SHA v. GYANG (2020)

SHA v. GYANG

(2020)LCN/15242(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/J/239/2019

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

MOSES DUNG SHA APPELANT(S)

And

CHOLLOM J. GYANG RESPONDENT(S)

RATIO

WETER OR NOT THE TRIAL APPELLATE HIGH COURT HAS THE JURISDICTION TO EXTEND THE TIME TO APPEAL AGAINST ITS DECISION

My concern for now is not on when the Motion was filed, even though it is obvious and as clear as crystal water that the Motion was filed in negation of the statutory period and of course not filed in the appropriate Court. My concern in the main is whether the trial appellate High Court has the jurisdiction to extend the time to appeal against its decision. This is the crux of the matter. There are plethora of decided cases by this Court that pointedly decreed that the trial High Court lacks the competence and jurisdiction to extend the time to appeal against its final decision (Judgment). See the following cases. In the case of SLYVANUS EKEMEZIE V. ANIKOKWU IFE ANACHO AND ORS (2009) LPELR – 8916, this Court per Sanusi JCA as he then was and later Justice of Supreme Court, said thus:
“It is also trite law that of the Court whose decision is sought to be appealed against has no power to extend the time within which to appeal to the Court to which appeal lies. It is the sole discretion of the appellate Court to either extend time to appeal or to grant an extension of time to seek leave to appeal. See IMPREST BAKOLORI PLC V. ABDULAZEEZ (2013) 12 NWLR (Pt. 843) 2007, MBA V. IBE (1999) 4 NWLR (Pt. 597) 97, IBE V ONUORAH (1996) 9 NWLR (Pt. 474) 624.”

WHETHER OR NOT PRELIMINARY OBJECTION GOES TO THE ROOT OF AN APPEAL

I am also aware of the same Court’s advice that where the Preliminary Objection is so fundamental and goes to the root of the appeal as in the instant appeal, it will be proper and justifiable to decline going further in the consideration of the appeal. See ANPP V. THE RETURNING OFFICER, ABIA SENATORIAL DISTRICT (MR FESTUS UKAGWU) (2005) 6 NWLR (Pt. 920) 140,OKONJI V. NJOKANMA (1991) 7 NWLR (Pt. 202) 13, ONYEMEH V. EGBUCHULAM(1996) (Pt. 448) 255, 7UP BOTTLING CO. LTD V. ABIOLA & SONS BOTTLING- CO LTD (2001) 13 NWLR (Pt. 730) 469 AND NEPA V. ANGO (2001) 15 NWLR (Pt. 737) 627. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Appellate Division of the High Court of Justice, Plateau State Jos in appeal No. PLD/J32A/2016 delivered on the 28th day of July, 2017 Coram Hon. Justice David G. Mann AND Hon. Justice N. L. Musa.

The summary of the fact leading to this appeal is that the Appellant Moses Dung Sha as Plaintiff before the Grade I Area Court Du in Jos South Local Government Area of Plateau State sued the Respondent in this appeal claiming title to land lying and situate in Vwusi Kwang village in Jos South Local Government Area of Plateau State. After a full trial, judgment was entered in favour of the Appellant and against the Respondent. Dissatisfied with the outcome of the trial, the Respondent in this appeal contested the judgment at the Appellant Division of the High Court of Justice Plateau State which will be herein after referred to as the lower Court. Upon hearing of the appeal, the learned trial judges of the lower Court in their considered judgment delivered on 28th day of July, 2017 upturn the judgment of the trial Area Court appealed against and found for the Appellant before it in the following terms (see pages 211-222 at 222 of the record of Appeal):
“On the whole, in the light of the reasons adduced in this judgment, we find merit in this appeal. The appeal succeeds and is allowed. The judgment of the lower Court is hereby set aside. That shall be the judgment of this Court.”

Miffed by the outcome of the appeal hence this appeal and upon which this judgment is predicated. Let me put on record that, after the close of hearing of the appeal at the lower Court and before judgment was delivered, the Appellant before the lower Court died. By the Order of the lower Appellate High Court granted on the 2nd day of May, 2019, the name of the demised Appellant was substituted with that of his son Chollom J. Gyang who now is the Respondent in this appeal before this Court.

