ONWARD ENTREPRISES LTD v. M. V MATRIX & ORS
(2022)LCN/5078(SC)
In The Supreme Court
On Wednesday, April 13, 2022
SC.15/2010
Before Our Lordships:
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
ONWARD ENTREPRISES LIMITED APPELANT(S)
And
1. V MATRIX 2. OWNERS OF M.V “MATRIX” 3. CHARTERERS OF M.V “MATRIX”RESPONDENT(S)
RATIO:
THE JURISDICTION OF A COURT MUST BE PROPERLY INVOKED BEFORE THE COURT CAN ASSUME SAME
The Supreme Court, like other Courts of the land, is a creation of statute. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction is a nullity, no matter how well- conducted or how sound the decision or orders made therein are, Madukolu v Nkemdilim [1962] 2 SCNLR 341, Bronik Motors Ltd and Anor v Wema Bank Ltd [1983] 1 SCNLR 296, Petrojessica Ent. Ltd v Leventis Tech Co. Ltd [1992] 5 NWLR (pt. 244) 675, Dapianlong v Dariye[2007] 4 SC (pt. III) 118, Attorney-General, Lagos State v Dosunmu [1989] 3 NWLR (pt. 111) 552, 567, N.C.C v Motophone Ltd [2019] 14 NWLR (pt. 1691) 1, Nzei v University of Nigeria, Nsukka [2017] 6 NWLR (pt. 1561) 300. PER CHIMA CENTUS NWEZE, J.S.C.
THE DISTINCTION BETWEEN A GROUND OF LAW AND GROUND OF MIXED LAW AND FACT
Admittedly, this Court has held in a plethora of cases that there is difficulty in distinguishing between a ground of law simpliciter and a ground of mixed law and fact, as there is a very thin line of disparity between both, Ogbechie v Onochie (No.1) [1986] 2 NWLR (pt. 23) 484, Nwadike and Ors v Ibekwe and Ors [1987] LPELR-2087 (SC) 42-42 U.B.A Ltd v Stahibau GMBH and Co. [1989] 3 NWLR (pt. 110) 374, 391-392, Ajibade v Pedro [1992] 5 NWLR (pt. 241) 257, Obatoyinbo and Anor v Emmanuel Oshatoba and Anor [1996] LPELR-2156 (SC).
In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edingburgh, etc Tramways (1919) SC (H.L) 35, Currie v Inland Revenue Commissioners (1921) 2 KB 332, Cooper v Stubbs (1925) 2 KB 753, Benmax v Austin Motors Co., Ltd (1955) 1 All ER 326; Edwards (Inspector of Taxes) v Bairstows and Anor (1955) 3 All ER 48. This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review, Vol. 100 (October, 1984).
Happily, however, this Court has ingeniously fashioned out guiding principles for navigating through the nuances of characterization of grounds of appeal. They include the following:
a. Where the ground of appeal complains of an error involving a misunderstanding or misapplication of the law to prove admitted facts, it is a ground of law;
b. A ground of appeal which complains of the lower Court’s exercise of its discretion necessarily involves the appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so is one of facts. But where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the wrong principle and therefore one of law alone;
c. A ground of appeal which complains of the lower Court’s evaluation of evidence and alleged insufficiency of the evidence, is one of facts or at best mixed law and facts.Where however, the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleged that there is no evidence upon which the lower Court could reach its decision, it is a ground of law.
d. Where the Court is being invited to investigate the existence or otherwise of certain facts upon which judgment was based, such a ground of appeal is a ground of mixed law and fact.
e. A ground of appeal which challenges the finding of fact made by the trial or lower Court or involves issues of law and fact can only be argued with the leave of the appellate Court.
f. Where the evaluation of facts established by the trial Court or lower Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.
g. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact.
Enyibros Food Processing Company (Nig) Ltd and Anor v N.D.I.C and Anor [2021] LPELR – 55330 (SC); Standard IBTC Bank v Longterm Global Capital Ltd and Anor [2017] 18 NWLR (pt. 1598) 431; F.B.N Plc v T.S. A Industries Ltd [2010] 15 NWLR (pt. 1216) 247; Maigoro v Garba [1999] 10 NWLR (pt. 624) 555; Motunwase v Sorungbe [1988] 5 NWLR (pt. 92) 90; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531. PER CHIMA CENTUS NWEZE, J.S.C.
