PETGAS RESOURCES LIMITED v. LOUIS N. MBANEFO(2017)

PETGAS RESOURCES LIMITED v. LOUIS N. MBANEFO

In The Supreme Court of Nigeria

On Friday, the 30th day of June, 2017

SC.358/2007

RATIO

PURPOSE OF PRELIMINARY OBJECTION AND IT’S EFFECT WHERE SUCCESSIVELY TAKEN

I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondents brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673) 469. In other words it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense. Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:- “The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be. Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:- “A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.” The same foregoing principle of law was applied also in the case of Alege v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:- “However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.” Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237;and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603. On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore,it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation. In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. Nda (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney -General, Federation (2007) All FWLR (Pt. 367), 834. The Blacks Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary. PER CLARA BATA OGUNBIYI, J.S.C.

CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR EXTENSION OF TIME TO APPEAL

The law, in the circumstance will avail the appellant only upon trinity prayers for leave for an extension of time within which to file the notice of appeal under Order 2 Rule 31 of the Rules of this Court which states:- “31(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice. Provided – – – – – — – – – – – — -.” I wish to point out also that the granting of such an application is subject to Subsection (2) of the foregoing Order 2 Rule 31 of the Rules of Court. It is not a matter of course but is at the discretion of the Court to be exercised judicially and judiciously and must be predicated on a good and substantial reasons to be given by the appellant for the failure to appeal within the period allowed by law. The facts must all be deposed to in an affidavit in support of the application PER CLARA BATA OGUNBIYI, J.S.C.

POSITION OF THE LAW ON HOW TO COMPUTE THE PERIOD WITHIN WHICH TO FILE AN APPEAL AGAINST A JUDGMENT

In the case of Chief Ujile D. Ngere & Anor V. Chief Job William Okuruket XIV & Ors (2014) 5 SC (Pt. 11) 1, this Court held that the Constitutional right of appeal is available to an applicant only if the notice of appeal was filed within three months of the judgment sought to appeal and not outside the time limit. The appellant herein had failed to seek such leave from this Court for an enlargement of time to appeal. This is the only available channel open to the appellant and which cannot be side tracked. The periods prescribed for the giving of notice of appeal to this Court in civil cases are stipulated in Section 27(2) of the Supreme Court Act Cap 424 Laws of the Federation of Nigeria 1990. Same had reproduced earlier in the course of this judgment. It is crystal clear that the period prescribed by law for the giving of notice of appeal to this Court is three months in an appeal against a final decision of the Court of Appeal. From the line of authorities, it is firmly established that, although the computation of any period within which to do any act must in individual cases depend on the intention of the law makers as can be gathered from the relevant legislation, as a general rule, the date of the event from which the calculation must commence is normally excluded from the reckoning and, consequently, the last day will be included. See Radcliffe V. Batholomai (1892) 1 QBD 161: Gelmini V. Moriggia (1913) 2 KB 549 and Marren V. Dowson Bentley & Co. Ltd. (1961) 2 KB 135. See also Section 15(2)(a) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990, wherein it provides thus: “15(2) A reference in an enactment to a period of days shall be construed:- (a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs.” It is common ground that the decision of the Court below appealed against was delivered on the 3rd May, 2006. Accordingly, in computing the period for the filing of the appeal against that judgment, the date 3rd May, 2006 on which the Court of Appeal delivered its judgment must be excluded. Consequently, the calculation must commence on the 4th May,2006 and three months from that date would ordinarily end on 3rd August, 2006. Thus, by filing the notice of appeal on 21st August, 2006, it is 20 clear days outside the period allowed by law. See the case of Azeez Akeredolu and Ors V. Lasisi Akinremi (1985) 2 NWLR (Pt. 10) 787 a full Court decision of this Court. PER CLARA BATA OGUNBIYI, J.S.C.

