➥ CASE SUMMARY OF:
Mrs F.M. Saraki & Anor. v N.A.B. Kotoye (1992) – SC
by Branham-Paul C. Chima
Supreme Court – S.C. 250/1991
➥ JUDGEMENT DELIVERED ON:
Friday, the 4th day of December 1992
➥ AREA(S) OF LAW
Abuse of process.
Right of Appeal.
➥ PRINCIPLES OF LAW
⦿ GROUNDS OF APPEAL MUST BE BASED ON THE CONTROVERSY/ DISPUTE
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. — A.G. Karibe-Whyte, JSC.
⦿ WHEN IS AN ISSUE HYPOTHETICAL
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. — A.G. Karibe-Whyte, JSC.
⦿ WHAT IS AN ABUSE OF PROCESS
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. — A.G. Karibe-Whyte, JSC.
⦿ IMPROPER & IRREGULAR EXERCISE OF RIGHTS CONSTITUTES ABUSE
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.” — A.G. Karibe-Whyte, JSC.
⦿ RAISING AN APPEAL ON ADMITTED EVIDENCE
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. — Michael Ekundayo Ogundare, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Adolphus Godwin Karibi-Whyte, J.S.C.
⦿ FOR THE APPELLANT
Chief Williams S.A.N.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
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.
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 appeal before 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.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether there is a competent appeal before this Court?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE LOWER COURT DID NOT DECIDE SECTION 227 SUBJECT OF THIS APPEAL
“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.”
B.THAT THE GROUNDS OF APPEAL DO NOT ARISE FROM THE DECISION OF THE COURT BELOW
“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.”
“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.”
II. Whether an appeal lies from an interlocutory ruling of the High Court on the admissibility or rejection of evidence?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT INTERLOCUTORY DECISION CAN BE APPEALED AGAINST
“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.””
B. THAT THERE IS A RIGHT OF APPEAL ON ISSUES OF LAW, FINAL OR INTERLOCUTORY
“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.”
III. Whether the exercise by the defendant of his right of appeal in this case is an abuse of the process of the Court?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE RIGHT OF APPEAL WAS NOT AN HARASSMENT
“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.”
“All the issues having been resolved against the appellants, the appeal fails and is hereby dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)