GLADIS SAMUEL v. YAHAYA ETUBI
(2011)LCN/4454(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of April, 2011
CA/A/288/2010
RATIO
JURISDICTION: EFFECT OF JUDICIAL PROCEEDINGS CONDUCTED BY A COURT OF LAW WITHOUT JURISDICTION
The law is now elementary that judicial proceedings conducted by a court of law without the necessary or requisite jurisdiction, no matter how otherwise well conducted, would be null and void ab initio for want of the judicial power and authority on the part of the court to conduct such proceedings. See: UZOUKWU v. EZEONU II (1991) 6 NWLR (2000) 708, OKIKE V. L.P.D.C. (No.2) (2005) 7 SC III 75, N.P.A. V. EYAMBA (2006) ALL FWLR (320) 1022. PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTIONS 241(1)(A) AND (B) AND 242 OF THE CONSTITUTION OF NIGERIA, 1999 AS TO WHEN AN APPEAL SHALL LIE AS OF RIGHT OR WITH LEAVE OF COURT
Now, the right to appeal against a decision of a High Court, State or Federal, which was created or established by the Constitution of Nigeria, 1999, is vested or conferred on the parties to an action before that Court, by the Constitution itself. Relevant for our purposes here, are the provisions of Section 241(1)(a) and (b) of the Constitution which provide as follows:- “241.-(1) An appeal shall lie from decisions of the Federal High Court or a 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 ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” The above provisions are unambiguous and clear and by their plain interpretation, say in paragraph (a) that an appeal from the final decision of a High Court sitting at first instance shall be as of right. There is no problem with this provision in the present appeal because the decision of the High Court appealed against was not delivered by that Court sitting at first instance. So whether or not the decision in respect of the provisions, is final does not arise here. The law is however settled that an appeal under the provisions being as of right, does not require or need leave of court for the notice of appeal to be competent irrespective of the nature of the grounds of appeal. An Appellant under the provisions does not need to have resort to the court and does not require the prior sanction of the court before filing his notice of appeal. Leave of court is in such circumstances is unnecessary as it was not required in law. IWUEKE V. IMO BROADCASTING CORP. (2005) 10 SC. 19 AT 33, AKWAFUO V. ANYANWU (2006) ALL FWLR (302) 89. OJUKWU V. ONYEADOR (1991) 7 NWLR (203) 286. For the provisions of paragraph (b) above, the appeal where the grounds of appeal involve questions of law alone, is as of right against decisions in any civil or criminal proceedings by a High Court. So the appeal is as of right against the decision by a High Court where the grounds of such an appeal involves questions of law alone irrespective of whether the decision is interlocutory and not final, and whether a High Court was exercising its original or appellate jurisdiction in the case ‘in which the decision was delivered. The appeal being as of right under paragraph (b), an Appellant has no need to apply or seek and obtain the permission or leave of court to file the notice of appeal. See: IWUEKE v. IMO BROADCASTING CORP. (supra) at 38 – 9, UBN PLC v. SOGUNRO (2006) ALL FWR (337) 402 at 410 – 11, ANOGHALU v. ORAELOSI (1999) 10 SCNJ 1 What can easily be discerned from the provisions of paragraph (b) is that the provision that apply to decisions of a High Court that are not final, but interlocutory in nature. Paragraph (a) provides for and apply to final decisions by the High Court sitting at first instance and so paragraph (b) apply to interlocutory decisions of a High Court sitting at first instance, appellate jurisdiction and final decision while exercising appellate jurisdiction. Once the grounds of such an appeal involve questions of law alone, it is as of right and no prior leave of court is required by an Appellant before filing the notice of such appeal. NALSA & TEAM ASSOCIATES v. N.N.P.C. (1991) 8 NWLR (212) 652. However in other situations, where leave of court was required because the grounds of an appeal involve questions or issues of pure facts or mixed facts and law, failure to apply for and obtain leave of court before filing the notice of such appeal, would render the notice of appeal incompetent. Such are the situations provided for in Section 242(1) of the Constitution which were made subject to the preceding Section 241. The provisions are that:- “Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal” By being made subject to the provisions of Section 241, the above provisions are limited and restricted to apply to appeals against the decisions of a High Court which were not specifically provided for in Section 241. By the use of the phrase “subject to” in Section 242(1), the undoubted intention is to curtail and subordinate the effect and application of the provisions to the provisions of Section 241. The use of the phrase in the Constitution and other Statutes is to introduce a condition, a proviso, restriction and indeed a limitation to the provision in which they were used. See: OKE v. OKE (1974) 1 ALL NLR. AQUA LTD. v. ONDO STATE SPORT COUNCIL. (1988) 4 NWLR (1991) 622, TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) at 529; (1989) 9 SC. 1. LABIYI v. ANRETIOLA (1992) 8 NWLR (258) 139 at 163-4. The notice of appeal in such circumstances would be defective for failure to satisfy or meet the condition precedent to its validity and would be legally incapable of properly invoking the appellate jurisdiction of this Court. The defect in the notice of appeal is contiguous, and would automatically infect the jurisdiction of the court to entertain such a notice of appeal. See: TIZA v. BEGHA (2001 5 SC (Pt.II) 1 at 8. AUTO IMPORT-EXPORT v. ADEBAYO (2003) FWLR (140) 1686. KWASAU v. MAAJI (2000 ALL FWLR (295) 767, OUT v. A.C.B. (2008) 3 MJSC. 191. PER MOHAMMED LAWAL GARBA, J.C.A.
GROUND OF LAW/GROUND OF FACT OR MIXED FACTS AND LAW: DISTINCTION BETWEEN A GROUND OF LAW AND A GROUND OF FACT OR MIXED FACTS AND LAW IN AN APPEAL
Though the difficulty involved in distinguishing a ground of law from a ground of fact or mixed facts and law has always been recognized by the courts, the position of the judicial authorities on the issue is for the court to examine the grounds of appeal involved to see whether the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or not in dispute in which case the question in the ground is one of law. Where the grounds would require questioning the evaluation of facts by the Lower Court before the application of the law, then question in the involved grounds would be of mixed fact and law. See: OGBECHI v. ONOCHIE (1986) 2 NWLR (23) 484. ORAKOSIN v. MENKITI (2001) 5 SC (Pt.1) 72. OSASONA v. AJAYI (2004) 5 SC (Pt.1) 88. PER MOHAMMED LAWAL GARBA, J.C.A.
