(1) FATIMA WAZIRI IBRAHIM & 2ORS VS MRS. FOLA AKINRINSOLA
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Legal Publication House
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, THE 3RD DAY OF JUNE, 2022
CHIMA CENTUS NWEZE JUSTICE, SUPREME COURT
AMINA ADAMU AUGIE JUSTICE, SUPREME COURT
HELEN MORONKEJI OGUNWUMIJU JUSTICE, SUPREME COURT
IBRAHIM MUSA MOHAMMED SAULAWA JUSTICE, SUPREME COURT
EMMANUEL AKOMAYE AGIM JUSTICE, SUPREME COURT
SC. 178/2010
BETWEEN
(1) FATIMA WAZIRI IBRAHIM
(2) FATIME WAZIRI IBRAHIM APPELLANTS
(3) HERWA LIMITED
AND
MRS. FOLA AKINRINSOLA
(For herself and the Estate of RESPONDENT
Late Chief Fola Akinrinsola)
DISSENTING JUDGMENT
(DELIVERED BY EMMANUEL AKOMAYE AGIM, JSC)
On 28-10-1994, the 3rd appellant herein as plaintiff commenced Suit No. LD/5014/94 by filing a writ of summons accompanied by a statement of claim. The respondent as defendant filed a statement of defence and counter claim.
On 21-11-2000, the defendant applied for an order of the trial court to strike out or dismiss the suit on the ground that the plaintiff having been wound up since 4-3-1997 was no longer a legal or juristic person.
On 1-12-2000, the 1st and 2nd appellants herein applied for the leave of the trial Court to join or in the alternative to substitute the applicants as plaintiffs in this Suit. On 12-11-2003, the trial Court dismissed the suit with N5,000-costs. The appellants took no steps to appeal against this decision.
On 20-7-2007, the 3rd appellant herein commenced another Suit No. LD/920/2007, exactly the same as the one dismissed. It was again confronted by the defendant’s ( respondent herein) application that it be struck out on the grounds that the plaintiff (3rd appellant herein) having been voluntarily wound up since 6-3-1997, is no longer a Juristic person, that this issue having been determined on 12-11-2003 in Suit No. LD/5014/94 by the same trial Court and the said earlier suit dismissed on that ground, suit No. LD/920/2007 is res judicata and that the Suit is statute barred. After hearing both sides the trial Court per T. Ojikutu – Oshodi (Mrs.) J, on 5-6-2008 upheld the objection on all the above grounds and dismissed the Suit. The ruling contained in pages 105 to 112 of the record of this appeal is reproduced here as follows –
“It is quite clear from the averment in the affidavit in support and the annexed Exhibit OB1-OB: that the Claimant/Respondent, a limited liability company was voluntarily wound up from March 1997, and therefore ceased to be a legal entity from that date. Having ceased to be a juristic person prior to the commencement this suit it is presently incapable of suing and being sued.
I agree with the submission of Learned Counsel for the 1st Defendant/Applicant that by virtue of Suit No: LD/5014/94, Exhibit OB4 and paragraphs 3, 5 and 6 of the affidavits in support of Exhibit OB3 the Claimant lacks the locus standi to institute the said herein. I hold this view in consideration of the deposition of the Claimant/Respondents Solicitors in Suit No: LD/5014/94 to the effect that the liquidator of the Claimant/Respondent had transferred ownership of the property in dispute to third parties prior to the winding-up of the Claimant/Respondent.
It is quite clear that the plea of res judicata as set out in the submission of Learned Counsel for the Appellant is applicable to the present sit. The dispute in the suit herein is between the 1st Defendant and the Claimant. The 2nd Defendant is only nominal party. From the totality of Exhibit OB1, it is quite that the pleadings and issues in dispute between the parties in Suit No. LD/5014/94, and the parties and issues in dispute in the suit herein are the same. Furthermore, it is a fact that from the content of Exhibit OB4 the decision of this court in Suit No. LD/5014/94 in dismissing the Claimant’s suit therein is still binding and subsisting, it is a final decision of a court of competent jurisdiction and there in no pending appeal that decision till date.
It has been held in number of numerous decisions that a cause of action is the factual situation which gives a person right to judicial relief. See per OPUTA JSC in EGBE V ADEFARASIN (1987) 1 NWLR (pt 47)1 20; LUTH V. M.B ADEWOLE (1998) 5 NWLR 9PT 550) 406, ALAO V N.I.D.B (1999) 9 NWLR (PT17) 103.