GROUND OF APPEAL
Generally, a ground of appeal may be couched in such a way as to incorporate or contain particulars of error, without necessarily setting them out as usual under a separate heading of particulars, Nsirim v Nsirim [1990] 3 NWLR (pt. 138) 285; Global Trans. Oceanico SA v Free Ent (Nig,) Ltd [2001] 5 NWLR (pt. 706) 426. However, Order 8 Rule 2 (2) of the Supreme Court Rules mandates that if the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated. Failure to do comply renders such ground incompetent and liable to be struck out, National Investment Properties Co. Ltd v The Thompson Organisation Ltd and Ors [1969] LPELR – 25547 (SC); MbaNta v Anigbo [1972] 7 SC 57, 63; Nsirim v Nsirim [1990] 21 NSCC (pt. 11) 302; Anadi v Okeli [1977] All NLR 23; Military Administrator, Benue State v Ulegede [2001] 9 -10 SC 180; Adeleke v Asani and Anor [2002] LPELR-115 (SC). PER CHIMA CENTUS NWEZE, J.S.C.
AN INCOMPETENT APPEAL CANNOT BE REMEDIED BY AN AMENDMENT OF SAME
The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye [2009] LPELR-140 (SC); Atuyeye v Ashamu [1987] 1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra). Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency. PER CHIMA CENTUS NWEZE, J.S.C.
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): At the Federal High Court, holden at Lagos, the appellant, by way of Writ of Summons, sought to enforce a contract of affreightment dated March 25, 2002, against the respondents. By its Amended Statement of Claim, the appellant claimed as follows:
Whereupon the plaintiff claims as endorsees the sum of US$650,000 only or its equivalent in Naira with interest at 21% per annum until payment, being damages suffered by the plaintiff by reason of the defendant’s breach of contract of affreightment and/or bailment and by reason of the defendants’ negligence in their care of the plaintiff’s cargo of rice, as well as Admiralty costs and legal expenses.
The matter proceeded to the trial stage. At the trial, the appellant also filed a motion-exparte, for the arrest and detention of the first respondent and same was granted. The respondents, in turn, filed two (2) applications: one for the release of the respondents’ vessel, and the other sought to shift the vessel to anchorage, pending the hearing of the former for release. Both processes were filed on June 15, 2002. The appellant consented to the release of the respondents’ vessel and filed a consent to release on July 26, 2002.
During the course of the proceedings, the respondents filed a motion for stay of proceedings on July 11, 2003, pending reference to arbitration in London. The motion was supported by affidavits. In response, a Counter-affidavit, in opposition to the application, was filed by the appellant.
The trial Court, in its ruling, delivered on August 11, 2004, found in favour of the respondents, granting their application for stay of proceedings and referred the parties to arbitration in London.
Dissatisfied with the trial Court’s ruling, the appellant appealed to the Court below via a Notice of Appeal containing two (2) grounds of appeal.
The lower Court, by its judgment delivered on June 27, 2008, upheld the ruling of the trial Court, and consequently dismissed the appeal.
The appellant being dissatisfied with the judgment of the lower Court, appealed to this Court via a Notice of Appeal. The said Notice of Appeal, at pages 310- 312 of the record of appeal, contains the following three grounds of appeal:
GROUND 1
The learned Justices of the Court of Appeal mis-directed themselves when they applied the case of Sonnar (Nig) Ltd v Partenreederi M.S. Norwind Vol. 3 NSC 175 at 192, without correctly testing the facts of this case against the ratio.
GROUND 2
The learned Justices of the Court of Appeal erred in law when they held at page 15 of their judgment that as rightly submitted by respondents’ counsel even if the claim to be submitted before the arbitrator is time barred the same provision i.e. Article 3 Rule 6 of The Hague/Visby Rules reproduced supra relied upon by the appellant allows for extension of time. Appellant is entitled to explore that opportunity.
PARTICULARS
1. In the absence of evidence that time extension pursuant to Article 3 Rule 6 of The Hague/Visby Rules had been granted a claim cannot be validly submitted before the Arbitrator in London.
