JOHN C. ANYADUBA & ORS (APPELLANT)
v.
NIGERIAN RENOWNED TRADING CO. LTD. (RESPONDENT)
(1990) All N.L.R. 169
Division: Supreme Court of Nigeria
Date of Judgment: 23rd February, 1990
Case Number:
Before: Obaseki, Nnamani, Uwais, Karibi-Whyte, Agbaje, JJ S.C.
The appellants, being dissatisfied with the decision of the Court of Appeal delivered on the 19th of June 1986, appealed to the Supreme Court. The respondent on his part filed a notice of intention to contend that the judgment of that court be affirmed on grounds other than those it relied upon pursuant to Order 8, rule 3(2) of the Supreme Court Rules, 1985. The respondent later made an application by motion on notice for leave to cross appeal which was granted by the Supreme Court. The relief sought in the cross appeal was that the part of the decision of the court of appeal on the issues which were not properly before it be set aside and that the judgment of the court of Appeal dismissing the plaintiffs' claim in toto be affirmed.
The appellants raised a preliminary objection by notice that the notice of cross appeal and the brief filed by the respondent be dismissed or struck out in that under the Supreme Court rules of 1945 the Notice of Cross-appeal cannot co-exist with the notice of intention to contend that the judgement be affirmed. The respondent contended that there was nothing in the rules of Court to prevent the two notices from co-existing.
HELD:
(1) The effect of a cross appeal is to call for the reversal of the decision of the lower court in that the lower court was in error in its decision and that the error is so crucial and fundamental.
(2) The effect of a respondent's notice to affirm presupposes that by the reasoning of the lower court, its decision is correct and ought to be retained, but that the respondent feels adversely affected by the conclusion reached despite the correctness of the judgement and that he would like the judgement to be retained by adopting his reasoning in the notice to affirm.
(3) Since the consequences of the two processes are different reversal of judgement in the case of a cross appeal and retention of judgement in the case of a notice to affirm-they cannot be invoked simultaneously in the same case.
(4) The filing by the respondent of a notice to affirm and a motion for leave to cross-appeal simultaneously is an abuse of the process of the court.
(5) Ordinarily, the consequence of holding that there is an abuse in the process of the court is to strike out the offending process.
(6) However in the present case since a different panel of the Supreme Court had earlier given the respondent leave to file a notice of cross-appeal the respondent would have to elect which of the two processes it would like to retain and proceed with the appeal.
Preliminary Objection sustained.
Cases referred to:
A.G. Oyo State v. Fairlakes Hotels Ltd. (No 2) (1989) 5 N.W.L.R. (Pt. 121) 255.
Adekeye v. Akin-Olugbade (1987) 3 N.W.L.R. (Pt. 60) 214.
African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Limited (1977) 5 S.C. 235.
B.E.O.O. Ind. (Nig) Ltd. v. Maduakoh (1975) 12 S.C. 47.
Enang v. Adu (1981) 11-12 S.C. 25.
L.C.C. v. Ajayi (1976) 1 All N.L.R. 291.
L.C.C. v. Ogundemuran (unreported) S.C. 335/1969 of 26/11/71.
Oguma v. I.B.W.A. (1988) 1 N.W.L.R. (Pt. 73) 658.
Oyekan v. B.P. (Nigeria) Ltd. (1972) 1 All N.L.R. 65.
Sunmonu v. Asharata (1975) 1 N.M.L.R. 16.
Western Steel Works v. Iron & Steel Workers (1978) 1 N.W.L.R. (Pt. 49) 254.
Williams v. Daily Times (Nig) Ltd. (1990) 1 N.W.L.R. (Pt. 124) 1.
Statutes referred to:
Constitution of the Federal Republic of Nigeria, 1979.
Kola Tenancy Law of Eastern Nigeria Cap. 60.
Supreme Court Rules 1985.
S.C. 103/1988
Dr Ejike Ume for the Appellants.
G.R.I. Egonu, S.A.N. for the Respondent.
