NOFIU SURAKATU v. 1. NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED 2. E.C. SONAIYA (SC. 51/78) [1981] 1 (10 April 1981);

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  • NOFIU SURAKATU v. 1. NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED 2. E.C. SONAIYA (SC. 51/78) [1981] 1 (10 April 1981);

                                                   NOFIU SURAKATU (APPELLANT)

                                                                              v.

1. NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED

2. E.C. SONAIYA (RESPONDENT)

(1981) All N.L.R. 313

 

Division: Federal Supreme Court, Ademola

Date of Judgment: 10th April, 1981

Case Number: (SC. 51/78)

Before: Fatayi-Williams, C.J.N., Sowemimo, Irikefe, Bello, Obaseki, Nnamani, Uwais, JJ.S.C.

 

APPEAL from the Federal Court of Appeal, Lagos

This case first came before the Federal Court of Appeal on appeal from the High Court of Lagos State. At the hearing of the appeal before the said Court of Appeal, learned Counsel for the respondents raised two preliminary objections to the hearing of the appeal, namely (a) that the Bond of appeal executed by the appellant was defective; and (b) that the Bond did not provide "for the due prosecution of the appeal." The Federal Court of Appeal considered whether the defect could be cured by the application of the provisions of Order IX of the Supreme Court Rules, 1961, which Rules were then applicable to the appeals before that Court, and ruled that the defect could not be so cured. On appeal to the Supreme Court on the decision of the Federal Court of Appeal on the preliminary objections-

 

HELD:

(i) that so long as procedural blunders can be cured without doing injustice to the other side and so long as the other side cannot reasonably have been misled, the powers of the Federal Court of Appeal under Order IX of the Supreme Court Rules, 1961, are wide enough to do substantial justice;

(ii) that the provisions of Order IX of the Supreme Court Rules, 1961, are wide enough to cure the technical defects contained in the Bond executed by the appellant.

 

Appeal ordered to be restored on the Cause List of the Federal Court of Appeal for hearing on the merit.

Decision in Adesina Moses & Anor. v. Saibu Ogulabi (1975) 4. S.C. 81, reviewed and overruled in so far as it was based on the failure of the appellant to execute a Bond for the due prosecution of the appeal in that case.

Cases referred to:

(1)     Adesina Moses and Anor. v. Saibu Ogunlabi (1975) 4 S.C. 81.

(2)     Fouchee v. Henry Braid (1913) 2 N.L.R. 102.

(3)     Ogunmola v. Igbo (1941) 7 W.A.C.A. 137.

(4)     Addis Ababa v. Adeyemi (1976) 12 S.C. 51.

(5)     Kojo Pan v. Atta Fua P.C. No. 48 of 1925.

 

Statutory Instruments referred to:

The Supreme Court Rules, 1961, Order 7, rule 10, and Order 9.

Appeal from the Federal Court of Appeal, Lagos.

Chief Bayo Kehinde (O.O. Shobodu with him) for the Appellant.

H.T.O. Coker (A. Adekoya with him) for the 1st Respondent.

S.A. Faboro (O.A.A. Olajolo with him) for the 2nd Respondent.

 

A. Fatayi-Williams C.J.N.: The case which is now the subject of the appeal before this Court first came before the Federal Court of Appeal on an appeal from the High Court of Lagos State. At the hearing before the said Court of Appeal on 7th June, 1977, learned Counsel for the respondents raised two preliminary objections to the hearing of the appeal, namely-

(a)     that the Bond of appeal executed by the appellant was defective; and

(b)     that the Bond did not provide for the due prosecution of the appeal.