2. There was no evidence before the Court that an extension of time had been granted.
3. Under Clause 40 of the Charter party dated 7th March, 2002, the claim must have been made in writing and the Claimant’s application for arbitration made within 6 months of redelivery of the vessel.
4. There is a distinction between the submission of the claim and the appointment of the Arbitrator.
5. The appellant has by this decision been permanently deprived of a remedy in the London Arbitration proceedings because there was no evidence before the Court that Article 3 Rule 6 of The Hague/Visby Rules has been activated by the Respondents to grant time extension to the Appellant.
GROUND 3
The learned Justices of the Court of Appeal erred in law when they held at page 19 of their judgment that in the instant case appellant who had the onus to advance compelling reason as to why this Court should interfere with the discretionary power of the trial judge had failed to do so.
PARTICULARS
There was un-controverted evidence before the Court that the claim was time barred in London.
RESOLUTION OF THE ISSUE
The Supreme Court, like other Courts of the land, is a creation of statute. A Court cannot assume jurisdiction to adjudicate in a cause or matter unless its jurisdiction has been properly invoked. Any proceedings conducted without jurisdiction is a nullity, no matter how well- conducted or how sound the decision or orders made therein are, Madukolu v Nkemdilim [1962] 2 SCNLR 341, Bronik Motors Ltd and Anor v Wema Bank Ltd [1983] 1 SCNLR 296, Petrojessica Ent. Ltd v Leventis Tech Co. Ltd [1992] 5 NWLR (pt. 244) 675, Dapianlong v Dariye[2007] 4 SC (pt. III) 118, Attorney-General, Lagos State v Dosunmu [1989] 3 NWLR (pt. 111) 552, 567, N.C.C v Motophone Ltd [2019] 14 NWLR (pt. 1691) 1, Nzei v University of Nigeria, Nsukka [2017] 6 NWLR (pt. 1561) 300.
By virtue of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court; where the Grounds of Appeal involve questions of law alone. Where the questions involve facts or mixed law and facts, the leave of this Court or the Court of Appeal must first be sought and obtained. Where leave is required and not obtained, the affected Grounds of Appeal would be incompetent and liable to be struck out, Utoo v A.P.C [2018] 12 NWLR (pt. 1634) 507; Allanah and Ors v Kpolokwu and Ors [2016] LPELR- 40724 (SC); BASF (Nig.) Ltd v Faith Entreprises Ltd. [2010] 1 SC (pt. II) 186, 202 – 203; Nigeria National Supply Co. Ltd v Establishment of Sima of Vaduz [1990] LPELR – 2004 (SC). It follows then that it is only through a competent appeal can the Court’s jurisdiction be invoked.
Admittedly, this Court has held in a plethora of cases that there is difficulty in distinguishing between a ground of law simpliciter and a ground of mixed law and fact, as there is a very thin line of disparity between both, Ogbechie v Onochie (No.1) [1986] 2 NWLR (pt. 23) 484, Nwadike and Ors v Ibekwe and Ors [1987] LPELR-2087 (SC) 42-42 U.B.A Ltd v Stahibau GMBH and Co. [1989] 3 NWLR (pt. 110) 374, 391-392, Ajibade v Pedro [1992] 5 NWLR (pt. 241) 257, Obatoyinbo and Anor v Emmanuel Oshatoba and Anor [1996] LPELR-2156 (SC).
In England, this difficulty was acknowledged as early as 1919, if not earlier, Clarke v Edingburgh, etc Tramways (1919) SC (H.L) 35, Currie v Inland Revenue Commissioners (1921) 2 KB 332, Cooper v Stubbs (1925) 2 KB 753, Benmax v Austin Motors Co., Ltd (1955) 1 All ER 326; Edwards (Inspector of Taxes) v Bairstows and Anor (1955) 3 All ER 48. This state of affairs prompted the very scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law,” in Law Quarterly Review, Vol. 100 (October, 1984).
