MISS IVIE IGBINEDION v. PRINCESS E. OLOWU & ORS (2013)

MISS IVIE IGBINEDION v. PRINCESS E. OLOWU & ORS

(2013)LCN/6571(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of December, 2013

CA/B/194/2009

RATIO

CONDITIONS TO BE ESTABLISHED FOR THE SUCCESS OF AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL

WHETHER A SINGLE COMPETENT GROUND OF APPEAL IS ENOUGH TO SUSTAIN AN APPEAL

It is equally a trite principle, that the fact that one of the grounds of appeal is competent, is enough to sustain an appeal. Thus, at best, all that the court ought to do, in such a circumstance, is to merely strike out the grounds that are deemed incompetent and proceed to determine the appeal upon the basis of the competent grounds so remaining. See Order 6 Rule 3 of the Court of Appeal Rules, 2011 to the effect, thus:
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted since the general ground that the Judgment is against the weight of the evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or on application by the Respondent.
See also IGWE v. KALU (2002) 5 NWLR (Pt. 761) 678 @ 711 paragraphs E – H; CARRABEAN TRADING & FIDELITY CORPORATION v. NNPC (1991) 6 NWLR (Pt. 19) 352 @ 361, paragraphs A – B; OKEM ENT. (NIG) LTD v. NDIC (2003) 5 NWLR (Pt. 814) 492. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

WHETHER A GROUND OF APPEAL MAY RAISE A QUESTION OF LAW

Now, regarding the question of whether or not the grounds of appeal raise questions of law, I would want to appreciate that the position of the law thereon, is not far-fetched. Indeed, the principle has long been settled, that where the grounds of appeal upon which a notice of appeal is predicated in an interlocutory appeal raises questions of law, there is no need at all for leave of court to be sought and obtained before it is filed. See ADETONA v. EDET (2001) 3 NWLR (Pt. 699) 186 @ 190; IBWA LTD v. ANAMCO LTD (1995) 5 NWLR (Pt.
396) 482; METAL CONSTRUCTION WA LTD v. MIGLIORE (1990) 1 NWLR (Pt. 126) 299. THOMAS v. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

MISS IVIE IGBINEDION Appellant(s)