EFFECT OF NON-COMPLIANCE WITH THE STATUTORY REQUIREMENTS PRESCRIBED BY THE RELEVANT LAWS UNDER WHICH APPEALS MAY BE COMPETENTLY AND PROPERLY BROUGHT BEFORE THE COURT

I wish to restate further and with emphasis that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to entertain the appeal. See Kudiobor V. Kudanu 6 WACA 14. Failure to meet the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate Court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate Court of jurisdiction. See in support the cases of Oranye V. Jibowu (1950) 13 WACA 41 and Ohene Moore V. Akese Tayee 2 WACA 43 whereby the Judicial Committee of the Privy Council was concerned, not with any extension of time but with failure by the appellant to fulfill certain statutory conditions requisite for the purpose of the appeal. PER CLARA BATA OGUNBIYI, J.S.C.

JUSTICES

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

PETGAS RESOURCES LIMITED Appellant(s)

AND

LOUIS N. MBANEFO Respondent(s)

CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): This is an appeal lodged against a judgment of the Lagos Division of the Court of Appeal, (henceforth, “the Court below”). The said Court, on 3rd May, 2006, dismissed the appeal of the Appellant herein (Defendant in the High Court), against a judgment of the High Court of Lagos State entered in favour of the Respondent (as Plaintiff therein) under Order II of the High Court of Lagos State (Civil Procedure) Rules, 1994. The said judgment of the High Court of Lagos State is in the sum of N1,375,000 (One Million, Three Hundred and Seventy-Five Thousand Naira) with interest thereon at the rate of 21% per annum from 13th October, 1995 until judgment and, thereafter, at the rate of 5% until the judgment debt is liquidated.

STATEMENT OF FACTS
By a specially endorsed Writ of Summons and a Statement of Claim dated and filed on 28th May, 1999, the Respondent herein claimed against the Appellant, the sum of #1,500,000 (One Million, Five Hundred Thousand Naira) as Mesne Profit for the Appellants occupation of the Respondents Property at 7A, Idejo Street,

Victoria Island, Lagos, for the period of 13th October, 1995, to 28th July 1998 at the rate of N500,000 (Five Hundred Thousand Naira) per annum. The Respondent also claimed interest on the said sum at the rate of 21% per annum from 13th October, 1995, to the date of judgment and, thereafter, at the rate of 5% per annum until final liquidation of the sum.

The Respondent’s case, as disclosed in his statement of claim, is founded on a Deed of sublease dated 10th February 1989. Under and by virtue of the said Deed of sublease, the Respondent granted a 3 (three) year lease of the property at 7A,Idejo Street, Victoria island, Lagos to the Appellant. Upon expiration of the term granted under the said lease, same was extended for a further period of 3 (three) years from 14th October, 1992, to 13th October 1995, with the appellant paying, in advance, rent in the aggregate sum of N1,500,000 (One Million, Five Hundred Thousand Naira) for the said 3 (three) years. The respondent’s case was that, upon expiry of the extended period of the lease, the Defendant/Appellant refused to accept either an increase in the rent, or to vacate the said property, and continued

to occupy same without paying rent until it vacated the property on 28th July, 1998. The respondent, accordingly, claimed Mesne Profit for that period.

The Appellant entered appearance on 7th June, 1999 where after the Respondent filed a summons for judgment dated 20th August 1999. The appellant, subsequently, filed a Statement of Defence dated 16th Septem6er, 1999 and an Affidavit showing cause on 12th October,1999, which said Affidavit, encapsulated its defence to the claim.

At the hearing of the summons for Judgment, the appellant contended that triable issues were raised both in its affidavit showing cause and the statement of Defence. In particular, it was the appellants contention to secure its immediate return of possession to the respondent so as to enable it give vacant possession of the premises forming the subject-matter of the suit to the respondent.

In a judgment delivered on 23rd December, 1999, the learned trial judge found no merit in the argument of the appellant and held that the respondent was entitled to judgment in the sum of N1,375,000 (One Million, Three Hundred and Seventy-Five Thousand Naira) plus

interest on the said sum at the rate of 21% from 13th October, 1995, until judgment and thereafter at 5% until the judgment debt is paid.

The Appellant challenged the judgment of the trial Court at the Court below on the grounds that it ought to have been allowed to defend the action on the merits and that there was no evidence before the Court to sustain the award of pre-judgment interest on the sum claimed, at the rate of 21% per annum from 30th October, 1999 (sic) to the date of judgment being 23rd December, 1999.

