the issues for determination formulated in the brief of argument from the grounds of appeal filed are accord­ingly irrelevant to the decision appealed from. There is "therefore no live issue" in factual controversy between the appellants and the respondent which this Honourable Court could adjudicate upon by way of appeal. See Sunlife Assurance Co. of Canada v. Jervis (1944) A.C. 111. We allowed Chief Williams SAN to argue his appeal without ruling on the objection raised by Mr. Ayanlaja to the compe­tence of the Appeal. We adopted this approach in deference to the rules to enable us hear argument in full because of the important constitutional issue involved, and the serious questions of law and practice concerning the administration of justice raised. Chief Williams SAN for the plaintiff elaborated on the contentions in his brief of argument. The gravamen of his argument was that an interlocutory appeal against the admissibility of evidence is an academic issue, "unless the evidence concerned is one which, if believed, is capable of tilting the scale or which in fact titled the scale against the person adversely affected by the decision." He relied for this proposition on a combined reading of section 222(b) of the Constitution 1979, and section 227 of the Evidence Act. It was submitted that the only way to show that an appeal from a ruling on a point of evidence is not a mere academic exercise is to point out its effect on the final judgment.

 

Chief Williams conceded that defendant had a Constitutional right of appeal, but submits that the right should be exercised in accordance with the provisions of section 227(2) of the Evidence Act. It was argued that in the absence of evidence showing materiality of the evidence wrongly rejected to the final outcome of the trial, the Court of Appeal would be deciding a purely hypothetical case in any appeal concerned solely with admissibility of evidence.

 

It was submitted relying on Senator Adesanya v. President of Nigeria (1981) 1 NCLR. 358 that the judicial powers of the Constitution vested in the courts by S.6 (6) (b) of the Constitution do not extend to questions which are purely academic.

 

It was finally submitted that the constitutional right of appeal conferred on the defendant by section 222(a) on questions of the admissibility of evidence cannot be used to submit an academic question for decision to the Court of Appeal. The Court of Appeal, it was submitted ought to have struck out the appeal for want of jurisdiction to entertain either of them. The second point taken by Chief Williams was that it is an abuse of the process of the Court on the part of defendant to exercise a right of appeal in respect of an interlocutory ruling on the admissibility of evidence when the substantive action was still pending before the High Court.

 

Chief Williams repeated his submission that an appeal on the admissibility of evidence can only acquire the character of justiciability on the final determination of the case. It is therefore an abuse of the process of the Court to appeal on the issue, or to seek stay of proceedings pending appeal. Counsel relied on the observation of Obaseki J.S.C. in I.A.I.L. v Chika Bros Ltd. (1990) 1 NWLR (Pt. 124) 70 for this submission.

 

In his reply, Mr. Ayanlaja submitted that the right of appeal on the two rulings was exercised by virtue of the provisions of sections 220(b) and 222(b) of the Constitution 1979. The rulings constituted determinations of the Court within the meaning of section 227 of the 1979 Constitution. The right of appeal is available by virtue of section 220(1) (b) in respect of each of the rulings.

 

Mr. Ayanlaja referred to the submission that section 227(b) of the Evidence Act read with section 222(b) of the Constitution deprived the defendant of the exercise of his constitutional right. He submitted that the defendant has an unmitigated right of appeal, and the Court of Appeal to which appeal lies is bound to entertain the appeal. Both the right and the duty cannot be subjected to any statutory restriction.

 

Learned Counsel referred to section 227(3) of the Evidence Act and the definition of the word "decision" therein to mean a final declaration or determi­nation of the rights of the parties. It also means a decision given on its merits. It was submitted that section 227 of the Evidence Act is only applicable to a final determination of the rights of the parties or to a decision given on the merits of the case before the court. It does not and cannot apply to interlocutory decisions.

 

Learned Counsel submitted that it is erroneous to assume that the provisions of section 227 of the Evidence Act is applicable to any decision of the Court. He argued that the words "judgment" "finding" or "verdict" used in defining the word "decision" clearly connote the sense of a final order on an issue in dispute.

 

He referred to the word "order" in section 227 of the Evidence Act, and observed that the word is not defined. It was submitted that it should be given its ordinary meaning. On the other hand, the word "order" used in section 227 of the Evidence Act should take its meaning from the words with which it is associated.

 

Learned Counsel submitted that the words "Judgment" and "Order" are used as equivalent of the word "decision" in section 227(3) (supra). Accordingly, the two words, and the words "finding" or "verdict" have the same meaning within the context of the section. In contrast the word "decision" as used in section 213(b) of the Constitution takes its meaning from the definition of the word in section 277 of the Constitution which embraces all determinations made by the court of law. This meaning, it was submitted, cannot be cut down by any statutory provision such as section 227 of the Evidence Act.

 

Mr. Ayanlaja referred to the submission that the appeal against the rulings was an academic issue which is not justiciable as erroneous. He submitted that the exercise of a legal and constitutional right of appeal cannot be denied by the determination of a court. It is therefore a misconception to contend that the aggrieved should wait until a final judgment before appealing to a Court of Appeal. Learned Counsel referred to the meaning of the word "judgment" In Osafile & anor. v. Paul Odi & anor (1990) 3 NWLR (Pt. 137) 130 at 175 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt.l 14) 172 at 211 and Government of Gongola State v. Tukur (1989) 4 NWLR (Pt. 1 17) 592.

 

On the issue of stay of proceedings, Mr. Ayanlaja submitted that the application had nothing to do with the right of appeal. It was submitted that the grant of stay of proceedings is essentially one for the exercise of judicial discretion. Each case will depend on its peculiar facts. It was also submitted that arguments on the exercise of discretion to grant stay of proceedings cannot be used to limit the right of appeal granted by the Constitution.

 

 

Consideration of the submissions

 

I have set out the arguments of counsel in extenso. This approach will fa­cilitate a consummate consideration of the arguments in this appeal. I should point out immediately that it is necessary first to consider the preliminary objection by the defendant/respondent that there is no competent appeal before this court. Chief Williams SAN has not replied to the submissions of Mr. Ayanlaja on the objection. At the risk of tedious repetition, and for the avoidance of doubt and obscurantism in the issue before us, it is necessary to observe that the application to which plaintiff/respondent objected in the court below, was for

 

"An order staying further proceedings in the consolidated cases before the High Court of Lagos State (Olusola Thomas J) pending the determination of the appeal lodged herein against the Ruling (sic) of the said court dated 30th and 31st day of May, 1991 respectively."

 

It was against this application dated 11th June, 1991 that plaintiff/respondent brought an application seeking the following orders:-

 

"(i)       All proceedings in the appeal shall be stayed until the hearing of any appeal by either party from the final judgment in the substantive trial or until the expiration of three months after the date of final judgment aforesaid, whichever is later;

 

(ii)        The motion dated 11/6/91 be struck out".

 

The essence of this last mentioned application if successful was for striking out defendant's application for stay of proceedings dated 11/6/91, and staying all proceedings in the appeal by the defendant against the rulings dated 30th and 31st May, 1991. The plaintiffs application did not challenge the validity of the appeal against the rulings. The appeal was not in issue. The result of the exercise if the application was successful would have been to prosecute to its conclusion the trial of the substantive action, stay further proceedings in the appeal filed, until the hearing of any appeal from the final judgment in the substantive action, or three months after the date of final judgment. The plaintiffs' application was not successful having been struck out.

 

It is in the circumstance useful to bear in mind constantly that the application to strike out defendant's application for stay of proceedings in the High Court, was concerned only with the application for stay of proceedings. It has nothing to do directly with the appeal against the rulings dated 30th and 31st May, 1991. The appeals of the defendant were therefore not directly in issue in the application.