The notice of appeal filed on the 9th day of May, 2019 by the Appellant has eight (8) grounds of appeal. In paragraph 4 of the said Notice, the Appellant sought for the following relief (see page 321 of the record).
“AN ORDER setting aside the decision of Plateau State High Court sitting on appeal for want of jurisdiction.” The Record of Appeal was transmitted on 21st day of June, 2019 and consequent upon which respective Counsel filed and exchanged their briefs of argument.

The Appellant’s brief of argument is dated and filed on 30th July, 2019. Therein he formulated the following three (3) issues for the determination:
(1) Whether the lower Court sitting on appeal has jurisdiction when it delivered judgment outside the 90 constitutional days and without an Appellant known to law (Grounds 1 and 2)
(2) Whether the principle of estoppel per rem judicata applies in the circumstance and to the facts of case to rob the trial Court of the jurisdiction (Grounds 3 and 4)
(3) Whether the Appellant as Plaintiff before the trial Court proved his case with definitive certainty having predicated part on traditional evidence and part on Exhibit ”A”. (Grounds 5, 6 and 7)

The Respondent’s learned Counsel in his brief of argument dated and filed on the 13th day of September, 2019 formulated the following four issues for the determination of the appeal.
(1) Having regard to the current position of the law regarding the superior Court’s interpretation of Section 294 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), whether the mere fact that judgment was delivered outside 90 days, due to a fault not attributed to the Respondent, automatically renders the judgment a nullity ab initio. (Ground 1)
(2) Having regard to the fact that the res in the litigation, subject matter of this appeal, is/and which survives the death of the parties (being an action in rem), whether the death of the Respondent’s father, which was unknown to the lower Court as well as his Counsel as at the date of delivery of the judgment automatically renders the judgment a nullity when the deceased has not been substituted with the Respondent herein (Ground 2)
(3) Having regard to the settled principle of law on the application of res judicata, whether the lower Court was not right when it set aside the decision of the trial Court for its failure to give effect to Exhibit “A”, the judgment of the Area Court Bukuru (Ground 3)
(4) Having regard to the totality of the evidence on the record whether the lower Court was right in its decision that the trial Court’s decision is perverse (Grounds 5, 6 and 7)

Not the foregoing alone, the Respondent also incorporated in his brief a Notice of Preliminary Objection challenging the competence of the appeal, as well as the jurisdiction of the Honourable Court to entertain same. The ground of objection is:
“No valid leave was sought and obtained before the filing of the Notice and Grounds of Appeal, thereby rendering the entire appeal incompetent.”
PARTICULARS OF OBJECTION
(i) The time limit for the filing of appeals is statutory as contained in Section 24 of the Court of Appeal Act.
(ii) Where the statutory time to appeal has elapse, only the Court of appeal may extend such time.
(iii) This Court has not extended any time for the Appellant to file any Notice and Ground of appeal.

The argument of the Respondent on the Preliminary Objection is contained in pages 5-6 of the Respondent’s brief. The Appellant’s response to the Objection is contained in the Appellant’s Reply Brief dated and filed on 8th day of October, 2019. Respective Counsel also adopted their brief of argument for and against the Preliminary Objection. This appeal, therefore will be considered and determined in this order. First, I will determine the Notice of Preliminary Objection and the appeal thereafter.

On behalf of the Respondent, it is argued that the time limit for the filing of appeal is statutory as provided for under Section 24 of the Court of Appeal Act. He added that in appeals of this nature the time allowed within which to appeal is three (3) months. He contended that, in interpreting the aforesaid provision, the Court has to adopt the literal canon Rules of interpretation. He relied on the following cases (i) ADETONO V. ZENITH INTERNATIONAL BANK PLC (2011) 18 NWLR (Pt. 1279) 627 (ii) OJUKWU V. YARADUA (2009) 12 NWLR (Pt. 1154) 50 (iii) ODUKO V. GOVT EBONYI STATE (2010) 5 NWLR (Pt. 1187) 225 (iv) EREGBOWA V. OBANOR (2010) 16 NWLR (Pt. 1218) 33.