The Appellant on its own application, was, thereafter, granted leave by the Trial Court to Pay instalmentally, the Principal judgment sum of N1,375 (One Million, Three Hundred and Seventy-Five Thousand Naira) with interest thereon at the rate of 5% from the date of judgment to final liquidation, while it contested on appeal to the Court below, the award of pre-judgment interest.

The issue before the Court below was:-
“Whether the learned trial Judge was right to award interest on the sum claimed by the Plaintiff at the rate of 21% per annum from 30th October, 1995 till the date of judgment being 23rd December,

1999

The Court below dismissed the appeal on the basis that a Court can award interest as a consequential order. In arriving at its decision, the lower Court concluded that “some mercantile usage” was disclosed between the Respondent and the Appellant to justify the award of pre-judgment interest to the Respondent The Court went further to hold that the finding of the Trial Court on the issue of pre-judgment interest was a finding of fact, in respect of which it would not interfere.

In the appeal before us and in compliance with the Rules of Court, the following briefs were filed and exchanged between the Parties:-
1) The Appellant’s Brief of argument filed 16/1/09 was deemed filed 19/10/09. It was settled by Ayodeji Omotoso, Esq.
2) The Appellant’s Reply Brief was filed also on the 30/11/2010 and settled by the same appellants counsel.
3) Respondent’s Brief of argument filed on the 28/5/2010 was deemed filed on the 29/9/10. It was settled by Chief F.O. Offia.
4) A preliminary objection was filed also on behalf of the respondent by the same counsel Chief F. O. Offia, on 3/4/17.

On April 4, 2017 when the

appeal was heard, both learned counsel representing the parties, adopted and relied on their respective briefs of argument. While Mr. Omotoso urged in favour of allowing the appeal, the learned counsel, Chief Offia urged that the notice of appeal should be struck out as incompetent on the preliminary objection.

In the event the Court overrules the Preliminary objection, the respondent’s counsel impressed for a dismissal of the appeal as it lacks merit.

As a first line of action in this appeal, It is pertinent to dispose of the Preliminary objection raised. This is very necessary because if found successful, it can determine the fate of the entire appeal, prematurely. I seek to State the position of the law also that a notice of Preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondents brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9

NWLR (Pt. 673) 469.
In other words it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring much expense.
Plethora of judicial authorities are overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this Court held:-
“The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a Court of law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross appeal as the case may be.
Also in Rabiu V. Adebajo (2012) All FWLR (pt. 634) 1836 at 1842 this Court said:-
“A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be

taken in the appeal.”
The same foregoing principle of law was applied also in the case of Alege v. Governor Oyo State (2012) All FWLR (pt. 534) 53 or 84 wherein this Court stated the position of the law on the subject succinctly when it said thus:-
“However vague or minute a Preliminary Objection is, it must be first considered before the Court can go forth, since the competence of the process is questioned. It must be resolved so that the Court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.”
Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237;and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603.
On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successively taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore,it

should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation.
In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.
It is incumbent on a Court therefore to out rightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the Court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. Nda (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney -General, Federation (2007) All FWLR (Pt. 367), 834.
The Blacks Law Dictionary, 9th Edition at Page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.

The question

to pose at this juncture is, what is the effect of the preliminary objection raised by the respondent herein

In the case now before us, the nature of the preliminary objection raised and filed on April 3, 2017 is hereby reproduced and reads as follows-
“Take Notice that the Respondent will, Pursuant to Order 2 R9(1) of the Supreme Court Rules 1999 raise, preliminary objection to the hearing of this appeal in that this Honorable Court has no jurisdiction to entertain this Appeal .”

There are two grounds predicating the objection and are:-
1. The appeal was filed out of time.
2. No leave for extension of time to file this appeal was obtained from this Court.

As Stated earlier in the course of this judgment, the appellants reply brief was filed on 30 November, 2010. It will appear from all indication that no further reply brief was filed in response to the preliminary objection which was filed on the 3rd April, 2017. This I say because at the hearing of the appeal on the 4th April, 2017, while the learned counsel for the respondent alluded to the preliminary objection, there was no word or response thereon from the

appellants counsel.

