PRINCE CLIFFORD AJOKU V. MR. GEORGE IBEZIM & ORS
(2012)LCN/5542(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2012
CA/OW/91/2010
RATIO
APPEAL: REQUIREMENT OF AN APPLICANT IN AN APPLICATION FOR LEAVE TO APPEAL AGAINST AN INTERLOCUTORY DECISION
It is trite as rightly submitted by the Learned Senior Counsel for the Applicants that in an application for leave to appeal from the decision of the Lower Court, as in the instant case, the High Court to the Court of appeal, the application must be filed, heard, determined and granted within the fourteen (14) days where the appeal is against an interlocutory decision. See Owoniboys Tech. Servs. Ltd v. John Hold Ltd (1991) 6 NWLR (Pt.199) 550; olori v. Ekiti State Government (2007) ALL FWLR (Pt.387) 958; Hallmark Bank Ltd v. Akaluso (1995) 5 NWLR (Pt.395) 306, NNPC v. Odidere Entpr. Ltd (2008) ALL FWLR (Pt.426) 1867. PER UWANI MUSA ABBA AJI, J.C.A.
APPEAL: WHETHER A RESPONDENT HAS AUTHORITY TO QUESTION LEAVE GRANTED TO AN APPELLANT TO FILE HIS NOTICE OF APPEAL
It is now settled that a Respondent has no authority to question leave granted to an Appellant to file his notice of appeal by a motion or in his brief of argument. If a Respondent as in the instant case alleges that there is irregularity in granting leave to appeal, the right of a Respondent is that of appeal against the order granting the leave to appeal and not a complain by mere objection in a motion or brief of argument, I am also fortified in my view with the decision of this Court, Enugu Division in Gregory Mokwe. In the matter of Application by G.C. Mokwe & Sons Ltd v. Lawrence Chukwuma Ololokun Williams (1997) 11 NWLR (Pt.528) 309 at 312. In that case, it was held that when an order granting leave to an Appellant to appeal has been made by the Court, a Respondent who is not satisfied with the order should appeal. The Law does not allow such a Respondent to raise any irregularity in making the order in his brief of argument. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
PRINCE CLIFFORD AJOKU Appellant(s)
AND
1. MR. GEORGE IBEZIM
2. MR. AUGUSTINE NWOZUZU
(for himself and on behalf of Amauzari Progressive Union except the Plaintiff)
3. MR. BENSON OGOKE
(for himself and on behalf of Okwosu Progressive Union except the Plaintiff)
4. ISIALA MBANO LOCAL GOVT.
5. GOVERNMENT OF IMO STATE
6. GOVERNOR OF IMO STATE
7. ATTORNEY-GENERAL, IMO STATE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A. (Delivering the Ruling Judgment): By a motion on notice dated 15th December, 2011 and filed on the 19th December, 2012, the 1st to 3rd Respondents/Applicants prayed this Court for, “an order striking out this appeal for being grossly incompetent”
The grounds upon which this application was made are:
1. The interlocutory ruling of the High Court against which this appeal was filed, was delivered on 22/9/2008.
2. The order of the High Court granting the Appellant leave to file this appeal was made on 7/10/2008.
3. The Notice of appeal in this interlocutory appeal was filed by the Appellant on 7/10/2008.
4. None of the grounds of appeal contained in the Notice of Appeal is a ground of law alone.
5. By 7/10/2008 when the leave to appeal was granted and the Notice of Appeal was filed, the 14 days allowed by law within which to appeal against the ruling delivered on 22/9/2008 had lapsed.
6. An appeal filed out of time is incompetent and the Honourable Court lacks jurisdiction to entertain the same.
The motion is supported by an affidavit of Seven (7) paragraphs. The Appellant/Respondent opposed the application and on 13/2/2012 filed a counter affidavit of 7 paragraphs.
Parties filed written addresses pursuant to the order of Court made on the 22/3/2012.
The facts giving rise to the present application are that the 1st to 3rd Respondents/Applicants had applied for the amendment of their Statement of Defence to the Lower Court. The Appellant who was the Plaintiff in the Lower Court opposed the application. The Lower Court in a well considered ruling delivered on 22/9/2008 granted the application. Dissatisfied with the said interlocutory decision the Appellant applied to the Lower Court for leave to appeal against the said decision. On the 7/10/2008, the Lower Court granted the Appellant leave to appeal and on the same date the Appellant filed his Notice of Appeal.