Uwais, J.S.C.:-In this appeal, the appellants have filed a notice of preliminary objection praying this Court:
". . . to dismiss or strike out the Notice of Appeal filed by the respondent in this Court on 26/5/89 and the brief of argument based thereon also filed on the same day, on the grounds that the Notice of Appeal is incompetent, not in accordance with the rules, and an abuse of process, of the Supreme Court.
And for such further or other orders, as the Supreme Court may deem fit to make in the circumstances . . ."
The facts which are relevant to this matter may be stated as follows. Judgment was given against the appellants by the Court of Appeal, Enugu on the 19th day of June, 1986. Dissatisfied with the judgment, the appellants filed a notice of appeal to this Court on the 12th Day of September, 1986 against the said judgment. On the 6th day of
November, 1986, the respondent, pursuant to Order 8, rule 3(2) of the Supreme Court Rules, 1985, filed a notice of intention to contend that the judgment of the Court of Appeal should be affirmed on grounds other than those relied upon by the Court of Appeal. The notice of intention reads, in part, thus:
"TAKE NOTICE that upon the hearing of the above appeal the defendant-appellant-respondent intends to contend that the decision of the Court of Appeal dated the 19th day of June, 1986, shall be affirmed on grounds other than those relied on by the Court below.
AND TAKE NOTICE that the grounds on which the defendant-appellant-respondent intends to rely are as follows:
(1) That the plaintiffs-respondents-appellants were precluded by laches, acquiescence, long possession and estoppel from claiming title to or any other interest in the land in dispute.
(2) That the late B.O. Anyaduba having transferred all his interest in the land in dispute to Madam Christiana Ibiola in 1932, and the successors of Madam Christiana Ibiola having also in 1977 obtained a further grant of the land in dispute from the Mgbelekeke Family of Onitsha the plaintiffs-respondents-appellants cannot now maintain an action for a declaration of title to the land in dispute.
(3) That the plaintiffs-respondents-appellants failed to prove their alleged inheritance of the land in dispute.
Dated this 15th day of November, 1986. (Sgd.)
G.R.I. EGONU, S.A.N. Counsel & Solicitor for The Defendant-Appellant-Respondent."
The appellants' brief of argument, was filed on the 24th day of June, 1988. The respondent's brief of argument was filed on the 17th day of April, 1989; that is almost ten months after the appellants' brief of argument was filed. A reply brief to the respondent's brief of argument was filed by the appellants on the 22nd day of May, 1989. But prior to this date the respondent brought a motion in this Court seeking inter alia the enlargement of time to file a notice of cross-appeal. The motion was heard on the very day that the appellants' reply brief was filed. Leave was granted to the respondent to cross-appeal and the notice of the cross-appeal was filed in this Court on the 26th day of May, 1989 together with a brief of argument in support of the cross-appeal. The grounds of the cross-appeal, as contained in the respondent's notice of appeal read:
"(1) That the Court of Appeal erred in law in introducing into the appeal before it issues which were not raised by the grounds of appeal.
Particulars of Error
(i) That no issue was raised in the appeal as to
(a) the interpretation of Exhibit "A" (or "A1"),
(b) whether or not Madam Christiana Ibiola's Kola Tenancy was for life
(c) the existence of any further relationship between Christiana Ibiola and the late B.O. Anyaduba
(d) the application of the Kola Tenancy Law Cap. 69 Laws of Eastern Nigeria to the case
(e) the extinction of Madam Christiana Ibiola's Kola Tenancy.
(ii) That the Court of Appeal could only deal with issues which were properly before it.
(2) That the Court of Appeal misdirected itself in law in holding that it was accepted that Exhibit "A" was the agreement of the Kola Tenancy between Christiana Ibiola and the late B. O. Anyaduba as there was no such acceptance and in particular Exhibit "A" was not registered under the Land Instruments Registration Law.
(3) That the Court of Appeal erred in law in failing to determine all the issues raised by the defendant-appellant.
Particulars of Error
(ii) That the defendant-appellant has the constitutional right to a determination of all the issues it raised in the appeal before the Court of Appeal.
(4) Relief sought from the Supreme Court of Nigeria.
That that part of the decision of the Court of Appeal on the issues which were not properly before it be set aside and that the judgment of the Court of Appeal dismissing the plaintiffs-respondents' claims in toto be affirmed."