I wish to point out however that at page 3 of the appellants Reply Brief, he did respond to an earlier preliminary objection raised at paragraph h 5.1 at page 5 of the Respondent’s brief of argument. The objection questions the competence of the two grounds contained in the appellants Notice of appeal relating to the present appeal, which the respondent contend do not arise from the ratio decidendi of the Court of Appeals judgment.

In other words, that the grounds do not relate to the issues canvassed in the Court below. I must say without fear of contradiction that the preliminary objection which was responded to and contained in the appellants reply brief of argument has nothing to do with the subsisting objection filed on 3/4/17, which is now the subject of consideration. The appellant did not deem it necessary to respond to the objection. The counsel was present in Court at the hearing of the appeal which he argued himself, but said nothing on the preliminary objection raised. The consequential effect is obvious against the interest of his client.

The lone issue raised in the

preliminary objection is simple and straight forward. In other words, it questions-
“Whether there is a competent Appeal before this Court.”

The brief summary of the respondent’s submission is to the effect that the appellant did not seek and obtain leave of Court to file this appeal which is out of time. In other words before the appellants appeal could be competent in this Court, he ought to have sought for the following trinity prayers- for an order for extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. As a consequence, the learned counsel submits that the appellants Notice of appeal filed 21/8/2006 as well as the amended Notice of appeal containing three grounds of appeal and filed 5/11/2008 are all incompetent and should be struck out; that this Court has no jurisdiction to extend the time prescribed by the Constitution for the appellant to exercise his right of appeal, in the absence of any application.

The judgment of the lower Court which the appellant is seeking to appeal was delivered on 3/5/2006. See page 135 of the record of appeal.

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Section 27 of the Supreme Court Act, provides:-
(1)
(2)The periods prescribed for the giving of notice of appeal or notices of application for leave to appeal are:
(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.”
The notice of appeal filed against the judgment of the lower Court was dated the 3rd May, 2006. It was however filed on 21/8/2006. See page 149 of the record of appeal.
Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides for situations where appeals shall lie from the decisions of the Court of Appeal to this Court as of right.
The appellant herein therefore has a Constitutional right of appeal but that right is circumscribed and must be exercised within three months from the 3rd May, 2006 being a final decision.
With the notice of appeal filed on the 21 August, 2006 therefore, the appellant had failed to file its appeal within the time allowed by law. The appellant in other words, had 3 months to file its notice of appeal from the

judgment of the Court of Appeal delivered on 3rd May, 2006.
As rightly submitted by the learned counsel for the respondent, the last day or date for the Appellant to exercise its right of appeal was at the midnight of 3rd August, 2006. By filing the notice of appeal on 21st August, 2006, the appellant had exceeded the period allowed by law by 20 clear days. The constitutional right of appeal provided by law as of right under Section 233(2) was no longer open to the appellant but had been lost.
The law, in the circumstance will avail the appellant only upon trinity prayers for leave for an extension of time within which to file the notice of appeal under Order 2 Rule 31 of the Rules of this Court which states:-
“31(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.
Provided – – – – – — – – – – – — -.”
I wish to point out also that the granting of such an application is subject to Subsection (2) of the foregoing Order 2 Rule 31 of the Rules of Court. It

is not a matter of course but is at the discretion of the Court to be exercised judicially and judiciously and must be predicated on a good and substantial reasons to be given by the appellant for the failure to appeal within the period allowed by law. The facts must all be deposed to in an affidavit in support of the application
In the case of Chief Ujile D. Ngere & Anor V. Chief Job William Okuruket XIV & Ors (2014) 5 SC (Pt. 11) 1, this Court held that the Constitutional right of appeal is available to an applicant only if the notice of appeal was filed within three months of the judgment sought to appeal and not outside the time limit.
The appellant herein had failed to seek such leave from this Court for an enlargement of time to appeal. This is the only available channel open to the appellant and which cannot be side tracked.
The periods prescribed for the giving of notice of appeal to this Court in civil cases are stipulated in Section 27(2) of the Supreme Court Act Cap 424 Laws of the Federation of Nigeria 1990. Same had reproduced earlier in the course of this judgment.