 

In its ruling on the objections delivered on 11th November, 1977, the Federal Court of Appeal found as follows:-

"We have carefully examined the bond in question and it is clear that it was not executed, "for the due prosecution of the appeal? and for the payment of any cost which may be ordered to be paid by the appellant' states":-

Order VII Rule 10 Supreme Court Rules which provides for the execution of a bond as an alternative to the deposit of sum of money "for the due prosecution of appeal and for the payment of any cost which may be ordered to be paid by the appellant" state:-

'The appellant shall within such time as the Registrar of the Court below directs deposit such sum as shall be determined by such Registrar or give security therefore by bond with one or more sureties to his satisfaction as such Registrar may direct for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant.

Provided that no deposit or security shall be required where the deposit would be payable by the State or a Government department.

As can be seen in this rule, it is within the discretion of the Registrar to direct either the deposit of a sum of money or the giving of security by bond. When the record was settled however, it appears that the Registrar left it open to the appellant to elect as between the two courses open to him, either

'to deposit into court as security for costs on appeal the sum of N210.00 or in the alternative to enter into a bond in the sum of N210.00 with one surety in same amount to prosecute the appeal of the appeal thereof.'

The appellant apparently elected to enter into a bond.

Since he has elected to execute a bond, it must be one 'to prosecute the appeal' or words to that effect. And since the bond has not been so prepared, to that extent it is defective. The only defect complained of in the notice of objection is in respect of the absence of the words 'to prosecute the appeal'."

(The italic is mine).

 

The Federal Court of Appeal then considered whether the defect could be cured by the application of the provisions of Order IX of the Supreme Court Rules, 1961, which is applicable to appeals before it. I shall refer later to the provisions of the said Order IX. The Court finally decided that the defect could not be cured by Order IX because of the decision of this Court in Adesina Moses & Anor. v. Saibu Ogunlabi (1975) 4 S.C. 81, where at pages 83-84, this Court said-

"With respect to the Notice of Preliminary objection, quite apart from typographical errors appearing on the bond purportedly filed by the defendants, we observe that it was headed in the High Court when it should be headed in the Supreme Court and, what is worse, the bond did not provide for 'the due prosecution of the appeal' as required by the provisions of Order 7, rule 10 of the Rules of this Court. The bond was only conditioned upon the payment of costs but even then the wording of it and the other defects to which we have already pointed are sufficient to characterise it clearly as defective. Learned Counsel for the plaintiff in this connection has referred us to the cases of Fouchee v. Henry Braid (1913) 2 N.L.R. 102 and Ogunmola v. Igbo (1941) 7 W.A.C.A. 137. We think these cases are in point and that in order to be entitled to exercise a right of appeal, the appellant must come within the provisions of the statutes creating such a right. We have concluded that the defendants' appeal is not competent and it is struck out as not being properly before us.'

 

The Federal Court of Appeal did observe in passing, but rightly in my view, that the provisions of Order IX of the Supreme Court Rules were neither adverted to nor applied by this Court when dealing with the appeal in the case of Moses v. Ogunlabi. It nevertheless struck out the appeal after finding finally as follows:-

"The present position therefore is that the decision in Adesina Moses and Another v. Saibu Ogunlabi has not been overruled even though considered unsatisfactory. Since it is a decision by which we are bound, we have to apply it to the case in hand and hold that the appeal is not properly before us."

 

In the appeal now before us against the ruling of the Federal Court of Appeal, Chief Bayo Kehinde, for the appellant, argued that Order 7, rule 10 placed on the Registrar of the court below the following duties:-

(a)     to prescribe the time within which the appellant shall furnish security for the due prosecution of the appeal and for the payment of the costs of the appeal;

(b)     to determine the sum for which such security is to be provided; and

(c)     to direct the number of sureties who must execute a bond in case the appellant chooses to execute a bond instead of depositing such sum in court.

 

Learned Counsel then pointed out that the rule which requires the appellant to provide security for the due prosecution of the appeal and for the payment of the costs of the appeal is for the benefit of the respondents. Their object, learned Counsel further stressed, is to ensure that the appellant takes all necessary steps to see that the appeal is heard expeditiously and also to ensure that, if the appellant loses the appeal, the respondents will have no difficulty in recovering whatever costs the Federal Court of Appeal may award.