He argued that, where the statutory time to appeal has elapse, only the Court of Appeal may extend such time. He referred to Section 24(4) of the Court of Appeal Act. It is his case that the judgment of the lower Court was rendered on the 27th day of July, 2017 (see pages 211 to 222 of the Record of Appeal). Secondly, that the period of three months from 27/7/2017 elapsed on the 27/10/2017 but the lower Court granted the leave to appeal to the Appellant on the 2nd day of May, 2019. He contended that from the foregoing, the lower Court has not extended any time for the Appellant to file any Notice and Grounds of Appeal and therefore the entire appeal is incompetent. He relied on the decision of the Supreme Court in the case of NIGER CONSTRUCTION LTD V. OKUGBENI (1987) 4 NWLR (Pt. 67) 787 at page 796 where Nnaemeka Agu JSC stated thus:
“I also agree that there is no cross appeal properly brought before the Court. The Court of Appeal purported to have granted leave to the Cross Appellant well after the expiration of the three months statutory period within which the Appellant could appeal. There was an exercise in futility as the Court could not extend time within which the Appellant could appeal against its own judgment. The cross-appeal purportedly filed some five months after extension of time by the Supreme Court is a nullity. See on this CHIEF E.A. LAMAI V CHIEF M.C.K ORBIH (1978) 9 and 10 SC 27, p. 33. The cross-appeal was therefore rightly withdrawn by the learned Counsel for the Respondent. There the appeal was rightly dismissed and the cross appeal rightly struck out.”

For the foregoing therefore, he urged the Court to grant all the reliefs sought in the Notice of Preliminary Objection.

In Response on behalf of the Appellant, it is argued that the ground of objection is an acute misconception of the extant law. He argued that the Court of Appeal Act Cap. C26 LFN, 2004, in its Section 24 referred to by the Respondent provides only as to the powers which this Honourable Court may exercise or such order which could be made by the lower Court and does not affect any relief sought and obtained before the trial Court. It is his contention further that Section 25(1) of the Court of Appeal Act provides that where an application for leave was first made before the Court below, an Applicant shall have further 15 days within which to make the same application before this Court in contemplation of the provision of Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He relied on Order 6 Rule 3 of the Court of Appeal Rules. He submitted that the trial Court has jurisdiction to hear the application as there is no law that bar it from same. He relied on the case of BI COURTNEY LTD v. AGF (2019) 10 NWLR (Pt. 1679) 122 at 129 para. E-F. where the Apex Court held thus:
“Section 243 of the 1999 Constitution (as amended) provides that, any right of appeal to the Federal High Court or a High Court conferred by this Constitution shall be
(a) Exercisable in the case of civil proceedings at the instance of the party thereto, or with the leave of the Federal High Court or the High Court or Court of Appeal at the instance of any other person having an interest in the matter…”

He therefore argued that, Section 24 of the Court of Appeal Act does not provide as insinuated by the learned Counsel to the Respondent and that the case of NIGER CONSTRUCTION LTD V. OKUGBENI as cited by the Respondent’s Counsel does not apply to this Court as it applies only where appeal is from Court of Appeal to Supreme Court and that the case was also before the advent of the Constitution of the Federal Republic of Nigeria 1999 (as amended) whereby Section 243 made it mandatory for the Appellant to first seek leave before the Court below and could only make the same application before this Court where same application is denied by the Court below. He urged the Court to discountenance the submission of the learned Counsel to the Respondent as it has no legal basis.

For the foregoing arguments, the question that agitates the mind is whether or not the lower Court has the vires to grant the order on the 2nd of May, 2019 extending the time for the Appellant to appeal against its judgment delivered on the 27th day of July, 2017 to the Court of Appeal.