In the Applicant’s written address settled by K. C. O. Njemanze, SAN, he formulated a sole issue for determination to wit:
Whether the Notice of Appeal filed by the Appellants on 7/10/2008 against the interlocutory ruling delivered by the Lower Court on 22/9/2008 in (sic) valid and competent.
In the Appellant’s/Respondent’s written address settled by Chief E. C. Onumajuru, Esq, Learned Counsel identified the following three issues for determination to wit:
1. Whether the leave which was granted the Appellant/Respondent to file his appeal was granted within 14 days.
2. Whether the leave granted the Appellant/Respondent to file his present appeal can be reviewed by the Court of Appeal by mere objection in a motion or brief of argument.
3. Whether all the Grounds of Appeal are all grounds of mixed law and facts.
At the hearing of the application on the 10th May, 2012, the Learned Applicant’s Counsel, K. C. O. Njemanze, SAN adopted and relied on the Applicants’ motion filed on the 19/12/2011 and written address dated and filed on the 5th April, 2012 and urged the Court to grant the application and strike out the Notice of Appeal for being incompetent.
The Appellant/Applicant’s Counsel Chief E. C. Onumajuru, Esq adopted and relied on their counter affidavit in opposition to the application filed on the 13/2/2012 and the written address dated and filed the 17th April, 2012 and urged the Court to refuse the application and hear the appeal on its merit.
I have considered the issues for determination formulated by the Applicant’s and Respondent’s Counsel and I am of the view that the sole issue formulated by the Applicant’s is apt in the determination of this application and the three issues formulated by the Respondent could be subsumed into the Applicants sole issue for determination.
Whether the Notice of Appeal filed by the Appellants on 7/10/2008 against the interlocutory ruling delivered by the Lower Court on 22/9/2008 is valid and competent.
In arguing this issue, Learned Senior Counsel for the 1st to 3rd Respondents/Applicants submitted that for this application the following facts are not in dispute namely:
(a) That the interlocutory ruling of the Lower Court which is the subject matter of this appeal was delivered on the 22/9/2008.
(b) That the order of the Lower Court granting leave to the Appellant to file his leave was made on 7/10/2008.
(c) That the Notice of Appeal initiating this appeal was filed by the Appellant on the 7/10/2008. Learned Senior Counsel submitted that the Notice of Appeal filed by the Appellant on the 7/10/2008 shows that all the grounds complain against the exercise of the discretion of the Lower Court in granting the application for amendment filed by the 1st – 3rd Respondents and that the grounds are at best, grounds of mixed law and facts and relied on the case of Okafor v. Union Bank (2007) ALL FWLR (Pt. 347) 743 at 754. It is submitted that this appeal is an appeal against an interlocutory decision in which none of the grounds of appeal is a ground of law alone. He submitted that the Appellant is required to file his Notice of Appeal within fourteen (14) days after obtaining leave to do so. He referred to Section 25 of the Court of Appeal Act, 2004 and Section 242 of the 1999 Constitution of the federal Republic of Nigeria.
Learned Senior Counsel then made the following posers; (1) Did the Appellant obtain valid leave to appeal? and (2) Did the Appellant file his Notice of Appeal within fourteen (14) days as required by law?
With respect to the first question, Learned Senior Counsel submitted that it is not in dispute that the order of the Lower Court granting the Appellant leave to appeal was made on 7/10/2008, that is fifteen (15) days after the ruling sought to be appealed against which was delivered on 22/9/2008. Learned Senior Counsel submitted that the law is settled that where leave to appeal is required both in filing, hearing and granting of the application for leave as well as the filing of the appeal proper, all have to be done within the 14 days as the Lower Court loses jurisdiction to grant leave after fourteen (14) days. He cited the cases of Bowaje v. Adediwura (1976) 6 SC 143 at 146 – 147; Amudipe v. Arijodi 2 LRN 128 at 131; Owoniboys Technical Services Ltd v. John Holt Ltd (1991) 6 NWLR (Pt.199) 550 at 559; Olori v. Ekiti State Government (2007) ALL FWLR (Pt.387) 958; Halmark Bank Ltd v. Akaluso (1995) 5 NWLR (Pt.395) 306; N.N.P.C. v. Odidere Enterprises Ltd (2008) ALL FWLR (Pt.426) 1867 at 1888.
