CHEMICAL & WIRE MANUFACTURING LTD v. IBACHEM (IBAFON CHEMICALS) LTD
(2011)LCN/4595(CA)
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 6 RULE 2(2) OF THE COURT OF APPEAL RULES, 2011 AS TO WHETHER NOTICE OF AN APPEAL SHOULD BE FILED IN THE REGISTRY OF THE COURT BELOW; DEFINITION OF THE WORDS “COURT BELOW” AS CONTAINED WITHIN THE PROVISIONS OF ORDER 6 RULE 2(2) OF THE COURT OF APPEAL RULES, 2011
2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below as complained of order 1 Rule 5 of the same Rules defined “court below” as follows: “court below” or “lower court” means any court or tribunal from which appeal is brought”. The earlier cited Order 6 Rule 2 (1) of the 2007 and 2011 Rules of Court are in pari materia with Order 3 Rule 2 (1) of the 2002 Rules. In Korede v. Adedokun (2001) 7 NSCQR 327 at 324 D-G. Ejiwunmi JSC (of blessed memory) while interpreting order 3 Rule 2 (1) of the 2002 Rules had this to say: “By Order 3 Rule 2(1) of the Court of Appeal Rules, it is provided that:- “(1). An appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below and which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service. A careful perusal of the above rule reveal that an appellant desirous of being heard by the Appeal court must have filed a Notice of Appeal in the High Court that decided the case against which he is appealing. And for that purpose he is required to incorporate in the said Notice of Appeal grounds of appeal which are in conformity with the Rules of court set out in the Rules”. Still on Order 3 Rule 2 (1) of the 2002 Rules, See Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (pt. 543) 584, where Ogebe JCA (as he then was) stated thus: “I agree with the submission of the learned counsel for the respondent that the question of whether or not a proper notice of appeal has been filed in the court below is a matter which touches on the jurisdiction of this court for if no proper notice has been filed, then there is no appeal for this court to entertain…………………From the wording of this rule, a notice of appeal shall be filed in the registry of the court below. “Court below” is defined in Order 1 as any court or tribunal from which appeal is brought”. See also Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (pt.982) 391 Based on the foregoing provisions, every notice of appeal must be filed in the registry of the court below i.e the court or tribunal from which the appeal emanated. PER ADAMU JAURO, J.C.A.
NOTICE OF APPEAL: WHETHER NOTICE OF APPEAL IN RELATION OF EXTENSION OF TIME TO APPEAL MUST BE FILED IN THE REGISTRY OF THE COURT BELOW
As can be seen from the last reproduced Rules, Order 7 Rules 10 (1) and 10 (2) relate to extension of time. Order 7 Rule 10 (2) is particularly in relation to extension of time to appeal. Curiously however Order 7 Rule 11 repeated what was stated in Order 6 Rule 2 (1). Order 7 Rule 11 will again be reproduced and it stated thus: “An appeal shall deemed to have been brought when the notice of appeal has been filed in the registry of the court below”. The effect or aim of juxtaposing the above provision with order 7 Rule 10 (2) relating to extension of time to appeal, is to emphasise the fact that even where extension of time is granted, the notice of appeal is to be filed in the court below. The case of Mohammed v. Kayode (1997) 11 NWLR (Pt.530) 584. is on all fours identical to the case at hand. In the aforementioned case, the appellant got an order for extension of time to appeal and filed the notice of appeal in the Court of Appeal instead of the Kogi State High Court. On page 596 of the report my lord, Salami JCA now PCA stated thus: “There is no scintilla of evidence on record showing that those notices of appeal were filed or refilled in the court below within time extended nor is there iota of evidence led to show that further extension of time was sought and obtained. In the absence of evidence that appeal was filed or deemed filed in the proper registry within stipulated time, it follows necessarily that no appeal was lodged against either rulings in the instant appeal. This seems to have disposed of this appeal as there can be no appeal in the true sense if the notice of appeal is not filed within time or within time extended.” PER ADAMU JAURO, J.C.A.
RULES OF COURT: WHETHER THE RULES OF COURT MUST BE OBEYED
A party cannot hide behind any guise in order to flout the Rules of Court, as Rules of Court must be obeyed, and they are made to be complied with to accelerate the hearing of every matter in the lower court or at the Appellate Court. There is however compliance in breach in this case. It must be emphasized that Orders and Rules are made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and they therefore have the force of law. – EKPAN V. AGUNU UYO (1986) 3 NWLR Pt. 260. 63 At 76; OGBU v. URUM (1981) 4 S.C. 1 at 27. PER ADAMU JAURO, J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of June, 2011
CA/L/69/2002
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
CHEMICAL & WIRE MANUFACTURING LTD. – Appellant(s)
AND
IBACHEM (IBAFON CHEMICALS) LTD. – Respondent(s)
ADAMU JAURO, J.C.A. (Delivered the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court in suit No.ID/1514/2000 delivered on the 5th June, 2000 coram Adeniji, J.