The general provision guiding the right of appeal applicable to the issue at hand is Section 243 of the Constitution of the Federal Republic of Nigeria 1999. It provides thus:
Section 243
(1) “Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be-
(a) Exercisable in the case of civil proceeding at the instance of the party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provision of this Constitution and any power conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed; and
(b) Exercised in accordance with any act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
The foregoing to my understanding, is the supreme enactment that confer power of appellate jurisdiction on this Court. This provision also grant powers to the Court to make rules of procedure for the exercise of right of Appeal. If that is so, then the rules of procedure of this Court on right of appeal and extension of time to exercise such right where applicable has to be examined. Order 6 of the Court of Appeal Rules prescribes the procedure to follow for any application for extension of time to appeal. See Rules 1-7 in particular for that purpose. My understanding of the provision is that an application for such could be made to the trial Court where leave is required before an appeal could be filed in this Court i.e. interlocutory decisions. Where an appeal is against a final decision of the trial Court, there is no need for leave, since appeals in such circumstance is of right. There are plethora of authorities on this which I need not border you with. Having said this, I also consider it apt to consider the relevant provisions of the Court of Appeal Act on this issue. The provision I have in mind is Sections 14 and 24 of the Court of Appeal Act, 2004. For purpose of better understanding, I reproduce herein under, the aforesaid Sections 14 and 24 of the Court of Appeal Act, 2004.
Section 14
(1) “Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, with leave of that Court or of the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made ex-parte, or by consent of the parties, or relating to costs.
(2) Nothing in subsection (1) of this Section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”
This provision deals on appeals in interlocutory decisions of a trial Court, but does not extend to order made on ex-parte applications.
In this Preliminary Objection what is being challenged is the competence of the Court below to extend time to appeal against its final judgment to the Court of Appeal. For this, the provision of Section 24 of the Court of Appeal Act, 2004 will be visited. Again I reproduce the whole Section for ease of reference:
Section 24 Court of Appeal Act, 2004
S. 24(1)
“Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period, prescribed by the provision of Sub-section (2) of this Section that is applicable to the case.
(1) The period for giving of notice of appeal or notice of application for leave to appeal are:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(a) In an appeal in a civil cause or matter, fourteen days, where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(2) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this Section, be allowed a further period of fifteen days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(3) The Court of Appeal may extend the period prescribed in Subsections (2) and (3) of this Section.”
My understanding of the foregoing is that, for leave to appeal against interlocutory decisions of a trial Court, an Appellant must seek leave of the trial Court within 14 days after the delivery of the interlocutory decision. Where such application for leave to appeal against the interlocutory decision of the trial Court is refused, such applicant has another fourteen (14) days to make another application for leave to appeal to the Court of Appeal. (See Section 24(3) of the Act). Further to this, where an appeal is against the final decision of the trial Court, an appeal is as of right. Such appeal must be filed within three months from the date of the delivery of the final decision (Judgment or Ruling). See Section 24(2)(a) & (b) of the Act.

Now, relevant to the main contention in this appeal, wherein the time to appeal against a final decision (3 months) has expired, then the provision of Section 24(4) of the Act becomes relevant. What this provision postulates is that, for extension of time to appeal against a final decision of a trial Court to the Court of Appeal, it is only the Court of Appeal that has the prerogative or vires to extend such time and not the trial Court.
In the appeal at hand, the final decision of the lower appellate High Court was delivered on the 27th day of July, 2017. (See pages 211 to 222 of the record of Appeal). Right of appeal vested in the Appellant against the said decision of the trial Court is limited to three months (see Section 24(2) (a) of the Court of Appeal Act 2004). Further to this, where such Appellant failed to appeal within that three months, he has 14 days within which to seek the leave of the Court of Appeal to extend the time within which to appeal. The Appellant in the instant case made an application to the lower appellate High Court in the instance vide the Motion on Notice dated 26th day of September, 2017 (See Exhibit “M” on pages 244-265 of the record of appeal). The said Motion was withdrawn and struck out on 9th March, 2018. Another Motion on Notice was filed on the 16th March, 2018 seeking for the same orders as in Exhibit “M” (see pages 223-243 of the Record of Appeal). The Motion was moved on the 28th day of June, 2018 and Ruling delivered on the 2nd of May, 2019 (see pages 301-306 and 307 -317 of the Record of Appeal). For whatever it’s worth, the Motion filed on 16th March, 2018 to extend the time to appeal against the lower appellate High Court decision delivered on 28th day of July, 2017 was filed after a period of not less than 8 calendar months. My concern for now is not on when the Motion was filed, even though it is obvious and as clear as crystal water that the Motion was filed in negation of the statutory period and of course not filed in the appropriate Court. My concern in the main is whether the trial appellate High Court has the jurisdiction to extend the time to appeal against its decision. This is the crux of the matter. There are plethora of decided cases by this Court that pointedly decreed that the trial High Court lacks the competence and jurisdiction to extend the time to appeal against its final decision (Judgment). See the following cases. In the case of SLYVANUS EKEMEZIE V. ANIKOKWU IFE ANACHO AND ORS (2009) LPELR – 8916, this Court per Sanusi JCA as he then was and later Justice of Supreme Court, said thus:
“It is also trite law that of the Court whose decision is sought to be appealed against has no power to extend the time within which to appeal to the Court to which appeal lies. It is the sole discretion of the appellate Court to either extend time to appeal or to grant an extension of time to seek leave to appeal. See IMPREST BAKOLORI PLC V. ABDULAZEEZ (2013) 12 NWLR (Pt. 843) 2007, MBA V. IBE (1999) 4 NWLR (Pt. 597) 97, IBE V ONUORAH (1996) 9 NWLR (Pt. 474) 624.”

