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In The Supreme Court of Nigeria

On Friday , 23rd day of February, 1990

SC 103/1988

 

Before Their Lordships

 

Andrews Otutu Obasekii

......

Justice, Supreme Court

Augustine Nnamani

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

 

  

Between

 

John C. Anyaduba & Ors.

.......

Applicant

 And 

Nigerian Renowned Trading Co. Ltd.

.......

Respondent

   

Judgement of the Court

Delivered by

Muhammadu Lawal Uwais

 

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. 0. 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 "Al"),

 

(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. 0. 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. 0. 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)1 N.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 p.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 aftirm 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 substantive 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 coexist 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.

 

 

Judgement Delivered by

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~appe11ant-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. 0. Anyaduba still exists and that Exhibits "A" and "Al" 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 crossappeal 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) I 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 line of cases beginning with L.C.C. v. Ajayi (1970) 1 All N.L.R. 29. The emphasis is on a finding which is crucial and fundamental.

 

The question which arises therefore is whether the findings which the respondent seeks to set aside are crucial and fundamental. This Court cannot decide this question until the appeal is heard. If they are crucial and fundamental to require the filing of the notice of appeal, is there any necessity for the notice to contend that the judgment be affirmed on other grounds to remain?

 

There is none. The main plank for the appellant's objection is Order 8 Rule 7 which reads:

 

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 therewith in the manner prescribed by the foregoing Rules and in such case the time limited for giving notice of appeal, for disposing the sum estimated to cover the cost of the record and for furnishing the security for costs may, on application to the Court, be extended so far as is reasonably necessary in all the circumstances of the case.

 

In my opinion, this Rule cannot apply where a respondent's notice seeks affirmation of the judgment for whenever an appeal is withdrawn and dismissed, the judgment will be affirmed. It applies where the respondent seeks to set aside a finding and this is exactly what the respondent has sought to do in this case. It is my opinion that having expressed his dissatisfaction with the part of the decision not in his favour, he can proceed to justify the decision in his favour in his cross-appeal without the notice to contend that the decision be affirmed on other grounds.

 

For the above reasons and the reasons in the Ruling of my learned brother, Uwais, J.S.C., it is necessary to give the respondent liberty to decide which notice to pursue.

 

 

Judgement Delivered by

Nnamani. J.S.C.

 

I had a preview of the Ruling just delivered by my learned brother, UWAIS, J.S.C., and I entirely agree with his reasoning and conclusions.

 

Because of the fervour with which the subsidiary issue was argued by learned counsel on both sides, I intend to make some comments of my own. The facts have been set down by my learned brother and I shall only mention such facts as I need for this comment. In the substantive appeal, appellants who raised the preliminary objection that necessitated this ruling, appealed against the judgment of the Court of Appeal, Enugu Judicial Division which was delivered on 19th June, 1986. Briefs of argument were filed and exchanged by the parties and the appeal was set down for hearing for the 27th November, 1989.

 

On 27th November, 1989, learned counsel to the appellants, Dr. Chief Ejike Ume, raised a preliminary objection notice of which had been given pursuant to Order 2 Rules 9(1) and 28(1) and 29(d) of the Supreme Court Rules, 1985. In the said notice, learned counsel prayed this Court "to dismiss or strike out the Notice of Appeal filed by the respondents in this Court on 26/5/89 and the brief of argument based therein 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 the process of the Supreme Court." The grounds of this objection would be gathered from paragraphs 2, 3, 7, 8 and 9 of an accompanying affidavit. The paragraphs read as follows:

 

(2)    That on 12/9/86 we filed a notice of appeal in these proceedings against the judgment of the Court of Appeal Enugu Division which we were dissatisfied with.

 

(3)    That shortly thereafter on 6/11/86 the respondent through its Solicitor G.R.I. Egonu, S.A.N., filed a Notice of Intention to contend that the judgment be affirmed on grounds other than those relied upon by the court below (Respondent's Notice) pursuant to Order 8 Rule 3(2) of the Supreme Court Rules .