 

The first ground on which Mr. Ayanlaja relied for his objection to the appeal of the plaintiff is that the grounds of appeal are founded on a point of law not decided by the court below appears to me well taken. This is the application of section 227 of the Evidence Act. The grounds of appeal and the issues for determination have been framed and formulated on the assumption that the Court below had determined that application on the provisions of section 227 of the Evidence Act. It is in this connection pertinent to quote what the learned justice of the Court of Appeal said in the ruling of the Court;

 

"I have carefully examined the provisions of and I cannot, with respect, see how that section can assist the preliminary objection. In my view, section 226 can only be relied upon if need be, by the respondent when the application has been moved. Unfortunately, we are not there yet. Therefore the section cannot arise here, and so I cannot examine its merit at this stage. A court of law can only deal with a law which relates to the matter before it. A court of law has no jurisdiction to anticipate the case of the parties and invoke a law not directly apposite in the circumstances of the issue or issues before it. The moment I go into the provisions of section 226 of the Evidence Act, at this stage, I will he determining the merits of the pending appeal. Can I do that in law? I think not. I think section 226 can wait for now."

 

Thus he was aware of the fact that he had before him an interlocutory application. He was accordingly mindful of the risk involved in deciding more than it was necessary for the determination of the application before him, hence the learned Justice of the Court of Appeal declined considering and determining the provisions of section 227 of the Evidence Act. Notwithstanding the justified caution of the Court, declining to express opinion on the matter, learned Counsel to the appellants has made the point a subject matter of attack, on the decision. I do not think that on the authorities as they stand, appellants are competent to do so. The Constitution of this Country and the law and practice in the administra­tion of justice have vested in the aggrieved a right of appeal to a superior court against any decision in respect of which he is aggrieved on the grounds of law or fact on which he considers the Court is in error. See section 213 of the Constitution 1979, Management Enterprise Ltd v. Otusanya (1987) 2 NWLR (Pt.55) 179. The grounds of appeal therefore are the reasons why the decision is considered by the aggrieved to be wrong. The purpose of the grounds alleged is to isolate and accentuate for attack the basis of the reasoning of the decision challenged - See Ejowhomu v. Edok-Eter Ltd (1986) 5 NWLR (Pt.39) 1; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR. (Pt.91) 622.

 

In all cases, the subject matter for determination must be an issue in controversy between the parties. The decision appealed against must have decided the issue. In every appeal, the issue or issues in controversy are fixed and circumscribed by a statement of the part of the decision appealed against. Hence, the grounds of appeal must ex necessitate be based on such issues in controversy - See Niger Construction Co. Ltd v. Okugbeni (1987)4 NWLR. (Pt.67) 787. Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. A fortiori, no issue for determination can be formulated therefrom.

 

There is no doubt that in the instant appeal the construction of section 227 of the Evidence Act was not in issue between the parties in the application before the Court. The Court of Appeal actually declined to make a pronouncement on the question. The decision did not involve the point on the admissibility or rejection of evidence within the provisions of section 227 of the Evidence Act. It can therefore not be related to any issue out of which a ground of appeal can be founded to challenge the decision. See Dike v. Nzeka (1986) 4 NWLR. (Pt. 34) 144.

 

I have already stated the grounds on which the Court of Appeal refused the plaintiff's application seeking to strike out defendant's application for stay of proceedings in the Court of trial. Neither of the two grounds could be circumscribed and fixed within a particular issue in controversy between the parties in the determination of the application for stay of proceedings in the Court of trial in the High Court. The grounds of appeal are therefore incompetent.

 

It is a well settled proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision - See Egbe v. Alhaji (1990) 1 NWLR. (Pt. 128) 546 at 590. Grounds of appeal are not formulated in nubibus. They must be infirma terra, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the Courts - See Senator Adesanya v. President of Nigeria (1981) 1 NCLR. 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.

 

I agree entirely with Mr. Ayanlaja that in the absence of a factual controversy between the parties to which the grounds of appeal are related and tied, there is no live issue in respect of which this court can adjudicate. In the absence of a competent appeal in respect of which this court can adjudicate, the appeal must be struck out. See A-G., of Oyo State & Anor. v.  Fairlakes Hotel Ltd (1985) 5 NWLR (Pt.92) 1.

 

This appeal can be decided on this preliminary objection alone, I however consider it useful and in the interest of justice to consider the other issues canvassed before us in this appeal. The two issues are

 

(i)         whether an appeal lies from an interlocutory ruling of the High Court on the admissibility or rejection of evidence,

 

(ii)        whether the exercise by the defendant of his right of appeal in this case is an abuse of the process of the court.

 

I do not consider juridically acceptable the view strenuously argued by Chief Williams that an interlocutory appeal on an issue on the admissibility or rejection of evidence is an academic, hypothetical or moot point, in respect of which our courts cannot exercise jurisdiction.

 

It is undoubtedly unarguable that an academic, hypothetical or moot point is not an issue in controversy between two contesting litigants. It therefore cannot be subject-matter of dispute in respect of an issue of civil rights and obligations between disputing parties, See N.N.S.C v. Alhaji Hemajoda Sabana Ltd (1988) 2 NWLR (Pt.74) 23, See also Natiional Insurance Corporation of Nigeria v. Power & lndusttial Engineering Company Ltd (1986) 1 NWLR (Pt. 14)1. It is therefore not a lis within the meaning of section 6(6) (b) of the Constitution 1979.

 

The question learned Counsel to the appellant has invited us to decide is whether the appeal against the ruling of the trial Judge's rejection of evidence in the pending trial is a hypothetical issue. Is there a live controversy between the parties requiring determination by the court? Is the determination of the civil rights and obligations of neither of the parties not in issue? The question whether the point being litigated on appeal is a hypothetical or moot issue will be determined by the answer.

 

Chief Williams has submitted there is none. He has relied on his construction of section 227(1) of the Evidence Act, which he considers qualifies the scope of the Constitutional right of appeal under s.220 (b) exercisable under section 222(b) of the Constitution 1979.

 

Now, it is not disputed that defendant is entitled to exercise his constitutional right to appeal conferred on him by section 220(b). The contention is whether the scope of the exercise of this right can be affected, whittled down and denied by the words of the provisions of section 227 of the Evidence Act. I reproduce below the relevant sections for effective consideration. Sections 220(b), 222(b) of the Constitution 1979 provide:-

 

220      (1)        An appeal shall lie from decisions of a High Court to the Court of Appeal as of right in the following cases.

 

(a)       final decisions in any civil or criminal proceedings before the High Court sitting at first instance

 

(b)       where the ground of appeal involves questions of  law alone, decisions in any civil or criminal proceedings

 

The absence of the adjective 'final' to qualify the word "decision" in (b) clearly demonstrates the scope of the right of appeal on questions of law alone conferred on the aggrieved by section 220(1 )(b) of the Constitution 1979. This Court has consistently ruled that the right includes appeals in interlocutory decisions. This is inevitable from the use of the expression in section 220(1)(a) of “final decisions", the alternative being interlocutory. "Expressio unius est exclusio alterins."

 

Section 222 which deals with the exercise of the right of appeal provides in 222(b) as follows –

 

"222.   Any right of appeal to the Court of Appeal from decisions of a High Court conferred by this Constitution-

 

(a)        ..................................................................................

 

(b)        Shall be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal."

 

The literal construction of this section is that the exercise of the right of appeal to the Court of Appeal shall be in accordance with any laws and rules of Court in force regulating the powers, practice and procedure of that Court. So far so good. The conflict in the interpretation of the exercise of the right of appeal has only crept in when Chief Williams submitted that the exercise of the right will be governed by the provisions of section 227(2) of the Evidence Act, which is a law of the National Assembly, the Evidence Act being a subject matter for legislation under the Exclusive Legislative List of the First Schedule to the Constitution.

 

Let us now consider section 227(2) of the Evidence Act. After stating in subsection (1) of section 227 that a wrongful admission of evidence shall not per se be a ground for reversal of an appeal where the evidence admitted cannot be said to have affected the decision, the section states in sub-section (2) dealing specifically with exclusion

 

"The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the Court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same."

 

"decision" in the section has been defined in sub-section (3) to include a "judgment", "order," "finding" or "verdict."