AND

1. PRINCESS E. OLOWU
2. UAC OF NIGERIA PLC
3. UACN PROPERTY DEVELOPMENT COMPANY PLC
4. EDDY ONYENWEUZO
(Doing business under the name and style of Uniliver)
5. WEST AFRICAN PORTLAND CEMENT PLC
6. EDO INVESTMENT COMPANY LIMITED
7. GREAT BRANDS NIGERIA LIMITD Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the leading Judgment): The present appeal is against the Ruling of the High Court of Edo State which was delivered on April 27, 2006 in Suit No. B/674/2003. By the said Ruling, the lower court coram A. N. Ehigiamusoe, J; dismissed the Appellant’s preliminary objection challenging the jurisdiction of the court to entertain and determine the suit.
Thus, dissatisfied with the vexed Ruling in question, the Appellant filed the notice of appeal thereof on June 28, 2006 in the court below.
The original notice of appeal was predicated upon three Grounds of Appeal.
BACKGROUND FACTS:
It is evident from the record of appeal that on December 2, 2003, the 1st Respondent, filed in the court below, the said Suit (No. B/674/2003) vide the Writ of Summons and 14 paragraph Statement of Claim against the Appellant, and 2nd to 7th Respondents, respectively. By the Statement of Claim thereof, the 1st Respondent has sought against the Appellant and 2nd to 7th Respondents the following reliefs:
WHEREFOR the Plaintiff claims as follows:
1. As against the 1st and 2nd defendants jointly or severally, forfeiture of the lease agreement dated 4th March, 1977 and registered as number 46 at page 46 in volume 249 of the Lands Registry in the office at Benin City by which the Plaintiff let the premises known and called No. 269, Murtala Mohammed Way Benin City to 1st Defendant for a period of 50 years.
2. A declaration that the deed of transfer dated 30th day of July, 2002 and registered as No. 24 in page 24 in volume 925 of the Lands Registry in the office at Benin City by which 2nd Defendant, UACN Property Development Company Plc purported to transfer the said premises known and called No. 269, Murtala Mohammed Way, Benin City to the 2nd Defendant without the consent of Plaintiff and in defiance of the subsisting order of the High Court of Edo State, in Suit No. B/184/97 restraining the 1st Defendant from underletting or parting with possession of the said premises without consent in writing of the Plaintiff, is null and void and of no effect whatsoever.
3. An order setting aside the said deed of Transfer dated 30th July, 2002 between 2nd and 3rd Defendants and registered as No. 24 at page 24 in Volume 925 of the Lands Registry in the office at Benin City and or deleting same from the Land Registry in the office at Benin City.
4. As against the Defendants jointly or severally possession of the said premises known and called No. 269 Murtala Mohammed Way, Benin City and comprised in the deed of lease dated 4th March, 1977 and registered as No. 46 at page 46 Volume 249 of the Lands Registry in the office at Benin.
5. As against the 1st Defendant N30,000,000.00 (thirty million naira) as damages for breach of covenant.
6. As against the 1st Defendant the sum of N587,743.33 (five hundred and eighty-seven thousand and seven hundred and forty-three naira, thirty-three kobo) being arrears of rent for the period 1st November 2002 to 31st October, 2003 which became due on 1st November, 2002.
Of all the seven Defendants, only the Appellant reacted to the said suit by filing in the court below the statement of defence thereof. On May 6, 2004, the Appellant equally filed a motion on notice seeking the following reliefs –
(1) An order to set down for hearing and determination of the following points of law pleaded in paragraph 3 (a) – (c) of the statement of defence.
(a) That the suit against the 3rd defendant/applicant is incompetent in that the condition precedent as provided by the rules of Court and law was not complied with before the institution of the action by virtue of Order 11 Rules 10, 12 and 13 of the Bendel State High Court (Civil Procedure) Rules 1988 as applicable in Edo State since the 3rd defendant/applicant is an infant who lacks the capacity to hold land as pleaded in paragraph 13 (ii)(c) of the statement of claim.
(b) That the Suit against the 3rd defendant/applicant is an abuse of court process in that as pleaded in paragraphs 9 and 10 of the statement of claim, that the 1st defendant/respondent has been restrained by the court on 20/2/1998 in Suit No. /184/97 filed by the Plaintiff in respect of the property in dispute which is registered as 46/46/249 of the Lands Registry in the office at Benin City to wit:
