ELDER NATHANIEL IBEABUCHI HART & ORS v. CHIEF PETER JOSIAH & ORS
(2019)LCN/13148(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of April, 2019
CA/PH/510/2016
RATIO
JURISDICTION: IMPORTANCE
Furthermore, in the case of Petrojessica Enterprises Ltd. vs. Leventis Tech. Co. Ltd. (1992) 5 NWLR Pt. 244, pg. 675 at 693, the Supreme Court per the noble Belgore, JSC., (as he then was) had this to say:
Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity?. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court. A fortiori the Court can SUO MOTU raise it. [Emphasis mine].
See also the authorities of Gaji vs. Paye (2003) 8 NWLR Pt. 823, pg. 583; Omomeji vs. Kolawole (2008) 14 NWLR Pt. 1106, pg. 180; Agbiti vs. Nig. Navy (2011) 4 NWLR Pt. 1236, pg. 175; Maraire vs. State (2017) 3 NWLR Pt. 1552, pg. 283, 305 paras. A-B; and Obiakor vs. State (2002) 10 NWLR Pt. 776, pg. 612.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
APPEAL: INTERLOCUTORY APPEAL: PERIOD WITHIN WHICH THEY SHOULD BE BROUGHT BEFORE THE COURT
Being an interlocutory appeal, an appeal in that regard shall be initiated within 14 days of the said ruling/decision. See Section 24 of the Court of Appeal Rules, 2004 which states that:
24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of sub-section (2) of this section that is applicable to the case.
(2) The periods for the 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….PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. ELDER NATHANIEL IBEABUCHI HART
2. ELDER SAMUEL OGBONNA AKAYA
3. ELDER ROLAND CHIGAH AKAYA
4. BRO. CHIDI B. AKAYA
5. HON. STANLEYSON N. AKAYA
6. HON. UMUNNAKWE JOSEPH AKAYA
7. CHIEF SAMPSON H.N. AKAYA
(for themselves and as representing members of Umunka Compound, Okoloma Afam; Oyigbo. L.G.A.) Appellant(s)
AND
1. CHIEF PETER JOSIAH
2. MR. NKEONYE GODDY OGBUOKWU
3. MR. CHARLES CHIJINDU OGBUOKWE
(for themselves and as representing members of Nkpokoro Compound, Okoloma Afam; Oyigbo. L.G.A.) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Rivers State (the lower/trial Court), per Hon. Justice J. M. Kobani J., on an interlocutory application in suit No. OYHC/77/2013, delivered 15th March, 2016.
STATEMENT OF FACTS
The appellants who at the lower Court were the claimants commenced suit No. OYHC/77/2013 by way of writ of summons issued 9th April, 2013, claiming as follows against the respondents who therein were the defendants/counter claimants:
a. A declaration that the Claimants are the deemed holder of the Statutory Right of Occupancy and are therefore entitled to the grant of Statutory Right of Occupancy to the piece or parcel of land called UZO AWO LAND situate, lying and being at Okoloma, Afam, Oyigbo Local Government Area of Rivers State measuring approximately 32523.757 square metres and more particularly described in the Land in dispute plan No: AIF/RV-L1/2013/001 dated 20th December, 2012 and filed in this suit.
b. An order of perpetual injunction restraining the Defendants, their agents, privies etc. from further
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trespass/entry into the said parcel of land.
c. N5,000,000.00 (Five Million Naira) only as damages. (See pages 1-2 and 8 of the record of appeal).
Upon service of the writ of summons and statement of claim on the defendants, the latter on 27th June, 2013 filed their Statement of Defence and Counter Claimed as follows against the Claimants:
i. A declaration that the entire land known and called UZO AWO as shown on the Dispute Survey Plan is the land of the Defendants.
ii. Payment of the sum of Forty Million Naira as general damages.
iii. An order of perpetual injunction restraining the Claimants either by themselves, agents, privies, or successors-in-title howsoever and in whatever manner from trespassing into the Uzo Awo Land situate in Okoloma Afam-Ndoki in the Oyigbo Local Government Area of Rivers State as shown on the dispute plan filed in this suit by the Defendants/Counter Claimants. (See pages 97 ? 98 of the record of appeal).
?
