EKWEREKWU v. EGBOCHE (2010)

EKWEREKWU v. EGBOCHE

(2010)LCN/4182(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of March, 2010

CA/E/107/2008

RATIO

LEAVE : MEANING OF THE WORD ‘LEAVE’

The word ‘leave’ has been defined by our superior courts of record to simply mean seeking permission to appeal. See Ojemen v. HRH Momodu II (1983) 1 SCNLR 188. SPDC Nig. Ltd. v. Katad (Nig.) Ltd (2006) 1 NWLR (Pt. 960) 198 at 216. PER AMMIRU SANUSI, J.C.A.

POSITION OF THE LAW WHERE AND WHERE NOT THE LEAVE OF THE COURT IS REQUIRED TO BE SOUGHT AND OBTAINED TO APPEAL A DECISION OF A HIGH COURT

DUTY OF THE APPELLATE COURT WHERE AN APPEAL IS ADJUDGED INCOMPETENT AB INITIO

It is trite law the where an appeal is adjudged incompetent ab initio, the appellate court has no jurisdiction to entertain and determine same, since issue of jurisdiction is fundamental and it squarely touches on the competence of the court to entertain and adjudicate on same, See Mosoba v. Abubakar (supra); Odojiu v. Agu (1992) 2 NWLR (pt.229) 350; Ogidi v. Egbe (1999) 10 NWLR (pt. 662) 42; Tashulu v. Ikejombe (1998) 13 NWLR (pt 581) 292; Ogbeche v. Onochie (1986) 2 NWLR (pt. 23) 484. PER AMMIRU SANUSI, J.C.A.

EFFECT OF THE FAILURE TO SEEK AND OBTAIN THE LEAVE OF COURT WHERE SAME IS REQUIRED

EFFECT OF A PRELIMINARY OBJECTION ON THE COMPETENCE OF AN APPEAL BEING UPHELD

In the light of all that I posited supra, the Preliminary Objection succeeds and is sustained. By way of conclusion therefore, I must stress and it is indeed well settled law, that where a preliminary objection on the competence of an appeal is upheld, it will not be necessary to go further to consider the arguments in support if issues for determination filed by the parties to the appeal. See Onyemah v. Egbuchualam (1996) 5 NWLR (pt.448) 255; NEPA v. Ango (2001) 15 NWLR (pt.737) 627; NNB Plc v. Denclog (2005) 4 NWLR (pt.916) 549 at 613/614. PER AMMIRU SANUSI, J.C.A.

Before Their Lordships

AMIRU SANUSIJustice of The Court of Appeal of Nigeria

MOHAMMED LADAN-TSAMIYAJustice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLAJustice of The Court of Appeal of Nigeria

Between

AMECHI EKWEREKWUAppellant(s)

AND

PATRICK OKECHUKWU EGBOCHE (Suing through His Attorney Rowland Sunday Chiejina Megafu (Akunwata)Respondent(s)

