MAI ANGWA BUBA, A. HULLERE V. DR. MOHAMMED ABBA & ANOR
(2012)LCN/5694(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of December, 2012
CA/YL/23/2012
RATIO
APPEAL: REQUIREMENT FOR MAKING AN APPEAL
It is a trite law that any party who is dissatisfied with a decision of a High Court is entitled either as of right or with leave to appeal against the said decision. However, such an appeal must first of all be filed at the registry of the High Court whose decision is being appealed against. Unless and until this is complied with, the appeal cannot be competent before the Court of Appeal and Court of Appeal shall be robbed of the competence to entertain such an appeal. PER SOTONYE DENTON-WEST J.C.A
APPEAL: RULES OF APPEAL
In the light of the above position the Court of Appeal Rules under Order 6 Rule 2(1) provides thus:-
“All appeals shall be by way of rehearing and shall be brought by Notice (hereinafter call “the Notice of Appeal”) to be filed in the registry of the court below…”
The use of the word “shall” in the above provision shows that filing an appeal first in the registry of the court below is a condition precedent for the competence and validity of the appeal at the Appellate court.
In the case of Gbadamasi Vs. Nigerian Railway Corporation (2007) All FWLR part 367 page 855 Ratio 3 at 859 this court in Ibadan Division held thus:-
The use of the word “Shall” in a provision make the provision mandatory and pre-emptory and the failure to comply with it would amount to fundamental error in the proceedings”.In the instant appeal as can be seen on page 76 -77 of the records of appeal I find it difficult to discover that this appeal was filed at the registry of the court below. Be that as it may, I hold that this appeal lacks the competence to be entertained before this court. The Appeal is therefore incompetent and so cannot be entertained by this court. PER SOTONYE DENTON-WEST J.C.A
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
MAI ANGWA BUBA, A. HULLERE Appellant(s)
AND
1. DR. MOHAMMED ABBA
2. ALHAJI GANIYU AJABE Respondent(s)
SOTONYE DENTON-WEST J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice I. K. Banu of Adamawa State High Court delivered on 2nd March, 2011.
The Appellant together with the 2nd Respondent were the Defendants at the lower court at the suit of the 1st Respondent.
The 1st Respondent took out a writ dated 30th January 2006 claiming the following reliefs against the Appellant and the 2nd Respondent as 1st and 2nd Defendants respectively.
1. A declaration of title to the piece of land measuring about 15.3 hectres in an area known as Golamba covered by Yola Local Government Customary Certificate of Occupancy No. 003357.
2. An order nullifying the sale between first and second Defendants and their privies in respect of any part of the land covered by Yola Local Government Customary Certificate of Occupancy No.003357.
3. An order directing the Defendants, their agent and privies to demolish and remove all illegal structures erected on any part of the said land covered by the Certificate of Occupancy No. 003357.
4. An order of perpetual injunction restraining the Defendants, either by themselves, their servants, agents, privies, or successors in title or anybody claiming from them from trespassing or contravening from their acts of trespass on the property covered by Yola Local Government Customary Certificate of Occupancy No. 003357.
5. Hansel damages for trespass of the sum of N500,000.00 (Five Hundred Thousand Naira) only.
6. Cost of the suit.
See page 5 of the record of proceedings.
From the record of proceedings, the parties filed and exchanged pleadings and the matter was set out for full trial. The Plaintiff commenced his case and called evidence at the end of which he closed his case. The matter was then adjourned for defence. On the adjourned date for defence, the 1st Defendant brought an application to amend his statement of defence, re-call Plaintiff’s addresses and it was refused by the lower court. After several adjournments to enable the 1st Defendant to open his defence, but to no avail, the trial Judge saw the attitude of the 1st Defendant as a delay tactics and foreclosed the case of the 1st Defendant.
The 1st Defendant then brought an application dated and filed on the 14th of February, 2011. And brought pursuant to order 1 Rule 1(1) of the High Court Civil Procedure Rules, 1987 and the inherent jurisdiction of the court preserved under Section 6(6) of the 1999 Constitution praying for an order of the court re-opening the case of other 1st Defendant. There were counter affidavits filed in opposition to their application, at the end of which the court refused the application.