Happily, however, this Court has ingeniously fashioned out guiding principles for navigating through the nuances of characterization of grounds of appeal. They include the following:
a. Where the ground of appeal complains of an error involving a misunderstanding or misapplication of the law to prove admitted facts, it is a ground of law;
b. A ground of appeal which complains of the lower Court’s exercise of its discretion necessarily involves the appellate Court’s consideration of the peculiar facts and circumstances upon which the discretion was exercised and so is one of facts. But where the ground complains of the lower Court’s use of wrong principles in the exercise of its discretion, the facts and circumstances in which the discretion was exercised are no longer in issue. The only issue in such a case is that of the wrong principle and therefore one of law alone;
c. A ground of appeal which complains of the lower Court’s evaluation of evidence and alleged insufficiency of the evidence, is one of facts or at best mixed law and facts.Where however, the ground of appeal does not complain about the evaluation but only about the inference to be drawn from the established or admitted facts, it is one of law. Similarly, where the ground of appeal alleged that there is no evidence upon which the lower Court could reach its decision, it is a ground of law.
d. Where the Court is being invited to investigate the existence or otherwise of certain facts upon which judgment was based, such a ground of appeal is a ground of mixed law and fact.
e. A ground of appeal which challenges the finding of fact made by the trial or lower Court or involves issues of law and fact can only be argued with the leave of the appellate Court.
f. Where the evaluation of facts established by the trial Court or lower Court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.
g. Where evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact.
Enyibros Food Processing Company (Nig) Ltd and Anor v N.D.I.C and Anor [2021] LPELR – 55330 (SC); Standard IBTC Bank v Longterm Global Capital Ltd and Anor [2017] 18 NWLR (pt. 1598) 431; F.B.N Plc v T.S. A Industries Ltd [2010] 15 NWLR (pt. 1216) 247; Maigoro v Garba [1999] 10 NWLR (pt. 624) 555; Motunwase v Sorungbe [1988] 5 NWLR (pt. 92) 90; Obatoyinbo v Oshatoba [1996] 5 NWLR (pt. 450) 531.
I earlier reproduced the three original grounds of appeal. On the face of the grounds in the notice of appeal before this Court, it is apparent that they are mainly based on fact or mixed law and facts, and not of law simpliciter.
A careful examination of ground 1 of the appellant’s grounds of appeal, in the absence of any particulars thereto accompanying it, reveals that the appellant herein is complaining about a misdirection.
Generally, a ground of appeal may be couched in such a way as to incorporate or contain particulars of error, without necessarily setting them out as usual under a separate heading of particulars, Nsirim v Nsirim [1990] 3 NWLR (pt. 138) 285; Global Trans. Oceanico SA v Free Ent (Nig,) Ltd [2001] 5 NWLR (pt. 706) 426. However, Order 8 Rule 2 (2) of the Supreme Court Rules mandates that if the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated. Failure to do comply renders such ground incompetent and liable to be struck out, National Investment Properties Co. Ltd v The Thompson Organisation Ltd and Ors [1969] LPELR – 25547 (SC); MbaNta v Anigbo [1972] 7 SC 57, 63; Nsirim v Nsirim [1990] 21 NSCC (pt. 11) 302; Anadi v Okeli [1977] All NLR 23; Military Administrator, Benue State v Ulegede [2001] 9 -10 SC 180; Adeleke v Asani and Anor [2002] LPELR-115 (SC). Ground 1 constitutes an exception to that general rule. Ground 1 is a novel way of couching grounds of appeal of this nature and it should not be encouraged. It seems clear from the other grounds of appeal filed that learned counsel for the appellant properly filed other grounds of appeal with their particulars of error properly put in place. Ground 1 is accordingly struck out for non-compliance with the rules.
It is also manifest that ground 2 is too blatantly focused on finding of fact. In effect, ground 2 invites this Court to investigate the existence or otherwise of certain facts upon which the judgment of the Court below was based. Such a ground of appeal is a ground of mixed law and fact.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
I have read and re-read ground 3 of the appellant’s grounds of appeal. I must confess that its true purport eludes me. It is, however, my respectful view that, at best, this ground may be classified as one of mixed law and fact.
Having now characterized the remaining two grounds of appeal, I am satisfied that, having not being grounds of law alone, they were filed in violation of Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the result, I hold that the remaining two grounds of appeal are incompetent, as the appropriate leave of Court required for their validity, was not obtained.
The fatality of the instant appeal is more glaring consequent upon the fact that only one issue for determination was formulated from the three grounds of appeal in the appellant’s brief of argument.