 

(7)    That on the evening of 20/5/89 a Saturday, we were served through our leading counsel and Solicitor, Dr. Chief Ejike Ume, a motion filed by the respondent for enlargement of time within which to appeal against the judgment of the Court of Appeal by the respondent and other related reliefs, the same judgment over which we have gone on appeal and over which the respondent have filed a respondent's brief.

 

(8)    That the motion was heard on 22/5/89 and our leading Counsel Dr. Chief Ejike Ume who represented us informed me and I verily believed him that he opposed the motion on grounds of law but same was allowed by the Supreme Court.

 

(9)    That pursuant to the said order for enlargement of time, the respondent on 26/5/89 filed a notice of appeal in which it styled itself 'Appellant' and us 'Respondent'. It has also filed an 'Appellant brief' in support of its 'Appeal'."

 

It is useful for purposes of this ruling to refer to the respondent's notice and the notice of appeal the subject of this objection. The respondent's Notice contending that the judgment of the Court of Appeal be affirmed on other grounds was based on 3 grounds:

 

(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. 0. Anyaduba having transferred all his interest in the land in dispute to Madam Christiana Ibiola in 1932, and the successors to 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.

 

The Notice of Appeal filed pursuant to the leave granted by this Court on 22/5/89, stated that the respondent to the main appeal was now appealing against 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 Law Cap.69 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 that this Tenancy could not be cured by the non-suit order

 

(iv)   the Kola Tenancy between Madam Christiana Ibiola and B. 0. Anyaduba still exists and that Exhibits "A" and "Al" are the agreement of the said Kola Tenancy

 

(v)    it was not necessary to determine the issues raised by the defendant -appellant

 

It is pertinent to mention that the respondent then filed 3 grounds of appeal with particulars which I do not need to set down.

 

The issue raised in the objection is whether the respondent to the main appeal can file a respondent's notice and at the same time file a notice of appeal. In oral argument, Chief Ejike Ume contended that it could not. He referred to the provisions of Order 8 Rule 3(1) of the Supreme Court Rules, 1985 contending that that subsection starts with who not having appealed.

 

For his part Mr. G.R.I. Egonu, S.A.N., learned counsel to the respondent submitted that a respondent notice and a cross-appeal can co-exist. He relied on decisions of this Court such as Adedapo Adekeye and 0rs. v. Akin Olugbade (1987) 3 N.W.L.R. (Pt.60) 214, 286; EIiochin v. Mbadiwe (1986) 1 N.W.L.R. (Pt. 14) 47; Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987)1 N.W.L.R. (Pt.49) 284. This matter raises the question as to the proper meaning of Order 8 Rule 3 of the Supreme Court Rules, 1985. The provisions of that order need to be set down here. They are as follows:

 

8.3(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. (italics mine)

 

It was under Order 8 Rule 3(2) that the respondent filed the respondent's Notice. In a recent decision of this Court, Williams v. Daily Times of Nigeria Ltd. (1990)1 N.W.L.R. (Pt.124) I the question of the meaning of Order 8 Rule 3 came for decision, although there part of the issue was whether varied in Order 8 Rule 3(1) was wide enough to include situations where what is desired is a total reversal. On the meaning of Order 8 Rule 3, I expressed the view, which I still hold, that in accordance with settled law and practice in the interpretation of statutes and statutory provisions, Order 8 must be interpreted as a whole. Chief Williams had submitted in that case, and I agreed with him, that Order 8 Rule 3 should be interpreted in the context of order 8 Rule 2 and such as not to impair the efficacy of Order 8 Rule 2.1 would also wish to add that it follows that the subsections of Order 8 Rule 3 have to be read together.

 

Looking at Order 8 Rule 3(1), those words, respondent who not having appealed, seem to me to mean nothing more than that a respondent can only file a respondent's notice if he has not appealed. Order 8 Rule 2 provides as follows:

 

All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called 'the notice of appeal') to he filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.