It is crystal clear that the period prescribed

by law for the giving of notice of appeal to this Court is three months in an appeal against a final decision of the Court of Appeal. From the line of authorities, it is firmly established that, although the computation of any period within which to do any act must in individual cases depend on the intention of the law makers as can be gathered from the relevant legislation, as a general rule, the date of the event from which the calculation must commence is normally excluded from the reckoning and, consequently, the last day will be included. See Radcliffe V. Batholomai (1892) 1 QBD 161: Gelmini V. Moriggia (1913) 2 KB 549 and Marren V. Dowson Bentley & Co. Ltd. (1961) 2 KB 135. See also Section 15(2)(a) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990, wherein it provides thus:
“15(2) A reference in an enactment to a period of days shall be construed:-
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs.”
It is common ground that the decision of the Court below appealed against was delivered on the 3rd May, 2006. Accordingly, in computing the period for the

filing of the appeal against that judgment, the date 3rd May, 2006 on which the Court of Appeal delivered its judgment must be excluded. Consequently, the calculation must commence on the 4th May,2006 and three months from that date would ordinarily end on 3rd August, 2006. Thus, by filing the notice of appeal on 21st August, 2006, it is 20 clear days outside the period allowed by law. See the case of Azeez Akeredolu and Ors V. Lasisi Akinremi (1985) 2 NWLR (Pt. 10) 787 a full Court decision of this Court.
I wish to restate further and with emphasis that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to entertain the appeal. See Kudiobor V. Kudanu 6 WACA 14.
Failure to meet the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate Court could lawfully entertain. Such irregularity can by no means be regarded as

mere technicality but constitutes an incurable defect that must deprive the appellate Court of jurisdiction. See in support the cases of Oranye V. Jibowu (1950) 13 WACA 41 and Ohene Moore V. Akese Tayee 2 WACA 43 whereby the Judicial Committee of the Privy Council was concerned, not with any extension of time but with failure by the appellant to fulfill certain statutory conditions requisite for the purpose of the appeal.
The purported notice of appeal filed on 21st August, 2006 was out of time, and no leave was sought and obtained through trinity prayers for an extension of time within which to appeal for purpose of regularizing the defective documents. The consequential effect is, there is no valid appeal before this Court. Therefore, in the absence of any initial valid and competent notice of appeal filed, any subsequent amendment of such an incompetent document will in no wise validate the former.
The foundation is incurably defective and cannot be cured by any subsequent amendment. You cannot build something on nothing and expect it to stand. The entire structure, if any will surely collapse. The purported initial notice as well as the

amended Notice of appeal filed by the appellant in the purported exercise of the right of appeal against the decision of the lower Court are all incompetent and cannot be covered by Section 233 of the Constitution . See the decision in Auto Import Export V. Adebayo & Ors (2002) 12 SC (Pt. 1) 158. See also Sken Consult V. Ukey (1980) 1 SC 6 at 26.
In the result and on the totality of the notice of preliminary objection raised by the respondent, same I hold is upheld and sustained. With there being no valid and competent notice of appeal filed before this Court therefore, the purported attempted notice filed on 21/8/2006 is hereby struck out for incompetence.

With costs following events, I will assess the sum of N500, 000.00k as adequate in favour of the respondent.

The Notice of appeal filed on 21/8/2006 as well as the amended Notice of appeal filed 5/11/08 are both struck out for incompetence with N500, 000.00k costs in favour of the respondent.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree entirely with the judgment just delivered by my learned brother, Clara Bata Ogunbjyi JSC, and in

support of the reasonings, I shall make some remarks.

This is an appeal against the judgment of the Lagos Division of the Court of Appeal hereinafter referred to also as Court below or Lower Court which Court dismissed the appeal the appellant who was defendant in the High Court.

