In The Supreme Court of Nigeria

On Friday, the 4^th day of December 1992

 

  Before Their Lordships

 

 

S.C. 250/1991

Between

 

 

And

 

 

 

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 1^st 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 2^nd 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 2^nd plaintiff and held all the shares allotted to him on behalf of 2^nd plaintiff.

 

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

 

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

 

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

 

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

 

"5.        The defendant denies paragraphs 4 and 5 of the 2^nd 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 30^th and 31^st 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 2^nd plaintiff and members of his family over the years. Defendant tendered a letter written to him by 2^nd 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 30^th and the one dated 31^st May, 1991; separately on the 7^th 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 30^th and 31^st 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 12^th June, 1991 seeking the following orders –

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

In this Court

 

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

 

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

 

Particulars of Error

 

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

 

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

 

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

 

Submissions of Counsel

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Consideration of the submissions

 

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

 

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

 

It was against this application dated 11^th 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 30^th and 31^st 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 30^th and 31^st May, 1991. The appeals of the defendant were therefore not directly in issue in the application.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The instant objection may be on the threshold of the application for stay of proceedings and is in anticipation of the ap