 

Under Rule 2, therefore, an appeal, which must necessarily include a cross-appeal, is stated to be by way of rehearing and a party dissatisfied with the judgment of the court below files the notice of appeal. if Rule 2 is not to be made less efficacious, a person who has appealed under it cannot proceed to file a respondent's Notice under rule 3. A person who files a respondent's Notice is a person who is not so dissatisfied with the judgment of the lower court as to appeal against it. He accepts the judgment but, through a respondent's notice, desires that it be varied or that it be affirmed on other grounds. I cannot, therefore, see how the respondent's notice can co-exist with a cross-appeal,

 

I have examined the cases to which the learned Senior Advocate made reference and, with respect, they are not authority for the proposition he is urging on this Court. For instance in the Akin 0lugbade case (supra) this Court decided that where a respondent wants a complete reversal of the decision of the lower Court he ought to file a cross-appeal instead of respondent's notice. See Summonu v. Ashote (1975)1 N.M.L.R. 16. The Court further held that a respondent's Notice under Order 8 Rule 3 postulates that the approach of the Judge or Court of Appeal as the case may be was correct but that his conclusion had adversely affected the respondent who then files a respondent's notice. The authorities have always kept them separate. I am not unmindful of the fact that this Court granted the respondent leave to file the notice of appeal. I am satisfied, however, that that grant was made on the assumption that the respondent will choose between the notice of appeal and the respondent's notice earlier filed. In fact the sum total of the notice of appeal and the respondent's notice filed by the respondent in this matter is to challenge the judgment of the Court of Appeal even more vigorously than the appellants on record!

 

In the circumstances, I would sustain this objection. I abide by all the Orders made by my learned brother, UWAIS, J.S.C., in this matter.

 

Judgement Delivered by

Karibi-Whyte. J.S.C.

 

I have had the privilege of a preview of the ruling of my learned brother, Uwais, J.S.C., and I agree with his conclusion. I do not consider it necessary to add to his reasoning.

 

I adopt the order for costs awarded.

 

Judgement Delivered by

Agbaje. J.S.C.

 

 The short point involved in this Ruling is whether a respondent to an appeal can properly file a Notice of Appeal (Cross Appeal) under Order 8 Rule 2(1) of the Supreme Court Rules, 1985 and at the same time file a Notice of Intention to contend in the appeal that the decision of the court below be affirmed on grounds other than those relied upon by the court, pursuant to Order 8 Rule 3(2) of the same Rules.

 

A Notice of Appeal under Order 8 Rule 2(1) against a judgment postulates that the party giving the Notice of Appeal is not satisfied with that judgment and he wants it varied either wholly or in part. On the other hand a notice by the respondent of intention to contend that the judgment be affirmed on grounds other than those relied on by the court below under Order 3(2) posits that the respondent is satisfied with that judgment and intends to retain it in its entirety.

 

It behoves me at this stage to set down the relevant rules, i.e. Order 8 Rule 2(1) and Order 8 Rule 3 of the Rules of the Supreme Court, 1985:

 

0.8 r.2(1) "All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called 'the notice of appeal') to be filed in the Registry of the court below which shall set forth the grounds of appeal, state whether the whole or part of the decision of the court below is complained of (in the latter case specifying such part) and state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service."

 

0.8 r.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 the court below 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."

 

It will be seen that under Order 8 Rule 2(1) a Notice of Appeal is contemplated whether the whole or a part only of the decision of the lower court is complained of. Whereas as regards Order 8 Rule 3(1) and (2) the Notice that is contemplated is in respect of the decision as a whole.

 

A Notice under Order 8 Rule 3(1) is asking that the decision should be varied. But as this court has said in L.C.C. v. Ajayi (1970)1 All N.L.R. 291;

 

Oyekan v. B.P. Nig. Ltd. (1972)1 All N.L.R. (Pt.l) 45 at 47 and 48; Continental Seaways Ltd. V. Nigerian Dredging Road & General Works Ltd. (1977) 5 S.C. 235 at 247; L.C.C. v. Ogundemuren Suit No. SC.355169 decision given on 25/1 1/71 and more recently Adekeye v. Akin-Olugbade (1987)6 S.C. 268; (1987)2 N.W.L.R. (Pt.60) 214 and Ogurna Associated Co. Nig. Ltd. v. I.B.W.A. (1988)1 N.W.L.R. (Pt.73) 658; where a party is seeking to set aside a finding which is crucial and fundamental to a case he can only do so through a substantive Cross Appeal and not by an application to vary by a Respondent's Notice under Order 8 Rule 3(1). The scope of Order 8 Rule 3(1) appears to have been settled by L.C.C. v. Ajayi (supra) thus:-

 

Manifestly therefore the rule itself envisages cases in which although a cross-appeal is desirable yet the notice under Order 7' rule 13(1) may as well be appropriate.