Consequently, the appellants filed an additional brief of argument on the 28th day of July, 1989 in answer to the respondent's brief on the cross-appeal. It was at the hearing of the appeal that the appellants raised the preliminary objection in question.
Dr Ume, learned counsel for the appellants, in arguing the preliminary objection, has contended that there is no provision in either the Supreme Court Rules, 1985 or the Supreme Court Act, 1960 or indeed, the Constitution of the Federal Republic of Nigeria, 1979 which enables a respondent, in an appeal to this Court, to file both a respondents' notice and a notice of cross-appeal in the same proceedings. Learned counsel submitted that by filing both processes the respondent is in abuse of the process of the Court. He argued further that under the provisions of the Supreme Court Rules, 1985, the filing of a respondent's notice by a party precludes that party from filing a notice of cross-appeal in the same proceedings.
Learned counsel argued further that the decision of the Court of Appeal, which set aside the judgment of the trial court, was wholly in favour of the respondent and therefore was no adversary decision against which the respondent could cross-appeal to this Court. It is only when there is a decision which goes against the respondent that the respondent could, in place of respondent's notice, appeal. In support of this submission, he relied on the cases of Oba Adeyinka Oyekan v. B.P. Nigeria Ltd. (1972) 1 All N.L.R. 45 and Alhaji Sunmonu v. Ashorota (1975) 1N.M.L.R. 16.
Dr Ume drew attention to the provisions of Order 8, rule 3(1) and (2) and Order 8, rule 7 of the Supreme Court Rules, 1985 and submitted that by closely examining the provisions it is obvious that a respondent to an appeal who filed a respondent's notice cannot file a notice of cross-appeal. He placed emphasis on the provisions of Order 8, rule 7 in support of the submission.
In reply, Mr Egonu, learned Senior Advocate argued that the preliminary objection was misconceived in that a respondent's notice of intention to affirm a judgment can co-exist with a respondent's notice of cross-appeal. He submitted that the respondent's notice to affirm was not filed pursuant to Order 8,, rule 3(1) of the Supreme Court Rules, 1985 but by virtue of the provisions of Order 8, rule 3(2) of the Supreme Court Rules, 1985 under which, he contended, there is no limitation on a respondent's right to cross-appeal. He cited the following cases in support of his argument-Chief Adekeye & Ors. v. Akin-Olugbade (1987) 3 N.W.L.R. (Pt.60) 214 at 226; Eliochin (Nig.) Ltd. & Ors. v. Mbadiwe (1986) 1 N.W.L.R. (Pt.14) 47 and Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria & Anor. (1987) 1 N.W.L.R. (Pt.49) 284.
Now, Order 8, rule 3(1) and (20 of the Supreme Court Rules, 1985 state as follows-
"3 (1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
(2) A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court must give notice to that effect specifying the grounds of that contention."
From these provisions it is clear that there are two kinds of respondent's notice, namely, a respondent's notice to vary the decision of the lower court which comes under Order 8, rule 3(1) and, secondly, a respondent's notice to affirm the decision of the lower court on grounds other than those relied upon by the lower court, as provided by Order 8 ,rule 3(2). There can be no doubt from the express provisions of Order 8, rule 3(1) that it is only a respondent, who has not appealed from the decision of the lower court that can file a respondent's notice to vary. On the other hand, with regard to the filing of a respondent's notice to affirm, Order 8, rule (2) is silent on whether it is necessary for the respondent not to appeal before he could bring the notice.
