FIDELIS MGBENWA & ORS v. KINGSLEY NNAGU & ANOR
(2013)LCN/6530(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of November, 2013
CA/PH/515/2009
RATIO
WHETHER A NOTICE OF APPEAL FILED OUTSIDE THE STIPULATED PERIOD REMAINS COMPETENT
As stated by Osbourne, CJ in FOUCHE v. ORUWARI HENRY BRAID 2 NLR 102 at 105 when a court of competent jurisdiction renders a decision, the party dissatisfied with, and wanting to appeal, the decision must act strictly in compliance or conformity with the provisions of the statute regulating the filing or giving of notice of appeal. A notice of appeal filed outside the stipulated period for giving the notice of appeal is incompetent, and must be struck out. See TEXACO PANAMA INC. v. SPDC LTD (2002) ALL FWLR [Pt. 96] 579. Order 6, Rule 6 of the Court of Appeal Rules, 2011 enjoins this Court to strike out an incompetent appeal, as the instant. Per EJEMBI EKO, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
1. FIDELIS MGBENWA
2. VICTOR IGWELATU
3. OFIOMA UFEH
4. SUNDAY AJIE
5. MORRIS CHUKWUKERE
(For themselves and Umu-Nkwere, Umu-Anyagbushim Families in Okwuzi Ogba/Egbema/Ndoni LGA Rivers State) Appellant(s)
AND
1. KINGSLEY NNAGU
(For himself and as representing Olisha family Umuosuta Okwuzi Ogba/Egbema/Ndoni LGA, Rivers State)
2. NIGERIAN AGIP OIL COMPANY Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The motion seeking the High Court of Rivers State (coram G.C. Aguma, J) to strike out the suit no OHC/45/2008 for being incompetent on the ground that the claimant, now Respondent, was estopped, or the principle of estoppel per rem judicatam, from bringing the suit no OHC/45/2008 against the Appellants, who were the 1st-5th Defendants, was argued on 12th May, 2009. The Appellants had contended that the subsisting judgment in the suit no PHC/80/1972 operated to bar the Respondent from bringing the suit no OHC/45/2008 against them.
The learned trial Judge, G.C. Aguma, delivered a very short bench ruling and dismissed the application. The Ruling at pages 76 and 77 of Record of Appeal is as follows:
“RULING
It is clear from paragraph 5 of the counter affidavit that the judgment relied on by the Applicant is not being challenged. Rather the Claimant/Respondent are seeking for their right as derivable from the same judgment.
In paragraph 7 of the counter affidavit, it is deposed that the Claimant/Respondent are not re-litigating ownership of the land. These averments have not been challenged.
I have seen from the records and the judgment attached in support of preliminary objection i.e. PHC/80/1972. It is obvious that the parties sued individually whereas in the present suit, the parties are in a representative capacity.
Again, I do not even find the names of the parties in the present suit in the one that is annex to the affidavit in support of preliminary objection.
On the whole, I do not find the parties to be the same. The doctrine of res judicata can not therefore apply.
The objection is misconceived and therefore dismissed. The case is adjourned to 1/6/09 for mention.
(Sgd) G.C. AGUMA),
JUDGE
12/5/2009.”
The decision is clearly interlocutory, as the rights of the parties in the suit viz-a-viz the issues raised therein were not decided or determined. See OMONUWA v. NAPOLEON OSHODIN (1985) 2 SC 1 at 26. The suit was adjourned to 1st June, 2009 for mention.
On 10th August, 2009 (90 days after the said ruling) the Appellants, as 1st – 5th Defendants in the suit, filed the Notice of Appeal at pages 78 and 79 of the Record. Section 24 (2) (a) of the Court of Appeal Act, 2004 which stipulates the periods for the giving of the notice of appeal provide that in any civil appeal, where the appeal is against an interlocutory decision the period for filing the notice of appeal shall be 14 days from the date of decision, and where the appeal is against a final decision of the High Court a period of 3 months or 90 days is stipulated.