AMMIRU SANUSI, J.C.A. (Delivered by the Leading Judgment): At the Chief Magistrate Court Onitsha. (hereinafter called the trial Court) the respondent as plaintiff’ thereat, instituted an action against the present appellant as defendant thereat claiming the under-mentioned reliefs:
“(a) Possession of the three bedroom flat with premises and appurtenances situate at No.50A Water Works Road, Onitsha.
(b) Mesne Profit at the rate of N5,000.00 (five thousand Naira) only per month from July 2005 until possession is given.
(c) An order directing a refund of the sum still outstanding, to the defendant by the plaintiff as at the time possession is given up, after deducting all mesne profits up to date.”
When served with the plaint of the plaintiff the defendant, now appellant filed a Preliminary Objection by way of motion on notice challenging the jurisdiction of the trial court to entertain and determines such suit. The plaintiff (now respondent) responded to the motion raising Preliminary Objection by filing counter affidavit. The motion was later argued before the trial court by the parties and the trial Chief Magistrate in the end upheld the objection and ruled that she had not jurisdiction to entertain and determine the suit.
Dissatisfied by the ruing of the trial court’s declining jurisdiction to hear and determine his suit, the respondent successfully appealed to the High Court of Justice of Anambra State (hereinafter referred to as ‘the lower court). The lower court coram, Nwadi J., allowed the appeal and decided that the trial court had jurisdiction to entertain and determine the suit and remitted same to the trial court to hear and determine the suit. Aggrieved by the decision of the lower court, the appellant now appealed to this court by filing a Notice of Appeal dated 13th December, 2007 containing three grounds of appeal.
Before this court, briefs were filed and exchanged in keeping with the rules and practice of this court. The appellant’s brief of argument dated 15th May, 2008 and filed on 16/5/2008 was deemed filed on 10/2/2009.    Therein, two issues for determination of the appeal were proposed which read thus:-
“(i) Whether the learned trial Judge was right in holding that the trial Magistrate was not entitled to look at any other document except the claim in deciding whether or not she had jurisdiction?
(ii) Whether the learned trial Judge was right to uphold an appeal not based on the issues considered by the Magistrate Court?”
It needs to be stated here that upon being served with the respondent’s brief or argument in which the latter argued a notice of preliminary objection therein which he had filed earlier, the appellant also filed an appellant’s Reply Brief on 24/2/2009 dated 23/2/2009.
Upon being served with the Appellant’s Brief of Argument in response filed Respondent’s Brief of argument on 18/2/2009, dated same day. In the said brief of argument, the respondent also raised two issues for the determination of the appeal. The said dual issues are:
“(a) Whether the appellant High Court was right In holding that the trial Chief Magistrate was entitled to look at any other document except the claim in deciding whether or not she had jurisdiction?
(b) Whether the Preliminary Objection by the appellant at the Magistrate Court had merit and whether the judgment of the appellant (sic) High Court was based on the issues canvassed at the trial court?”
To my mind, the two issues raised by both parties are very much similar though they slightly differ in the way they were couched. I shall choose to be guided by the issues raised in the Appellant’s brief of argument in treating this appeal. But I wish to note that the respondent had on 12/2/2009 filed Notice of Preliminary Objection challenging the competence of this court to hear and determine the appeal. The reasons and grounds of the objection were also argued on pages 3 and 4 of the Respondents brief. Also, at the hearing of the appeal on 18/1/2010, the learned counsel for the Respondent argued his Preliminary Objection before the substantive appeal was argued by parties before us. As it is the practice in appellate courts, the issues raised in preliminary objection challenging the competence of the appeal must first of all be dealt with and resolved before the appeal is treated. This is incumbent especially when issues of jurisdiction of this court to hear the appeal is raised to questioned. See All State Trust bank v. King Davidson Ent. Ltd., (2000) 12 NWLR (pt.670) 298; Uba v. Yawe (2000) 8 NWLR (pt.670) 739; Beghe v. Tize (2000) 4 NWLR (pt.652) 193. This is more so in the instant appeal where the competence of the appeal was put in question for alleged failure to first of all seek and obtain leave before the appeal was filed. The Preliminary objection raised in the Notice and argued in the respondent’s brief will therefore be considered and determined first before treating the appeal will therefore be considered and determined first before treating the appeal (if need be).
Now on the preliminary objection, it is the submission of the learned counsel for the respondent that the provision of Section 241 of the 1999 Constitution of the Federal Republic of Nigeria stipulates that cases where appeal lies as of right from the High Court to the Court of Appeal… He said where an appeal does not fall within those mentioned in that section, leave to appeal must be first be sought and obtained either from the High Court or the Court of Appeal pursuant to Section 242 of the said Constitution, He cited and referred to the cases of Mosoba v. Abubakar (2005) 6 NWLR (Pt.922) 460.
The learned counsel for the respondent further argued that the instant appeal is incompetent for want of leave first sought and obtained by the appellant from either the High Court or from this Court before the appeal was filed and therefore the appeal is incompetent. Hence, this court lacks jurisdiction to entertain and determine it for want of jurisdiction which is fundamental to the question of competence of this court to adjudicate on it. He therefore urged this court to so hold and dismiss the appeal for the reason so stated.
Responding to the  above submission of the respondent’s counsel on the Preliminary Objection, the learned counsel for the Appellant submitted in his Appellant’s Reply Brief that the objection raised is misconceived and is also an attempt to waste this court’s time, The learned counsel for the appellant conceded to the fact that Section 241 of the 1999 Constitution stipulates instances where appeal shall lie as of right to this court from the decisions of the High Courts and that none of those situations applies to this instant appeal.
The learned appellant’s counsel submitted that where the grounds of appeal deal with issues of law alone, there was no need to obtain the leave of either the trial court or this court before an appellant can file an appeal. He cited and relied on the provisions of Section 241(b) of the 1999 Constitution. He also cited the case of Mrs. Christiana Nwabueze v. Nigeria Postal Service & 2 Ors. (2006) NWLR (pt.983) 480 at 514. He further argued that where a ground of appeal deals with interpretation of a rule of law by a court or its misapprehension of the law by a court or its misapplication of the law to facts already proved and accepted, that ground of appeal is a ground of law See: African International Bank Ltd. v. Packoplast Nigeria Ltd. (2004) 3 NWLR (Pt. 859) 129 at 148/149 Para. A – D, 151 Para. D.
In further submission, the learned counsel for the appellant stated that where the facts are undisputed or admitted, the question one of law and not of facts requiring leave. Similarly, where no issue of fact arises but that of application of law, then the grounds is one of law. See: Mrs. Nwabueze case (supra) and Ikko kashadadi v. Ingfila Sarkin Noma (2007) 13 NWLR (Pt.1052) 570 at 525 Para F to H. Learned counsel after setting out his three grounds of appeal and their particulars in the Reply Brief, finally submitted that they all deal upholding of an appeal based on issues law alone adding that the issue of jurisdiction, competence and the upholding of an appeal based on issues not canvassed before the trial magistrate are all issues of law. He argued that the case of Mosoba v. Abubakar (supra)  relied on by the respondent’s counsel is inapplicable to the instant appeal as in that case grounds of appeal were of facts and mixed facts and law which obviously, require that prior leave of the trial or this court to be sought and obtained. In the first place there is no dispute that this appeal emanates from the decision of the High Court of Anambra State sitting in its appellate jurisdiction while dealing with the appeal against the judgment of Chief Magistrate Court Onitsha. I have carefully perused all the documents filed in the appeal before me and am unable to see any document on which the appellant sought and obtained leave of either the lower court or of this court.