The 1st and 2nd defendants having filed and served their Statement of Defence/Counter Claim on the claimants, went further as applicants to file an application seeking a restraining order
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against the claimants on 30th October, 2015. (See pages 140?144 of the record of appeal). The claimants as respondents to the motion, filed their counter affidavit on 20th November, 2015. (See pages 153?155 of the record of appeal).
The learned trial Judge heard the application and in a considered ruling delivered 15th March, 2016, granted the 1st and 2nd defendants/applicants their said application. (See particularly page 192 of the record of appeal).
Dissatisfied with the said ruling, the claimants/appellants gave a Notice of Appeal against the ruling. The Notice of Appeal filed 21st July, 2016 is copied at pages 195?197 of the record of appeal.
The parties in line with the rules and practice of this Court filed and exchanged briefs of argument. The appellants? brief of argument dated 27th February, 2017, filed out of time on 1st March, 2017 and deemed properly filed on 16th April, 2018 as well as the appellants? reply brief dated 7th September, 2018 but seemed to have been filed out of time on 10th September, 2018 were both settled by Eva Ozioko, Esq. The 1st and 2nd respondents? brief of argument
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dated 17th April, 2018, filed timeously on 19th April, 2018, was settled by C. U. Isaiah-Green, Esq.
Be that as it may and as I have already observed, the appellants? reply brief which was filed on 10th September, 2018 is seemingly filed out of time, given that the respondents? brief was filed and served on the appellants on 19th April, 2018. By the provisions of Order 19 Rule 5(1) of the Court of Appeal Rules, 2016:
The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent?s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondents brief.
Fourteen days from the 19th of April, 2018 when the respondents? brief was served on the appellants, lapsed on 3rd May, 2018. Having filed the reply brief on 10th September, 2018, shows that the appellants were out of time by more than four months in filing their said reply brief. There is nowhere on record where the appellants sought the order of Court by way of extension of time to regularize their said reply brief of argument. It follows that the reply brief of
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argument filed out of time on 10th September, 2018 is incompetent before the Court and is hereby struck out.
The 3rd respondent however, on his part did not see the need to file any brief of argument. The appeal is therefore between the appellants on one side and the 1st and 2nd respondents only on the other part.
From the one ground of appeal, the appellants formulated the following lone issue for determination:
Whether the learned trial Judge properly evaluated the evidence placed before it before exercising its discretion in granting the 1st and 2nd respondents? application. (Ground 1 of the notice of appeal).
The 1st and 2nd respondents in a similar tone distilled their lone issue for determination as follows:
Whether the learned trial Judge properly evaluated and ascribed probative value to the affidavit evidence placed before it before exercising its discretion in granting the 1st and 2nd respondents? application.
?
Now, before I go into the merit or otherwise of the appeal, if at all, I need to take a second look at the notice of appeal upon which this appeal is built, in order to determine if it can sustain the
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appeal. This issue by the way, which seems to threaten the jurisdiction of this Court to hear and determine the appeal is being raised suo motu by the Court. I take this step on the guide of the decision in Omokuwajo vs. FRN (2013) Pt. 1359, pg. 300, 332, paras. D-F, where the apex Court, per our noble Rhodes-Vivour, JSC., enjoined thus:
The need to hear the parties when a Judge raises an issue on his own motion or suo motu would not be necessary if:
a) the issue relates to the Court?s own jurisdiction;
b) both parties are/were not aware or ignored a situation which may have bearing on the case. That is to say where by virtue of statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act;
c) when on the face of the record serious questions of the fairness of the proceedings is evident.
Furthermore, in the case of Petrojessica Enterprises Ltd. vs. Leventis Tech. Co. Ltd. (1992) 5 NWLR Pt. 244, pg. 675 at 693, the Supreme Court per the noble Belgore, JSC., (as he then was) had this to say:
Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all
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trials. A trial without jurisdiction is a nullity?. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court. A fortiori the Court can SUO MOTU raise it. [Emphasis mine].
See also the authorities of Gaji vs. Paye (2003) 8 NWLR Pt. 823, pg. 583; Omomeji vs. Kolawole (2008) 14 NWLR Pt. 1106, pg. 180; Agbiti vs. Nig. Navy (2011) 4 NWLR Pt. 1236, pg. 175; Maraire vs. State (2017) 3 NWLR Pt. 1552, pg. 283, 305 paras. A-B; and Obiakor vs. State (2002) 10 NWLR Pt. 776, pg. 612.