“The 1st defendant is hereby restrained from committing such breach as complained of in the future (i.e. under letting or parting with possession of part of the whole premises without the consent of the Plaintiff first had and obtained in writing which consent will not be unreasonable withheld.”
(c) There is no reasonable cause of action having regard to (a) and (b) above.
Consequent upon the close of argument of the respective learned counsel, the lower court delivered the vexed Ruling on April 27, 2006 to the conclusive effect, thus:
On the whole in a total consideration and to reiterate I found the preliminary objection unsustainable, misconceived and I dismiss it entirely.
Parties to bear their costs
Case is adjourned to the 28th June 2006. (Pages 53 – 64 Record)
As alluded heretofore, the instant appeal is against the vexed Ruling of the lower court. The record of appeal having been transmitted to this court, parties filed their respective briefs of argument. Most particularly, the Appellant’s brief was filed on 08/7/09 by Mrs. E. J. Omoregie of Eghobamien & Eghobamien Chambers, the Appellant’s counsel. That of the 1st Respondent was authored and filed on 07/06/10 by C. O. Ugwor Esq. of Thompson Okpoko & Partners. It was however deemed properly filed on 15/01/13.
On October 7, 2013, when the appeal last came up for hearing, both learned counsel adopted the argument contained in their respective briefs of argument. Thus, resulting in reserving Judgment for delivery.
In the said brief thereof, the Appellant formulated two issues for determination, viz:
ISSUE ONE
Whether the learned trial Judge was right in holding that he has jurisdiction when the Registrar was not made a party.
ISSUE NO. TWO
Whether the learned trial Judge was right in holding that the appropriate legal step to be taken by the Plaintiff/Respondent was not to commence committed proceedings against the 1st Defendant/Respondent in this Suit.
On Issue No. 1, it was submitted by the Appellant’s learned counsel, that it’s unfortunate that the lower court did not avert the mind thereof to the case of AWONIYI v. REGD TRUSTEES OF AMORCE 10 NWLR (Pt. 676) 522 @ 533 F – H. That the failure to join the Registrar of Deeds before applying for the Deed to be set aside means that the condition precedent was not complied with. It amounts to an infringement of the fundamental right to fair hearing, as provided in Section 36 of the 1999 Constitution. Thus, the court cannot in the absence of jurisdiction exercise inherent powers. See MADUKOLU v. NKEMDILIM (1962) 1 ANLR 121 Vol. IV 587.
It was contended, that the Deed, registered as 24/24/925 at Benin City, cannot be set aside or cancelled unless such a document and parties are before the court. In the instant case, the Registrar of Deeds who registered the said Deed is a necessary party to the reliefs in paragraphs 2 & 3 at page 6 of the Statement of Claim (Record).
Therefore, he must be before the court to enable the court exercise its jurisdiction over the Deed. See AWONIYI v. REGD TRUSTEES AMORCE (supra).
Regarding Issue No. 2, it was submitted, inter alia, that, since the Respondent was the party restrained in Suit No. B/184/97 not to let the subject matter in dispute to any person without the authority of the Plaintiff, and that he has disobeyed that order, it was the responsibility of the Plaintiff to set the machinery in motion to enforce Judgment in Suit No. B/184/97. Therefore, the filing of this action is an abuse of process. That, the action of the 3rd Defendant is a demonstration of gross abuse of judicial processes based on frivolity and recklessness with no alter of law to support it. See SARAKI v. KOTOYE (1997) 9 NWLR (Pt. 260) 168 @ 188 – 189 F – B.
Equally contended, that the court was not competent to gloss over the obvious contempt committed by 1st Defendant. That, the Plaintiff ought to have filed contempt proceedings instead of filing this fresh Suit.
Paragraph 2 of the Statement of claim, at page 6 of the Record, was alluded to, where the Plaintiff/Respondent pleaded that he was a party in Suit No. B/184/97 in an injunctive order over the subject matter. Thus, the Plaintiff/Respondent was privy to that Suit, and caught by issue estoppel. Therefore, this amounted to an abuse of court process.
On the whole, the Appellant urged upon the court to-
“uphold this application (?)”
(See page 8 of the Appellant’s brief of argument).
On the part thereof, the 1st Respondent has raised a preliminary objection to the appeal which was incorporated in pages 4 – 11 of the brief thereof. The 1st Respondent urged upon the court to –