In EGBE V. ADEFARASIN & ANOTHER (1985) NSCC VOLUME 16 (pt 1) pg. 643 at 644 RATIO 3, the Supreme Court held that “the law is that where a statute provides for the bringing of actions within a prescribed period in respect of a curse of action accruing to the plaintiff. Proceedings shall not be brought after the time prescribed by statue. An action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action. A cause of action means the factual situation stated by the plaintiff, if substantiated, entitled him to a remedy against the Defendant.
Also, in MOSOJO V. OYETAYO (2003) 13 NWLR (837) PG. 340 at 343 – 344 RATIO 2 S.C, it was held that a cause of action arise on the date of occurrence, neglect or default complained of and not on the consequence or result of any of them. It is the time when the cause of action arises or occurs that decides when the court has jurisdiction to entertain the matter.
Having now seen what the cause of action is, the next critical point to turn attention to is the test to be applied in determining when a cause of action begins to run.
In FADARE & ORS V. ATTORNEY GENERAL OF OYO STATE(19982) NSCC 52B at 60, the Supreme Court of Nigeria while referring to the case of BOARD OF TRADE V. CAYZER, IRVINE & CO. LTD.(1927) AC610 held that:-
See also: OGBAH V. B.D.U. JOS BRANCH (2001) 3 NWLR (…..)
579, JALLCO LTD. V. OWONI BOYS TECHNICAL SERVICES LTD.
(1995) 4 NWLR (Pt.391) 534; LUTH V. M.B. ADEWOLE (supra) and HUMBLE v. A.G. BENUE STATE (2003) 3 NWLR (649) 419.
In other words, where there exists a law limiting time within which actions or matters should be filed, such actions or matters must as a matter of law be filed within the time specified in the law and the period of time so specified automatically starts running from the date of the actual of the cause of action. It is plain therefore that time begins to run when there is in existence a person who can sue and another who can be sued, and when all facts have happened which are material to be proved to entitle the Claimant to succeed.
Section I am not at all persuaded by the submission of Learned Counsel and the authorities cited. The case of AKAPO V. HAKEEM-HABEEB (supra) and NNAMDI AZIIWE UNIVERSITY AWKA V. NWEKE (supra) heavily relied upon by Learned Counsel for the Respondent and inapplicable to the present application in view of the fact that those cases were decided on whether a court while hearing an application for interlocutory injunction should at the same time determine the substantive suit.
I agree with the submission of Learned Counsel for the 1st Defendant/Applicant that the issue of jurisdiction goes to the root of any matter. Where the court lacks jurisdiction any decision made thereunder is an exercise in futility. Once jurisdiction is lacking, the entire proceedings must be declared a nullity. See MADUKOLU V NKEMDILIM (1962) ALL NLI (pt 2) pg. 581 Ratio 4.
Also, it is trite law that the issue of jurisdiction can be raised at any time of the proceedings, even on appeal at the Supreme Court for the first time, and even when there are no pleadings filed by the party, as it goes to the root of any matter.
Consequently, Motion on Notice dated 4th February, 2008 filed by 1st Defendant/Applicant succeed. I accordingly hold that the action instituted by the Claimant/Respondent against the 1st Defendant is hereby accordingly dismissed”.
On 22-1-2009, the 3rd appellant herein applied to the Court of appeal by a motion on notice for –
“1. AN ORDER extending time within which the Applicant/Appellant may apply for leave to appeal against the decision of Honourable Justice Ojikutu - Oshode of the High Court of Lagos State delivered on the 5/6/2008 in Suit No. LD/9/07: Herwa Ltd V Mrs. Fola Akinrinsola & Another.
2. AN ORDER granting the Applicant/Appellant leave to appeal against the decision of Honourable Justice Ojikutu – Oshode of the High Court of Lagos State delivered on the 5/6/2008 in Suit No. LD/9/07: Herwa Ltd V. Mrs. Fola Akinrinsola & Another
3. AN ORDER granting the Applicant/Appellant extension of time within which to appeal against the decision of Honourable Justice Ojikutu – Oshode of the High Court of Lagos State delivered on the 5/6/2008 in Suit No. LD/9/07: Herwa Ltd V. Mrs. Fola Akinrinsola & Another
4. AND for such orders and other orders as this Honourable Court may deem fit to may in the circumstances.
On the 22-1-2009, the appellants herein filed a a notice of appeal against the decision of the trial court per l.G.A Marsh J on 12-11-2003 on one ground as follows – “The Learned trial Judge erred in law when without making specific finding/pronouncement in respect of the 1st and 2nd appellants application dated 1st day of December 200 for joinder or substitution as plaintiff in Suit No. LD/5014/94 ordered as follows:
“That order be and is hereby granted that the suit is dismissed with N5,000 cost”
PARTICULARS OF ERROR
a. The respondent filed application dated 20th day of November 2000 seeking an order to dismiss in Suit No. LD/5014/94.