Learned Senior Counsel therefore submitted that the leave to appeal obtained by the Appellant on the 7/10/2008 outside the statutory fourteen (14) days period is invalid having been granted without jurisdiction and that the Notice of Appeal in this appeal was filed without leave and therefore constitutionally incompetent. That in the same vain the Notice of Appeal having been filed on the 7/10/2008 was filed fifteen (15) days after the ruling appealed against was delivered on 22/9/2008. His view is that, the appeal having been filed outside the statutory period of fourteen (14) days is rendered in competent as the Notice of Appeal is null and void. Reliance was placed on the case of Auto Import Export v. Adeboye (2003) FWLR (Pt 140) 1689 at 1703, where the Supreme Court considered the effect of failure to comply with the statutory requirement for filing an appeal. He also referred to the following cases namely: Owo v. Asuk (2008) ALL FWLR (Pt.429) 446 and Owoniboys Technical Services Ltd v. UBN Plc (2003) FWLR (Pt.180) 1529 at 1544.
Learned Senior Counsel further submitted that the contention of the Appellant from paragraph 4 (f) and 4(g) of their counter affidavit that 29/9/2008, 30/9/2008 and 1/10/2008 were public holidays is irrelevant to the issue of the Notice of Appeal filed by the Appellant. His view is that there is no basis in law for discounting those three days in computing the fourteen (14) days period within which the Appellant could validly file this appeal and that there is no proof that 29/9/2008 and 30/9/2008 were public holidays.
Learned Senior Counsel referred to Sections 15 (2) (b) and 15 (4) of the Interpretation Act, 2004 to submit that by Section 15 (2) (b) where the ‘fast day’ for the doing of an act is a holiday, that act is to be done on the next day which is not a holiday. He Submitted that in the instant case, the ‘last day’ on which the Appellant was to file this interlocutory appeal was Monday 6/10/2008 which date was not a public holiday and the Appellant had no legal justification in law to file the appeal the next day, 7/10/2008.
Learned Counsel also submitted that by Section 15 (4) of the Interpretation Act where an act is required to be done “within a period that does not exceed six days” holidays should be left out of account in computing the period. He thus submitted that public holidays are discounted only where the period presented for doing the act “does not exceed six days” that is where period is six (6) days or less. Learned Senior counsel further submitted that in the instant case, the period allowed the Appellant by law to file the interlocutory appeal is fourteen (14) days and that the rule requiring exclusion of public holidays as presented by Section 15 (4) of the Interpretation Act is in applicable to the circumstances of this case. His view is that there is no basis for the exclusion of 29/9/2008, 30/9/2008 and 1/10/2008 while computing the fourteen (14) days within which this appeal could validly be filed. He relied on Waku v. Adagba (2006) ALL FWLR (Pt.309) 1518 and urged the Court to hold that the appeal filed on 7/10/2008 was filed outside the statutory period of fourteen (14) day prescribed by law.
In his response, the Learned Counsel for the Appellant/Respondent, through the three (3) issues formulated by him submitted that the appeal in contention is interlocutory appeal and that the Appellant is required to file his notice of appeal within fourteen (14) days after obtaining leave of the Lower Court to do so in compliance with Section 25 of the Court of Appeal Act, 2004 and Section 242 of the 1999 Constitution (as amended). He submitted that the Appellant/Respondent was granted leave to appeal on the 22/9/2008 and counting from the next day, which is 23/9/2008, the fourteen (14) days allowed the Appellant in law to file his interlocutory appeal, is the 6th day of October, 2008. However, Learned Counsel submitted that between the 23/10/2008 and 6/10/2008, there were three (3) days of pubic holidays which are not reckoned with in law in the computation of time. That 29th and 30/9/2008 were Eidel Fitiri festivals and the 1st October, 2008 was Nigeria’s Independence Anniversary day. Learned Counsel explains that from 23/9/2008 and 6/10/2008, there were 3 days public holidays which are not reckoned with in law in the computation of time, that is from 23/9/2008 discounting 29th, 30th September, 2008 and 1st October, 2008, the appeal filed by the Appellant which was on the 11th day, being 7/10/2008 was filed within time and is competent and valid in Law. He submitted that the Honourable Court is bound by law to take judicial notice of “Public Festivals and Holiday” and there is therefore no burden on the Appellant under Section 73 of the Evidence Act 1990 to prove public holidays. He referred to the case of Altimate Inv. Ltd vs. Castle Cubicles Ltd (2009) ALL- FWLR (PT 417) 124 at 131 to submit that facts which the Court must take judicial notice of need not be proved. That the application of Sections 15 (2) and 15 (4) of the Interpretation Act is misplaced and the Court was urge to discountenance same.