POWER OF AN APPELLATE COURT: WHETHER AN APPELLATE COURT CAN IGNORE SOME OR ALL ISSUES RAISED IN BRIEFS AND FORMULATE ITS OWN ISSUES THE WAY IT DEEMS THEM TO BE MATERIAL ONCE THEY ARE DISTILLED FROM THE GROUNDS OF APPEAL
In the case of CHABAYASA v. ANWASI (2010) 10 NWLR (1201) 163 at 182-3, the Supreme Court had restated the law that:- “An appellate court can ignore some or all issues raised in briefs and formulate its own the way it deems them to be material once they are distilled from the grounds of appeal. It is also at liberty to choose any of the issues raised in the briefs to treat them first and not constrained to treat issues in the numerical order set out in the briefs.” See also: DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392. YAKUBU v. GOVERNOR OF KOGI STATE (1997) 7 NWLR (511) 66 at 92. FMH v. COMETSHIP AGENCIES (2010) 13 WRN 1 at 29. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
GLADIS SAMUEL Appellant(s)
AND
YAHAYA ETUBI Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Kogi State High Court (to be called simply as the High Court hereafter) sitting in its appellate jurisdiction in appeal No.AYHC/2A/2007 delivered on the 9/12/09. The High Court in the said decision had struck out the Appellant’s appeal on the ground that it was incompetent because the notice of appeal was filed in that Court instead of the Registry of the Upper Area Court from where the said appeal emanated as provided for by Order 48, Rule 1 of the Kogi State High Court (Civil Procedure) Rules 2006 (to be henceforth referred to as 2006 Rules).
Being dissatisfied with the above decision by the High Court, the Appellant filed a notice of appeal against it on the 21/12/09 containing two grounds of appeal. Because of the challenge on the competence both the notice and grounds of the appeal, it is expedient to set out the two grounds contained on the notice of appeal, without their particulars. They are thus:-
“GROUND ONE
The Lower Court in its appellate capacity erred in law when it held that the Notice of Appeal against the decision of the Upper Area Court, Anyigba filed at the Registry of this Court is incompetent and proceeded in that error to strike out the appeal, thus occasioning a miscarriage of justice.
GROUND TWO
The Lower Court in exercise of its Appellate jurisdiction erred in law in holding that the appeal in this case has not been initiated in accordance with the due process of law since the condition precedent to bringing an appeal before the Appellate Court has not been fulfilled to enable this Court exercise its jurisdiction and thereby caused a miscarriage of justice.”
The learned Counsel for the parties to the appeal in line with the practice prescribed by the Rules of Court, filed briefs of argument in support by their respective positions.
The Appellant’s brief was filed on the 15/9/10 while a notice of preliminary objection and the Respondent’s brief in which it was argued, were filed on the 4/10/10. The Appellant’s Reply brief filed on the 23/11/10 completed the settlement of briefs in the appeal.
At the hearing of the appeal on the 15/3/11, learned Counsel for the Respondent had moved the preliminary objection by adopting the arguments thereon at pages 2-4 of the Respondent’s brief. He urged us to uphold same and strike out the notice of appeal for being incompetent. Learned Counsel for the Appellant adopted his submissions on the preliminary objection as set out at pages 2-4 of the Appellant’s Reply brief and urged us to dismiss it.
Learned Counsel thereafter adopted their respective briefs on the merit of the appeal and each urged us to uphold their submissions on the issues canvassed therein. We were invited to allow or dismiss the appeal as the case may be.
As required by prudence and established principles of law on the procedure and judicial practice, I intend to determine the preliminary objection raised by the Respondent on the competence of the notice of appeal first since its aim is to terminate the proceedings in the appeal at its stage because it goes to the jurisdiction of the court to entertain the appeal if successful.
The law is now elementary that judicial proceedings conducted by a court of law without the necessary or requisite jurisdiction, no matter how otherwise well conducted, would be null and void ab initio for want of the judicial power and authority on the part of the court to conduct such proceedings. See: UZOUKWU v. EZEONU II (1991) 6 NWLR (2000) 708, OKIKE V. L.P.D.C. (No.2) (2005) 7 SC III 75,
N.P.A. V. EYAMBA (2006) ALL FWLR (320) 1022
The arguments by the learned Counsel for the Respondent on the preliminary objection is that the notice of appeal was filed by the Appellant as of right and without prior leave of either the High Court or this Court. He submitted that because the decision by the High Court was in its appellate jurisdiction, the appeal does not fall within the provisions of Section 241 of the 1999 Constitution which were set out by him. According to him, the decision by the High Court is not a final one by that Court sitting at first instance and the appeal is not in respect of fundamental rights as provided in Section 241 and so the Appellant requires leave of the Court to file the notice of appeal and since it was not sought and obtained by the Appellant, the notice of appeal is incompetent. Reliance was placed on cases which include:-
UKPONG v. COMM. FOR FINANCE & ECONOMIC DEVELOPMENT (2006) 28 NSCQR, 508 AT 528-9,
N.W.A.A.C. V. ECONET WIRELESS LTD. (2006) 8 NCPR, 18 AT 20, NWOSU V. OFFOR (1997) 2 NWLR (487) 274 and
MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341. We were urged to uphold the preliminary objection, find that the notice of appeal is incompetent and to strike it out.
For the learned Counsel for the Appellant the above submissions by the Respondent were misconceived because the grounds contained on the Appellant’s notice of appeal are purely on points of law and so no leave of court was required to file the notice of appeal even if the High Court was sitting in its appellate jurisdiction. Section 241(1)(b) of the 1999 Constitution and cases including:
ATTHAMAH v. ANGLICAN BISHOP (1999) 9 SCNJ 23 at 28. AUGUSTINE v. HOGAN (2008) 16 NWLR (1112) 95 AT 111,
OLATEJU V. COMM. FOR LANDS & HOUSING, KWARA STATE (2010) 14 NWLR (1213) 297 at 309.