b. The 1st and 2nd appellant filed another application dated 1st day of December 2000 seeking an order to be joined or substituted as the plaintiff in Suit No. LD/5014/9A
c. In the Order of Honourable Justice L.G.A marsh delivered on the 12th day of November 2oo3 dismissing Suit No. LD/5014/94, THE Learned Trial Judge refused/failed to make specific finding/pronouncement on the 1st and 2nd appellant’s application for joinder or substitution as plaintiffs in Suit No. LD/5014/94.
d. If the learned trial judge had 1st conducted the 1st and 2nd appellant’s application for joinder and/or substitution dated 1st day of December 2000 before considering the respond application dated 20th November 2000, the appellant’s claim in Suit No. LD/5014/94 would not have been dismissed rather the dispute would be determined o the merit.
The appellant’s brief of argument filed along with it, at pages 56 to 69 of this appeal, raised one issue for determination thusly –
“Whether there is breach of the 1st and 2nd appellant’s constitutional right to fair hearing guarantee under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when Learned Trial judge without making specific finding/pronouncement on the 1st and 2nd appellant’s application dated 1st December 2000 for joinder or substitution as plaintiff in Suit No. LD/5014/94 granted the application of the respondent of the respondent dated 9th October 2000 and dismissed the suit prematurely?”
On 14th-1-2010, the court of appeal rendered its ruling striking out the application as incompetent on the ground that the judgement sought to be appealed against was not attached to the application. The exact text of the said judgment is reproduced here as follows:
“By a Motion on Notice filed on the 22nd day of January 2009 and brought under 7 rule 10 (2) of the Court of Appeal Rules, Section 15 of the Court of Appeal Act, Cap. C 36, LFN. 2004 and the inherent jurisdiction of this Honourable Court the applicants seek the following: -
1. An order extending time within which the applicants may apply for leave to appeal against the decision of Marsh J. off the High Court of Lagos State delivered on the 12th day of November 2003 in Suit No. LD/5014/94: Herwa Ltd. V,. Fola Akinrinsola.
2. An order granting the applicants leave to appeal against the decision of Marsh J of the High Court of Lagos State delivered on the 12th day of November 2003 in Suit LD/5014/94: Herwa Ltd, V. Mrs. Fola Akinrinsola.
3. An order granting the applicants extension of time within which to appeal against the decision of Marsh J. of the High Court of Lagos State delivered on the 12th day of November 2003 in Suit No. LD/5014/94: Herwa Ltd. V. Mrs Fola Akinrinsola.
4. An order deeming as duly filed and served on the respondent the attached Notice of Appeal the filing fees having been duly paid.
5. An order granting leave to the applicants to rely on the attached bundle of documents marked as exhibits C-C4 as the record of this appeal.
6. An order deeming as duly filed and served on the respondent the attached appellant brief, the filing fees having been duly paid.
7. And for such orders and other orders as this Honourable Court may deem fit to make in the circumstances.
Fatime Waziri Ibrahim, a director in the 3rd applicant deposed to a 32-paragraph affidavit. Annexed to it are documents marked exhibits A, B, C, C1, C2, C3, C4, D, E.
On the 28th of September 2009 this court ordered written addresses on the motion and directed each side to file his written address within 14 days and 7 days was granted the applicant to file a reply. It was then adjourned to the 23rd of November 2009 for adoption of addresses.
The matter was not head on the 23rd of November 2009, rather on the 7th of December 2009 learned counsel for the applicants informed this court that he filed and served his written address on the 12th of October 2009 while the respondent file theirs today (i.e. (7/12/09). Learned counsel for the respondent agreed. It was clear then to the court that it was only the written address of the respondent ought to have been filed on or before the 26th of October 2007. If filed after that date there must be an application for extension time to regularize the respondents written address. There was no application for extension of time to file the respondents written address out of time to file the respondent’s written address is before this court.
And so, on the 7th of December 2009 learned counsel for the applicants, Mr. S. O Imhanobe adopted his written address, and abandoned prayer 5 and 6 on the Motion paper.
Mr. Seriki, learned counsel for the respondent was not allowed to address, but we informed him that we shall look at his counter-affidavit.
I must address a preliminary point that is mandatory in this type of application.
Order 7 rule 7 of the Court of Appeal Rules state that: -
7 The application for leave to appeal from a decision of a lower court shall contains copies of the following items, namely-
(a) Notice of motion for leave to appeal
(b) A certified true copy of the decision of the court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal; and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.