Dealing with this Court's decision in Moses v. Ogunlabi (1975) 4 S.C. 81, Chief Bayo Kehinde submitted that the appeal was wrongly decided and that the criticism of the decision in a later case (Adis Ababa v. Adeyemi (1976) 12 S.C. 51) was perfectly justified. He also submitted that the latter case was also incorrectly decided. The main plank of Chief Bayo Kehinde's criticism of the two judgments is this. So long as procedural blunders can be cured without doing injustice to the other side and so long as the other side cannot reasonably have been misled, the powers of the Federal Court of Appeal under Order IX are wide enough to do substantial justice.

The only point of any substance canvassed before us in the reply of learned Counsel for each of the two respondents was that at the time the appellant received the notice of objection in the Federal Court of Appeal he should have amended the bond provided by him to include the words "for the due prosecution of the appeal"; as he did nothing except come to court for the hearing of the appeal, the Court of Appeal acted fairly in not exercising his discretion in the appellant's favour by requesting him to remedy the non-compliance. In any case, counsel further argued, the court could not have so ordered because of the decision in Moses v. Ogunlabi which was binding on the court.

I share the views of Chief Bayo Kehinde that expedition in the prosecution of an appeal is most essential so as to reduce the period of uncertainty which the successful party at the trial in the court below is inevitably made to experience. However, if an appellant fails to prosecute his appeal expeditiously, the court has inherent power to dismiss the appeal for want of prosecution at the instance of the respondent. That, to my mind, is the rationale for the rule which provides for the entering into a bond for the due prosecution of the appeal.

In the case in hand, there was no complaint whatsoever that the appellant failed to prosecute his appeal diligently. There was also no application for an order that the Federal Court of Appeal should dismiss the appeal for want of prosecution. In other words, notwithstanding the failure of the appellant to provide the security for that purpose, he (the appellant) has, in fact, prosecuted his appeal diligently and expeditiously. No complaint of unreasonable delay was made against him. In fact, as Chief Bayo Kehinde rightly pointed out in his written Brief, the appeal was ripe for hearing and would have been disposed of by the Federal Court of Appeal but for the respondents' Notice of Objection. It is significant that it was on the very day on which the appeal was to have proceeded that the respondent came forward with a complaint that the appellant had failed to give him the assurance, which the rule requires, that the appeal will be duly prosecuted.

I think that the Federal Court of Appeal, faced with the respondents' Notice of Objection in these circumstances, had the statutory power to deal with the situation which arose before it. First and foremost, the provisions of Order IX of the Supreme Court Rules to which I have referred earlier are quite adequate to deal with the non-compliance complained of. For ease of reference, the rule is reproduced hereunder:-

"Non-compliance on the part of an appellant with these Rules or with any rule of practice for the time being in force shall not prevent the further prosecution of the appeal if the Court consider that such non-compliance was not wilful and if it is in the interest of Justice that non-compliance be waived. The Court may in such manner as they think right, direct the appellant to remedy such non-compliance and thereupon the appeal shall proceed."

As an indication that such remedial order could be made by the Court even in the absence of the appellant, the same rule went on to provide that-

"The Registrar shall forthwith notify the appellant of any directions given by the Court under this rule, where the appellant was not present at the time when such directions were given."

(The italic is mine.)

 

Since the Federal Court of Appeal, in striking out the appeal as it did, appeared to have been directly inhibited by the decision of this Court in Moses v. Ogunlabi (1975) 4 S.C. 81, with which it is bound, I will now proceed to examine the ratio decidendi of that case. In the Ogunlabi case, the Court observed that the bond given was defective in that it did not provide for "the due prosecution of the appeal" as required by the provisions of Order 7, rule 10 of the Supreme Court Rules which are now applicable in the Federal Court of Appeal. The Court, after referring to the decisions in Fouchee v. Henry Braid (1913) 2 N.L.R. 102, and Ogunmola v. Igbo (1941) 7 W.A.C.A. 137 with approval, held that the appeal was not competent and thereupon struck it out.