TIAMIYU v. OKOGUN (2008) 17 NWLR (1115) 66 at 90 were cited by learned Counsel and he urged us to hold that the notice of appeal is competent. It was also submitted that Section 242(1) of the Constitution does not apply to the appeal.
Now, the right to appeal against a decision of a High Court, State or Federal, which was created or established by the Constitution of Nigeria, 1999, is vested or conferred on the parties to an action before that Court, by the Constitution itself. Relevant for our purposes here, are the provisions of Section 241(1)(a) and (b) of the Constitution which provide as follows:-
“241.-(1) An appeal shall lie from decisions of the Federal High Court or a 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 ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
The above provisions are unambiguous and clear and by their plain interpretation, say in paragraph (a) that an appeal from the final decision of a High Court sitting at first instance shall be as of right. There is no problem with this provision in the present appeal because the decision of the High Court appealed against was not delivered by that Court sitting at first instance. So whether or not the decision in respect of the provisions, is final does not arise here.
The law is however settled that an appeal under the provisions being as of right, does not require or need leave of court for the notice of appeal to be competent irrespective of the nature of the grounds of appeal. An Appellant under the provisions does not need to have resort to the court and does not require the prior sanction of the court before filing his notice of appeal. Leave of court is in such circumstances is unnecessary as it was not required in law.
IWUEKE V. IMO BROADCASTING CORP. (2005) 10 SC. 19 AT 33, AKWAFUO V. ANYANWU (2006) ALL FWLR (302) 89.
OJUKWU V. ONYEADOR (1991) 7 NWLR (203) 286.
For the provisions of paragraph (b) above, the appeal where the grounds of appeal involve questions of law alone, is as of right against decisions in any civil or criminal proceedings by a High Court. So the appeal is as of right against the decision by a High Court where the grounds of such an appeal involves questions of law alone irrespective of whether the decision is interlocutory and not final, and whether a High Court was exercising its original or appellate jurisdiction in the case ‘in which the decision was delivered. The appeal being as of right under paragraph (b), an Appellant has no need to apply or seek and obtain the permission or leave of court to file the notice of appeal. See:
IWUEKE v. IMO BROADCASTING CORP. (supra) at 38 – 9, UBN PLC v. SOGUNRO (2006) ALL FWR (337) 402 at 410 – 11, ANOGHALU v. ORAELOSI (1999) 10 SCNJ 1
What can easily be discerned from the provisions of paragraph (b) is that the provision that apply to decisions of a High Court that are not final, but interlocutory in nature. Paragraph (a) provides for and apply to final decisions by the High Court sitting at first instance and so paragraph (b) apply to interlocutory decisions of a High Court sitting at first instance, appellate jurisdiction and final decision while exercising appellate jurisdiction. Once the grounds of such an appeal involve questions of law alone, it is as of right and no prior leave of court is required by an Appellant before filing the notice of such appeal. NALSA & TEAM ASSOCIATES v. N.N.P.C. (1991) 8 NWLR (212) 652.
However in other situations, where leave of court was required because the grounds of an appeal involve questions or issues of pure facts or mixed facts and law, failure to apply for and obtain leave of court before filing the notice of such appeal, would render the notice of appeal incompetent.
Such are the situations provided for in Section 242(1) of the Constitution which were made subject to the preceding Section 241. The provisions are that:-
“Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal”
By being made subject to the provisions of Section 241, the above provisions are limited and restricted to apply to appeals against the decisions of a High Court which were not specifically provided for in Section 241. By the use of the phrase “subject to” in Section 242(1), the undoubted intention is to curtail and subordinate the effect and application of the provisions to the provisions of Section 241. The use of the phrase in the Constitution and other Statutes is to introduce a condition, a proviso, restriction and indeed a limitation to the provision in which they were used. See:
OKE v. OKE (1974) 1 ALL NLR. AQUA LTD. v. ONDO STATE SPORT COUNCIL. (1988) 4 NWLR (1991) 622,
TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) at 529; (1989) 9 SC. 1.
LABIYI v. ANRETIOLA (1992) 8 NWLR (258) 139 at 163-4. The notice of appeal in such circumstances would be defective for failure to satisfy or meet the condition precedent to its validity and would be legally incapable of properly invoking the appellate jurisdiction of this Court. The defect in the notice of appeal is contiguous, and would automatically infect the jurisdiction of the court to entertain such a notice of appeal. See:
TIZA v. BEGHA (2001 5 SC (Pt.II) 1 at 8. AUTO IMPORT-EXPORT v. ADEBAYO (2003) FWLR (140) 1686.
KWASAU v. MAAJI (2000) ALL FWLR (295) 767, OUT v. A.C.B. (2008) 3 MJSC. 191.
In the present appeal, it is not in dispute that the decision of the High Court appealed against is not a final decision of that Court sitting at first instance, but a decision delivered in its appellate jurisdiction. So whether interlocutory or final, for the appeal against same to be as of right under Section 241(1)(b), the grounds must be ones which involve or raise issues of law alone. So the vital question trial arises and needs to be answered is whether the two or any of the grounds contained on the Appellant’s notice of appeal involve questions of law alone for the appeal to be as of right and so one which does not in law require the prior leave of court to be valid and competent. Like I pointed out above, the provisions of Section 242(1) of the Constitution relied on by the learned Counsel for the Respondent in his submission on the preliminary objection would only apply to situations not provided for by Section 241. So if the present appeal falls within the provisions of Section 241(1)(b) by the notice of appeal showing grounds which involve the questions of law alone, the Section 242(1) would clearly be inapplicable being subordinate and made subject to Section 241.
Looking calmly at the grounds of the appeal which are set out earlier, no doubt would exist that the Appellant in both grounds which substantially raise the same issues or questions, is challenging the application of the provisions of order 48 Rule 1 of the 2006 Rules to the fact of filing the notice of appeal against the decision of the Upper Area Court at the High Court.