The word “shall” in a statute generally conveys a peremptory meaning.
See: - National Bank of Nigeria V. Alakija 1978 9-10 SC p. 59 Achineku V Ishagba 1988 4 N.W.L.R. Pt. 89 p. 411. Ishola V Ajiboye 1994 6 N.W.L.R. Pt. 352 p.506.
That is to say (a) to (b) must be attached to an application for leave to appeal. In this application a certified true copy of the decision of the court was not attached to the application.
Learned counsel for the applicants explained the above in his written submissions by relying on paragraphs 10, 11 and 12 of the affidavits in support. Therein it is deposed that the case file in Suit No. LD/5014/94 cannot be found in the Lagos High Registry and so he was not able to get copies of the judgment.
He urged us to hold that the applicants have satisfied the necessary conditions to exercise the courts discretion in favour of the grant of the application for enlargement of time to appeal.
In Eng. Ent. Contractor Co. of Nig. V Attorney General of Kaduna State 1987 1 N.S.C.C. P. 601.
The Supreme Court held that where a High Court misplaces its own judgment and a dissatisfied litigant appeal, this court should remit the case back to the High Court to be heard de novo.
Where there is no judgment of the trial court it is impossible to proceed with an appeal against the said the judgment. Consequently, this application is incompetent. It is hereby struck out.
An order for trial de novo cannot be made because the applicant is not an appellant”.
Dissatisfied with this judgment of the Court of Appeal in CA/L/20m/2009 appellants herein filed a notice of appeal on 16-3-2010.
Both sides have filed, exchanged and adopted their briefs as follows- appellants’ brief and respondent’s brief.
The issues raised for determination in the respective briefs having already been reproduced in pages 7 to 8 of the lead Judgment, I have no need to reproduce them here. All the issues are correctly summed up in and covered by the issue upon which the appeal was determined in the lead Judgment. For ease of reference, I reproduce it here as follows- whether the Learned Justices of the Court below were right in peremptorily striking out the motion for extension of time to appeal and refusing the prayer to order a trial de novo in the circumstances of this case.”
I have Carefully read and considered the arguments in the respective briefs on this issue.
The law is settled by a long line of decisions of this court over time that compliance with order 7 Rule of the Court of Appeal Rules 2007 or similar provisions that expressly provide that application for leave to appeal shall be accompanied by inter alia a certified true copy of the decision sought to be appeal against is mandatory and that such application is incompetent if it is not accompanied by a copy of decision sought to be appeal against. See for example Obikoya V WEMA Bank Ltd (1989) 5-7 SC42, University of Lagos V Olaniyan (No.1) (1985) 1 NWLR (pt. 1) 156, CBN V Ahmed (2001) 11 NWLR (PT 724) 369 at 392 and Okafor V Bendel Newspaper Corpn & Anor (1991) 1 NWLR (PT 206) 657 at 665.
It is wrong and professionally unethical for counsel to argue against the decision of the Court of appeal that is in accord with the law settled by a legion of decisions of this court on the point, without regard to the existence of these decisions and without urging for a departure from the settled law. Against the background of this settled law, it is misleading to contend that Order 7 Rule 7 of the Court of Appeal Rules did not make it mandatory that the documents expressly mentioned in (b), (c) and (d) therein must accompany an application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. So, the argument on whether the word “shall” in Rule 7 of Order 7 of the said Court of Appeal Rules should be applied as imposing a mandatory duty of compliance with that Rule or not amount to an idle and sterile exercise as it is already a settled point pending when this court departs from its earlier decisions that settled the point.
The commonly held view that the case file in Suit No: LD/5014/94 and the judgment or ruling sought to be appealed against is missing and cannot be traced is not supported by the record of this appeal.
The said ruling sought to be appealed against is reproduced at page 26 of the record of this appeal thusly –
“ENROLEMENT OF ORDER
UPON THIS SUIT coming up before this Honourable Court.
AND AFTER HEARING Mr. R. Seriki (with him Mr. O. Ojo & Miss O. O. Osinubi) of counsel for the Defendant and Mr. Idowu Benson of counsel for the Plaintiff/Respondent.