 

The definition of the word "decision" in sub-section (3) although using the words "includes", a "judgment," "order," "finding" or "verdict," clearly restricts the category of decisions in respect of which the expression can be used. Whether on the application of principles of interpretation of the ejusdem generis rule in which there is a genus in the words, "judgment," and "order," or on the " noscitur a sociis" rule where the expression takes colour from the associating words, the dominating expressions are "judgment" and "verdict." Hence section 227 of the Evidence Act has in contemplation the effect of the consideration on appeal by the Court of the decision appealed from the admission or rejection of evidence wrongly admitted or rejected. I therefore agree completely with the construction of section 227 of the Evidence Act by Mr. Ayanlaja that the exercise by the Court of Appeal of this statutory power becomes relevant at the determination of the appeal. It clearly has nothing to do with the exercise of a right of appeal conferred on the aggrieved. Concisely stated, the exercise of the power under section 227 (2) can only be with respect to a valid appeal before it. And this is after the valid exercise of a right of appeal under the provisions of the constitution and other enabling laws and rules of court. In my opinion section 227 of the Evidence Act is not concerned in any way with the exercise of the right to appeal. Learned counsel for the Appellants is wrong in his submission. This court has had the opportunity in Osafile & Anor v. Odi & anor (1990) 3 NWLR (Pt.137) 130 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 to consider the meaning of the word "judgment". In each case it was held that a judgment is a binding authentic, official, judicial determination of the court in respect of the claims in an action or suit before it. - See also Govt. of Gongola State v. Alhaji Tukur (1989) 4 NWLR (Pt. 117) 592.

 

The three possible consequences of the exercise by the Court of Powers vested in it by section 227 of the Evidence Act, are,       

 

1.         It may leave the evidence intact, regarding it as properly admitted or rejected. The result is to leave the decision altered, if the evidence whether wrongly admitted or rejected would not have altered the decision.

 

2.         It may lead to a reversal of the decision, if the court is of opinion that, the evidence wrongly admitted or rejected has affected the decision.

 

3.         The Court of Appeal may expunge the evidence wrongly admitted, or order a retrial directing its admission.

 

Each of these courses of action does not affect the right of appeal. Rather they emphasise the exercise by the aggrieved appellant of his right of appeal. I do not therefore accept as correct the submission by Chief Williams that the word "decision" as defined in section 227(3) of the Evidence Act concerns and delimits the scope of the exercise of the right of appeal. The interpretation of the provisions by Mr. Ayanlaja accords entirely with my understanding of the provisions. I agree with him.

 

It was the contention of Chief Williams that although there is a constitutional right of appeal, the effect of section 227(3) of the Evidence Act is to postpone the exercise of such right to the final determination of the case. It is undesirable to exercise the right of appeal during the pendency of proceedings in the substantive action.

 

The main plank on which this submission rests is the contention "that an appeal from a decision on admissibility of evidence is as a rule academic unless the evidence concerned is one which, if believed, is capable of tilting the scale or which in fact tilted the scale against the person adversely affected by such decision."

 

The proposition quoted above suggests that litigants have only one issue before the court, namely the determination of the claim or claims disputed. It is conceded, there is this principal issue in respect of which parties are before the court. There are nevertheless subsidiary issues, the determination of which are essential to the just determination of the principal issue. A wrongful admission or exclusion of essential evidence crucial to the case of a party, is one such issue, the determination of which is not only essential but also critical to the just determination of the "lis" or controversy in respect of which parties are before the court. In my opinion a determination of such an issue cannot wait. This is because other issues in the case are still dependent on the issue postponed for determination.

 

The constitution has conferred a right of appeal in respect of decisions on questions of law to appellants whether interlocutory or final. The exercise of this right cannot be denied by any other law or authority. It seems to me a violation of the provisions of section 220(b) of the constitution to interfere with the exercise of the right even by postponing it to the final determination of the case. I therefore agree with the submission of Mr. Ayanlaja that section 227 of the Evidence Act which is designed to apply in the determination of an appeal on final judgment in the case cannot restrict the exercise of the right of appeal conferred by the constitution.

 

I shall consider the issue of the abuse of the judicial process. Chief Williams submitted to us that though defendant in appealing against the ruling was exercising his constitutional right to appeal, the exercise of the right is an abuse of the process of the court. It was also submitted that the position of the application for stay of proceedings is similar.

 

Stricto sensu, this appeal is concerned with the latter, although it stands or falls with the valid exercise of the right of appeal. I ask myself the question, what in the application can be regarded as an abuse of the judicial process? It seems to me that Chief Williams contends that the abuse of the process lies in the Appellant's exercise of his constitutional right to appeal in an interlocutory ruling, when the exercise of the right can be postponed to the conclusion of the trial, and after the delivery of the judgment in the action. In his submission the abuse of the process is the appeal on a ruling on the admissibility of evidence which is tantamount to an invitation to the Court of Appeal to decide a point of law without having before it the only basis for knowing whether or not its decision on the point will be useful and material or useless and irrelevant. In other words, the submission is that it is an abuse of the process to insist on the exercise of a constitutional right when the exercise of the right is likely to delay the hearing of the substantive action to conclusion. It is only at the conclusion of the case and judgment delivered that an appeal on admissibility of evidence can acquire the character of a justifiable controversy.

 

In other words, the contention of Chief Williams tantamounts to the submission that an appeal on an interlocutory decision on admissibility of evidence is not an issue ripe for adjudication. Learned counsel to the appellants criticised the definition of “abuse of process" employed in the judgment of the Court of Appeal.

 

Chief Williams has, with due respect to the ingenuity and skill demonstrated, put his submission on the abuse of process a little higher than is acceptable. I do not think the dispute whether evidence sought to be adduced in the proceeding is admissible is not ripe for adjudication during the pendency of such proceeding. Whether the evidence is admissible is a matter on which issue has been joined. It is therefore ripe for adjudication. It is a dispute between them. The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.

 

It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 S.C. 21, Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.

 

The abuse consists in the intention purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. l 19) 6.

 

Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal, and a Respondent's Notice, -See Anyaduba v. N.R.T. Co. Ltd.(1990) 1 NWLR (Pt. 127) 391 Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 278. This court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to court for leave to raise issues of fact already decided by courts below,- See Made v. Alemuloke (1988) 1 NWLR (Pt.69) 207. Hence as I have observed, it is not the exercise of the right, per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities, involved in the aims and purposes of the application which constitute the abuse. Otherwise, where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. The proposition has been aptly expressed by Lord Halsbury in Mayor & City of Bradford v. Pickles (1895) AC at p.594 when he said,

 

"If it was a lawful act, however, ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me absolutely irrelevant."

 

The above words apply mutatis mutandis to the facts of the case before us. The motive of the defendant in bringing the application is irrelevant. He is entitled to exercise his constitutional right to appeal. This passage relates to the exercise by Mr. Pickles, owner of adjoining land containing underground water to divert or appropriate the percolating water within his own land, thereby depriving his neighbour of it. Where there is a right, motive, ill or good becomes irrelevant. The Court of Appeal has not stated the law correctly when it said,

 

"An abuse of the Court process has some element of ma la fide in it on the part of the party initiating the court process. The court process is initiated with malice or in some premeditated or organised vendetta, aimed at frustrating the quick disposal of the matter or the abatement of the matter for no good cause".

 

Surely, where the party exercising the right of action has the right to do so, his malice or motive will not destroy the right. The court below, however, stated the law correctly in its conclusion when it stated:

 

"The court process could be said to be abused where there is no iota of law supporting it. In other words, the court process is premised on frivolity or recklessness."

 

I should not be taken as saying that the improper exercise of a right of action to the prejudice of the administration of justice is permissible. I have quoted the above passage to illustrate the general principle that a proper exercise of a con­stitutional right of appeal, as was done in the instant case, which was not intended to harass, irritate, annoy or interfere with the course of justice, but aims at protecting the rights in the litigation of the party exercising the constitutional right cannot in my respectful view be regarded as reckless or frivolous, so as to constitute an abuse of the judicial process.

 

In the instant case the defendant was exercising a right of appeal vested in him by the constitution 1979. It was neither intended to harass, annoy the plaintiff, nor was it aimed at interfering with the course of justice. It was obvious that the aim was to enable defendant to present his defence to plaintiff's action for a proper consideration of the issues before the learned trial Judge. This in my respectful view is in the interest of justice. He is perfectly entitled to do so. I think the court below was right to have so held.

 

I entirely agree with the court below that the decisions of Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224 and I.A.I.L. v. Chika Brothers Ltd. (1990) 1 NWLR (Pt. 124) 70cited and relied upon by Chief Wiliams are not appropriate to the appeal before us. The question of the abuse of judicial process did not arise in Odogwu v. Odogwu (supra). The question was whether the constitutional right to appeal also involved a right to have the proceedings appealed against stayed. In I.A.I.L. v. Chika Brothers (supra), the issue was not the need to curtail interlocutory appeals where they will serve no useful purpose. It was an observation made by Obaseki, J.S.C.