The facts of the case are gleaned from the pleadings the High Court of Lagos State thus:-
THE FACTS:
In the Lagos High Court, the Respondent claimed from the Appellant:-
1. The sum of 1,500,000.00m being mesne profits for the period 13/10/95 to 28/7/98 for the appellant’s occupation of a dwelling house situate at No.7A Idejo Street, Victoria Island, Lagos at the rate of #500,000 per annum.
2. Interest on the said sum of #1,500,000.00 at the rate of 21% per annum from 13/10/95 to the date of judgment and thereafter at the rate of 5% Per annum.

In the statement of claim, the plaintiff/respondent sought the certain reliefs:-
He alleged that by virtue of a Deed of Sublease dated the 10th February 1989 the respondent granted a 3 year lease to the appellant which was extended for a further 3 years from 14/10/92 to 13/10/95. Rent of

N1, 500,000.00 was paid in advance for the said three years. The respondent pleaded in paragraph 10 of the statement of claim that on expiry of the extended lease on the 13/10/95, the appellant refused either to accept an increase in the rent or to vacate the said property for almost three years.

The respondent stated that had the appellant been alive as to his obligations, he would on the expiration of the extended sublease on the 13th October 1995 have paid a rent substantially more than the #500,000.00 per annum paid for the three years fixed by the aforesaid Deed of Sublease entered into several years earlier. However, despite his entitlement to a higher rent (mesne profit), the respondent limited his claim to N500,000.00 per annum.

In Its Amended Statement of Defence filed on the 16th September 1999, the appellant alleged that the respondent had waived the three years mesne profits on condition that the appellant vacated the premises. No evidence of the alleged waiver was tendered and it was the only defence raised by the appellant.

By a Summons on Notice dated the 20th August 1999 brought under Order 11, Rules 1 & 2

of the Lagos High Court Rules, the respondent sought an order entering final judgment against the appellant. The appellant filed on the 12th October 1999 an “Affidavit Showing Cause in opposition to the said Summons.

The aforesaid Summons was argued before Rhodes-Vivour J. of the Lagos High Court (as he then was) on the 15th December 1999 and his judgment was delivered on the 23rd December 1999.
The learned trial judge held thus:-
It is settled law that a Court cannot give more than is claimed in the Statement of Claim without an amendment to the said process and in this case there is no amendment.
In the instant case, the defendant occupied the premises illegally for 2 years and 9 months, i.e. from 13/10/95 to 28/7/98. By arithmetical calculation that adds up to #1,375,000.00 (One Million, Three Hundred and Seventy Five Thousand Naira).
Interest is claimed 13/10/95 at the rate of 21% per annum. The basis of an award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly. See Harbutts plasticine

Ltd v Waynetank & Pump Corporation Ltd(1970) AER 225. The sum of #1,375,000.00 was due as at 13/10/95. It ought to attract interest. Accordingly judgment is entered for the plaintiff against the defendant in the sum of #1,375,000 (One Million, Three Hundred and Seventy-Five Thousand Naira) plus interest at 21% from 13/10/95 until judgment and thereafter at 5% until the judgment sum is paid. (The underlining is mine).

Against the said judgment, the appellant filed two grounds of appeal. The first ground was that the learned judge erred in law in entering judgment for the respondent despite conflicts in the affidavit tendered by the parties. The second ground was that the learned Judge erred in law when he held that the plaintiff was entitled to interest on the judgment sum from 13th October, 1995 to the date of judgment i.e. 23rd December 1999 at the rate of 21% per annum.

On the 4th day of April, 2017 date of hearing, learned counsel for the appellant, A, O. Omotoso Esq. adopted its brief of argument, filed on 16/1/09 and deemed filed on 19/19/09 and a reply brief of argument, the appellant identified two issues for determination which

are as follows:-

The appellant submits the following issues as arising for determination by this Court in this Appeal:
1. Whether the Court below was correct in holding that the respondents claim for prejudgment interest had been properly established before the Trial Court. (This issue arises from Grounds 1 and 2 of the Amended Notice of Appeal dated 31st October, 2008).
2. Whether, in all the circumstances of the case, the Court below was correct to treat the entitlement of the respondent to the award of pre-judgment interest as a finding of fact made by the learned trial Judge, in respect of which the Court of Appeal would not intervene, which there was no evidence produced before the said learned trial judge upon which such a finding of fact could be said to have been made. (This issue arises from Ground 3 of the Amended Notice of Appeal dated 31st October, 2008).