The facts culminating in this appeal can be briefly summarized as follows: By a writ of summons and statement of claim dated 19th May, 2000 and 22nd May, 2000 respectively, the respondent claimed against the defendant now appellant, the sum of N1,010,000.00 being outstanding amount payable to the respondent for the supply of 23 metric tonnes of HL Polyol (chemical). The respondent further claimed interest on the said sum at the rate of 18% per annum from 25th June, 1998 until judgment and thereafter 6% per annum until final liquidation of the judgment sum. The respondent filed along with the originating processes a motion ex parte for injunction and substituted service and another motion on notice for injunction. On 30th May, 2000 the respondent filed a motion on notice for final judgment against the appellant. On 5th June, 2000 judgment was entered against the appellant in the sum of N1,010,000.00 with interest at the rate of 18% per annum from 25th June, 1998 until judgment and thereafter at the rate of 7? % per annum until full payment. On 27th November, 2000 the respective counsel representing the two parties moved the lower court to enter a terms of settlement dated 20th November 2000. The appellant pursuant to the aforesaid terms of settlement paid the respondent through some cheques the sum of Seven Hundred Thousand Naira out of the One Million and Ten Thousand Naira claimed.
The appellant after the aforesaid steps, had a change of mind and felt disenchanted with the whole arrangement. In order to ventilate his dissatisfaction to the happenings he decided to appeal, hence applied to this court for extension of time to appeal which was granted on 19th November, 2002. Thereafter the appellant filed his notice of appeal in this court with grounds of appeal questioning the regularity of the court processes and the validity of their service. In line with the Rules of Court, briefs of argument were filed and exchanged and subsequently adopted on the date the appeal was heard.
In the course of writing the judgment, it was discovered from page 1 of the respondent’s brief that the notice of appeal in respect of this appeal dated 15th February, 2002 was filed in the registry of this court. This discovery prompted the court to invite parties to address it on the competence of the notice of appeal filed in this court in view of the provisions of order 6 Rule 2 (1) of the Court of Appeal Rules 2007, which provides thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of…
On the date fixed for the further address, Mr. G. O. Anizoba appeared for the appellant and admitted that the notice of appeal was not filed in the lower court but in the registry of this court. Learned counsel stated that he could not file the notice of appeal in the lower court because the time for filing an appeal had lapsed, hence had to file an application for extension of time to appeal on 8th November, 2002. Learned counsel further stated that the extension of time to appeal was granted on 10th November, 2002 and he filed the notice of appeal in this court and subsequently compiled and transmitted record by order of court on 7th February, 2006. Learned counsel submitted that the appeal was filed in line with the Court of Appeal Rule 2002.
Learned counsel restated that the notice of appeal was filed in this court because time within which to appeal had lapsed and therefore urged the court to accept the notice of appeal as properly filed before this court.
In response, Miss. Chinwe Oguchi for the respondent, submitted that the notice of appeal is incompetent and defective for being filed in the registry of this court instead of the lower court as provided in Order 6 Rule 2 (1) of Court of Appeal Rules, 2007. Learned counsel argued that though the appeal was filed pursuant to an extension of time granted, the notice of appeal ought to have been filed in the registry of the lower court. Learned counsel therefore urged the court to hold that the notice of appeal is incompetent and same be struck out. Mr. Anizoba stated that he had nothing more to add by way of reply on points of law.
It is not in dispute that the notice of appeal originating this appeal dated 15th February 2002, was filed in the registry of this court. The issue now to be resolved is whether the said notice of appeal is competent. The relevant Rules of Court that call for consideration in resolving this issue are Order 6 Rule 2(1), Order 7 Rules 10 and 11 of both the 2007 and 2011 Court of Appeal Rules. For the purposes of clarity even at the expense of repetition, order 6 Rule 2 (1) is hereby reproduced thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below as complained of order 1 Rule 5 of the same Rules defined “court below” as follows:
“court below” or “lower court” means any court or tribunal from which appeal is brought”.
The earlier cited Order 6 Rule 2 (1) of the 2007 and 2011 Rules of Court are in pari materia with Order 3 Rule 2 (1) of the 2002 Rules. In Korede v. Adedokun (2001) 7 NSCQR 327 at 324 D-G. Ejiwunmi JSC (of blessed memory) while interpreting order 3 Rule 2 (1) of the 2002 Rules had this to say:
“By Order 3 Rule 2(1) of the Court of Appeal Rules, it is provided that:-
“(1). An appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below and which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service.
A careful perusal of the above rule reveal that an appellant desirous of being heard by the Appeal court must have filed a Notice of Appeal in the High Court that decided the case against which he is appealing. And for that purpose he is required to incorporate in the said Notice of Appeal grounds of appeal which are in conformity with the Rules of court set out in the Rules”.
Still on Order 3 Rule 2 (1) of the 2002 Rules, See Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (pt. 543) 584, where Ogebe JCA (as he then was) stated thus:
“I agree with the submission of the learned counsel for the respondent that the question of whether or not a proper notice of appeal has been filed in the court below is a matter which touches on the jurisdiction of this court for if no proper notice has been filed, then there is no appeal for this court to entertain…………………
From the wording of this rule, a notice of appeal shall be filed in the registry of the court below. “Court below” is defined in Order 1 as any court or tribunal from which appeal is brought”.