 

The instant objection may be on the threshold of the application for stay of proceedings and is in anticipation of the application. The court by deciding the issue of stay of proceedings will be jumping the stile before it has reached it. This it is not permitted to do.

 

I shall now turn to the submission that the Court of Appeal cannot in the circumstances of this case grant the stay of further proceedings sought. There is the elementary consideration that if the Court of Appeal has no jurisdiction, as was submitted, the issue not yet being justiciable, a fortiori, it cannot grant the appli­cation for stay of further proceedings. It is also elementary and fundamental that since the application for stay of proceedings has not been heard, the only relevant consideration is its competence. The question whether the application could be granted or refused is entirely that of the exercise of judicial discretion. In such a situation the exercise of discretion will depend on the peculiar facts of each case as presented to the Judge. Particularly pertinent are the questions of admissibility of evidence which are necessarily based on the relevance of the evidence sought to be adduced.

 

For instance the issue in the I.A.I.L. v. Chika Bros, (supra) and the instant case which are based on the relevance of the evidence sought to be tendered are each predicated on different set of facts. In I.A.I.L. v. Chika Bros, (supra) it is the admission of minute books of the company which was wrongly rejected for non-compliance with enabling statutory provisions, namely section 138 of the Com­panies Act. In the case before us it is the rejection of a letter sought to be tendered by the defendant as evidence by the defendant of the admission of his financial assistance to the plaintiff. The former was hinged on the interpretation of the provisions of the Companies Act. In either case the admission of the rejected evidence is crucially relevant to the case of the appellant. So in the instant case, the stay of proceedings was necessary to enable determination of whether the evidence sought to be tendered is admissible.

 

Although Obaseki, J.S.C. criticised the granting of interlocutory applications for stay of proceedings pending determination of the appeal in rulings in respect of rejection of evidence; the learned Justice of the Supreme Court would appear to have qualified his observation by limiting it to "wisdom of leaving the prosecution of issues or points that can be taken advantageously after the final decision of the High Court till the High Court has given its final decision and appeal against the decision lodged."

 

Thus where the issues are so crucial and critical to the case of the party whose evidence has been rejected, it will be prudent to exercise the right of appeal. It is however, obvious that the determination of an application for stay of proceedings is a matter for the exercise of discretion which depends on the facts already before the court. The exercise of a constitutional right of appeal is a question of law, based on the accepted facts. The right of appeal so granted cannot be limited by the considerations used in the exercise of discretion.

 

Finally, Chief Williams invited us to express opinion on the effect of the dismissal of the defendant's appeal in the substantive matter on this appeal before us. Learned counsel submitted a written brief on the issue. Mr. Ayanlaja was not aware of the issue as it was not raised in the grounds of appeal. He therefore did not react to the issue. It is an interesting legal issue, which may be discussed for the guidance of the profession. I however, do not consider it necessary in the circumstance of this case to express any opinion on the issue. All the issues having been resolved against the appellants, the appeal fails and is hereby dismissed.

 

Appellants shall pay N 1,000 as costs to the respondent.

 

 

Judgment delivered by

Abubakar Bashir Wali. J.S.C.

 

I have had a preview of the lead judgment of my learned brother, Karibi-Whyte, J.S.C. with which I agree. For the same reasons contained in the lead judgment, I hereby also dismiss the appeal and endorse the consequential orders made therein.

 

 

Judgment delivered by

Uche Omo. J.S.C.

 

I have been privileged to read in draft the judgment of my learned brother, Karibi-Whyte, J.S.C. just delivered. He has dealt fully with all the points raised in this appeal and I entirely agree with the views he has expressed, and the decisions he has arrived at.

 

I adopt these views/decisions as mine and have nothing further to add thereto on the arguments adduced.

 

Having earlier found however that this appeal is not properly before this court because the decision arrived at by the court below was not based on the interpretation of Section 227(1) of the Evidence Act but on a finding that Section 226 of the Evidence Act cannot assist the preliminary objection raised, the final order which I would consider more appropriate is to strike out the appeal as in­competent.

 

Accordingly I hereby strike out this appeal with costs to the respondents assessed at N l, 000 only.

 

 

Judgment delivered by

Idris Legbo Kutigi. J.S.C.

 

This is an appeal by the plaintiff's/appellants against the ruling of the Court of Appeal delivered pursuant to an application of the plaintiffs/ appellants to that court seeking for the following orders:-

 

"(i)       All proceedings in the appeal shall be stayed until the hearing of any appeal by either party from the final judgment in the substantive trial or until the expiration of three months after the date of final judgment aforesaid, whichever is later;

 

(ii)        The motion dated 11/6/91 be struck out."

 

The orders above were sought so as to stop the Court of Appeal from the hearing and determination of the application by the defendant wherein he had sought for:-

 

"An order staying further proceedings in the consolidated cases before the High Court of Lagos State (Olusola Thomas, J.), pending the determination of the appeal lodged herein against the Rulings of the said court dated 30th and 31st day of May, 1991 respectively."

 

The Court of Appeal dismissed plaintiffs' motion for stay of proceedings in the appeal before it.

 

The facts relevant to the appeal are as stated in the lead judgment of my learned brother, Karibi-Whyte, J.S.C.   I do not wish to repeat them here. The plaintiffs/appellants filed two grounds of appeal. They read thus:-

 

"(i)       The court below erred in law in dismissing the plaintiffs' Motion on Notice.

 

Particulars of Error

 

(a)       It is plain that by reason of the provisions of Section 226(2) of the Evidence Act the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court.

 

(b)       In the premises, the defendant's application to stay proceedings pending the said appeal is frivolous, vexatious and an abuse of the process of the court.

 

(ii)        The court below erred in law in failing to uphold the plaintiffs' submission that the filing of an appeal against a ruling on admissibility of evidence is, in the absence of very special circumstances, an abuse of process when it is plain that by reason of the provisions of Section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court."

 

The parties filed and exchanged briefs of argument. Chief Williams learned Senior Counsel for the appellants submitted in his brief the following questions for determination in the appeal:-

 

"(i)       Whether an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended.

 

(ii)        Whether the exercise by the defendant of his right to appeal from the decisions of the High Court dated 30/5/91 and 31/5/91 was an abuse of the process of the court. If the answer to Question (i) is in the affirmative

 

(a)       Whether the Court of Appeal ought to have ruled that the hearing of the appeals must be postponed to such date as an appeal from the final judgment (if any) comes up for hearing and determination; and

 

(b)       Whether an application for stay of proceedings pending an appeal from a ruling on admissibility of evidence whilst the trial is not yet ended, must always be treated as an abuse of process.

 

Mr. O. Ayanlaja learned counsel for the defendant/respondent in his brief by way of preliminary objection raised an objection to the plaintiffs'/appellants' appeal. He said that while it could not be denied that the appellants raised the issue of the effect of section 226 of the Evidence Act in their preliminary objection and canvassed arguments in support thereof, the lead ruling of the Court of Appeal disposed of the preliminary objection on another point without considering the effect of Section 226. He referred to the Ruling at pages 94,96 and 97 of the record. It was therefore submitted that since no decision of the Court of Appeal was based on the effect of section 226 of the Evidence Act, it was not possible for any party in the case to appeal on the ground that such question concerning the effect of section 226 of the Evidence Act has been wrongly decided. That the decision of the Court of Appeal did not involve the point of the admissibility or rejection of evidence within the provisions of section 226 of the Evidence Act, hence the ground of appeal formulated by the appellants cannot constitute a challenge to the decision of the Court of Appeal. He said an error on the effect of the provisions of section 226 of the Evidence Act did not arise in the ruling of the Court of Appeal, and that unless there is a decision of the Court of Appeal on a point, an appeal cannot lie to this court. It was further submitted that since the two grounds of appeal filed by the appellants do not relate to the decision of the Court of Appeal, they are incompetent and should be struck-out. That the issues for determination as conceived by the appellants are irrelevant to the decision of the Court of Appeal. He said there is therefore no live issue between the parties which this court could adjudicate upon by way of appeal.   He cited in support section 213 of the Constitution (1979), Egbe v. Alhaji & Ors (1990) 1 NWLR (Pt. 128) 546 at 590; Attorney-General of Oyo State & Anor v. Fail-lakes Hotel Ltd. (1988) 5 NWLR (Pt.92) 1; Sunlife Assurance Company of Canada v. Jervis (1944) A.C. 111.