I have no doubt whatsoever that the decision contained in the Ruling at pages 76 and 77 of the Record is not a final decision of the Rivers State High Court in the suit no OHC/45/2008. It was an interlocutory decision. The period stipulated by Court of Appeal Act, 2004 within which this appeal shall be filed is 14 days. As stated by Osbourne, CJ in FOUCHE v. ORUWARI HENRY BRAID 2 NLR 102 at 105 when a court of competent jurisdiction renders a decision, the party dissatisfied with, and wanting to appeal, the decision must act strictly in compliance or conformity with the provisions of the statute regulating the filing or giving of notice of appeal. A notice of appeal filed outside the stipulated period for giving the notice of appeal is incompetent, and must be struck out. See TEXACO PANAMA INC. v. SPDC LTD (2002) ALL FWLR [Pt. 96] 579. Order 6, Rule 6 of the Court of Appeal Rules, 2011 enjoins this Court to strike out an incompetent appeal, as the instant. This appeal is accordingly struck out, having been filed out of time.
This is not the only defect bedeviling this appeal. The Notice of Appeal at pages 78 and 79 of the Record was filed on 10th August, 2009 with a filing fee of N2000.00 as against N5000.00 stipulated by Order 12 Rule 1 of, and the Third Schedule to, the Court of Appeal Rules 2007, then extant. We had stated in a number of cases including ENGR. IBEABUCHI v. IKPOKPO (unreported no CA/PH/406/2009 of 16th January, 2013), relying on ONWUGBUFOR & ORS v. OKOYE & ORS (1996) 1 NWLR (Pt. 424) 252 SC; 7UP BOTTLING CO. LTD v. YAHAYA (2001) 4 NWLR [Pt. 702] 47 CA; ABIA TRANSPORT COMPANY & ORS v. QUORUM CONSORTIUM LTD (2009) 9 NWLR [Pt. 1145], SC etc; that a notice of appeal filed with inadequate filing fee is incompetent. The instant notice of appeal is incompetent and a non-starter, since at the close of the period stipulated by Section 24 (2) (a) of the Court Appeal Act, 2004 for filing or giving notice of appeal these appellants had not paid in full the filing fee stipulated by the Rules of this Court. The Notice of Appeal purportedly filed on 10th August 2009 is incompetent, and it is hereby struck out.
Even on the merits; I would have found it exceedingly difficult to allow the appeal. The decision dismissing the plea of estoppel per rem judicatam is predicated on a special defence which by Order 22 of the High Court (Civil Procedure) Rules, 2006 of Rivers State applicable in the court below must be pleaded, the said Rules having abolished demurrer. No plea of estoppel per rem judicatam was pleaded in the statement of defence at pages 26 – 28 of the Record. Parties and the court are bound by the pleadings.
Rules of Court made to regulate practice and procedure in the law courts are not made for fun; they are meant to be complied with: EKPAN v. UYO (1986) 3 NWLR [pt. 26] 63 at 76.
On the whole; upon reading the briefs of argument of the Appellants and the 1st Respondent, and the Record of Appeal I am satisfied that the learned trial Judge was right in dismissing the preliminary objection founded on the claimants (in suit no OHC/45/2008) being estopped, by operation of estopel per rem judicatam, on account of the subsistence of the decision in the suit no PHC/80/1972. The court below found correctly, in my view, that:
It is clear from paragraphs 5 of the counter affidavit that the judgment relied on by the Applicants (Appellants) is not challenged. Rather the Claimant/Respondents are seeking for their right as derivable from the same judgment.
I have read the pleadings exchanged and the motion papers. The decision of the court below is unassailable.
Having held earlier that this appeal is incompetent, and an order striking out the appeal was made to that effect, I would rather not dismiss the appeal on its merits. The appeal, being incompetent, is hereby struck out. The Appellants are hereby ordered to pay to the Respondents costs assessed at N50, 000.00.
This appeal is definitely one of such interlocutory appeals mischievously contrived and interposed to delay the hearing and determination of substantive suits.
MODUPE FASANMI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO J.C.A just delivered.
The notice of appeal purportedly filed on 10th Aug. 2009 is incompetent because it was filed outside the stipulated period for giving the notice.
For this and other reasons stated in the lead judgment, I agree with the reasoning and the conclusion that the notice of appeal is incompetent. It is also struck out by me. I abide with the consequential orders contained therein inclusive of costs.
STEPHEN JONAH ADAH, J.C.A: I have had the benefit of reading in draft the judgment just delivered by my learned brother Ejembi Eko, J.C.A. I am in total agreement with his reasoning and conclusion.
I hold too that this appeal is incompetent and I strike it out.
I abide by the order of cost as made in the lead judgment.
Appearances
C. I. ObimbaFor Appellant
AND
I. E. Oguaju-Dike Esq. for 1st Respondent
P. O. Nyekwere Esq. for 2nd RespondentFor Respondent
