ANYADUBA V. RENOWNED TRADING

• Pages: 238-253

ANYADUBA V. RENOWNED TRADING

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238

ANYADUBA V. RENOWNED TRADING

5

JOHN. C. ANYADUBA

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APPELLANT

V

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10

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NIGERIAN RENOWNED TRADING CO. LTD.

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RESPONDENT

SUIT NO. SC 103/1988.

SUPREME COURT

OF

NIGERIA

OBASEKI,

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J.S.C.

NNAMANI,

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J.S.C.

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15

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UWAIS,

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J.S.C.

KARIBI-WHYTE,

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J.S.C.

AGBAJE,

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J.S.C.

23rd February, 1990.

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Practice and Procedure - Respondent Notice - Different types - Effect.

Appeals - Cross Appeal - Necessity of - Notice of Appeal - Respondent Notice - Can they

co-exist - Order 8 Rule 17 - Applicability -Abuse of court process - Prayer to be granted.

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ISSUES:

1.

How many types of respondent notice are there?

2.

When is it necessary to file a crcx-;s-appeal?

3.

Can a respondent notice and a cross appeal co-exist?

4.

When will Order 8 rule 7 apply?

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5. When is the appropriate time to determine whether the findings which the

respondent seeks to set aside are crucial and fundamental?

6. What is the prayer granted after holding that a procedure is an abuse of court

process.

FACTS:

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The Court of Appeal delivered judgment in a matter involving the parties. The

appellants, dissatisfied with the Court of Appeal judgment delivered on 19/6/86 filed

a notice of appeal subsequently. The respondent filed a respondent's notice con-

tending that the judgment be affirmed on grounds other than those relied upon by

the Court of Appeal. After the briefs of argument had been filed by both parties. The

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respondent then brought a motion applying for extension of time within which to file

a notice of cross-appeal. The application was granted and the notice of cross appeal,

briefs of argument was filed subsequently.

At the hearing of the appeal, the appellants raised a preliminary objection that

the notice of appeal which the respondent filed is incompetent on the ground that

the notice of appeal and the respondent's notice by the same party cannot co-exist.

HELD:

1 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

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0

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grounds other than those relied upon by the Lower - Court as provided by order

8 rule 3(2).

2. 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. The effect of a

cross appeal is to call for the revei

-

sal 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.

239

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NIGERIAN SUPREME COURT CASES

[1990]

1

N.S.C.C.

3.

A respondent's notice to affirm cannot co-exist with a notice of cross-appeal in

the same case.

Where the two notices so exist, as in the present case, an abuse of the process

of the Court has arisen.

4.

Order 8 rule 7 cannot apply where a respondent's notice seeks affirmation of fne 5

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.

This is exactly what the respondent had sought to do in this case.

5.

The Court cannot determine whether the findings which the respondent seeks to

set aside are crucial and fundamental until the appeal is heard.

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6.

The consequence of holding that there is an abuse of the court's process is to

strike out the offending process. In this case, a different panel of Supreme Court

had given the respondent leave to file the notice of cross-appeal. The court held

that it was not proper for the present panel to deny the respondent the right to

appeal by striking out its notice of cross-appeal. The way out of the predicament, 15

the court held was to give election to the respondent to choose which of the

incompatible processes it would like to retain and proceed with the appeal, so

that the other process given up by it may be struck out.

[As to

When to file a cross-appeal and its effect,

see

Moses & Anor. v. Ogunlabi

20

(1975) N.S.C.C. [Vol. 9] 199].

[As to

whether a respondent notice and a cross-appeal can co-exist,

Oguma

Associated Companies (Nig.) Ltd. v. I.B.WA. Ltd.

[1988] N.S.C.C. [Vol.19 pt.1] 395.]

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[As to

the appropriate time to determine whether the findings which the

respondent seeks to set aside are crucial and fundamental,

Otubu

&

Ors. v. Guobadia

[1984] N.S.C.C. [Vol.15] 650.

Nabhan v. Nabhan

[1967] N.S.C.C. [Vol.5] 129.

Omoregie & Ors. v. ldugiemwanye & Ors.

[1985] N.S.C.C. [Vo1.16 pt.11] 838.

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Bornu Holding

Co.

Ltd. v. Bogoco

[1971] N.S.C.C. [Vol.7] 321.

Owoade & Ors. v. Ornitola & Ors.

[1988] N.S.C.C. [Vol.19 pt.1]

CASES REFERRED TO IN JUDGMENT:

1.

Oba Adeyinka v. B.P. Nigeria Ltd.

(1972) 1 All N.L.R. 45.

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2.

Alhaji Sunmonu v. Ashorota

(1975) 1 N.M.L.R. 16.

3.

Chief Adekeye & Ors. v. Akin-Olugbade

(1987) 3 N.W.L.R. 214.

4.

Eliochin (Nig.) Ltd. & Ors. v. Mbadiwo

(1986) 1 N.W.L.R. 47.

5.

Western Steel Works v. Iron Steel Workers Union of Nigeria & Anor.

(1987) 1

N.W.L.R. 284.

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6.

L.C.C. v. Ajayi

(1976)

1

All N.L.R. 291.

7.

L.C.C. v. Ogundemuren,

Suit No. S.C. 335/1969 unreported delivered on 26th

day of November, 1971.

8.

B.E.C.O. Ind. (Nig.) Ltd. v. Madukoh

(1975) 12 S.C. 91.

9.

African Continental Seaways Ltd. v. Nigerian Dredging Roads and General

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Works Ltd.

(1977) 5 S.C. 235.

10.Enang v. Adu

(1981) 11-12 S.C. 25.

11.Dumbo v. ldugboe

(1983)

1

S.C.N.L.R. 29.

12.Oguma Associated

Co.

Ltd. v. I.B.W.A.

(1988) 1 N.W.L.R. 658.

13.A.G.

Oyo State v. Fairlakes Hotel (No.2)

(1989) 5 N.W.L.R. 255.

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14.ER.A. Williams v. Daily Times of Nigeria Ltd.

(1990) 1 S.C.N.J. 1 (1990) 1

W.B.R.N.

Dr. (Chief) Ejike Lime

for the Appellants.

Chief G.R.I. Egonu S.A.N.

(with him

P.C.O. Nwabogu Esq.,)

for the Respondent.