Though the difficulty involved in distinguishing a ground of law from a ground of fact or mixed facts and law has always been recognized by the courts, the position of the judicial authorities on the issue is for the court to examine the grounds of appeal involved to see whether the grounds reveal a misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or not in dispute in which case the question in the ground is one of law. Where the grounds would require questioning the evaluation of facts by the Lower Court before the application of the law, then question in the involved grounds would be of mixed fact and law. See:
OGBECHI v. ONOCHIE (1986) 2 NWLR (23) 484. ORAKOSIN v. MENKITI (2001) 5 SC (Pt.1) 72.
OSASONA v. AJAYI (2004) 5 SC (Pt.1) 88.
The questions raised in the Appellant’s two (2) grounds of appeal clearly involve and challenge the application of the provisions of Order 48, Rule 1 to the undisputed fact and so raise question of law alone. For that reason, pursuant to the provisions of Section 241(1)(b), the appeal against the decision of the High Court is as of right and in law does not require leave of court. In the case of UKPONG v. & ECONOMIC DEVELOPMENT (supra) relied on by the learned Counsel for the Respondent the provisions of Section 220(1) of the 1979 Constitution were not specifically considered and pronounced upon by the apex Court. The passage quoted by learned Counsel was a general statement on the right of appeal conferred by Sections 220 and 221 of the said Constitution and so not apposite in the present appeal.
Let me point out that a situation where every statement by a higher court or even the apex Court will attract to itself the binding effect of a precedent without regard to the peculiar facts of a given case, is not likely to be the contemplation of the doctrine of stare decisis. Be that as it may, I find no merit in the preliminary objection and so over rule it. The Appellant’s notice of appeal is competent as the appeal is one as of right and so does not require leave of court.
With the preliminary objection out of the way, I now go to the issues formulated by the learned Counsel for determination in the appeal. Two issues were submitted by the learned Counsel for the Appellant for decision in the appeal at page 5 of the Appellant’s brief.
They are:-
“1. Whether the lower court was right in striking out the appeal for being incompetent on the premise that it was incurably defective as some was not filed in compliance with Order 48 rule 1 of Kogi state High court (Civil Procedure) Rules, 2006.
2. Whether an appeal not filed at the trial court’s registry as required by Order 48 rule 1 of the Kogi State High Court (Civil Procedure) Rules, 2006 vis-a-vis the provisions of Order 48 rule 17 of the Kogi State High court (Civil Procedure) Rules, 2006 and Order 2 rules 1, 2, 3, 4, 6, 10 and 12 of the High Court (Appeals from Native Courts) Rules, Cap 49, the Laws of Northern Nigeria, 1963, Vol. 4 pages 583-586 as applicable to Kogi State is incompetent having regard to the dictate of justice in the peculiar circumstance of this appeal.”
On his part, the learned Counsel for the Respondent, the only issue for determination which was raised in the alternative to the preliminary objection is at page 2 of the Respondent’s brief. It is thus:-
“whether the Lower court was right in its holding that the Notice of Appeal dated the 19th day of July, 2007 and filed on the same day before the lower court is incompetent and accordingly struck it out”
It is clear that the substance of the two (2) issues raised by the learned Counsel for the Appellant is one and the same, i.e. whether the notice of appeal was incurably defective for being filed in the Registry of the High Court instead of the Upper Area Court as provided for in Order 48 Rule 1 of the 2006 Rules. So in effect, it is a single issue that has been split into two by the manner or form of the formulation used by the learned Counsel.
This position is confirmed by the argument of the two issues together by the learned Counsel in the brief of argument. The Respondent’s issue is essentially the same with the Appellant’s issue l, which is the germane issue that calls for decision in the appeal.
In the case of CHABAYASA v. ANWASI (2010) 10 NWLR (1201) 163 at 182-3, the Supreme Court had restated the law that:-
“An appellate court can ignore some or all issues raised in briefs and formulate its own the way it deems them to be material once they are distilled from the grounds of appeal. It is also at liberty to choose any of the issues raised in the briefs to treat them first and not constrained to treat issues in the numerical order set out in the briefs.”
See also:
DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392. YAKUBU v. GOVERNOR OF KOGI STATE (1997) 7 NWLR (511) 66 at 92. FMH v. COMETSHIP AGENCIES (2010) 13 WRN 1 at 29.
In the above premises, I intend to determine the appeal on the Appellant’s issue 1 which is the real and crucial issue that falls for decision in the appeal. Both learned Counsel to the parties have fully addressed the issue in their respective briefs.
The submissions by the learned Counsel for the Appellant on the issue started by reference to the ruling of the High Court at pages 74; lines 7-20, and 75 lines 10-12 of the record of appeal on which he argued that the mere failure to file the notice of appeal at the trial court’s Registry does not render the appeal incompetent in the light of Order 48, Rule 17 of the 2006 Rues and Order 2, Rules 1, 2, 3, 4, 6, 10 and 12 of the High Court (Appeals from Native Courts) Rules Cap 491, Laws of Northern Nigeria, 1963 (to be named Cap 49 after now) and judicial authorities on the issue. It was contended by learned Counsel that the requirement by the 2006 Rules that an appeal should be filed at Upper Area Court is procedural and technical in nature and that non-compliance therewith does not affect the substance of an appeal. In further argument, he said it is trite law that the days of technicality are gone and that courts now are concerned with doing substantial justice, relying on the cases of RIRUWAI v. SHEKARAU (and not RAHWAY v. SHEKARA) as written in Appellant’s brief (2008) 12 NWLR (1100) 142 at 157 and ABUBAKAR v. YAR’ADUA (and not ALH. ATIKU ABUBAKAR MUSA YARADU as set out in brief) (2008) 4 NWLR (1075) 465 at 512. In addition, it was submitted that the finding by the High Court that non-compliance with the rule of court was a condition precedent for a valid appeal is tantamount to threading the path of technicality since the rules of court are hand maids of justice on the authority of cases that include:
OGUNSAKIN v. AJIDARA (2008) 6 NWLR (1082) 1 at 33. OBIECHEFU v. GOVERNOR OF IMO STATE (2008) 14 NWLR (1106) 22 at 47-8. FSB INT’L BANK v. IMANO NIG. LTD. (2000) 7 SCNJ 65 at 78 cited by learned Counsel. He insisted that the High Court was wrong in holding that the appeal was incurably defective for non-compliance with the rules of court which ought to have been treated as a mere irregularity. Once again, the case of OBIECHEFU v. GOVERNOR OF IMO STATE (supra) and UTC v. PAMOTEI (1989) 20 NSCC 523 at 540 were cited on the submission.