 

The result of the enquiry therefore is that the notice under Order 7, rule 13(1) applies where a particular point in the appeal of the appellant is being stretched by the respondent who contends for its maintenance but proposes a variation of it if that be the only way by which he could be enabled to retain the judgment.

 

The above decisions are concerned with the interpretation of Order 8 rule 3(1) and Order 8 rule 2(1). So the facts in those cases are not on all fours with those in this case which is concerned with the construction of Order 8 rule 3(2) vis-a-vis Order 8 rule 2(1). But as I will show presently the decision in this case will be of assistance in the determination of the preliminary objection the subject matter of this ruling.

 

It appears to me that when as regards Order 8 rule 3(1) it is stated that, on the authorities, the respondent, giving the notice under the rule and who is contending for the maintenance of the judgment, proposes a variation of it in order to retain it, it is implied that the respondent intends to retain at least the whole of the judgment.

 

Now turning to Order 8 rule 3(2) it appears to me that the provisions therein relate to the whole of the decision of the court below in respect of which the respondent desires to contend on the appeal that it should be affirmed on grounds other than those relied upon by that court. It is difficult if not impossible to read into the provisions of Order 8 rule 3(2) that they will apply whether the respondent desires to affirm the whole or a part only of the decision of the court below on grounds other than those relied upon by that court. If it were the intention of the makers of the Rules that this should be so they would have said, as they do as regards a Notice of Appeal under Order 8 rule 2(1), that the respondent should state whether the whole or a part of the decision of the court below should be affirmed on grounds other than those relied upon by that court and that in the latter case the respondent should specify such part. But there is nothing like this in Order 8 rule 3(2). In fact the relevant Form-Form 18-is as follows:

 

FORM 18

In the Supreme Court of Nigeria Notice of Intention to Contend that Judgment should be affirmed on grounds other than those relied on by the Court below (Order 8, Rule 3)

Between ...................... Appellant

and

.................................. Respondent

TAKE NOTICE that upon the hearing of the above appeal the Respondent intends to contend that the decision of the Court of Appeal dated the day of 19 shall be affirmed on grounds other than those relied on by the court below.

 

AND TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:

 

1.

2.

3. etc.

DATED .............. this day of ..................... 19....

.........................

Respondent

 

It is for the above reasons that I have come to the conclusion which I have expressed earlier on in this ruling that a notice by a respondent under Order 8 rule 3(2) posits that the respondent is satisfied with the judgment or decision as a whole and intends to retain it in its entirety.

 

It therefore appears to me that for a respondent to file a Notice of Appeal (Cross Appeal) under Order 8 rule 2(1) of the Rules of this court against the judgment of the lower court, which necessarily implies that the respondent is asking for some variation of the judgment and at the same time to give notice of intention to contend that the same judgment be affirmed on grounds other than those relied upon by the lower court, which, in my judgment, implies that the whole of the judgment or decision should be left intact, savours of ambivalence.

 

I must set down the notice filed by the respondent under Order 8 rule 3(2) and the Notice of Appeal given by the respondent under Order 8 rule 2(1). The contents of the former are as follows:

 

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 interests in the land in dispute.

 

(2)    That the late B.O. Anyadaba 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 5th day of November, 1986.

 

It is to be observed that the grounds upon which the respondent relies for its contention that the decision should be affirmed on grounds other than those relied upon by the court below relate to the decision as a whole and not to a part of the decision. This is so even though the grounds cover only some aspects of the whole case.

 

The Notice of Appeal under Order 8 rule 2(1) given by the respondent states as follows:

 

TAKE NOTICE that the defendant-appellant being dissatisfied with that part of the decision more particularly stated in paragraph 2 of the Court of Appeal, Enugu Judicial Division, contained in the judgment of the Court of Appeal dated the 19th day of June, 1986, doth hereby appeal to the Supreme Court upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

 

And the defendant-appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in para. 5.