Being an interlocutory appeal, an appeal in that regard shall be initiated within 14 days of the said ruling/decision. See Section 24 of the Court of Appeal Rules, 2004 which states that:
24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of sub-section (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of
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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;
The ruling under appeal was delivered by the learned trial Judge on 15th March, 2016 while the notice of appeal was given 21st July, 2016, giving a period of almost four months in between the two acts. By computation, the time for the filing of the notice of appeal elapsed on 29th March, 2016. Notwithstanding their being out of time in filing the notice of appeal, the appellants again failed to utilize the window of applying for extension of time to file their belated notice of appeal. Save for one motion dated 27th February, 2017 and filed 1st March, 2017 wherein the appellants sought extension of time to file and serve their brief of argument and a deeming order of the brief, there was no other application on record from the appellants seeking extension of time for them to file notice of appeal out of time. Again and apparently oblivious of the provisions of Section 14 of the Court of Appeal Act, 2004, the appellants also failed to
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bring a motion seeking the leave of either the lower Court or of this Court to bring an appeal against the interlocutory ruling of the lower Court in suit No. OYHC/77/2013. See also Baldwin vs. Nigeria Oil Mills Ltd. (1964) NNLR. 109; Ajani vs. Giwa (1986) 3 NWLR Pt. 32, pg. 796; Obijuru vs. Ozims (1985) 2 NWLR Pt. 6, pg. 167; and Erisi vs. Idika (1987) 4 NWLR Pt. 66, pg. 503.
It is pertinent to state that the place of a notice of appeal in any appeal can never be over-emphasized. A valid notice of appeal is the bloodline of any appeal in the absence of which no appeal can come alive talk-less stand. The valid notice of appeal being a sine qua non to a valid appeal cannot be glossed over by the Court.
Against the backdrop, what the appellants have before us as their notice of appeal is simply a worthless piece of paper, incapable of initiating and or sustaining this appeal and by extension activating the jurisdiction of this Court over the appeal. In all of these, there is no valid appeal before this Court, given that the so-called notice of appeal that birthed it is irredeemably incompetent. As widely acclaimed, one cannot put something on nothing
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and expect it to stand. See Madukolu vs. Nkemdilim (1962) 2 NSCC. 374; U.A.C. vs. MacFoy (1962) AC. 152, 160; Okolo vs. Union Bank of Nigeria (2004) 3 NWLR Pt. 859, pg. 87, 108; and A.G., Lagos State vs. Dosumu (1989) 3 NWLR Pt. 111, pg. 552 at 563.
I am accordingly, stripped of the requisite jurisdiction to determine the issues raised for determination in this appeal as they have become moot and spent. I am afraid that the inadvertence and tardiness of the learned counsel for the appellants, have rendered the notice of appeal totally incompetent and irredeemably void and valueless. This appeal cannot stand in the circumstances.
In summation, the incompetent appeal having no legs to stand on, is struck out for want of jurisdiction. The end result is that the ruling of the High Court of Rivers State per Hon. Justice J. M. Kobani, J., delivered 15th March, 2016 in suit No. OYHC/77/2013, subsists.
No costs awarded.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother CORDELIA
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IFEOMA JOMBO-OFO, JCA. I too agree that this appeal be struck out for want of jurisdiction. I have nothing to add. I also abide by all the consequential orders as contained in the lead Judgment.
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Appearances:
Eva C. Ozioko, Esq. with him, A. Osimiri, Esq., and Mrs. W. Akaninwo-ChinwoFor Appellant(s)
C. C. Nwugo, Esq. for the 1st and 2nd respondents.
No representation for 3rd respondent more so as they did not file any brief of argument.
For Respondent(s)
Appearances
Eva C. Ozioko, Esq. with him, A. Osimiri, Esq., and Mrs. W. Akaninwo-ChinwoFor Appellant
AND
C. C. Nwugo, Esq. for the 1st and 2nd respondents.
No representation for 3rd respondent more so as they did not file any brief of argument.For Respondent