In another vein, it was submitted that striking out the appeal amounted to a deprivation of the Appellants’ right to fair hearing and access to the court as guaranteed by Sections 36(1) and 6(6) of the 1999 Constitution respectively. Also that the right of appeal under the Constitution and Section 53(ii) of the Area Court Law of Kogi State, 1991 has been eroded or taken away by the failure of the High Court to hear the Appellant’s appeal on the merit on ground of non-compliance with the rules of court which cannot over-ride the provisions of law conferring the right of appeal. Reliance was placed on NASISR v. C.S.C. KANO STATE (2010) 6 NWLR (1190) 253 at 276 and KATO v. CBN (1991) 9 NWLR (214) 126. It was the further submission by learned Counsel that the error in filing the notice of appeal by the Appellant was remedied by Order 48, Rule 17 of the 2006 which the High Court failed to consider and pointed out that the notice of appeal was filed by the Appellant herself and did not in any way cause injustice to the Respondent. Though conceding that the rules of court must be obeyed as a matter of general rule, learned Counsel maintained that the law is that slavish adherence to the rules where they cause injustice to any of the parties is undesirable, citing once more, the cases of ABUBAKAR v. YAR’ADUA and UTC v. PAMOTEI both supra.
Furthermore, it was contended that filing the notice of appeal at the High Court was in line with the provisions of Order 2, Rules 1, 2, 3 and 4 of Cap 49, applicable to the High Court and so it was competent. According to learned Counsel the word “enter” used in the rules means filing of the notice of appeal and we were urged to so hold.
Rule 3 of Order 2 was set out and it was submitted that the word enter means filing and not transmission of the record of appeal which was used by the High Court relying on LEADERS & CO. v. KUSAMOTU (2008) ALL FWLR (405) 1812.
Finally we were urged to hold that the Appellant’s notice of appeal filed at the Registry of the High Court was competent, allow the appeal, set aside the ruling by the High Court and remit the appeal to the High Court for determination by a different panel thereof.
The learned Counsel for the Respondent had submitted on his issue 2 that non-compliance with the rule of the High Court in filing the notice of appeal by the Appellant was not an issue of technicality and substantial justice but a matter of fact that appeals are creations of Statute and must be filed in accordance with the Statutes. He set out the provisions of Order 48, Rule 1 of the 2006 Rules and said that rules of court must be obeyed and disobedience must not be condoned. According to him, Order 48, Rule is not ordinary rule as it deals with the fundamental procedure for initiating an originating process; the notice of appeal, referring to the case of CCB LTD. v. ATTORNEY GENERAL, ANAMBRA (1992) 10 SCNJ, 137 at 163.
It was submitted by learned Counsel that Order 48, Rule 17 of the 2006 Rules does not avail the Appellant because the notice of appeal was not filed in accordance with the provisions of Order 48. Also that Section 53(ii) of the Area Court Law cannot benefit the Appellant since the notice of appeal was not filed in compliance with statutory provisions, relying on SEKONI v. UTC PLC. (2006) 3 NWLR (323) 4246 at 4259-60 and wing us to hold that the case cited by the learned Counsel for the Appellant on the issue of technicality and substantial justice are of no assistance to her. He said it is only when there was a competent notice of appeal that the issue of technicality and substantial justice would arise. It was further submitted that all the argument of the Appellant at pages 14-16 of the Appellant’s brief go to no issue since there is no ground of appeal challenging the finding of the High court and the reliance on the case of LEADERS & CO. v. KUSAM-OUT (supra). The cases of DREXTEL ENERGY v. TIB (2008) 36 NSCOR (Pt.II) 1219 at 127-8 and MOZIE v. MBAMALU (2006) 27 NSCOR 425 at 437-8 were cited on the submissions. The same submissions were made in respect of Cap 49 which was relied on in the Appellant’s brief.
It was finally maintained that since the Appellant did not comply with Order 48, Rule 1, the notice is void ab initio and were referred to the case of AFRIBANK v. AKWARA (2006) 25 NSCOR 253 at 283.
In conclusion, learned Counsel urged us to hold that the High Court was right in finding that the Appellant’s notice of appeal was incompetent, affirm the decision and dismiss the appeal.
In a brief response, the learned Counsel for the Appellant had submitted in the Appellant’s Reply brief that all the submissions on when appeal is filed or entered are covered by the two grounds of appeal contained on the Appellant’s notice of appeal.
I would start a consideration of the appeal by restating the general principles of the law, which are also well known on the Rules of Court enacted for the various courts to regulate and govern the practice and procedures to be used in the determination of matters or cases that come before them. The first principle is that the Rules of any court of law, which are enacted or made under and pursuant to the provisions of the relevant enabling Statute, are enacted or made for the purposes of procedure and practice to be adopted by both the court and the parties, and for convenience and orderly hearing of cases. The Rules are made to aid the court in the attainment of its primary objective of settlement of disputes between the parties that come before it by deciding the rights and obligations of such parties. In other words, the Rules of court are made to help the court in the cause of justice by enabling it to decide disputes between the parties in accordance with their established rights. The Rules are therefore meant to assist or help the court in its primary function and duty to decide the rights of the parties that come before them, to facilitate the determination of such rights and obligations. The Rules of court are therefore aids to the court and not masters of the court in all situations that may arise in given cases. In that regard, for a court to read and apply its rules of procedure in the absolute without taking into account the peculiarities of a given case will be to be subservient, to subject itself and be slavish to such Rules whose primary function was to serve the court as the justice of a case may warrant. It is undoubtedly not the object of any Rules of court to subjudigate and enslave the court to applying them blindfolded in all cases irrespective of the peculiar circumstances and facts disclosed therein and the dictates of justice.