See also Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (pt.982) 391
Based on the foregoing provisions, every notice of appeal must be filed in the registry of the court below i.e the court or tribunal from which the appeal emanated. The argument of the appellant for filing the notice of appeal in this court is because the appeal was filed pursuant to an order for extension of time to appeal and that it was brought based on the 2002 Rules. It is furthermore not in dispute that the appeal was filed pursuant to an order for extension of time granted by this court on 10th November, 2002. At this juncture, I deem it necessary to reproduce order 7 Rules 10 and 11 of the 2011 Rules as follows:
Order 7 Rule 10
“10(1). The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
10(2). Every application for an enlargement of time within which to appeal, shall be supported by on affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appear should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”.
Rule 11. ” An appeal shall deemed to have been brought when the notice of appeal has been filed in the registry of the court below”
The above reproduced Rules are also identical to Order 3 Rules 4 and 5 of the 2002 Rules of Court. The provisions of the 2002 Rules and the present Rules are identical in relation to filing of an appeal.
As can be seen from the last reproduced Rules, Order 7 Rules 10 (1) and 10 (2) relate to extension of time. Order 7 Rule 10 (2) is particularly in relation to extension of time to appeal. Curiously however Order 7 Rule 11 repeated what was stated in Order 6 Rule 2 (1). Order 7 Rule 11 will again be reproduced and it stated thus:
“An appeal shall deemed to have been brought when the notice of appeal has been filed in the registry of the court below”.
The effect or aim of juxtaposing the above provision with order 7 Rule 10 (2) relating to extension of time to appeal, is to emphasise the fact that even where extension of time is granted, the notice of appeal is to be filed in the court below.
The case of Mohammed v. Kayode (1997) 11 NWLR (Pt.530) 584. is on all fours identical to the case at hand. In the aforementioned case, the appellant got an order for extension of time to appeal and filed the notice of appeal in the Court of Appeal instead of the Kogi State High Court. On page 596 of the report my lord, Salami JCA now PCA stated thus:
“There is no scintilla of evidence on record showing that those notices of appeal were filed or refilled in the court below within time extended nor is there iota of evidence led to show that further extension of time was sought and obtained. In the absence of evidence that appeal was filed or deemed filed in the proper registry within stipulated time, it follows necessarily that no appeal was lodged against either rulings in the instant appeal. This seems to have disposed of this appeal as there can be no appeal in the true sense if the notice of appeal is not filed within time or within time extended.
My noble lord continued on page 598 of the same report as follows:
The notice of appeal was not filed within time or at all in the registry of the court below contrary to the express provision of Order 3 rr 4 and 5, already set out in this judgment. For that default, the appeal cannot be deemed brought. It is, for that reason alone, incompetent, Rules of court are made to be complied with to accelerate the hearing of an appeal but in the instant appeal there is compliance in breach”.
Despite the extension of time granted, the notice of appeal ought to have been filed in the registry of the court below. See Order 7 Rule 10 (2) and 11 of the 2011 Rules and Order 3 Rules 4 (2) and 5 of the 2002 Rules. The consequence of lack of filing the notice of appeal in the registry of the lower court renders the notice of appeal incompetent. The notice of appeal dated 15th February 2002 is therefore incompetent.
Consequently, the notice of appeal is hereby struck out pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2011.
There will be no order as to costs.
IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.: I have read, before now, the lead judgment just delivered by my learned brother the Hon justice Adamu Jauro, JCA. I concur with the reasoning and conclusion reached in the said lead judgment, to the effect that the notice of appeal dated February 15, 2002 filed in the registry of this court is incompetent, thus ought to be struck out.
Having adopted the reasoning and conclusion reached in the lead judgment as mine, I have no hesitation in coming to the conclusion that the notice of appeal, dated February 15, 2002 filed in the registry of this court is incompetent.
Consequently, the notice of appeal in question is hereby struck out by me.
No order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have before now been privileged to read in draft the lead Ruling of my brother ADAMU JAURO JCA just delivered.
To disagree with his reasoning and conclusion, would be a travesty of the Rules of Court, which is sacrosanct in the dispensation of justice.
The result is that I agree wholeheartedly with the reasoning and conclusions arrived by him.
A party cannot hide behind any guise in order to flout the Rules of Court, as Rules of Court must be obeyed, and they are made to be complied with to accelerate the hearing of every matter in the lower court or at the Appellate Court.
There is however compliance in breach in this case. It must be emphasized that Orders and Rules are made pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 and they therefore have the force of law. – EKPAN V. AGUNU UYO (1986) 3 NWLR Pt. 260. 63 At 76; OGBU v. URUM (1981) 4 S.C. 1 at 27. By Section 248 of the Constitution of the Federal Republic of Nigeria 1999, it says:-
“Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the Practice and Procedure of the Court of Appeal.”
The Notice of Appeal dated 15th February 2002, being incurably incompetent is hereby struck out.
I abide by the consequential order made, that there shall be no order as to costs.
Appearances
G.O. Anizoba Esq., For Appellant
AND
Chinwe Oguchi Miss. For Respondent