The constitutions of our country and some laws and Rules of court have in some cases made provisions making it a condition that before an appeal could be lodged to an appellate court, leave must be sought and obtained first before the trial or appellate courts. To that effect, the 1999 Constitution of the Federal Republic of Nigeria by its Section 241 (i) which I will reproduce hereunder stipulates or list some instances where person aggrieved by a decision of a High Court, whether interlocutory or final could appeal to the Court of Appeal as of right i.e. where he is not required to seek and obtain leave of that High Court or this Court. The said Section reads:-
Section 241(a) and (b) provides:-
“(1) An appeal shall lie from decisions of the Federal High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
(c) Not relevant.
(d) Not relevant.
(e) Not relevant.
(f) Also, not relevant.”
Thus, by virtue of the provisions or Section 241(1) (a) and (b) or the 1999 Constitution (supra) under which this appeal is lodged before this court whether interlocutory or final decisions as of right in any civil proceedings before the High Court sitting at first instance only and where the grounds of appeal involves questions of law alone in civil or criminal proceedings. It is clear that the provisions of Section 241 have merely stipulated the case or instances “where aggrieved party can appeal as of right against decision of the High Court or Federal High Court sitting at first instance only. But in a situation which does not fall within the cases mentioned in that provisions, then there is need on the person appealing or desirous of appealing, to first seek and obtain leave of either the High court or this court. It goes without saying therefore, that appeal against the decision of High Court sitting in appellate jurisdiction as in this instant case comes outside those stipulation in Section 241 (a) and (b) (supra) and therefore, requires that prior leave of either the appellate High Court be sought and obtained, (See Section 242(1) of the 1999 Constitution). Without such leave sought and obtained, this court lacks the jurisdiction to entertain the appeal.
The learned counsel for the appellant raised the issue that none of the grounds of appeal in his purported Notice or Appeal require leave to be obtained as they solely deal with issues of law which do not require him to seek and obtain leave, He relied on the case of Mrs. Christiana Nwabueze v. Nigerian Postal Service & 2 Ors. (Supra); African International Bank Ltd. v. Packoplast Nigeria Ltd. (supra) and Ikko Kasha Dadi v. Ingila Sarkin Noma (2007) 13 NWLR (Pt.1052) 510 at 525.
With due humility and difference to the learned counsel for the appellant, the cases of Nwabueze (supra) and African International Bank Ltd (supra) cited and relied on by him relate to appeals from the decisions of High Courts sitting in first instance and not in their appellate jurisdiction as was the case in this instant appeal. In both cases, the issue of competence of some of the grounds of appeal were dealt with as to whether prior leaves were to be obtained or not before the grounds could be competent. These two cases are therefore distinguishable from the case in his instant appeal where the competence of the entire appeal lodged by the appellant and NOT any of the ground(s) of appeal tiled by the appellants. And the case of Ikko Kasha Dadi (supra) cited and relied on by the appellant is also not applicable here as that case relates to the competence of an appeal to the Supreme Court from the decision of this court. Although that case emanated from the decision of Upper Area Court Minna which went on appeal to the High Court and later to this court, there is nowhere the issue of leave of the High Court of Niger State or from this court was raised before this court or the Supreme Court. The only issue of leave raised at the Supreme Court merely relate to the competence of grounds of appeal(s) on the Notice of Appeal filed against the decision of the court of appeal.
In the instant case, I think the learned appellant’s counsel misunderstood or has misconceived the gravamen of the respondent’s preliminary objection. The pith of his objection is not based on the competence or otherwise of any of the ground or grounds of appeal. Rather, he is challenging the competence or the entire appeal by the appellant on the ground that it being against the decision of High Court sitting in its appellate Jurisdiction, there is the requirement that he first of all, seeks and obtains leave of either the appellate High Court or of the Court of Appeal. I think that is a genuine and valid complaint or grouse bearing in mind the provisions of Section 241 (2) of the 1999 Constitution, The nature of the appellants instant appeal falls outside the instances given under section 241(2) (a) and (b) of the same Constitution which merely specifies instances where an appeal to this court from decisions of High Court are as of right.
Section 242(4) of the same Constitution provides that in any instances outside those mentioned in Section 241 (1) or the constitution, the appeal must be with leave of the High Court or this court.
As stated earlier in this, judgment and parties are ad idem in this fact, no leave was first sought and obtained from either the appellate High Court or this Court. Being an appeal from the High Court sitting in its appellate jurisdiction to hear same on the decision of Chief Magistrate’s Court Onitsha, it is incumbent on the appellant to seek and obtain leave of either of these two courts before the appeal could become competent where such leave was obtained. Consequently, the appeal is not validly filed before this court. See Anyansina v. Co-operative Bank Ltd (1994) 5 NWLR (pt.347) 742. Yakubu v. Government of Kogi State (1995) 3 NWLR (Pt.383) 367; Clement v. Iwuanyanwu (1989) 3 NWLR (pt.107) 39.
It is trite law the where an appeal is adjudged incompetent ab initio, the appellate court has no jurisdiction to entertain and determine same, since issue of jurisdiction is fundamental and it squarely touches on the competence of the court to entertain and adjudicate on same, See Mosoba v. Abubakar (supra); Odojiu v. Agu (1992) 2 NWLR (pt.229) 350; Ogidi v. Egbe (1999) 10 NWLR (pt. 662) 42; Tashulu v. Ikejombe (1998) 13 NWLR (pt 581) 292; Ogbeche v. Onochie (1986) 2 NWLR (pt. 23) 484.
In view of my stance above on the issue of the incompetence of this appeal, the appropriate thing to do is to uphold the preliminary objection of the respondent and hold that the appeal is incompetent.