See: SOLANRE v. SOMEFUN (1974) 1 SC. 141 at 148. UNILAG v. AIGORO (1985) 1 NWLR, 143 at 154,
UTC v. PAMOTEI (supra). ALSTHOM v. SARAKI (2000) FWLR (28) 2267.
KANO ILE PLC. v. G. & H. NIG. LTD. (2002) 2 NWLR (751) 420 at 469.
Another principle of law is that the Rules of a court as a general rule, bind both the court and parties that come before them and so are meant to be and must be obeyed by both. The authorities cited by the learned Counsel supra on the point and more that include:
IKPUKU v. IKPUKU (1991) 5 NWLR (193) 571
NNONYE v. ANYICHIE (2005) 1 SC (Pt.II) 96,
OGUNDIMU v. KASUNMU (2006) ALL FWLR (326) 207, have established the principle.
However in their wisdom, the courts have consistently held that there is an exception to the above principle.
For instance, the Supreme Court in the case of NNESI v. CHUKWU (1988) 3 NWLR (81) 184 had held that:-
“Albeit that the rules of court are meant to be complied with, but the principal object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct of their cases by deciding otherwise by them in accordance with those rights.
The Rules of court are made to held the court in its primary duty and objective; namely, to do justice to the parties by deciding on the merit of their case. These rules ore mere hand maids to justice and inflexibility of the Rules will only serve to render justice grotesque. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merits, but a technical knockout at the expense of a hearing on the merits.”
See also:
OPARA v. D. SCHLUMBERGER (1995) 4 NWLR, (390) 440, AFRIBANK v. OWOSEMI (1995) 2 NWLR (375) 110,
KOMONIBO v. N. A. (2002) 6 NWLR (762) 94 at 114. DURE V. AKPABUYO LOCAL GOVERNMENT (2005) 12 S.C. (Pt.1) 1 at 3 in addition to the cases cited by learned counsel on the principle.
From the above authorities it is now beyond viable arguments that even though the Rules of a court are meant to be and should be obeyed by the parties in particular, non-compliance rather than disobedience with such rules may be condoned if the peculiar facts and circumstances which dictate the justice of a case so warrant, as an exception to the general rule.
However the non-compliance with the Rules of a court may or can be either curable or incurable. A non-compliance is curable if it is intangible, peripheral and not affecting the merit of a case. Such non-compliance as would cause no real prejudice on the other side or occasion a miscarriage of justice to the other side, is inconsequential and therefore to be treated as a mere irregularity that is curable and therefore condonable by the court. But non-compliance would be incurable if it affects the competence and jurisdiction of a court to adjudicate on the case. Such non-compliance is not a mere irregularity which can be condoned because it is fundamental and goes to the root of the court’s competence to exercise its judicial power and authority in the case. For any non-compliance to be treated as an irregularity which can be condoned by a court, it has to be in relation to a process which was validly before the court by its being filed or brought in compliance with the requirements of the relevant Statutes or the Rules as the case may be. Put another way, an irregularity can only occur in respect of a valid and competent process that is before a court and about which there was a non-compliance with the Rules of court in relation thereto. This should be enough restatement of the principles of law on Rules of court generally for our purposes here.
Order 48, Rule 1 of the 2006 Rules the non-compliance with which is the subject of the appeal has the following provisions:-
“Every appeal shall be brought by notice of appeal which shall be filed in the lower Court within 30 days of the decision appealed from and served on all other parties affected by the appeal within that period”
These provisions are unambiguous and indeed crystal clear and straightforward. They require that every appeal to the High Court shall be brought by notice of appeal which shall be filed in the court which delivered the decision from which appeal comes. Specifically, since the decision from which the Appellant intended to appeal was delivered by the Upper Area Court, Anyigba, the above provisions unequivocally required and prescribed that the notice of the appeal be filed in the Upper Area Court. There would appear to be no two ways about or discretion in the provisions by the deliberate use of the word’ “shall” therein as to how an appeal shall be brought in the High Court and where the notice of appeal was to be filed for that purpose The choice and use of the word “shall” in the provisions clearly show that it is mandatory that requirements therein must be complied with by a party wishing to bring an appeal to the High Court against the decision of a lower court. This is the interpretation given to the word “shall” when used in a Statute or Rules by the Supreme Court in the case of ONOCHIE v. ODOGWU (2006) 2 SCNJ. 96 at 114. also reporred in (2006) 6 NWLR (975) 65 at 89-90, when it stated that:-
“Shall” is used to express a command or exhortation, or what is legally mandatory.”
See in addition:
AGIP (NIG.) LTD. v. AGIP PETROLEUM INT’L (2010) 5 NWLR (1187) 348 at 419.
OMOKEODO v. INSPECTOR GENERAL OF POLICE (1999) 6 NWLR (607) 467.
For the above reason, I am in no doubt that compliance with the above provisions by a party wishing to bring an appeal against the decision of a Lower Court in the High Court is mandatory. What a party is required without option to do in compliance with the provisions are to:
(a) file a notice of appeal at the lower court,
(b) the notice of appeal to be filed within 30 days of the decision of the lower court, and
(c) serve the notice of appeal to all other parties affected by the appeal within 30 days of the decision of the lower court.
Once a party fulfills all the above requirements, then an appeal is brought before the High Court against the decision of a lower court, thereby properly invoking the appellate jurisdiction of the High Court over the appeal.
Perhaps I should point out that the above requirements relate only to the procedure for the exercise by a party, of the right of appeal conferred or vested in him by the Constitution and other relevant Statute and not to the right of appeal itself. So the requirements do not affect or take away the right of appeal vested in a party by the Constitution or Statute but merely prescribed the way, manner or procedure for the exercise of the right of appeal. The provisions of Order 48 Rule 1 are therefore clearly and purely procedural in nature regulating the mode, style or practice of how the right of an appeal to the High Court should be exercised by a party wishing to bring an appeal against the decision of a lower court. The question I ask is what would be legal consequence of a party’s omission, neglect or failure to comply with any or some of the above requirements of Order 48, Rule 1? Before answering the question, it should be noted that the primary essence of filing any court process is to bring the notice of the court and the parties named therein and to be affected directly by it, that a party has a legal grievance for which he seeks a judicial remedy from the court against the named parties.