Learned counsel for the respondent, Chief F. O. Offiah adopted his brief of argument filed on 28/5/2010 and deemed filed 29/9/10. He filed a Preliminary Objection on 3/4/17 contesting the competence of the appeal on the ground that the appeal was filed out of time

and no leave for extension of time sought to regularise the said appeal thereby robbing this Court of jurisdiction to entertain the appeal.

From the record the respondent raised a single issue in the brief of argument in the event of the failure of the preliminary objection and that issue is thus:-
Whether the Court of Appeal was correct in upholding the award of interest at 21% per annum by the lower Court

It is stating the obvious in saying that the Preliminary Objection has to be tackled first since the jurisdiction of this Court is dependent on the answer to the said Objection.

PRELIMINARY OBJECTION:
The respondent/objector framed a single issue in this Objection, thus:-
Whether there is a competent Appeal before this Court
Canvassing the position of the Objector, learned counsel contended that the appellant filed a Notice of Appeal dated 3rd August, 2006, against the judgment of the Court below on 21st August, 2006 a clear 18 days prescribed which was outside the 14 days allowed being an interlocutory appeal. Also the appeal on the substantive appeal was beyond the three months stipulated.

He cited Section 27 of the Supreme Court Act. Also that no leave for extension of time was sought or obtained for this out of time filing of the appeal and so the competence of the appeal was lost. He cited Chief Ujile D. Ngere & Anor v Chief Job William Okwuket XIV & Ors (2014) 5 SC (Pt.1) 1; Section 233 of the Constitution; Auto Import Export v Adebayo & Ors (2002) 12 SC (Pt.1) 158 that the Notice of Appeal should be struck out.

For the appellant it was contended that the preliminary Objection should be discountenanced, the arguments being contained in the respondent’s brief of argument and so not properly raised. He cited Odedo v INEC (2008) 17 NWLR (Pt.1117) 554 at 598.

It is to be noted that Section 27 of the Supreme Court Act provides as follows:-
27 (2) “The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision”.
In the case at hand, the Judgment at the Court of Appeal on the 3rd May, 2006 but the appellant

filed the appeal on the 21st August, 2006 which is 18 clear days outside the period allowed by law. The palliative for the lapse in time was for the appellant to apply for extension or enlargement of time within which to do that which ought to have been done within the three months for the filing of the appeal in keeping with Order 2, Rule 3 of the Supreme Court Rules. This failure to seek leave for extension of time within which to appeal produced the effect of there not being a valid appeal before Court and so when the appellant filed an amended Notice of Appeal, it was to amend a non-existent appeal as what he had filed earlier already incompetent in line with the provisions of Section 233 of the Constitution. I place reliance on Chief Ujile D. Ngere & Anor v. Chief Job William Okwuket XIV& Ors (2014) 5 SC (Pt. 1); Auto Import Export v. Adebayo & Ors (2002) 12 SC (Pt.1) 158.
The reality on ground is that with the incompetence of the appeal, the jurisdiction of this Court has been effectively ousted and there is no question of the Court having the power to extend the time for the appellant to exercise his right of appeal. The implication

on ground is that the amended Notice of Appeal suffers the fate of being dispatched as a void process. It is therefore struck out by me as has been done in the well set out lead judgment.
I abide by the consequential orders made.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, CLARA BATA OGUNBIYI, JSC just delivered, I agree with the reasoning and conclusion that there is merit in the preliminary objection raised by the respondent, which should be sustained.