It follows then that the Notice of Appeal is incompetent for non-compliance with the rules, Irhabor v Ogaiamien [1999] 8 NWLR (pt. 616) 517, Asogwa v P.D.P [2013] 7 NWLR (pt. 1353) 207, Igwe v Kalu [2002] 5 NWLR (pt. 761) 678.
Courts do not condone illegality no matter who is involved by. This appeal was heard on January 25, 2022. The appellant adopted the Amended Brief of Argument filed on December 7, 2020. The appellant alleged that leave was sought to file a purported Amended Notice of Appeal from which the issue for determination was distilled. There is no evidence before this Court that leave was granted to amend this purported Amended Notice of Appeal. The said amended Notice of Appeal contains the three grounds of appeal ipssissimaverba with the offensive three grounds of appeal in the original Notice of Appeal. The purported amendment was procured by a fraudulent hoax played on this Court.
The law is settled that an appeal is incompetent by reason of its being invalid. An appeal that is void ab initio cannot be regularized. It cannot be saved by a purported amendment that is a sham as the instant appeal is, Aderibigbe v Abidoye [2009] LPELR-140 (SC); Atuyeye v Ashamu [1987] 1 NWLR (pt. 49) 267; Nsirim v Nsirim (supra). Both the original and purported amended notice of appeal have, each, a common fundamental feature of deficiency.
The lesson should be that, in conceiving a suit or an appeal, adequate care should be taken by counsel to ensure that the suit or appeal does not raise any issue of incompetency of the Court. Where counsel is un- surefooted, he or she could apply for leave to do so for abundans cautela non nocet – abundant or sufficient caution does no harm, F.B.N Plc v T.S.A Industries Ltd [2010] 15 NWLR (pt. 126) 247, 292.
In the final analysis, all I have laboured to say above is that this appeal is incompetent and is hereby struck out.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother, CHIMA CENTUS NWEZE JSC just delivered. I agree with and adopt the reasoning and conclusion in the said judgment to strike out the incompetent appeal.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the judgment just delivered by my learned brother, CHIMA CENTUS NWEZE JSC. I completely agree with the reasoning and conclusion that this appeal is incompetent and liable to be struck out.
This is an appeal against the decision of the Court of Appeal, Lagos Division, delivered on the 27th June, 2008 in which the Court below upheld the ruling of the trial Federal High Court and consequently dismissed the appeal.
Dissatisfied with the decision of the Court below, the Appellant filed a notice of appeal dated 13th day of August, 2008 containing 3 grounds of appeal urging this Court to set aside the judgment of the Court below.
The facts as found and upheld by both lower Courts are as follows: The Appellant by contract of Affreightment contained in and/or evidenced by Bills of Lading numbered Wos. 148/028, Wos. 148/02, Wos. 348/02, Wos. 448/02, Wos. 448/02C, Wos. 448/02B and Wos. 248/02B dated at Bangkok, Thailand on 25/3/2002, contracted with the Respondents to carry about 280,000 bags of rice from Bangkok, Thailand, to Lagos and Port Harcourt in Nigeria for valuable consideration. In breach of the contract of Affreightment aforesaid, and/or their duty of care and/or breach of their duty as bailee for reward, the Respondents damaged and lost some of the Appellant’s cargo. The Appellant who was the Plaintiff at the trial Court took out a writ against the Respondents and by his amended statement of claim dated 15/07/2002 claimed the sum of US$500,000 only or its equivalent in Naira with interest at 21% per annum until payment. The Appellant simultaneously, with the issue of the writ of summons, alsofiled a motion ex-parte for the arrest and detention of ‘M.V. Matrix’, the 1st Respondent herein which was granted on 02/07/02 and the Respondents’ vessel was then arrested by the Court. The Respondents on the other hand filed two (2) applications simultaneously both dated 12/7/02 and filed on 15/07/02. The first application was for the release of the Respondents’ vessel while the second application sought to shift the vessel to anchorage pending the hearing of the application to release her from arrest. The Appellant consented to the release of the vessel and filed a consent to release on 26/07/2002. By the order of Court granted on 10/06/2002, the Appellant amended its statement of claim.