 

(2)     Part of the decision of the lower court complained of:

 

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.69 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 that this could not 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 'Al' are the agreement of the said Kola Tenancy

 

(v)    it was not necessary to determine all the issues raised by the defendant-appellant.

 

(3)     Grounds of Appeal:

 

(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 'Al')

 

(b)    whether or not Madam Christiana Ibiola's Kola Tenancy was for life

 

(c)    the existence of any further relationships 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

 

(1)    That the defendant-appellant has the constitutional right to a determination of all the issues 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.

 

The Notice of Appeal says that it is challenging part of the decision of the lower court. To that extent it is saying that those parts of the decision which the respondent is challenging should be varied. If those parts of the decision are crucial and fundamental to the case of the respondent, it is clear on the authorities that the respondent can only properly challenge those parts of the decisions through a substantive cross appeal, as they have now done, and not by a respondent's Notice under Order 8 rule 3(1) even where the respondent wishes to retain the whole of the decision of the court below as it is the case here. For the relief sought in this court in the Notice of Appeal by the defendants (the respondents) is that the judgment of the Court of Appeal dismissing the plaintiffs' (the appellants') claims in toto should be affirmed.

 

It seems to me inconceivable that the respondent having filed a Cross Appeal under Order 8 rule 2(1) could at the same time ask this court to entertain a respondent notice under Order 8 rule 3(1) to vary the judgment just because the respondent intends to retain the judgment. As Coker, J.S.C., put it in L.C.C. v. Ajayi (supra) Order 8 rule 3(1) envisages cases where a Cross Appeal is desirable yet a Notice under Order 8 rule 3(1) may as well be appropriate.

 

In my view the provisions of Order 8 rule 3(2) envisages only cases in which the respondent intends to contend that the whole of the decision of the court below should be affirmed on grounds other than those relied upon by that court and they do not cover any case where the respondent intends to vary the decision of the lower court either through a Notice of Appeal or by a respondent's Notice under Order 8 rule 3(1). It is, in my view, untenable to suggest that a respondent, as regards the same judgment, can file a respondent's Notice of intention to contend that the judgment be varied under Order 8 rule 3(1) and at the same time give a respondent's Notice under Order 8 rule 3(2) that the judgment be affirmed on grounds other than those relied upon by the trial court. As I have just said Order 8 rule 3(1) envisages cases where a Cross Appeal is desirable yet a notice under Order 8 rule 3(1) may as well be appropriate. So a notice under Order 8 rule 3(1) and a notice of appeal under Order 8 rule 2(1) have the same objective, namely, variation of a judgment or decision.

 

The conclusion I reach, therefore, is that a Notice of Appeal under Order 8 rule 2(1) (Cross Appeal) by a respondent and a Notice under Order 8 rule 3(2) by a respondent of his intention to contend that the judgment of the lower court be affirmed on grounds other than those relied upon by that court cannot mutually co-exist in respect of the same judgment. In my judgment therefore the Notice by the respondent under Order 8 rule 3(2) and the respondent's Notice of Appeal (Cross Appeal) under Order 8 rule 2(1) in this appeal cannot mutually co-exist. Apparently the respondent's Notice in the appeal was filed as of right under order 8 rule 3(2). The respondent's Notice of Appeal (Cross Appeal) was filed pursuant to the leave of this court granted to the respondent to do so under Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979. So, the Notice of Appeal in my judgment has some semblance of propriety. But, as I have just said, the Notice of Appeal cannot mutually co-exist with the respondent's Notice. I will therefore leave it to counsel for the respondent to elect as between the two which he would wish to prosecute.

 

Having however held that the Notice of Appeal filed by the respondent under Order 8 rule 2(1) has some semblance of legality I cannot uphold the plaintiffs'/appellants' application to strike it out on the ground that it is incompetent.

 

For the above reasons and the fuller reasons given in the lead Ruling of my learned brother, Uwais, J.S.C., which I have had the opportunity of reading in draft, I too agree with the conclusions reached in the ruling.

 

 

Counsel

 

Dr. Ejike Ume

 

For the Appellants

G.R.I. Egonu

 

For the Respondent