The Appellant is now before this court to challenge the said ruling of the lower court refusing the application. The parties herein filed and exchanged their briefs of argument. In his brief of argument dated and filed on 13th April, 2012 and deemed duly filed on 27th day of June, 2012, the Appellant formulated only one issue for determination i.e.:-
“Whether the learned trial judge was right in refusing the application to re-open the foreclosed case of the Appellant”.
On his own side, the 1st Respondent informed this court that he filed a Notice of Preliminary Objection dated 31st May, 2012 and filed on 1st June, 2012 and incorporated the ground for the objection in his brief of argument dated 31st May, 2012 and filed on 1st day of June, 2012. In the brief, two issues were identified for determination to wit:
1. Whether the Appellant has a competent appeal before their court for the court to hear and determine?
2. Whether the learned trial judge was not right in refusing the application to re-open the foreclosed case of the Appellant?
The 2nd Respondent did not file any brief of argument and so their appeal will be determined based on the briefs of argument filed by the Appellant and the 1st Respondent.
In this appeal Appellant’s sole issue and 1st Respondent’s 1st issue shall be our focus because the contented facts and points of law are covered in the issues. Thus, the issues for determination in this appeal are:-
1. Whether the Appellant has a competent appeal before this court for the court to hear and determine?
2. Whether the learned trial judge was right in refusing the application to reopen the foreclosed case of the Appellant?
I am obliged to consider the 1st Respondent issue no. 1, first because it is a preliminary objection which determines the life of the Appellant’s sole issue and even the centre appeal at this stage.
ISSUE ONE:
Whether the Appellant has a competent appeal before this court for the court to hear and determine?
In his submission on the preliminary objection the learned Counsel for the 1st Respondent, E. M. Zangina Esq. argued that Exhibit A2 is the Notice of Appeal filed by the Appellant and Exhibit A3 is the receipt for filing Exhibit 42 at the Court of Appeal Yola.
It was argued that Order 6 Rule 2(1) of the Court of Appeal Rules 2011 provides that all appeals shall be by way of Notice of Appeal to be filed in the registry of the court below. Court below according to the learned Counsel is explained under Order 1 Rule of the Court of Appeal Rules 2011 to mean the court from which the appeal is brought, which in this case is the High Court of Justice Yola.
It was submitted that in the case of Gbadamosi Vs. Nigerian Railway Corporation (2007) All FWLR pt.367 Page 855 Ratio B at 859, the Court of Appeal Lagos Division held thus:
“The use of the ward (sic) “shall” in a provision make the provision mandatory and pre-emptor (sic) and the failure to comply with it would amount to fundamental error in the proceedings”
In the instant appeal, he submitted that failure of the Appellant to file his appeal in the registry of the High Court of Yola is a clear violation of the mandatory provision of Order 6 Rule (1) of the Court of Appeal Rules and renders the purported appeal incompetent and we were urged to strike out the Notice of Appeal.
It was argued further that assuming without conceding that the Notice of Appeal is still incompetent because Section 242(1) of the 1999 Constitution of Nigeria has provided that all appeals outside the contemplation of Section 241 of the same Constitution shall be with leave of either the court below or the Court of Appeal. That the appeal is not against final decision and the ground of appeal in the Notice of Appeal is grounds of mixed law and facts. Also the facts that the Appellant quoted Section 36 of the 1999 Constitution as a case law in his ground of appeal does not qualify it to be a ground of law. Ground of law according to the Counsel does not make any reference to any fact. That the ground of appeal complained of is not a ground of law. See the case of Maduabuchukwu V. Maduabuchukwu (2006) All FWLR part 318 page 695 R. 10 at 700.
It was submitted that the ground of appeal which questions the exercise of discretion by the lower court is a question of fact or at best a question of mixed law and facts and the leave of the lower court or the Court of Appeal ought to be sought and obtained before there can be a valid appeal.