 

Chief Williams, S.A.N. although served with the defendant/ respondent's brief did not deem it necessary to file a Reply Brief as he is entitled to do by virtue of the provisions of Order 6 Rule 5(3) of the Supreme Court Rules 1985. Also at the hearing of this appeal it never dawned on the learned Senior Counsel to ask for leave of the court to reply orally to the preliminary objection raised in the respondent's brief (See Order 6 Rule 8(5) and Order 6 Rule 9(1) of the Supreme Court Rules 1985 (as amended)).

 

I have already set out in full the two grounds of appeal filed by appellants in this case. I find weight and substance in the submission of Mr. Ayanlaja that the grounds of appeal are clearly and patently premised on the effect of section 226 of the Evidence Act.   But did the Ruling of the Court of Appeal which is being challenged say anything about the effect of section 226 of the Evidence Act?

 

In his lead ruling, Niki Tobi, J.C.A. had this to say on page 97 of the record:-

 

"I have carefully examined the provisions of section 226 of the Evidence Act and I cannot, with respect, see how that section can in assist the preliminary objection. In my view, section 226 can only be relied upon if need be, by the respondent when the application has been moved. Unfortunately, we are not there yet. Therefore the section cannot arise here and so I cannot examine its merit at this stage. A court of law can only deal with a law which relates to the matter before it ................ The moment I go into the provisions of section 226 of the Evidence Act at this stage, I will be determining the merits of the pending appeal. Can I do that in law? I think not. I think section 226 can wait for now."

 

I think Mr. Ayanlaja is right when he submitted that the decision of the Court of Appeal in the ruling appealed against was never based on the effect of section 226 of the Evidence Act and never involved the issue of admissibility or rejection of evidence within the provisions of section 226 of the Evidence Act. I am therefore clearly of the view that the grounds of appeal do not arise out of the ruling appealed against and do not relate to the decision of the Court of Appeal. They are therefore incompetent. They are accordingly struck-out. (See Egbe v. Alhaji & Ors (supra). Attorney-General Oyo State & Anor v. Fairlakes Hotel Ltd. (supra).

 

I now turn to consider the appeal on its merit. And I intend to be very brief. I will definitely answer the first issue posed for determination in the appeal in the affirmative and say that an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended. This is so because the Constitution provides for a right of appeal either with or without leave, from a decision of a lower court to a higher court. And section 277(1) of the Constitution defines "decision" thus:-

 

"'decision' means in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation."

 

It appears to me therefore that when a High Court declines or refuses to accept evidence sought to be given or tendered at the trial, that is a determination and it is appealable regardless of the stage of the trial itself.

As for the second issue raised in the appeal I fail to see how the defendant's exercise of his right of appeal conferred by the Constitution of the land would amount to an abuse of the process of court. It is certainly not. Since my answer to the first issue herein is in the affirmative, it necessarily follows that the answers to the two limbs of issue three as framed must be in the negative. All the issues are thus resolved against the appellant and consequently the appeal fails.

 

For the reasons I have given above and for the fuller reasons in the judgment of my learned brother, Karibi-Whyte, J.S.C., I dismiss this appeal with costs as assessed.

 

 

Judgment delivered by

Michael Ekundayo Ogundare. J.S.C.

 

This appeal is one of the bye products of the long and protracted suits between the plaintiffs and the defendant over ownership of some shares in the Society Generale Bank (Nig) Limited. The main issue arising in this appeal is as to whether an appeal lies from a ruling of a High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended. If so, whether the Court of Appeal ought to have ruled that the hearing of the appeal must be postponed to such date as an appeal from the final judgment (if any) comes up for hearing and determination and finally, whether an application for stay of proceedings pending an appeal from a ruling on admissibility of evidence whilst the trial is not yet ended, must always be treated as an abuse of the process of court.

 

In the course of his evidence at the trial the defendant denied the case of the plaintiffs that financial assistance was rendered to him by the second plaintiff. The defendant went on to give evidence of his various financial assistance over the years to the second plaintiff and members of his (latter's) family. He sought to tender a letter and a cheque to support his evidence. Objections were raised by learned counsel for the plaintiffs and in separate rulings the learned trial Judge upheld the objections and rejected all evidence tending to show that any financial assistance was rendered to the plaintiffs by the defendant. The defendant appealed against all the decisions touching on admissibility or otherwise of his evidence and documents in support, relating to the financial assistance he claimed he rendered to the plaintiffs at all times relevant to the case. Shortly after filing his notices of appeal he applied to the Court of Appeal for an order staying further proceedings in the consolidated suits before the High Court of Lagos State. On being served with the said motion, learned counsel for the plaintiffs promptly filed a motion on notice praying the court to stay "all proceedings in the appeal until the hearing of any appeal by either party from the final judgment in the substantive trial or until the expiration of three months after the date of final judgment aforesaid, whichever is later." He also prayed the court below to strike out the defendant's motion for an order staying further proceedings in the trial court. Because of the importance to the determination of this appeal of the grounds on which the plaintiffs relied for their motion, I will set them hereunder:-

 

"And further take notice that the grounds of this application are as follows:-

 

(i)         Because by reason of the provisions of section 226(2) of the Evidence Act, and in order to avoid making the said appeal an academic exercise, the Court of Appeal ought to adjourn the hearing of the appeal until such date as the appeal against the substantive judgment is before the court or until the date when the time for appealing against the final judgment has expired, whichever is later;

 

(ii)        Because the application to stay proceedings pending an appeal against a decision of the trial court on admissibility of evidence is untenable and frivolous, vexatious and an abuse of the process of the court, having regard to the fact that this court in Odogwu v. Odogwu   (1990) 4 NWLR (Pt.143) and the Supreme Court in International Agricultural Industries v. Chika Brothers Limited (1990) 1 NWLR (Pt.124) 70 at pp.80-81 have decided following earlier cases that a stay of proceedings ought not to be granted pending an appeal on a ruling regarding admissibility of evidence at the trial.

 

(iii)       Because the application, if granted, will constitute a scandal to the administration of justice and bring it into ridicule.

 

(iv)      Because since the trial of the substantive action is almost concluded, the defendant cannot suffer any irreparable harm if the prayers herein are granted whereas the refusal to grant those prayers is capable of causing irreparable harm and damage to the plaintiffs."

 

Obviously because of the effect this latter motion would have on defendant's motion, the Court of Appeal, quite rightly in my view, took the plaintiffs' motion first and after addresses by learned counsel for the parties held, per Tobi, J.C.A., in a reserved judgment, that if an applicant had a constitutional right to appeal the court was entitled to vindicate that right. The plaintiffs' motion was consequently dismissed. It is against that decision of the Court of Appeal that the plaintiffs have now appealed to this court upon 2 grounds of appeal which read:-

 

(i)         The court below erred in law in dismissing the plaintiff's Motion on Notice.

 

Particulars of Error

 

(a)       It is plain that by reason of the provisions of section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable con­troversy until the final judgment in the substantive suit now pending in the High Court.

 

(b)       In the premises, the defendant's application to stay pro­ceedings pending the said appeal is frivolous, vexatious and an abuse of the process of the court.

 

(ii)        The court below erred in law in failing to uphold the plaintiffs' submission that the filing of an appeal against a ruling on admissibility of evidence is, in the absence of very special circumstances, an abuse of process when it is plain that by reason of the provisions of section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court."