Learned Counsel also submitted that when an order granting leave to an Appellant to appeal has been made, a Respondent who is not satisfied with the order should appeal as a Respondent is not allowed to raise any preliminary objection in his brief of argument. He referred to Gregory Mokwe. In the matter of application by G.C. Mokwe & Sons Ltd v. Lawrence Chukwuma Ololokun William (1997) 11 NWLR (Pt.528) 309 at 312.
His view is that the law does not allow the Respondent to do so or question the leave so granted the Appellant by a motion on notice or in his brief of argument.
Learned Counsel further submitted that this appeal is one which could have been filed as of right without leave under Section 241 (1) (b) of the 1999 Constitution in view of Grounds 2, 3 and 5 of the grounds of appeal thereof which are grounds of law. His view is that it’s not every exercise of discretion of the Court that raises a ground of mixed law and fact. That an appeal from an exercise of a discretionary power will lie as a ground of law where the discretion is sourced from an illegal reservoir or a misconception of law. The following cases were relied upon: Prince Kenneth Emekayi v. C.O.P (2004) 4 NWLR (Pt.862) 158 at 163; A-G Kwara State v. Olawale (1993) 1NWLR (Pt.272) 645; Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622. He thus submitted that the appeal could have been filed as ground of law under Section 241 (1) (b) of the 1999 Constitution of Nigeria and the court is urged to so hold.
The admitted facts in this application are that the interlocutory ruling of the Lower Court which is the subject matter of this appeal was delivered on the 22/9/2008. The order of the Lower Court granting leave to the Appellant to file this appeal was made on the 7/10/2008 and the Notice of Appeal initiating this appeal was filed on that same 7/10/2008.
Section 25 (2) (a) the Court of Appeal Act, 2004 provides as follows:
(2) The periods for giving of notice of appeal or notice of Application for leave to appeal are:
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
In the instant case, we are concerned with interlocutory decision and it is clear that the order of the Lower Court granting leave to the Appellant was made on the 7/10/2008, that is fifteen (15) days after the ruling sought to be appealed against was delivered. It is trite as rightly submitted by the Learned Senior Counsel for the Applicants that in an application for leave to appeal from the decision of the Lower Court, as in the instant case, the High Court to the Court of appeal, the application must be filed, heard, determined and granted within the fourteen (14) days where the appeal is against an interlocutory decision. See Owoniboys Tech. Servs. Ltd v. John Hold Ltd (1991) 6 NWLR (Pt.199) 550; olori v. Ekiti State Government (2007) ALL FWLR (Pt.387) 958; Hallmark Bank Ltd v. Akaluso (1995) 5 NWLR (Pt.395) 306, NNPC v. Odidere Entpr. Ltd (2008) ALL FWLR (Pt.426) 1867. In the instant case the Lower Court granted the Appellant leave to file this Notice of Appeal on 7/10/2008 and same was filed on the 7/10/2008, fifteen days after the ruling was delivered.
Learned Counsel for the Appellant argued that the leave to appeal was granted on the 22/9/2008 and that counting from the 23/9/2008, the fourteen (14) days allowed the Appellant to file his notice of appeal is the 6th day of October, 2008, His argument is that in between the 23/9/2008 and 6th October, 2008, there were 3 days Public Holiday. The 29/9/2008 and 30/9/2008 were Eidel Fitiri Festivals and 1st October, 2008 was Nigerian Independence day Anniversary and that the appeal filed on time 7th October, 2008 is competent and valid in law as the Court is bound by law to take judicial notice of “Public Festivals and Holiday” under Section 73 of the Evidence Act, Laws of the Federation of Nigeria, 1990.
While it is true that the Court is bound to take judicial Notice of “Public Festivals and Holidays” under Section 73 of the Evidence Act, the Learned Counsel has not stated that the 6th October, 2008, the last day required to file his notice of appeal falls on a weekend or a public holiday and therefore the notice of appeal could not be filed or that 6/10/2008 but on the 7/10/2008 when it was filed.