dismiss the appeal on the ground that same is incompetent.
The objection was predicated upon what the learned silk termed particulars (grounds), which are to the following effect:
PARTICULARS:
i. Ground 1 and 3 of the Grounds of Appeal are incompetent in that although they raise issues of mixed law and fact no leave of the High Court of Edo State or of the Court of Appeal was sought and or obtained before filing the appeal contrary to Section 242 of the constitution of the Federal Republic of Nigeria, 1999
ii. That Grounds 2 and 4 of the Grounds of Appeal are incompetent in that they do not constitute an attack or challenge on any ration decidendi of the Ruling of the lower court dated 27/04/2006.
iii. The purported record of appeal show that the condition of appeal were not satisfied or met as and when ordered and were an attempt to overreach Respondent’s motion dated 11/3/08 and filed on 26/3/08 to dismiss the appeal.
Submitting on the sole issue for determination of the preliminary objection, the 1st Respondent’s learned senior counsel, Chief Okpoko urged on the court to hold that the appeal is incompetent, thus ought to be (either) dismissed or struck out.
As pointed out by learned silk, no reply (brief) was filed by the Appellant to counter submission of the Respondent regarding the preliminary objection in question. Page 10, paragraph 2.03 of the 1st Respondent’s brief was alluded to regarding the alleged –
“… Ingenious attempt to cover up the Appellant’s failure to comply with the conditions of appeal. The appeal is incompetent on the grounds stated. I urge the court to dismiss the appeal.”
Responding to the submission of Chief Okpoko, SAN on the preliminary objection, Erhabor Esq. submitted thus:
“we did not file a reply brief as it’s the discretion of the court to rule accordingly. It is not correct to say that we set out to manipulate the Record of Appeal.”
I have amply accorded a critical, albeit dispassionate, consideration upon the submission of Chief Okpoko, SAN regarding the preliminary objection vis-a-vis the grounds (particulars) upon which it’s predicated. At this point in time, it’s imperative for me, first and foremost, to deal with the preliminary objection for whatever it’s worth before proceeding, if necessary, to determine the appeal on the merits.
THE PRELIMINARY OBJECTION
The particulars (grounds) upon which the preliminary objection is predicated have been set out at page 5 of the 1st Respondent’s brief, thus:
PARTICULARS:
i. Grounds 1 and 3 of the Grounds of Appeal are incompetent in that although they raise issues of mixed law and fact no leave of the High Court of Edo State or of the Court of Appeal was sought and or obtained before filing the appeal contrary to Section 242 of the Constitution of the Federal Republic of Nigeria, 1999.
ii. That Grounds 2 and 4 of the Grounds of Appeal are incompetent in that they do not constitute an attack or challenge on any ratio dicedendi of the Ruling of the lower court dated 27/04/2006.
iii. The purported record of appeal show that the condition of appeal were not satisfied or met as and when ordered and were an attempt to over-reach respondent’s motion dated 11/3/08 and filed on 26/3/08 to dismiss the appeal.
As copiously alluded to above, particular (i) of the objection complains about Grounds 1 & 3 of the Grounds of Appeal being incompetent, in that they raise issues of mixed law and fact; no leave of either the court below or the Court of Appeal was sought and obtained, contrary to Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999.
Instructively, by virtue of the unequivocal provisions of Section 241 (1) of the 1999 Constitution, as amended, an appeal shall lie from decisions of the Federal High Court or a State High Court (FCT High Court inclusive) to the court of Appeal as of right in the following cases –
241 (1) An appeal shall lie from decisions of the Federal 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;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
Section 241 (1) of the 1999 Constitution.
However, by virtue of Section 242 (1) of 1999 Constitution, an appeal shall lie from decisions of the Federal High Court or State High Court (FCT High Court, Abuja inclusive) to the Court of Appeal with the leave of either the High Court or the Court of Appeal, subject to the provisions of Section 241 of the said Constitution. See OKONKWO v. FRN (2006) 14 NWLR (Pt. 1000) 566 @ 578 – 576 paragraphs H – A; EKWALUGO v. ACB (NIG) LTD (2006) 6 NWLR (Pt. 975) 30 @ 40 paragraph A.