Suppose, therefore, it is granted for the sake of argument, as canvassed by Mr Egonu, learned Senior Advocate for the respondent, that a respondent who files a notice to affirm pursuant to Order 8, rule 3(2) has the right, since the rule is silent, to also bring a cross-appeal. The question that will arise is: can both a respondent's notice to affirm and a notice to cross-appeal co-exist or are the processes so incompatible that they are mutually exclusive? Now, it has been established by a long line of decided cases that any respondent that seeks to set aside a decision of a lower court which is crucial and fundamental can only do so by way of cross-appeal-See L.C.C. v. Ajayi (1976) 1 All N.L.R. 291 at pp. 295; L.C.C. v. Ogundemuran, Suit No. S.C. 335/1969 (unreported) judgment delivered on 26th day of November, 1971; Oyekan v. BP. Nigeria Ltd. (supra) B.E.O.O. Ind. (Nig.) Ltd. v. Maduakoh (175) 12 S.C. 91; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235; Enang v. Adu (1981) 11-12 S.C. 25; Dumbo v. Idugboe (1983) 1 S.C.N.L.R. 29; Eliochin v. Mbadiwe (supra); Adekeye v. Akin-Olugbade (supra); Oguma Associated Co. Ltd. v. I.B.W.A. (1988) 1 N.W.L.R. (Pt. 73) 658; A.-G., Oyo State v. Fairlakes Hotels (No.2) (1989) 5 N.W.L.R. (Pt. 121) 255 at p.293 and most recently F.R.A. Williams v. Daily Times of Nigeria Ltd. (1990) 1 N.W.L.R. (Pt. 124) 1 where Eso, J.S.C., who read the lead judgment observed-
". . . it is my view that any respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a sub-sanative cross-appeal and shall not do so by an application to affirm or vary the judgment on other grounds." (italics mine).
The effect of a cross-appeal is to call for the reversal of the decision of the lower court in that the lower court was in error in its decision and that the error is so crucial and fundamental-see Alhaji Sunmonu v. Ashorota (supra) at p.23. This is in contrast with the effect of a respondent's notice to affirm which presupposes that by the reasoning of the lower court, its decision is correct and ought to be retained. But that the respondent feels adversely affected by the conclusion reached despite the correctness of the judgment and that he would like the judgment to be retained by adopting his reasoning in the notice to affirm-see L.C.C. v. Ajayi (supra) at p.297 and Adekeye v. Akin-Olugbade (supra) at p.226.
In the light of the foregoing distinction between a respondent's notice and a cross-appeal, it appears to me that the two processes call for different consequences-retention of judgment and reversal of judgment. Can the two results, therefore, co-exist in a single case? Are they not incompatible and mutually exclusive? I think the answers to these questions must be in the affirmative. A party cannot approbate and reprobate. It does not make good sense. This view appears to derive support from the provisions of Order 8, rule 7 of the Supreme Court Rules, 1985 which seem to imply that neither a respondents notice to vary nor to affirm can co-exist with a notice of cross-appeal. The rule reads:
"(7) Where an appeal is withdrawn under the preceding Rule any respondent who has not given a notice under rule 3 of this Order may give notice of appeal and proceed in the manner prescribed by the foregoing Rules . . ." (italics mine)
I am, therefore, satisfied that a respondent's notice to affirm cannot co-exist with a notice of cross-appeal in the same case, and where the two notices so exist, as in the present case, an abuse of the process of the Court has arisen.
The appellants have urged that the notice of cross-appeal filed by the respondent should be struck-out since it had been filed in abuse of the process of this Court. Can this prayer be granted? Ordinarily the consequence of holding that there is an abuse of the process of the Court is to strike out the offending process. However, in the present case a different panel of this Court (Obaseki, Uwais, Oputa, Agbaje and Craig, JJ.S.C.) had given the respondent leave on the 22nd day of May, 1989 to file the notice of cross-appeal. Will it then be proper for the present panel, as differently constituted, to deny the respondent the right to appeal by striking out its notice of cross-appeal? I think not. In my opinion the way out of the predicament, is to give election to the respondent to choose which of the incompatible processes it would like to retain and proceed with in the appeal, so that the other process given up by it may be struck-out.
In conclusion, the preliminary objection succeeds and it is hereby sustained. The respondent is hereby given the option to decide on which of the conflicting processes it intends to retain in the appeal.
Obaseki, J.S.C.:-The appellants by notice of preliminary objection seeks an order of this Court.
". . . to dismiss or strike out the notice of appeal filed by the respondent in this Court on 26/5/89 and the brief of argument based thereon also filed on the same day, on the grounds that the notice of appeal
(1) is incompetent
(2) not in accordance with Rules and
(3) an abuse of the process of the Supreme Court AND for such further or other orders as the Supreme Court may deem fit to make in the circumstance."