This therefore takes us to the Interpretation Act, Laws of the Federation of Nigeria, 1990 to determine if the appeal was duly filed within the prescribed period provided by Law. Section 15(2)(b) of the Interpretation Act provides that where the last day for the doing of an act is a holiday, that act is to be done on the next day which is not a holiday. Learned Counsel for the Respondents/Applicants stated that the last day on which the Appellant was to file this interlocutory appeal was Monday (sic) 2008 which date was not a public holiday and therefore Section 15(2)(b) of the interpretation Act is not applicable to the Appellant’s case and Section 15 (4) of the said Act cannot be invoked as well, as he submitted that public holidays are discounted only where the period prescribed for doing the act does not exceed six days, that is where the period is six (6) days or less.
However, Learned Counsel for the Appellant submitted that when an order is made granting leave to an Appellant to appeal has been made, a Respondent who is not satisfied with the order should appeal against the order made by the Lower Court and not for the Respondent to raise it by way of preliminary objection in his brief of argument or motion. He placed reliance on the case of Gregory Mokwe. In the matter of application by G.C. Mokwe & Sons Ltd. v. Lawrence Chukwuma Ololokun Williams (1997) 11 NWLR (Pt.528) 309 at 312.
It is now settled that a Respondent has no authority to question leave granted to an Appellant to file his notice of appeal by a motion or in his brief of argument. If a Respondent as in the instant case alleges that there is irregularity in granting leave to appeal, the right of a Respondent is that of appeal against the order granting the leave to appeal and not a complain by mere objection in a motion or brief of argument, I am also fortified in my view with the decision of this Court, Enugu Division in Gregory Mokwe. In the matter of Application by G.C. Mokwe & Sons Ltd v. Lawrence Chukwuma Ololokun Williams (1997) 11 NWLR (Pt.528) 309 at 312. In that case, it was held that when an order granting leave to an Appellant to appeal has been made by the Court, a Respondent who is not satisfied with the order should appeal. The Law does not allow such a Respondent to raise any irregularity in making the order in his brief of argument.
In the instant case, Leave was granted to the Appellant to appeal against the interlocutory ruling delivered on the 22/9/2008 on the 7/10/2008 and the Notice of Appeal was filed on that same 7/10/2008. Clearly the Appellant would not have refused the order on the ground that it was made on the fifteenth day (15) day and in fact acted timeously by filing the Notice of Appeal on that date.
The Appellants were very much aware that when the Lower Court granted the order on 7/10/2008, it did so on the fifteenth day and not the fourteenth day as prescribed by law. Therefore, the Lower Court clearly acted without jurisdiction when it gave the leave on the fifteenth (15) day and the only option open to a Respondent in the circumstances is a right of appeal to question the jurisdiction of the Lower Court to grant the application. From the 7/10/2008 when the leave was granted, the Respondent who has all the opportunity to appeal against the decision i.e. the order made but failed to do so, cannot now challenge the competence of the order made by way of motion on notice filed on the 19/12/2011. The law does not allow the Respondent to do so.
Having come to this conclusion, I will not be tempted to go into determining whether the Grounds of Appeal are of mixed law and facts as argued by the Appellant’s Counsel or that at best grounds 2, 3 and 5 of the grounds of appeal could be grounds of law which could have been filed without the leave of Court as argued by the Appellant’s Counsel.
I am therefore of the considered view that the Appeal filed by the Appellant is competent as the Respondents/Applicants option was to appeal against the decision of the Lower Court granting leave to the Appellant which the Respondents have failed to do. Consequently, I hold that the appeal filed by the Appellant on the 7/10/2008 pursuant to the order of the lower Court made on the 7/10/2008 granting leave to the Appellant is competent and this court has the jurisdiction to entertain the said appeal. The application to strike out the appeal for being incompetent is hereby refused and dismissed accordingly.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the Ruling delivered by my learned brother UWANI MUSA ABBA AJI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
HARUNA MOH’D TSAMMANI, J.C.A.: I had the privilege to read in advance the Ruling just delivered by my learned brother, UWANI MUSA ABBA AJI, JCA (Presiding).
My learned brother has adequately considered and resolved the pertinent issues that came up for determination in this motion. I agree with the reasoning and conclusion reached thereon in the lead Ruling. I accordingly hold that the application to strike out the appeal for being incompetent has no substance. It is hereby dismissed.
Appeal dismissed.
Appearances
K. C. O. Njemanze, SAN, with E. O. Onyema, Esq for the 1st to 3rd Respondents/Applicants.For Appellant
AND
E. C. Onumajuru, Esq, with S. C. Abiri-Ibe (Mrs.) for the Appellant/Respondent
Ubah Tochukwu, (Mrs.) for the 4th Respondent.
No appearance for 5th to 7th Respondents.For Respondent