Undoubtedly, the instant appeal is interlocutory by the nature thereof, as alluded to above. By the provision of Section 24 (2) (a) of the Court of Appeal Act (Supra), the periods for filing (a 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.) Brackets added.In the instant case, the ruling being appealed against was delivered on 27/4/06. The notice of appeal was filed on 28/6/06. (See pages 53 – 56 and 65 – 67 of the Record of Appeal). Thus, the 14 days grace accorded the Appellant to file the notice of appeal thereof, would have expired by 12/5/06. Arguably, by 28/6/06, the notice of appeal was filed out of the statutory time limit. No extension of time to file the said notice of appeal was sought and granted. Therefore, the Appellant’s failure to seek and obtain the necessary order of the court extending time thereto to file the said notice of appeal has rendered the appeal thereof incompetent. And I so hold.
Now, regarding the question of whether or not the grounds of appeal raise questions of law, I would want to appreciate that the position of the law thereon, is not far-fetched. Indeed, the principle has long been settled, that where the grounds of appeal upon which a notice of appeal is predicated in an interlocutory appeal raises questions of law, there is no need at all for leave of court to be sought and obtained before it is filed. See ADETONA v. EDET (2001) 3 NWLR (Pt. 699) 186 @ 190; IBWA LTD v. ANAMCO LTD (1995) 5 NWLR (Pt.
396) 482; METAL CONSTRUCTION WA LTD v. MIGLIORE (1990) 1 NWLR (Pt. 126) 299. THOMAS v. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669.I have critically, albeit dispassionately, considered the four grounds of appeal contained at pages 65 – 66 of the Record of Appeal. Most especially, on ground No. 1, I have no difficulty at all in appreciating the fact that it raises the question of jurisdiction, which is strictly speaking a fundamental question of law. It is neither of mixed law and fact, nor of fact alone. It is trite, that where a necessary party is not joined in a suit or action, the issue of whether or not the trial court has the jurisdiction to entertain and determine the claim therein automatically raises a question of law and not mixed law and/or of fact alone. This is absolutely so, because –
Jurisdiction is never conferred in obscurity by (the constitution or) a statute. The language of the law conferring same, upon a court, must be clear and positive. Thus, no microscopic aid ought to be required in order to discern jurisdiction wherever it is conferred. See OKEKE v. SEC. (2013) AII FWLR (Pt. 687) 73, 758 – 759 paragraphs E – B, per Saulawa, JCA; BUKAR MANDARA v. AGF (1984) 1 SCNLR 311; LABIYI v. ANRETIOLA (1992) 2 NWLR (Pt. 258) 139; OBADA v. MR. GOV. KWARA STATE (1990) 6 NWLR (Pt. 157) 482; MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; AG. FED. v. GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (Pt. 618) 187; SPD (NIG) LTD v. SIRPI-ALUSTEEL CONST. LTD (2007) 1 NWLR (Pt. 1067) 128.