 

An in this court learned counsel for the parties filed and exchanged their respective written briefs of argument. In the respondent's brief Mr. Ayanlaja learned counsel for the defendant submitted by way of preliminary objection that the issues for determination as conceived by the plaintiffs/appellants in their brief of argument are irrelevant to the decision of the Court of Appeal. Notwithstanding this preliminary objection learned counsel preferred in the alternative, arguments on the appeal. Learned leading counsel for the plaintiffs, Chief F.R.A. Williams, S.A.N., did not file a reply brief to the points raised by Mr. Ayanlaja on the preliminary objection as one would expect he would do in the circumstance, at least to answer the points of law raised on the preliminary objection in the respondent's brief. Rather, Chief Williams in his oral address in this court sought to adduce arguments in opposition to the preliminary objection. He went on to submit to the court in the course of hearing, a document titled "Written Submission" which was prepared by him.

 

Before considering the merits or otherwise of the preliminary objection to the appeal, I need to comment briefly on the document titled "Written Submission" given to us by Chief Williams in the course of oral hearing of this appeal. It must be noted that the document was not prepared as a result of the order of this court. I am not aware of any rule of this court which permits the course of action adopted by Chief Williams in this case. One would expect that in obedience to the rules of this court he would have filed a reply brief thereby putting the court and the other side on notice as to the points he would want to canvass before us. That, in my respectful view, is the purpose of brief writing. It certainly would be unfair to counsel for the defendant/respondent for him to be expected to meet at the oral hearing the arguments advanced in the Written Submission. It is observed in the document that Chief Williams sought to show why his appeal should be heard notwithstanding that the defendant's appeal against the interlocutory decision of the trial court that has given rise to the ruling of the Court of Appeal appealed against to this court had been dismissed by the Court of Appeal. This however, has not altered my view that Chief Williams ought to have proceeded in accordance with the rules of this court by filing a reply brief thus putting the other side on notice of the arguments he would be required to meet at the oral hearing.

 

I now proceed to consider the preliminary objection. I have already set out the grounds of appeal relied upon by the plaintiffs in this appeal. In the appellants' brief learned Senior Advocate set out the questions for determination as follows:-

 

"(i)       Whether an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended.

 

(ii)        Whether the exercise by the defendant of his right to appeal from the decisions of the High Court dated 30/5/91 and 31/5/91 was an abuse of the process of court. If the answer to Question (i) is in the affirmative-

 

(a)       Whether the Court of Appeal ought to have ruled that the hearing of the appeals must be postponed to such date as an appeal from the final judgment (if any) comes up for hearing and determination;  and

 

(b)       Whether an application for stay of proceedings pending an appeal from a ruling on admissibility of evidence ' whilst the trial is not yet ended, must always be treated as an abuse of process."

 

Mr. Ayanlaja learned counsel for the respondent, in his brief, comments as follows:-

 

"4.01   While it cannot be denied that the appellants raised the issue of the effect of section 227 of the Evidence Act in their notice of preliminary objection and also vehemently canvassed arguments in support thereof as ground for the preliminary objection, the lead judgment of the Court of Appeal in view of the other constitutional point arising in the application disposed of the preliminary objection on another point without considering the effect of section 227. See the quoted portions of the Ruling at pages 94, 96 and 97 supra.

 

4.02     In the determination of the preliminary objection of the appellants, the Court of Appeal held that:-

 

(i)         the defendant's application for a stay of proceedings pending the determination of his appeal was properly before the court and could not be determined by the Court of Appeal until he was heard on same,

 

(ii)        that the defendant has a constitutional right of appeal which cannot be denied to him except by the constitution itself.

 

(iii)       that the consideration of the effect of section 227 of the Evidence Act was not necessary for the determination of the preliminary objection raised by the appellant.

 

4.03     It is therefore submitted that since no decision of the Court of Appeal was based on the effect of section 227 of the Evidence Act, it is not possible for any party in the case to appeal to the Supreme Court on the ground that such question concerning the effect of section 227 of the Evidence Act has been wrongly decided.

 

4.04     The decision of the Court of Appeal did not involve the point on the admissibility or rejection of evidence within the provisions of section 227 of the Evidence Act hence the grounds of appeal formulated by the appellant cannot constitute a challenge to the decision of the Court of Appeal. An error on the effect of the provisions of section 227 of the Evidence Act did not arise in the ruling of the Court of Appeal.

 

4.05     The power of the Supreme Court to hear and determine appeals from decisions of the Court of Appeal is donated to it by section 213 of the Constitution and until there is a decision of the court below on a point, an appeal cannot lie to the Supreme Court.

 

4.06     It is submitted that since the two grounds of appeal contained in the Notice of Appeal do not relate to the decision of the Court of Appeal, they are incompetent and should be struck out. (See Egbe v.  Alhaji Abubakar Alhaji & 2 Ors.  (1990) 1 NWLR (Pt. 128) 546 at 590.

 

4.07     Though the issues which the appellants wish the Supreme Court to consider are points of law, yet it is submitted that there must be a competent appeal before an application could be made to that Court for leave to canvass such points of law or further grounds of appeal. See Attorney-General ofOyo State & Anor v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1.

 

4.08     In the result therefore the issues for determination as conceived by the appellants in their brief of argument are irrelevant to the decision of the Court of Appeal (Lagos Division), dated 20th day of September, 1991.

 

4.09     It is therefore submitted that there is no live issue in factual controversy between the appellants and the respondent which this Honourable Court could adjudicate upon by way of appeal. See Sunlife Assurance Co. of Canada v. Jervis (1944) A.C. 111.

 

And in his oral argument before us, he refers to the appellants' grounds of appeal and observes that the appellants are not complaining about the lower court's non-determination of the applicability of section 227. He contends that the grounds of appeal do not complain about the decision of the court below. He submits that for an appeal to be competent, the grounds of appeal must relate to the decision of the court appealed against and that grounds not so relating, are incompetent. In summary, what learned counsel is contending is that the issues for determination do not arise from the decision appealed against.

 

In reply, learned Senior Advocate, Chief Williams submits before us that page 97 of the record is the basis of the appellants' appeal. He contends that section 227 of the Evidence Act is a yardstick which the court below ought to use in deciding whether or not to entertain an appeal. He urges the court to reject the preliminary objection.

 

In order to resolve this issue one has to have recourse to the Constitution which gives a right of appeal from the Court of Appeal to this Court. Subsections (2) and (3) of section 213 provide for appeals to lie from decisions of the Court of Appeal to the Supreme Court. "Decision" is defined in section 277(1) of the Constitution as meaning, in relation to a court, a determination of that court and includes judgment, decree, order, et cetera. It follows from the provisions of section 213(2) and (3) that an appeal can only lie to this Court in respect of issues decided by the Court of Appeal. Now what has the Court of Appeal decided that has led to this appeal? Tobi, J.C.A. in his lead judgment (with which Awogu and Kalgo, JJ.C.A. agreed) observed at page 97 of the record as follows:-

 

"I have carefully examined the provisions of section 226 of the Evidence Act and I cannot, with respect, see how that section can assist the preliminary objection. In my view, section 226 can only be relied upon if need be, by the respondent when the application has been moved. Unfortunately, we are not there yet. Therefore, the section cannot arise here and so I cannot examine its merit at this stage. A court of law can only deal with a law which relates to the matter before it. A court of law can only deal with a law which is relevant to the matter before it. A court of law has no jurisdiction to anticipate the case of the parties and invoke a law not directly apposite in the circumstances of the issue or issues before it. The moment I go into the provisions of section 226 of the Evidence Act at this stage, I will be determining the merits of the pending appeal. Can I do that in law? I think not. I think section 226 can wait for now."

 

It is clear from the above passage that that court did not decide the applicability or otherwise of section 226 (now section 227) of the Evidence Act. And since that court has not made any pronouncements on that issue the merit of it cannot be the subject matter of an appeal from that court to this court because such appeal would not relate to a decision of the Court of Appeal. I therefore, agree with Mr. Ayanlaja that the plaintiffs' appeal to this court is incompetent as not arising from the decision of the Court of Appeal and being incompetent I hereby strike it out - See: Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546,590 where Karibi-Whyte, J.S.C. said:-

 

"Again, the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision."

 

See also: Attorney-General Oyo State & Ors v Fairlakes Hotel Ltd. & Anor (1988) 5 NWLR (Pt.92); (1988) 3 NSCC 101.