In particular, the essence of a notice of appeal as the name clearly shows, is to give notice that a party is dissatisfied with the decision of the lower court and wishes to bring it to an appellate court for consideration on the grounds set out thereon. The notice or information on the notice of appeal is for both the court and the parties named thereon for the purpose of knowing what the complaints are against the decision of the lower court and to be decided at the appeal.
CO-OPERATIVE BANK LTD. v. OGWURU (1991) 1 NWLR (168) 458, THOR LTD. v. FIRST CITY BANK (1997) 1 NWLR (479), 35, IBRAHIM v. OSUNDE (2003) 15 NWLR (843) 21.
With this position in mind, my answer to the question I posed is that once a notice of appeal was filed in a court; the proper fees duly assessed and paid by a party, the notice of appeal was filed and served on all the other parties to be affected by the appeal within the time prescribed by the provisions of Order 48, Rule 1, then a party has substantially complied with the requirements of the provisions for the purpose of bringing an appeal in the High Court and properly invoked the appellate jurisdiction of that court over his appeal. The fact that the notice of appeal was filed at the High Court instead of the lower court stipulated in the provisions did not derogate from the substantial compliance with the provisions and would not affect the validity or competence of the notice of appeal. I am of the firm view that to hold that merely because the notice of appeal was not filed at the lower court, but has met the other requirements of the provisions, is incompetent is to bow to legalistic encrustment, pedantic technicality and adopting a facile doctraine approach which will impair vision to the justice of the circumstances of the Appellant’s case. In my view, to strictly interpret and apply in the absolute, the provisions of a rule of procedure the breach of which or non-compliance with which was not even suggested let alone shown to have occasioned a miscarriage of justice or even a prejudice whatsoever to any of the parties, would be to subject justice to abstract reasoning and unwittingly use old worn-out and out-dated mode of interpretation to confront a problem of the present time. As demonstrated in the cases cited on the interpretation and application of the Rules of court, the courts have since taken a liberal and more realistic view that the Rules are mere aids and not masters of the courts and so the courts should not slavishly allow the Rules to drive away parties from the seat of justice when non-compliance therewith will not put any of the parties to any disadvantage. Rules of court should not be used or applied by the courts to enable a party to score a victory not on the merit but by a technical knock-out. Interpretation and application of the Rules of court should be devoid of arid legalism and gross technicality.
The learned Counsel for the Respondent had argued that the issue of substantial justice and technicality is not involved in the issue but that it is a matter of fact that appeals being creations of Statutes must be filed in accordance with the provisions of such Statutes. Yes, as a matter of general principles of law, all provisions of statutes or Rules, as stated earlier in this judgment are to be complied with in all cases. However, the law as shown in the cases cited, does not require absolute compliance to the extent of being sacrosanct. Once there is substantial compliance with provisions of a Statute or the Rules of procedure, the courts do not make a practice of punishing parties for every little omission or mistake they make in the conduct of their case especially where it was not shown to have prejudiced any of the parties. It must be remembered here that we are concerned with non-compliance with the Rules of procedure of the High Court in relation to where a notice of appeal is to be filed and not non-compliance with any Statute that relates to the Appellant’s right to file the notice of appeal.
But the above apart, Order 48, Rule 17 appears to save a notice of appeal from any defect that may result from any non-compliance with the Rules. It provides thus:-
“No objection shall be taken or allowed on any appeal to any notice of appeal which is in writing or to any recognizance entered into under this order for the due prosecution of the appeal for any alleged error or defect therein, but if the error or defect appears to the court to be such that the respondent on the appeal has been thereby deceived or misled the court may amend it and if it is expedient to do so, adjourn the further hearing of the appeal, the amendment and the adjournment if any, being made on such terms as the court may take just.”
Plainly, these provisions aim to cure any defect in a notice of appeal on which an objection may be made or taken in an appeal and so apply to a notice of appeal in respect of which such an objection is taken. Where a notice of appeal was filed in full compliance with the provisions of Order 48, then the issue of a defect therein and consequential objection thereon would not arise.
Furthermore, the learned Counsel for the Respondent has not disputed that the provisions of Cap 49 are extant and so applicable in Kogi State High Court. So the High Court in its appellate jurisdiction is to be guided not only by the 2006 Rules, but also in appropriate cases, by the provisions of Cap 49. While the 2006 Rules are general rules of procedure applicable to appeals coming to the High Court, Cap 49 on the other hand are specific rules made to apply to appeals from decisions of Native Courts to the High Court. Cap 49 spelt out the rules of procedure for appeals to the High Court from the decision of Native Courts such as the Upper Area Court whose decision was the subject of the Appellant’s notice of appeal in the High Court. In the appeal of the Appellant, Cap 49 rather than the 2006 Rules are applicable in respect of the procedure to be used in the filing of the appeal. The principle of law is expressed in Latin as ” generalibus specialibus non derogant,” which simply means that specific provisions have precedent over general provisions. So where a court is faced with the provisions of Statutes, one general and the other specific, the court will use the specific in the event of a conflict.
UDEH v. FRN (2001) 5 NWLR (705) 312. MATARI v. DANGALADIMA (1993) 2 SCNJ. 122.
ARAKA v. EBUE (2003) 7 SCNJ 114 at 124. JACKS v. UNIVERSITY OF AGRIC. MAKURDI (2004) 117 LRCN 3784 at 3798.
In the above premises, it was clearly an error for the High Court to have used and relied on the provisions of the 2006 Rules in respect of an appeal coming from the decision of a native court in the determination of the competence of the Appellant’s notice of appeal on the ground of its being filed at the High Court and not the trial Upper Area Court. The applicable and therefore relevant rules to be applied for or in such appeals are the specific Rules provided for by Cap 49.