What’s more, there is every cogent reason for me to appreciate the fact that the consideration of the pleadings in the appeal does not, ip so facto make a ground of appeal in a notice of appeal a mixed law and facts. Arguably, every position law in an appeal is inherently factually based. It is trite, that an appeal against the exercise of the discretion of a court raises a question inherently predicated upon ground of law. See EMEAKAYI v. COP (2004) 4 NWLR (Pt. 862) 58 @ 181 C – H; A.G. KWARA STATE v. OLAWALE (1993) 1 NWLR (Pt. 272) 645; AQUA LTD v. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622; BIOCON AGRO CHEMICALS (NIG) LTD v. KUDU HOLDINGS COY LTD (2000) 15 NWLR (Pt. 691) 493; BALOGUN v. AGBAMOLA (1974) 1 ANWLR (Pt. 11) 66.

The fact that this court is imbibed with an unfettered discretionary power to extend the periods enshrined in the Court of Appeal Act (supra) for the filing of a notice of appeal or application for leave to appeal (as the case may be) is not at all in doubt. See Section 24 (4) Court of Appeal Act (Supra); Order 7 Rule 10 (1) Court of Appeal Rules 2011.
However, it needs to be emphatically reiterated, for the avoidance of any lingering doubt, that any such application for an enlargement (extension) of time within which to appeal or to apply for leave to appeal (as the case may be) must strictly be filed in the Court of Appeal itself, and (never) in the lower court. The reason being that, the lower court is devoid of jurisdiction to enlarge (extend) time to file an appeal. See ADELEKE v. COLE (1967) All NLR 35; IFEDIBA v. LEVER BROTHERS (NIG) LTD (1974) ECSLR 18; EZEBUIRO v. COP (1959) SCNLR 68; ISAAC ONUOHA VS. COP (1959) SCNLR 75; RE – LAWRENCE, EVENNETT v. LAWRENCE (1876) 4 Ch. D 139.