 

The above conclusions notwithstanding and because of the importance of the issues raised, I need to consider the merit or otherwise of the appeal itself. Chief Williams, both in his brief and in oral submissions before us, contends that the issue for determination is whether a party can appeal on a ruling on admissibility of evidence prior to the conclusion of final judgment. He contends that, in the alternative, the question is whether when there is such right of appeal the appeal can be heard prior to final judgment in the main case. He concedes that the Constitution confers such right of appeal as of right from the Court of Appeal questions of law only. He however, submits that section 227 of the Evidence Act comes under the purview of section 222(b) of the Constitution and that an appeal against a ruling on admissibility of evidence is academic or moot if it is brought or heard prior to final judgment in the case. He submits in the alternative that if it is held that such a decision comes within section 6 of the Constitution, then under section 227 of the Evidence Act the appellate court should postpone its decision to such a time that it can apply the provisions of section 227. He urges that an appellate court should be slow in exercising jurisdiction on issues of admissibility of evidence before the conclusion of hearing at the trial court. He submits that the justiciability of a decision on admissibility of evidence does not arise until final judgment when section 227 of the Evidence Act can be applied by an appellate court. The summary of the entire arguments of learned Senior Advocate boils down to this that in view of the provisions of section 227 of the Evidence Act, there could be no appeal against a trial court's decision on admissibility or otherwise of a piece of evidence until a final determination of the trial Judge when the question could be determined as to whether or not the final decision would have been the same if such evidence had not been wrongly admitted or wrongly excluded, as the case may be. Chief Williams argues that the defendant's appeal to the Court of Appeal was premature having regard to section 227 of the Evidence Act.

 

Mr. Ayanlaja, for his part, submits that section 227 only applies to a determination on the merit of the case and not otherwise. He further contends that, section 220 of the Constitution covers both interlocutory and final decisions of a court. He submits that it is not the intention of the legislature to use section 227 to limit the right of appeal given by section 220 of the Constitution. He refers to the definition of "decision" in subsection 3 of section 227 and submits that the word therein means a determination on the merit, that is, a final judgment. In his brief, learned counsel submits further as follows:

 

"It is submitted with all due repect that once the circumstances of V- it the case on appeal justify the requirements of the Constitution, an appellant has an unmitigated right of appeal which the appellate Court to which the appeal lies has a bounding duty to entertain the appeal.   Both the right and the duty cannot be subjected to any statutory restriction."

 

Section 227 reads:

 

"227(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

 

(2)        The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.

 

(3)        In this section the term "decision" includes a judgment, order finding or verdict."

 

In my respectful view, section 227 deals with the effect on a final judgment of a wrongly admitted or rejected evidence. It does not deal with questions to be considered when the admissibility or otherwise of a piece of evidence is being considered. Thus, while an appellate court may decide whether a piece of evidence had been wrongly admitted or rejected, it does not necessarily follow that by that decision alone, the final judgment must be set aside. The purport of section 227 is to determine on an appeal against the final judgment in a case whether the evidence that is wrongly admitted or rejected affects that final judgment. If it is decided that the evidence, though wrongly admitted or rejected does not adversely affect the final judgment section 227 comes in to protect that judgment even though the issue of admissibility is decided in appellant's favour. In my respectful view, there are two separate questions involved, that is (a) whether the disputed evidence was rightly or wrongly admitted or rejected by the trial Judge and (b) whether such evidence if excluded or admitted as the case may be affects adversely the final judgment. I can see no reason why the first question cannot be determined by an appellate court irrespective of whether or not there is an appeal against the final judgment in the matter before it, provided a right of appeal exists under the Constitution. For this reason therefore, I do not share Chief Williams' argument that an appeal against a ruling on admissibility of evidence is academic or moot if it is brought or heard prior to final judgment in the case. Such a decision -and this seems to be common ground is a decision within the meaning of section 277 (1) of the Constitution. In my respectful view such a decision is appellable under section 220 (1) of the Constitution which provides for right of appeal from the High Court to the Court of Appeal. I do not share the view either that by exercising a constitutional right a party may be abusing the process of court.

 

Some of the authorities cited by Chief Williams deal with the advisability or otherwise of staying trial proceedings pending an appeal against an interlocutory decision. As that stage had not been reached before the ruling leading to the present appeal, 1 do not consider them relevant to the issue on hand. The American cases dealing with what should be done when a case has become moot are equally not helpful in that it cannot be said that the question here is a moot one. If the defendant's appeal succeeded and the Court of Appeal had held the evidence he sought to proffer admissible, the trial judge would have had to consider that evidence along with other evidence adduced before him in reaching his decision. The issue might perhaps only have become moot if the trial had concluded before the appeal was determined. Even there too, the appeal might merge with an appeal (if any) against the final judgment.

 

Chief Williams submits that a ruling on admissibility of evidence is provisional as a trial Judge in his final judgment may still exclude evidence that has been admitted if he discovers it has been wrongly admitted. In my respectful view, that submission appears rather too wide. The two authorities cited by him as supporting it do not go as far. In NIPC v. Thompson Organisation (1969) 1 NMLR 99, it is evidence that goes to no issue but wrongly admitted that is held should be expunged when considering the verdict. In Jacker v. International Cable Co. Ltd. 5 TLR 13, another case cited by Chief Williams, it was held there that where matter has been improperly received in evidence in the court of trial, even when no objection has been there raised, it is the duty of the Court of Appeal to reject it and to decide the case on legal evidence. With profound respect to the learned Senior Advocate these two decisions which he cited in oral argument before us do not support the rather wide submission he has made. In my view where evidence is tendered and objected to and the trial Judge, after full arguments by counsel for the parties, admits or rejects same, he cannot later, when considering his judgment reverse himself without hearing the parties; he cannot sit on appeal over his own judgment. Where evidence which goes to no issue has been inadvertently admitted the trial Judge is under a duty to disregard it when considering his verdict. If he fails to do so, an appellate court will.

 

From all I have been saying above, it is my conclusion that under section 220(1) (b) of the Constitution the defendant has a right of appeal as of right to the Court of Appeal against the decision of the trial High Court rejecting, in evidence, the disputed evidence he proffered at the trial and as the defendant has this constitutional right of appeal, I am not prepared to say that its exercise amounts to an abuse of the process of court. Nor am I prepared to say that a decision on that appeal by the Court of Appeal must necessarily wait until when an appeal against the final judgment comes before the appellate court. The issue to be determined on the appeal against the interlocutory decision is different from the question to be decided on the final judgment which would be the effect on the final judgment of the wrongly admitted or rejected evidence. It may be that a wise step to take is to raise the issue of admissibility of evidence at the end of the day when final judgment is given but this does not necessarily follow in every case. For there may be cases where a wrongly rejected evidence may be all that a party relies on in support of its case and without which it would be futile for him to continue to contest his opponent's case. In such a case, I cannot see why he must be prevented from proceeding to test the correctness of the decision to exclude such evidence before proceeding with the trial. There can be no hard and fast rule; each case must be evaluated on its own facts. The question whether stay of proceedings ought to be ordered is a matter of discretion for the court before whom the application is made to decide on the facts before it, taking into account what the justice of the case demands.

 

For the reasons I have given above, and the fuller reasons given in the judgment of my learned brother Karibi-Whyte, J.S.C. (a preview of which I had a privilege of ere now), I too strike out the appeal with N 1,000.00 costs in favour of the Defendant/Respondent.

 

 

 

Judgment delivered by

Emanuel Obioma Ogwuegbu. J.S.C.

 

The facts of this case have been fully set out in the lead judgment of my learned brother Karibi-Whyte, J.S.C. I do not intend to repeat them in this judgment.

 

However, the appeal is against the ruling of the Court of Appeal, Lagos Division on a motion in an interlocutory appeal before that court filed by the defendant who is the respondent in this court.

 

After filing the appeal, the defendant/appellant in the Court of Appeal filed a motion before that court for an order staying further proceedings in the consolidated suits before the High Court of Lagos State pending the determination     of his interlocutory appeal against two rulings of the said High Court in the consolidated cases.

 

The learned Senior Advocate appearing for the plaintiffs/respondents in that court filed an application for stay of all proceedings in the appeal before the Court of Appeal until the hearing of any appeal by either party from the final judgment in the substantive cases or until the expiration of three months after the date of the final judgment aforesaid, whichever is later. The plaintiffs also prayed the court to strike out the application for stay of proceedings in the High Court. The plaintiffs' motion on notice by way of preliminary objection was dismissed by the Court of Appeal.