The short or brief facts relevant to this objection are as follows. The appellants being dissatisfied with the judgment of the Court of Appeal sitting at Enugu delivered on the 19th day of June, 1986 appealed against the said judgment to this Court. On being served with the notice of appeal, the respondent, pursuant to Order 8, rule 3(2) of the Supreme Court Rules 1985 filed a notice of intention to contend that the judgment of the court should be affirmed on grounds other than those relied upon by the Court of Appeal. The contents of the notice can better be appreciated by setting them out in full and they read as follows:
"TAKE NOTICE that upon the hearing of the appeal the defendant-appellant-respondent intends to contend that the decision of the Court of Appeal dated the 19th day of June, 1986, shall be affirmed on grounds other than those relied on by the court below AND TAKE NOTICE that the grounds on which the defendant-appellant-respondent intends to rely are as follows:
(1) that the plaintiffs-respondents-appellants were precluded by laches acquiescence long possession and estoppel from claiming title to/or any other interest in the land in dispute;
(2) that the late B.O. Anyaduba having transferred all his interest in the land in dispute to Madam Christiana Ibiola in 1932 and the successors of Madam Christiana Ibiola having also in 1977 obtained a further grant of the land in dispute from the Mgbelekeke family of Onitsha, the plaintiffs-respondents-appellants cannot now maintain an action for declaration of title to the land in dispute;
(3) that the plaintiffs-respondents-appellants failed to prove their alleged inheritance of the land in dispute.
After the appellant's brief, the respondents' brief though filed out of time, had been filed, the respondents applied by motion on notice for leave to cross-appeal. The application was heard and granted by this Court on the day the appellant's reply brief was filed. The notice of cross-appeal was filed in this Court on the 26th day of May, 1989 and the relief claimed is
"That the part of the decision of the Court of Appeal on the issues which were not properly before it be set aside and that the judgment of the Court of Appeal dismissing the plaintiffs'/respondents' claims in toto be affirmed."
It is therefore necessary to find out the parts of the decision with which the defendant-appellant is dissatisfied. This appears in the notice of appeal as follows:
"That part of the decision of the Court of Appeal whereby it held that:
(i) it was accepted that Exhibit "A" was the agreement of the Kola tenancy and that it was governed by the Kola Tenancy Law Cap 60 Laws of eastern Nigeria applicable to the Anambra State;
(ii) the Kola Tenancy was granted to Madam Ibiola for life and she passed it in her will to her successors;
(iii) the plaintiffs-respondents did not apply at the right time to extinguish the Kola Tenancy and this could be cured by the non-suit order;
(iv) the Kola Tenancy between Madam Christiana Ibiola and B.O. Anyaduba still exists and that Exhibits "A" and "A1" are the agreement of the said Kola Tenancy;
(v) it was not necessary to determine all the issues raised by the defendant-appellant."
Learned counsel for the appellants contended that there was no provision in the Rules of the Supreme Court which enabled a notice of appeal or cross-appeal to co-exist with the notice of intention to contend that the judgment be affirmed.
Learned counsel for the respondent was of the contrary view and contended that there was nothing in the Rules to prevent the two notices from co-existing and projecting the contentions of the party.
My learned brother, Uwais, J.S.C., has, in his Ruling just delivered and which I had the privilege of reading in advance dealt with these opposing contentions fully and I agree with him that the respondent be given the liberty to decide which notice to pursue. A right of appeal is a constitutional right which a party is entitled to exercise in accordance with the Rules of court.
In the recent case of Chief F.R.A. Williams v. Daily Times of Nigeria Ltd. (1990) 1 W.B.R.N. 1, S.C.21/87; (1990) 1
N.W.L.R. (Pt.124) 1 this Court examined fully situations which call for notice of appeal and notice of intention to contend that the judgment be affirmed under Order 8, rule 3 Supreme Court Rules, 1985. In that case, this Court held that a notice of cross-appeal is necessary when a respondent is seeking to set aside a finding which is crucial and fundamental to a case. This is supported by a long lin