IT IS HEREBY ORDERED:-
That order be and is hereby granted that the suit is dismissed with N5,000.00 ===”
The notice of appeal dated 19-1-2009 clearly identified it in the solitary ground of appeal that is reproduced above as the decision sought to be appealed against. The sole ground states thusly – “ The Learned trial Judge erred in law when without making specific finding/pronouncement in respect of the 1st and 2nd appellants application dated 1st day of December 200 for joinder or substitution as plaintiff in Suit No. LD/5014/94 ordered as follows:
“That order be and is hereby granted that the suit is dismissed with N5,000 cost”
In the appellant’s brief filed along with it, the sole issue for determination read thusly -
“Whether there is breach of the 1st and 2nd appellant’s constitutional right to fair hearing guarantee under section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when Learned Trial judge without making specific finding/pronouncement on the 1st and 2nd appellant’s application dated 1st December 2000 for joinder or substitution as plaintiff in Suit No. LD/5014/94 granted the application of the respondent of the respondent dated 9th October 2000 and dismissed the suit prematurely?”
It is obvious that the decision was couched in the form of an order. However, that does not make it less than a decision. It remains a decision that is appealable because S. 318 of the 1999 Constitution defines a decision in relation to a court, to mean any determination of the court and includes judgment, decree, order, conviction, sentence or recommendation. See Kotoye v CBN & Ors (1989) ALL NLR 76 which in which this court applied similar provisions in the 1979 Constitution and held that even an exparte order was a decision that could be appealed against. See also
Alor & Anor V Ngene & Ors (2007) 2 SC 1.
It is clear from the chronology of the facts exposed by the record of this appeal, that the appellants did not appeal the decision of the trial court per Marsh J made on 12-11-2003. Rather, the 3rd appellant on 20-7-2007 filed a fresh suit in the same court on the same facts and issues against the respondent and the Registrar of titles Lagos State as Suit No. LD/920/2007. The Suit was on 5-6-2008 dismissed by Ojikutu – Oshode J for lack of jurisdiction on several grounds. It was after this dismissal of Suit No LD/920/2007 on 5-6-2008 that the appellants, on 22-1-2009 applied for extension of time to seek leave to appeal against Marsh J’s decision 0f 12-11-2003 in Suit No. LD/5014/94. On the same 22-1-2009, the 3rd appellant herein also applied for extension of time to seek leave to appeal against the decision of Ojikutu – Oshode J of 5-6-2008 in Suit No. LD/9/2007.
It is surprising that through out the proceedings in the Court of Appeal none of the parties brought the above facts to the attention of the court. The case of Engineering Contractor Co. of Nig. V AG Kaduna State (1987) 1 N.S.C.C p. 601, Owoade V. FRN (2012) LPELR- 9280 (CA), NAL Bank Plc V Afrimpex Enterprises Ltd (2007) All FWLR Pt 386 pg. 762 at 779 and Umar V Rabo & Ors (2015) LPELR-40408 relied on in the mistaken belief that the ruling of Marsh J of 12-11-2003 in Suit No. LD/5014/94 are not applicable in this case because the said ruling is available and not missing These facts further justify the Court of Appeal’s decision.
The 3rd appellants should have attached the decision of Marsh J to their application for extension of time to seek leave to appeal. The record of appeal show it is available. The Court of Appeal correctly held that the application was incompetent in the absence of a copy of the ruling sought to be appealed against and correctly struck it out.
In any case, the issue of whether to set aside the judgment of a trial court and order a retrial on the ground that the record of the trial proceeding or the judgment is missing and cannot be found, cannot be raised and determined on an application for extension of time to seek leave to appeal or application for leave to appeal or application for extension of time to appeal that is to consider the decision sought to be appealed against. It is usually made during the pendence of an appeal by the appellant who is unable to compile and transmit the record because the record of proceedings or judgment is lost and cannot be found. Even in such situation such application are not granted as a matter of course. The appellant must show the efforts that have been made to produce the record, that he did not in anyway, including his lack of diligence, contribute to the loss and that failure to produce such record has caused a miscarriage of justice. Where there is no appeal pending before an appellate court, the need for such an application cannot arise as there is no pending appeal whose prosecution is being frustrated by the loss of the proceedings or judgment of a lower court.
The requirement of Order 7 Rule 7 that the copy of the decision sought to be appealed against accompany the application for extension of time to seek leave to appeal cannot be avoided by the alleged loss of the decision of the trial court. Without a copy of the decision, the application is rendered incompetent and cannot be valid for consideration.
In the light of the foregoing, I resolve the lone issue for determination in favour of the respondent.
On the whole, this appeal fails and is hereby dismissed.
I make no order as to costs.
EMMANUEL AKOMAYE AGIM
JUSTICE SUPREME COURT
APPEARAANCES:
S. O. IMHANOBE, Esq. with him J.E. OPALUWA for the Appellant
A. T. SOREMI, Esq. for the Respondent
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