It was further argued that Exhibit “A1” has stated that the appeal of the Appellant is an interlocutory appeal and Section 14 of the Court of Appeal Act has provided that any appeal against an interlocutory decision of a High Court shall be with leave of the High Court or the Court of Appeal. The case of Ekanem V. Umanah (2007) ALL FWLR parast 387 page 928 Ratio 2 at 930 – 931 was referred to.
It was submitted that the Appellant has not sought for or obtained leave of any court before filing this appeal and absence of leave renders the appeal incompetent and robs the court of the jurisdiction to hear and determine the appeal. We were urged to uphold the objection and strike out the appeal for incompetence.
In his reply to the issue raised and canvassed above, the Appellant’s Counsel simply submitted that there is before this Honourable Court a competent appeal as Notice and grounds of appeal were filed at the lower court registry in compliance with Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 and he urged the court to so hold.
On the issue of leave, the learned Counsel submitted that this appeal does not require leave and the principle of stare-decises that the decision of superior courts of record, bind the lower courts when confronted with actions that have similar facts. He argued that an appeal which challenges the refusal of a lower court to follow the position of the Supreme Court as laid down in the case of Chirlu v. Akanni (2001) FW1 (Pt. 71) at page 1781 para 1789 and Section 36(1) of the 1999 Constitution (as amended) is an appeal on the ground of law and requires no leave.
The Counsel urged this court to so hold.
RESOLUTION OF ISSUE ONE (PRELIMINARY OBJECTION)
It is a trite law that any party who is dissatisfied with a decision of a High Court is entitled either as of right or with leave to appeal against the said decision. However, such an appeal must first of all be filed at the registry of the High Court whose decision is being appealed against. Unless and until this is complied with, the appeal cannot be competent before the Court of Appeal and Court of Appeal shall be robbed of the competence to entertain such an appeal.
In the light of the above position the Court of Appeal Rules under Order 6 Rule 2(1) provides thus:-
“All appeals shall be by way of rehearing and shall be brought by Notice (hereinafter call “the Notice of Appeal”) to be filed in the registry of the court below…”
The use of the word “shall” in the above provision shows that filing an appeal first in the registry of the court below is a condition precedent for the competence and validity of the appeal at the Appellate court.
In the case of Gbadamasi Vs. Nigerian Railway Corporation (2007) All FWLR part 367 page 855 Ratio 3 at 859 this court in Ibadan Division held thus:-
The use of the word “Shall” in a provision make the provision mandatory and pre-emptory and the failure to comply with it would amount to fundamental error in the proceedings”.In the instant appeal as can be seen on page 76 -77 of the records of appeal I find it difficult to discover that this appeal was filed at the registry of the court below. Be that as it may, I hold that this appeal lacks the competence to be entertained before this court. The Appeal is therefore incompetent and so cannot be entertained by this court.
Having held as above, it goes without pronouncing it that the contents including the grounds of the Notice of this appeal are incompetent. Accordingly appeal is hereby struck out, with no order as to costs.
IGNATIUS IGWE AGUBE J.C.A.: I agree.
ABUBAKAR ALKALI ABBA J.CA.: I have carefully read the lead Judgment of Hon. P.J. Justice Sotonye Denton West which is just delivered.
I agree that this appeal is completely incompetent and it should be struck out and the filing of appeal only at court of Appeal not in the High Court first is wrong.
This striking out is in accordance with (2011) Rules of Court of Appeal orders, order 2(1) 9, 11 and 18.
I also resolved the 2 issues in favour of Respondent as Order 2 Rule (1).
I agree that section 242 of the 1999 constitution as well as section 241 as well as section 14 of the Court of Appeal Act is applicable.
I agree also leave to appeal shall be first obtained by Appellant before filing appeal at the High Court not court of Appeal direct.
I agree that use of the word shall makes it compulsory or mandatory provision.
Appeal struck out, no cost is award.
Appearances
G.C Adikwu Esq.For Appellant
AND
E. M. Zangina Esq.For Respondent
