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In The Supreme Court of
On Friday, the 4th day of
December 1992
Before Their Lordships
S.C.
250/1991
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
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
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
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
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
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
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
"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
Counsel
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