On 11/07/2003, the Respondents filed a motion on notice for stay of proceedings pending reference to arbitration in London. The motion was supported by a main affidavit containing 10 paragraphs and a further and better affidavit also containing 10 paragraphs. The Appellant filed a 16 paragraphs counter-affidavit. The learned trial Court after considering the submission of counsel in its ruling delivered on 11/08/2004, granted the stay of proceedings pending reference of dispute between the parties to arbitration in London.
Dissatisfied with the ruling of the Court below, the Appellant filed its notice of appeal dated 13/08/2004 containing 2 grounds of appeal urging the Court below to set aside the ruling of the trial Court. The Court below having heard both counsel argue their case and considered all the evidence before them, held that the appeal lacked merit and consequently dismissed the appeal.
Aggrieved by the decision of the Court below, the Appellant appealed to this Court via a Notice of Appeal dated 13th August, 2008 containing 3 grounds of appeal.
In the Appellant’s Brief of Argument, the Appellant formulated a sole issue for determination which was distilled from the three (3) grounds of appeal.
The Respondents also adopted the sole issue formulated by the Appellant, thus:
“Whether the Court of Appeal was right in dismissing the appeal of the Appellant and upholding the decision of the Federal High Court staying proceedings in the Appellant’s suit pending reference to Arbitration?”
My Lords, all the grounds of appeal here are grounds of mixed law and facts. By virtue of theprovisions Section 233 (2) (a) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered);
“233. (2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal (3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
Where the questions are of mixed law and facts, the leave of this Court or the Court of Appeal must first be sought and obtained. Where leave is required and not obtained, the affected Grounds of Appeal would be incompetent and liable to be struck out. See SPDC (NIG.) LTD. &Ors v. AGBARA &Ors (2019) 6 NWLR Pt. 1668 Pg. 310; Nwaigwe v. Okere (2008) 13 NWLR Pt. 1105 Pg. 445 at 474.
In other words, a party desiring to appeal the decision of the Court of Appeal to the Supreme Court on mixed law and facts or facts is required to obtain the leave of the Courtof Appeal or the Supreme Court to file the notice and grounds of appeal. The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal. Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended as it is liable to be struck out. See A.S. B. Co. (Nig.) Ltd v. F.C.M.B. Ltd (2013) 10 NWLR Pt. 1363 Pg. 501; Popoola v. Adeyemo (1992) 8 NWLR Pt. 257, 1 SC; Abidoye v. Alawode (2001) 13 WRN 71 SC.
It is a settled law that the notice of appeal filed without the leave of the Court below or this Court first sought and obtained is so incurably bad that in the eyes of the law, it does not exist. See JEV & Anor v. Iyortyom & Ors (2014) 14 NWLR Pt. 1428 Pg. 575; Anachebe v. Ijeoma &Ors. (2014) 14 NWLR Pt. 1426 Pg. 168. One cannot amend what in law does not exist.
The Appellant without the leave of the Court below or this Court filed its notice of appeal, which invariably does not exist in the eyes of the law. Even though the learned Counsel for the Appellant tried to remedy the situation by purportedly amending the earlier filed notice of appeal, a notice of appeal that is inherently incompetent cannot in any way be amended as rightly put by Denning (MR) in Macfoy v. UAC (1962) 153, “you cannot put something on nothing and expect same to stay there. It will collapse.” See Co-operative & Commerce Bank Plc & Anor v. Ekperi (2007) 3 NWLR Pt. 1022 Pg. 493 Onwuzulike v. State (2020) 10 NWLR Pt. 1731 Pg. 91.
That being the case, I hold that the purported amended notice of appeal was an exercise in futility, and could not have “breathed life” into the fundamentally defective original notice of appeal.
This appeal is incompetent and it is also struck out by me.
TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, NWEZE, JSC granted me the privilege of reading in draft the elaborate leading judgment prepared and rendered in this appeal. I endorse the reasoning and conclusion and adopt the judgment as mine, I have nothing extra to add.
I also endorse all consequential orders.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, CHIMA CENTUS NWEZE, JSC. I completely agree with the reasoning, conclusions, decisions therein.
Appearances:
FedinardOnukugbe, Esq. For Appellant(s)
OkechukwuAjunwa, Esq., with him, C.M. Okpara, Esq. For Respondent(s)