In Fouchee v. Braid (supra), the Court granted the appellant conditional leave to appeal on four conditions. The conditions were not fulfilled. Thereafter, a fresh application was filed for leave to appeal, still within the time allowed for such application. Again, conditional leave was granted on the same conditions as before. Later, an application for final leave was filed. The Court was not satisfied from the affidavit filed in support that the conditions had been complied with and refused the application for final leave on that ground. On appeal against the order refusing leave, it was held that, in case of non-compliance with the conditions laid down by the rules relating to appeals, an Appeal Court will not-"except in special circumstances and after careful scrutiny"-grant relief. There can be doubt that this decision did not take away the Court's power to grant relief from the effect of non-compliance in deserving cases where special circumstances are shown.

Even in the second case-Ogunmola v. Igbo (1941) 7 W.A.C.A. 137-referred to in the decision in Moses v. Ogunlabi (supra)- the Court which heard the appeal referred to the decision of the Privy Council in Kojo Pon v. Atta Fua P.C. No 48 of 1925, a case in which the bond for security had not been signed by the appellant. In that appeal their Lordships observed that in cases coming before them from the Dominions of the Crown, their first consideration always was to secure, if possible, that substantial justice was done. That, according to their Lordships, might not always be possible because there might be conditions in the local law or in the rules which preclude the possibility of getting over technical obstacles and doing complete justice. They, however, though that, in the case of the rules of procedure in the Gold Coast colony from where the appeal emanated, there were no such obstacles. The court there was invested with the widest powers, and it might have adjourned the hearing of the appeal until a proper bond was executed, or it might have said that an affidavit was sufficient; and that that was more incumbent on the Court because its own Registrar had accepted the bond executed on behalf of the appellant. Under those conditions their Lordships thought that to refuse to hear the appeal merely on the ground of what might have been a mere technicality about the bond was to fail to do justice as between the parties; they were of the opinion that the case must be remitted to the Court below to deal with it again.

I think the observations of their Lordships in the Kojo Pon's case are particularly apposite to the facts of the present case. Like the rules of the Gold Coast Colony referred to in the Kojo Pon's case (supra), the provisions of Order IX of the Supreme Court Rules invested this Court which heard the appeal in the case of Moses v. Ogunlabi (supra) with the widest possible powers to remedy any non-compliance with the said Rules. Bearing in mind the fact that the Supreme Court did not even advert to the provisions of Order IX before coming to the conclusion that the appeal was not competent and striking it out, I am of the opinion that the judgment was given per incuriam.

Furthermore, I have not the slightest doubt in my mind that if the Supreme Court had adverted to the provisions of Order IX, it would have allowed the appellant, in that case, to remedy the non-compliance and do substantial justice by hearing the appeal on the merits. For these reasons, that decision (Moses v. Ogunlabi) should no longer be allowed to stand. If it is so allowed, it will continue to fetter the discretion which the Federal Court of Appeal undoubtedly has under Order IX to remedy any non-compliance with the Rules if it is in the interest of justice to do so. The decision is, therefore, overruled only in so far as it is based on the failure of the appellant to execute a bond for the due prosecution of the appeal in that case. For the avoidance of doubt the judgment of the Supreme Court in Adis Abada v. Adeyemi (1976) 12 SC. 51 which considered that part of the decision in Moses v. Ogunlabi as unsatisfactory but followed it nevertheless is also overruled.

To go back to the case in hand, it is evident that the respondent who raised the objection before the Federal Court of Appeal was not misled by any defects in the bond. At the time the objection was raised, the appeal was ripe for hearing and, in fact, all the parties to the appeal were in court for the hearing on 7th June, 1977. Moreover, the Court had ample powers under Order IX of the Supreme Court Rules (which is applicable to proceedings before it) to cure any such defects. Presumably, the Federal Court of Appeal would have exercised such powers but for the decision in Moses v. Ogunlabi which is considered as binding.