 

The plaintiffs not being satisfied with the ruling, appealed to this court. Two grounds of appeal were filed and they read as follows:-

 

"(i)       The court below erred in law in dismissing the plaintiffs' Motion on Notice.

 

Particulars of Error

 

(a)       It is plain that by reason of the provisions of section 226(2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court

 

(b)       In the premises, the defendant's application to stay pro-f< ceedings pending the said appeal is frivolous vexatious and an abuse of the process of the court.

 

(ii)        The court below erred in law in failing to uphold the plaintiffs' submission that the filing of an appeal against a ruling on admissibility of evidence is, in the absence of very special circumstances, an abuse of process when it is plain that by reason of the provisions of S. 226 (2) of the Evidence Act, the defendant's appeal is purely an academic exercise and cannot become a justiciable controversy until the final judgment in the substantive suit now pending in the High Court."

 

In their written brief of argument the following questions were submitted by the plaintiffs/appellants as arising for determination in the appeal:-

 

"(i)       Whether an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended.

 

Whether the exercise by the defendant of his right to appeal from the decisions of the High Court dated 30:5:91 and 31:5:91 was an abuse of the process of the court. If the answer to Question (i) is in the affirmative –

 

(a)       Whether the Court of Appeal ought to have ruled that the hearing of the appeals must be postponed to such date as an appeal from the final judgment (if any) comes up for hearing and determination and

 

(b)       whether an application for stay of proceedings pending an appeal from a ruling on admissibility of evidence whilst the trial is not yet ended, must always be treated as an abuse of process".

 

The defendant/respondent in his written brief of argument raised an objection to the appeal in paragraph four of his brief thus:

 

"While it cannot be denied that the Appellants raised the issue of the effect of Section 227 of the Evidence Act in their notice of preliminary objection and also vehemently canvassed arguments in support thereof as ground for the preliminary objection, the lead judgment of the Court of Appeal in view of the other constitutional point arising in the application disposed of the preliminary objection on another point without considering the effect of S.227."

 

See the quoted portions of the Rulings at pages 94, 96 and 97 supra.

 

In the determination of the preliminary objection of the Appellants, the Court of Appeal held that:-

 

(i)         the defendant's application for a stay of proceedings pending the determination of his appeal was properly before the court and could not be determined by the Court of Appeal until he was heard on same.

 

(ii)        that the defendant has a constitutional right of appeal which cannot be denied to him except by the constitution itself.

 

(iii)       that the consideration of the effect of S.227 of the Evidence Act was not necessary for the determination of the preliminary objection raised by the appellant.

 

It is therefore submitted that since no decision of the Court of Appeal was based on the effect of S.227 of the Evidence Act, it is not possible for any party in the case to appeal to the Supreme Court on the ground that such question concerning the effect of S.227 of the Evidence Act has been wrongly decided.

The learned counsel for the defendant/respondent went further to argue that the power of this court to hear and determine appeals from the decisions of the Court of Appeal is conferred by S.213 of the Constitution and until there is a decision of the court below on a point, an appeal cannot lie to the Supreme Court.

 

He further stated that since the two grounds of appeal contained in the Notice of Appeal do not relate to the decision of the Court of Appeal, they are incompetent and should be struck out. He cited and relied on the case of Egbe v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 and 590.

 

Learned counsel submitted that the issues for determination are points of law and there is no competent appeal before an application could be made to this court for leave to canvass such points of law: A.G. Oyo State & Or. v. Fairlakes Hotel Ltd.(1988) 5 NWLR (Pt.92) 1.

 

On the objection, he finally submitted that the issues formulated for deter­mination by the appellants are irrelevant to the decision of the Court of Appeal and that there is no live issue in factual controversy between the parties which this court could adjudicate upon. He made alternative submissions in case the court overrules his objection.

 

The learned Senior Counsel filed no reply brief in respect of the objection taken by the learned respondent's counsel.

Both learned counsel preferred oral arguments when the court took the appeal together with the objection.

 

On the competence of the appeal, it is clear that the appellants raised and canvassed the issue and effect of S.226 of the Evidence Act now S.227 of the Evidence Act Cap. 112 Vol. VIII, Laws of the Federation of Nigeria, 1990 in their preliminary objection in the Court of Appeal. It is also not disputed that in its ruling on the preliminary objection, the Court of Appeal did not base its ruling on S.227 of the Evidence Act in dismissing the preliminary objection because the stage had not been reached to consider it.

 

The two grounds of appeal are clearly unrelated to the decision of the Court of Appeal. A ground of appeal and any issue arising for determination therefrom, must be related to the judgment, ruling or order appealed against. See Management Ent. v. Otusanya (1987) 2 NWLR (Pt. 162) 265.

 

It is therefore wrong for the appellant to appeal to this court on the ground that the effect of S.227 of the Evidence Act was wrongly decided when the Court of Appeal held that it was premature to consider the said section of the Evidence Act at the stage of the preliminary objection in that court.

 

It is an essential quality of an appeal fit to be disposed of by an appellate court that there should exist between the parties a matter in actual controversy which the appellate court undertakes to decide as a living issue. See Sun Life Assurance Co. of Canada v. Janis (1944) A.C. 111.

 

I therefore hold the view that the objection of the learned counsel for respondent is well founded and I uphold it. The issues for determination formulated by the appellants in their brief of argument have no legs to stand on and are irrelevant. The appeal ought therefore to be struck out.

 

Since arguments on the objection and the appeal were taken together and notwithstanding the view I have taken above, I will go into the merits of one of the issues submitted for determination.

 

On the first issue for determination namely, whether an appeal lies from a ruling of the High Court on the admissibility or rejection of evidence when the trial is still in progress and not yet ended, the learned Senior Counsel relied on S. 227 of the Evidence Act which provides:

 

"227    (1)        The wrongful admission of evidence shall not by itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

 

(2)       The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court of appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same."

 

Section 227 of the Evidence Act relates to wrongful admission or exclusion of evidence in the course of a trial which can be taken up on appeal after a final determination of the substantive case by the court of trial.

 

It does not suspend the right of appeal based on wrongful admission or rejection of evidence in the course of proceedings. If this is the effect of S.227, the right of appeal conferred by Section 213 of the 1979 Constitution would have been removed by an enactment which is subordinate to the Constitution.

 

Should S.227 of the Evidence Act have that effect which it cannot, a vital piece of evidence which is crucial to the case of a party if wrongfully rejected would incapacitate such a party in proving or disproving his case.

 

In Chief Bakare v. A.C.B. Ltd. (1986)3 NWLR (Pt.26)47at58-59, Aniagolu, J.S.C. cautioned some litigants who rush to the Court of Appeal and thence to the Supreme Court to test and challenge the ruling of the High Court on the smallest issue which arise in the trial of cases. This is an appropriate case where such appeal should be encouraged and undertaken moreso, where as in this case, the issue in contention has a serious bearing on the course of the trial as well as on the outcome of the proceedings. The issue here is not a trifling legal issue which can be taken up generally with the substantive appeal at the conclusion of hearing. See also Globe Fishing Industries Ltd. & Ors. v. Coker (1990)7 NWLR (Pt. 162) 265 at 280. For the above reasons and the more detailed reasons contained in the lead judgment of my learned brother Karibi-Whyte. J.S.C. on all the issues, I will dismiss the appeal. It is accordingly dismissed by me with costs as contained in the lead judgment.

 

 

 

Judgment delivered by

Shehu Usman Mohammed. J.S.C.

 

I have had the advantage of reading in draft, the lead judgment of my learned brother, Karibi-Whyte, J.S.C., just delivered. I agree with his reasoning and conclusions that there is no merit in the appeal; I dismiss it and affirm the decision of the Court of Appeal, Lagos Division with N1,000.00 costs to the Respondent.

 

 

 

Counsel

 

Chief F.R.A. Williams, S.A.N.

with him

Ladi Williams

E.G. Etomi (Mrs)

J. I. Nweze

......

For the Appellants

 

 

 

O. Ayanlaja

with him

A. Ajibola

O. Martins (Mrs)

B.O. Ajayi (Miss)

......

For the Respondent