In OBOH MONDAY OSALUMHENSE V. PETER AGBORO (2005) 16 NWLR (Pt. 951) 204, Abba Aji, JCA as he then was, now Justice of the Supreme Court, has this to say on whether the Court whose decision is appealed against has power to extend time within which to appeal to the Court to which an appeal lies:-
“Where time within which to appeal expires, the Court whose decision is sought to be appealed against has no power to extend time within which to appeal to the Court to which an appeal lies, it is the sole discretion of the Appellate Court to either extend the time to appeal or to grant an extension of time to seek leave to appeal. See MBA V IBE (1999) 4 NWLR (Pt. 597) 97 and ONUORAH V IBE (1996) 9 NWLR (Pt. 474) 624…”
Also in BLUE-CHIP ACQUISITION AND INVESTMENT CO. LTD. V. ZENITH BANK PLC AND ORS (2008) LPELR – 8529 Omoleye JCA said thus:-
“An application for extension of time within which to file a Notice of appeal or Notice of application for leave must be filed before the Appeal Court and not at the lower Court as the lower Court has no jurisdiction to extend time to file an appeal. See the case of (1) ADELEKE V. COLE (supra) and (2) I. ONUOHA V. C.O.P (1959) SCNLR p. 75.” In the light of all the foregoing, I am of the ardent view and conclusion that the lower appellate High Court lacks the vires to extent time within which to file an appeal to the Court of appeal against its judgment. That power only rests in this Court (Court of Appeal). If that is so, and in consequence, the Notice and Ground of Appeal filed on 9th day of May, 2019 is invalid and incompetent having being filed pursuant to an invalid, incompetent and void order of the lower Court granted on the 2nd day of May, 2019 extending the time for the Appellant to appeal against its decision. I accordingly so hold.

For all the foregoing, I find merit in the Preliminary Objection raised by the Respondent challenging the competence and jurisdiction of the lower Court to extent time for the Appellant to file his Notice and Ground of Appeal against its final judgment. The Preliminary Objection is therefore sustained and the objection by the Appellant thereto is overruled. The spaceship conveying this appeal to the planet of this Court should and will not be allowed to land. Where leave of this Court is required to initiate a process, the initiation of that process without the prior leave of this Court properly sought and obtained renders the process filed (Notice and Ground of Appeal) a nullity as the condition precedent to the conferment of jurisdiction to entertain this appeal has not been complied with. Therefore, this Court has no jurisdiction to entertain this appeal and hence the need to consider the issues based on an incompetent notice and ground of appeal becomes otiose. See AMADI V. OKOLI (1977) 5 SC 57, ADELEKAN V ECU-LINE NV (2006) 12 NWLR (Pt. 993) 33 at 40.

I am not unmindful of plethora of authorities by the Apex Court’s advice that where a Preliminary Objection succeeds, that the Court should proceed to consider the matter in the alternative. I am also aware of the same Court’s advice that where the Preliminary Objection is so fundamental and goes to the root of the appeal as in the instant appeal, it will be proper and justifiable to decline going further in the consideration of the appeal. See ANPP V. THE RETURNING OFFICER, ABIA SENATORIAL DISTRICT (MR FESTUS UKAGWU) (2005) 6 NWLR (Pt. 920) 140,OKONJI V. NJOKANMA (1991) 7 NWLR (Pt. 202) 13, ONYEMEH V. EGBUCHULAM(1996) (Pt. 448) 255, 7UP BOTTLING CO. LTD V. ABIOLA & SONS BOTTLING- CO LTD (2001) 13 NWLR (Pt. 730) 469 AND NEPA V. ANGO (2001) 15 NWLR (Pt. 737) 627.

In result, the Notice of Appeal filed by the Appellant on the 9th May, 2019 is incompetent and same be, and is hereby struck out.
Parties are to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I read before now, the judgment delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I agree that the preliminary objection raised by the respondent must be sustained and it is upheld by me as well. It is only the Court of Appeal that has the power to extend time to appeal against the decision of the trial Court and not for the trial Court to extend time to appeal against its decision to be appealed against. Accordingly, the Notice of Appeal filed by the appellant on the 9th of May, 2019 is struck out for being incompetent.
No order as to costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I agree.

Appearances:

I. DAGUM, ESQ. For Appellant(s)

BITRUS FWANGSHAK, ESQ. For Respondent(s)