By the provisions of Order 11, Rules 3 and 4(1)(a) an appeal against a decision of a native court to the High Court shall be in the form set out in the First Schedule to the rules by delivering the notice of appeal by hand to the Registry of the High Court which is the appeal court. The provisions are in the following terms:-
“Every appeal shall be entered by notice in writing in the form set out in Form I in the First Schedule hereto to be called a “Notice of Appeal” presented by the appellant or some one duly authorized to do so on his behalf’ stating –
a) The name of the court below and the reference number, if any, of the proceedings in which the
decision was given;
b) The names of the parties;
c) The date of the decision;
d) The grounds of appeal in full;
e) The appellant’s address for service to comply with the rule 6 hereof,
4(1) An appellant shall enter his appeal –
a) Either by delivering the notice of appeal by hand at the Registry of ,the Appeal Court’
These provisions leave no doubt whatsoever as to how an appeal against the decision of native court to the High Court shall be presented, filed or entered and where the notice of such an appeal shall be presented, filed or entered by an Appellant or a person authorized by him to do so. The notice of appeal is to be in writing and in the form prescribed or set out in the first schedule to the Rules containing the details set out in Rule 3 and to be entered or delivered at the Registry of the appeal court, in this appeal, the High Court. Once a notice of appeal was filed, delivered, presented or entered which ever word one chooses to use, in compliance with the above rules, it becomes a valid and competent notice of appeal for the purpose of properly invoking the appellate jurisdiction of the High Court in respect of the appeal to which it relates. The notice of appeal cannot be declared incompetent under other general rules of procedure which do not apply and are not applicable to such an appeal as was purportedly done by the High Court to the Appellant’s notice of appeal in question.
From the clear language of the provisions of Order 2, Rules 3 and 4 above I agree with the learned Counsel for the Appellant that the word “enter” used therein does not mean transmission of the record of proceedings from the native court to the High Court. This is because it is not an appellant who compiles and transmits the record of the native court and that the provision specifically mentioned a notice of appeal and not record of proceedings is to be entered and delivered in the form set out in the first schedule to the Rules. It is only when the notice of appeal is entered or delivered in the appeal court in compliance with the provisions that the record of proceedings of the native court would then be compiled and transmitted to the said court.
For these reasons, the unavoidable conclusion to be deduced from the provisions of Order 11, Rules 1,3 and 4 above, is that the Appellant’s notice of appeal entered, delivered or filed in the High Court; the appeal court, against the decision of the Upper Area Court Ayingba; a native court, was valid and competent notice of appeal which properly vested the High Court with the requisite jurisdiction over the Appellant’s appeal. That is my finding and conclusion on the issue.
In the result, I find merit in the Appellant’s appeal for the reasons set out above and allow it.
Before concluding this judgment, I have observed that the learned Appellant’s Counsel had in his introduction of the Appellant’s brief said the decision by the High Court that the Appellant’s notice of appeal was incompetent was an interlocutory decision or ruling.
By judicial definition, an interlocutory decision by a court in a case or matter is one in which only some of the issues raised by the parties in the case or matter were determined or decided by the said decision, leaving other issues remaining to be decided by the same court at a later stage of the proceedings. Put another way, an interlocutory decision in a case is one which has not fully and completely decided all the issues in dispute in the case, finally and leaves other issues to be decided later by the court that delivered it. See:
IWUEKE v. I.B.C. (2001) 17 NWLR (955) 447. NZIDEE v. OKKTU (2001) 1 NWLR (1014) 99.
OWOH v. ASSUK (2008) 16 NWLR (1112) 113.
In line with the definitions in these authorities, once a decision of a court has fully, completely and finally determined all the issues submitted by the parties in a case to the court, leaving nothing which the parties would have to go back to the court for decision, the decision would be a final and not interlocutory decision
For our purposes here, a decision by a court that an initiating process such as the notice of appeal is incompetent thereby robbing that court of the requisite jurisdiction to entertain such an appeal, is for all practical and legal purposes of final and not interlocutory decision as far as that court was concerned. In other words, once a court decides that it has no jurisdiction to entertain a matter or appeal as the case may be, then it has completely and finally decided the rights of the parties to invoke its jurisdiction over their case or appeal and therefore there will be nothing left for the parties to go back to that court thereafter. However where its jurisdiction is challenged and a court finds that it has the necessary jurisdiction, then such a decision would be interlocutory as the issues in the case would remain to be determined in the exercise of such jurisdiction. See:
AKINSANYA v. U.B.A. (1986) 4 NWLR (35) 273. GOMEZ v. C. & S.S. (2009) 10 NWLR (1149) 223 at 248.
In the circumstances, the decision by the High Court that the Appellant’s notice of appeal was incompetent and incapable of vesting it with jurisdiction over the appeal, was a final and not an interlocutory decisions ince the parties had nothing else to go back to that court for decision thereafter.
In the final result, because I find merit in the appeal and allow same, the decision of the Kogi State High Court delivered on the 9th December, 2009 in appeal No. AYHC/2A/2007 is hereby set aside. In its place an order remitting the appeal to the Chief Judge of Kogi State for hearing and determination by a different panel, is hereby made.
The parties shall bear their respective costs of prosecuting the appeal in this Court.
PAUL ADAMU GALINJE, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Garba, JCA and I entirely agree that the appeal is meritorious and should be allowed. It is hereby allowed by me.
I abide by all the consequential orders made in the lead judgment, including order as to cost.
REGINA OBIAGELI NWODO, J.C.A.: I have read in advance the Judgment of my learned brother GARBA, JCA, just delivered.
His lordship has in extreme detail considered the issues submitted before the court for determination. I adopt the reasoning contained therein as mine and the conclusion that there is merit in the appeal.
The appeal succeeds, the decision of the High Court Kogi State delivered on 9th of December, 2009 is hereby set aside. This case is remitted to the Chief Judge of Kogi State for hearing and determination by a different panel. I make no order as to cost.
Appearances
J. A. AkuboFor Appellant
AND
F. O. OgwoFor Respondent