Undoubtedly, it’s trite that in order for an application for enlargement of time within which to appeal to succeed, two circumstances (conditions) must co-exist viz:
1. Good and substantial reasons for the Applicant’s failure to file the notice of appeal thereof within the statutory time limit in question; and
2. Grounds of appeal which prima facie show good cause why the appeal ought to be heard.
See Order 7 Rule 10 (2) of the Court of Appeal Rules 2004 (Supra); IBODO v. ENAROFIA (1980) 5 – 7 SC 42; COOPERATIVE & COMMERCE BANK (NIG) LTD v. OGWUNU (1993) 3 NWLR (Pt. 284) 630; IWEKA v. SCOA (2000) 3 SC 21; LAMAI v. ORBIH (1980) 5 – 7 SC 28; OJORA v. BAKE (1976) 1 SC 47; OSINUPEBI VS SAIDU (1982) 7 SC 104; BOWAJE v. ADEDIWURA (1976) 6 SC 143; UNILAG v. OLANIYAN (1985) 1 NWLR (Pt. 1) 156; IFEBUZOR v. NWABEZE (1998) 8 NWLR (Pt. 560) 148; UBN NIG. PLC v. NDACE (1998) 3 NWLR (Pt. 541) 331; NDIC v. IBRU LTD (2003) 16 WRN 33.
Ironically, the crux of the matter goes beyond the question of whether the grounds of appeal, upon which the notice of appeal is predicated, prima facie, show good cause why the appeal ought to be heard. The fundamental question, as alluded to above, is whether the notice of appeal, which was filed out of the statutory time limit (period) of 15 days without the leave of court (enlarging time) is competent? The answer to that pertinent question is most inevitably in the negative. Thus, the court is devoid of jurisdictional competence to hear the appeal for having been filed out of time, and for which the Appellant took no step to have time extended (enlarged) thereto in accordance with the provisions of Section 24 of the Court of Appeal Act, 2004 and Order 7 Rules 1, 4 & 10 (1) of the Court of Appeal Rules, 2007.
Having found above that the Appellant’s notice of appeal (in the instant appeal) was filed out of the statutory time limit of 15 Days (Section 24 (2) (a) of the Court of Appeal Act, 2004), the appeal is grossly incompetent. And my reason for so holding, is not far to seek. Indeed, it’s a trite principle, that an appeal which is filed out of time, and without leave of court, is incompetent. See ADELEKE v. COLE (1967) 1 All NLR 35.
Afortiorari, the implication or consequence of filing an appeal out of the statutory time limit, is that the court is devoid of the fundamental jurisdictional competence to hear and determine the appeal. See ORANYE v. JIBOWU (1950) WACA 41; ADEYEMI v. AWOBOKUN (1968) 2 AII WCR 318.In the circumstance, there is every cogent reason for me to hold that the preliminary objection of the 1st Respondent succeeds, and it’s accordingly hereby upheld by me.
CONSEQUENTIAL ORDER
Hence, having upheld the preliminary objection of the 1st Respondent, the only reasonable order that the court can make, in the present circumstance, is that of striking out of the appeal for being incompetent. My view is predicated upon the very well settled principle that –
By its very nature, preliminary objection is, strictly speaking, antithetical to the intendment or objective of issues formulated in a brief for determination of an appeal before the court. This is obviously so because, it (preliminary objection) tends to foreclose or abort the appeal in limine, and where upheld. Terminates the appeal.
That’s to say, it automatically puts an end to the appeal without necessarily determining the rights of the parties thereto on the merits. See ANPP v. REC AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 @ 506 paragraphs F – G, per Saulawa, J.C.A. See also ODUNZE v. NWOSU (2007) 13 NWLR (Pt. 1050) 1; (2007) All FWLR (Pt. 379) 1295 @ 1314 – 1315 paragraphs A – B.
Afortiorari, the doctrine is equally established to the effect, that a notice of appeal is fundamentally indispensable in initiating appeal processes. It is indeed the ‘live wire’ of every appeal, validly so called.
Thus, very crucial to animation and determination of the appeal process. This is absolutely so, because –
Where a notice of appeal turns out to be defective or incompetent in any respect, and for whatever reason, there is no valid appeal and the court becomes devoid of any jurisdiction to determine the appeal (on the merits). In such a circumstance, the appeal is liable to be struck out or dismissed, as the case may be. See ANPP v. REC AKWA IBOM STATE (Supra) @ 506 – 507 paragraphs H – A. Brackets added. See also ODUNZE v. NWOSU (Supra) @ 1315 paragraph D.Consequently, having upheld the 1st Respondent’s preliminary objection, the instant appeal is hereby adjudged incompetent and accordingly struck out.
There shall be order of costs of N50,000.00 in favour of the 1st Respondent, against the Appellant.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. I agree with his Lordship’s reasoning and conclusion that the interlocutory appeal be dismissed. I will add a few words.
Chief J.S.O. Okpoko, SAN raised a preliminary objection to the hearing of this interlocutory appeal in the following terms:
PARTICULARS:
i. Grounds 1 and 3 of the Grounds of Appeal are incompetent in that although they raise issues of mixed law and fact no leave of the High Court of Edo State or of the Court of Appeal was sought and or obtained before filing the appeal contrary to S.242 of the Constitution of the Federal Republic of Nigeria, 1999.
ii. That Grounds 2 and 4 of the Grounds of Appeal are incompetent in that they do not constitute an attack or challenge on any ratio dicedendi of the Ruling of the lower court dated 27/04/2006.
iii The purported record of appeal show that he condition of appeal were not satisfied or met as and when ordered and were an attempt to over-reach respondent’s motion dated 11/3/2008 and filed on 26/3/2008 to dismiss the appeal.
Learned 1st Respondent’s counsel is of the view that Grounds 1 and 3 of the grounds of appeal raised issues of mixed law and fact and leave of the High Court or this Court should have been first sought and obtained before notice of appeal was filed. Chief Okpoko relied on S.242(1) of the 1999 Constitution. It is apt to note that S. 242(1) was made subject to S.241 of the said Constitution.
S. 241(1)(b) provides as follows:
S. 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 –
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
Indeed there are plethora of judicial authorities which have interpreted the above provisions to the effect that where the grounds of appeal on which an interlocutory appeal is predicated raises issues of law alone, no leave need be sought or obtained before filing same.
There is no doubt that the issue of whether the trial court had jurisdiction to determine the claim is one of law. Therefore since one of the grounds of appeal is one of law, it is enough to sustain that ground of appeal. Therefore ground one of the notice of appeal is competent.
However, in this instance that is not the end of the matter. S.24(2)(a) of the Court of Appeal Act provides that –
S. 24(2)(a) The periods for the giving of notice to 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 this case, the ruling appealed against was delivered on 27/4/2006, time to file notice of appeal expired on 12/5/2006, whereas the notice of appeal was filed on 28/6/2006.
The appellant neither sought nor obtained leave of the trial court or this court to extend time within which to appeal.
In the circumstances, the appeal is incompetent. For the fuller reasons given by my learned brother, I also strike out this appeal. I award N50,000.00 costs to the Respondent against the Appellant.