The law is well settled and is trite too, that where an appeal requires leave of court to be obtained and the leave was not sought and obtained; such appeal is incompetent and will be struck out. This is obviously because a court of competent jurisdiction has no jurisdiction to hear an incompetent appeal.
In the instant case, the appeal being incompetent, this court lacks jurisdiction to go into its merit.
Consequently therefore, I have no option than to strike out the appeal and I accordingly do same. See Oluwole v. LSDPC (1983) 5 SC 1; Russel v. Russel (1987) 2 NWLR (pt.57) 437; Okoye v. Nwalu (2000) 4 NWLR (pt.2) 167.
In the light of all that I posited supra, the Preliminary Objection succeeds and is sustained. By way of conclusion therefore, I must stress and
it is indeed well settled law, that where a preliminary objection on the competence of an appeal is upheld, it will not be necessary to go further to consider the arguments in support if issues for determination filed by the parties to the appeal. See Onyemah v. Egbuchualam (1996) 5 NWLR (pt.448) 255; NEPA v. Ango (2001) 15 NWLR (pt.737) 627; NNB Plc v. Denclog (2005) 4 NWLR (pt.916) 549 at 613/614.
On the whole, since it is decided by me, that the appeal is incompetent, the only appropriate order I should make is that of striking, out the appeal. I accordingly do same. I am not prepared to award any costs so each party is to bear its costs.

MOHAMMED L. TSAMIYA, J.C.A: I have had the privilege or reading in draft the lead judgment of learned brother SANUSI A. JCA. I entirely agree with it but I wish to add that the decision of the High Court against which the applicant filed his Notice of Appeal is a decision of the High Court silting in its Appellate jurisdiction from the decision or the Magistrate Court. In view or this, the applicant requires the leave of the Court below or this court. See section 242(1) of the 1999 Constitution or Nigeria without such leave being first obtained, this court would have no jurisdiction to entertain the matter with this, I abide by the orders contain in the lead judgment.

OLUKAYODE ARIWOOLA, J.C.A: I have had the opportunity of reading in draft the leading judgment prepared and just delivered by my learned brother, AMIRU SANUSI, JCA. I am in total agreement with the reasoning and conclusion reached therein the said leading judgment.
I too will strike out the appeal. Accordingly, the appeal is struck out by me and I make no order on costs.

Appearances

C.O. Nwabachili (Mrs.) holding the brief of Chief Ikenna EgbunaFor Appellant

AND

U.E. Odiamma (Miss)For Respondent