For the above reasons, I think that the decision of the Federal Court of Appeal in the present case striking out the appeal is erroneous and should also not be allowed to stand. The appeal is, therefore, allowed and the ruling of the Federal Court of Appeal in appeal No. FCA/L/103/77, delivered on 11th November, 1977, together with the orders made as to costs, is set aside. Instead, I hereby order that the said appeal should be restored on the cause list of the Federal Court of Appeal for hearing on the merits.

I award costs in favour of the appellant which I assess at £350.00 against the two respondents.

Sowemimo, J.S.C.: I read in draft a judgment of the Honourable C.J.N. on the above appeal. I agree with the judgment and the order as to cost.

Irikefe, J.S.C.: I agree with the conclusions and orders contained in the judgment just read by my Lord the Chief Justice of Nigeria and I have nothing further to add.

Bello, J.S.C.: I have read earlier the judgment just delivered by the Chief Justice. I entirely agree.

Obaseki, J.S.C.: The short point in this appeal is whether a defect in the bond to wit: omission of the words "to prosecute the appeal" from the bond executed in pursuance of the Order of the Registrar of the High Court to provide security for the due prosecution of the appeal of the appellant to the Federal Court of Appeal is so incurable as to constitute a bar to the hearing of the appeal of the appellant. The order of the Registrar required the appellant;

"either to deposit into Court as security for costs on appeal the sum of N210.00 or in the alternative enter into a bond in the sum of N210.00 with one surety in the same amount to prosecute the appeals of the appellant thereof."

The appellant elected to enter into a bond and along with his surety executed the bond presented by the Registrar of the High Court but which inadvertently omitted those operative words.

As a result of the omission in the bond of the words "to prosecute the appeal" indicating the object of the bond, the appeal was struck out by the Federal Court of Appeal on the objection of the respondents. The reluctance of the Federal Court of Appeal to strike out the appeal was apparent from the ruling on the objection but the court felt helpless in the face of two previous judgments of this Court namely, Moses v. Ogunlabi (1975) 4 S.C. 81 and Addis Abada v. Adeyemi (1976) 12 S.C. 51 on the same point which have binding effect on it.

I have had the advantage of reading in draft, the judgment just delivered by my learned brother Fatayi-Williams, C.J.N. and all the points raised in this appeal have been fully considered and dealt with. I agree entirely with the judgment. For the reasons stated therein, I would also allow the appeal and I hereby allow the appeal and set aside the decision of the Federal Court of Appeal (striking out the appeal) in Appeal No. FCA/L/103/77 delivered on 11th November, 1977 together with the orders made as to costs.

I also agree with the order of Fatayi-Williams, C.J.N. restoring the appeal on the cause list of the Federal Court of Appeal for hearing on the merit and awarding costs of N350.00 (Three hundred and fifty Naira) to be paid by the two respondents to the appellant in this appeal.

Nnamani, J.S.C.: My Lords, I have had the advantage of reading in draft the judgment just delivered by my Lord, the Chief Justice of Nigeria. I entirely agree with it and I would also allow the appeal. For the reasons stated in the said judgment, I also agree that the decisions of this Court in Moses v. Ogunlabi (1975) 4 S.C. 81 and Addis Ababa v. Adeyemi (1976) 12 S.C. 51 should no longer be allowed to stand. I am in complete agreement with the view that the primary consideration ought to be to do substantial justice between the parties and that undue importance ought not to be accorded to mere technicalities.

I agree with the order as to costs made by the Honourable Chief Justice.

Uwais, J.S.C.: I have had the opportunity of reading in draft the judgment delivered by my Lord, the Chief Justice of Nigeria. I entirely agree with the reasoning and conclusions therein as well as the orders made.