A Court is said to have jurisdiction to entertain a cause matter when:
“(1) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another;
(2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon the fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect

in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
See: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Tukur Vs Governor of Gongola State (1988) 1 NWLR (Pt. 68) 39; A.G. Kano State vs. Federation (2007) 6 NWLR (Pt.1029) 164.
In the instant appeal, we are concerned with the third factor stated above i.e. whether the appeal before this Court is initiated by due process of law. This appeal is against the final judgment of the Court of Appeal, Lagos Division delivered on 3rd May 2006. In the exercise of the right of appeal conferred by Section 233 of the 1999 Constitution, as amended, an appellant must comply with the provisions of Section 27 of the Supreme Court Act, which provides:
“S.27 (2): The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.”
Failure to file an appeal within the time prescribed, in the absence of an application for

enlargement of time within which to do so, would mean that the appeal is not initiated by due process of law. The defect in competence in such circumstance goes to the root of the competence of the entire appeal. The jurisdiction of the Court to entertain the appeal would be ousted. See: Afribank (Nig) Plc vs. Akwara (2006) 5 NWLR (Pt. 974) 619; Auto Import Export Vs Adebayo (2002) 18 NWLR (Pt.799) 554.
The Notice of Appeal in this appeal was filed on 21/8/2006, clearly outside the 90 days Prescribed by the Supreme Court Act. Order 2 Rule 31(1) & (2) of the Supreme Court Rules empowers this Court to enlarge the time for doing any of the acts to which the Rules apply upon the fulfillment of certain conditions. The applicant must satisfy the Court that there are special or exceptional circumstances to warrant the exercise of the Court’s discretion in his favour. Sub-section (2) sets out what such an application must contain.
In the absence of an application for enlargement of time, a Notice of Appeal filed out of time has no foundation. It is liable to collapse and nothing, such as an amendment of the incompetent process, can stand on it. A

fundamentally defective notice of appeal cannot be cured by amendment. See: Nwaigwe Vs Okere (2008) 13 NWLR (Pt. 1105) 445; FBN Plc VS Maiwada (2013) 5 NWLR (Pt. 1348) 444; Uwazurike Vs A.G. Federation (2007) 8 NWLR (Pt. 1035) 11.
I agree with my learned brother, Ogunbiyi JSC that the Notice of Appeal filed on 21/8/2006, well outside the time prescribed by the Supreme Court Act for doing so is incompetent and the incompetence has robbed this Court of jurisdiction to entertain the appeal. The preliminary objection is therefore sustained. The Notice of Appeal filed on 21/8/2006 and the Amended Notice of Appeal are both incompetent and are hereby struck out.
I award costs in the sum of N500.000.00 in favour of the respondent.

EJEMBI EKO, J.S.C.: This appeal having been filed out of time, as found by my learned brother CLARA BATA OGUNBIYI, JSC, in the Judgment just delivered, is incompetent. The appeal being incompetent is hereby struck out.
Section 27(2) of the Supreme Court Act, 2004 provides –
“(2) The periods prescribed for giving of notice of appeal or Notice of application for leave

to appeal are –
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision”.
The question whether the notice of appeal was given within 3 months against the final decision of the Court of Appeal is clearly one of facts. The Court of Appeal delivered the Judgment the appellant herein purported to appeal on 3rd May, 2006. The notice of appeal was filed on 21st August, 2006 – a period of 110 days from the date the judgment was delivered on 3rd May, 2006. The appeal was filed out of time by no less than 20 days.
The appellant did not contest the preliminary objection predicated on the fact that the appeal was filed out of time. The law is trite that facts not disputed are taken as established. They need no further proof. After all, an admitted fact is the best evidence establishing the fact in issue. The preliminary objection has been made out, and it is accordingly sustained. Consequently, the appellant’s appeal, being incompetent, is hereby struck out notwithstanding the fact that there was filed on 5th November, 2008, upon leave granted, an amended

notice of appeal. All processes or proceedings founded on a notice of appeal that is incompetent and void ab initio are all a nullity. They are incurably bad and cannot be regularised. As Lord Denning, MR, would put it: you cannot place something upon nothing and expect it to stay. See MACFOY v. U.A.C. LTD. (1961) W.L.R. 3; (1951) A.C. 154.

The appeal is hereby struck out. The costs ordered in the Lead Judgment are hereby adopted by me.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the Lead judgment of my learned brother, Clara Bata Ogunbiyi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The Preliminary Objection raised by the respondent is hereby sustained. The Notice of Appeal as well as the amended Notice of appeal filed by the appellant are both struck out for incompetence. I abide by all the orders contained in the Lead judgment.

Appearances