CHIGOZIE ADAUGO OBIORA-OKONKWO v. OBIORA FRANCIS OKONKWO (2019)

CHIGOZIE ADAUGO OBIORA-OKONKWO v. OBIORA FRANCIS OKONKWO

(2019)LCN/13664(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/A/882/2018(R)

RATIO

NOTICE OF APPEAL: IMPORTANCE

The law is trite that a Notice of Appeal as an originating process is the foundation of the appellate process. The fundamental nature of the Notice of Appeal means that parties must be careful and ensure that it is not defective. This is because a faulty foundation is one that robs the Appellate Court of its jurisdiction. A defective Notice of Appeal is therefore capable of rendering an appeal incompetent. In essence an Appellate Court derives the required jurisdiction to entertain an appeal on its merit or any interlocutory application from the Notice of Appeal. In the recent case of UMEZINNE VS. FRN (2018) LPELR ? 46334 (SC) the apex Court per Augie, JSC held:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal.”
Augie, JSC in the same case referred to NONYE IWUNZE VS. FRN (2015) 6 NWLR (PT. 1404) 580, wherein Rhodes-Vivour, JSC, observed that:
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals… The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form.” PER MOHAMMED BABA IDRIS, J.C.A..

NOTICE OF APPEAL: WHEN A NOTICE OF APPEAL IS DEFECTIVE
In FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) 141 AT 166/177, C. C. Nweze, JSC held that:
“The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court… As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent… The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process… In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal… This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. The importance of a notice of appeal in the process of an appeal is therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent.” PER MOHAMMED BABA IDRIS, J.C.A..

NOTICE OF APPEAL: WHETHER THE APPELLANT’S FAILURE TO FILE THE NOTICE OF APPEAL AT THE LOWER COURT RENDERS THE NOTICE DEFECTIVE IN A FUNDAMENTAL WAY OR INCOMPETENT

Now the question this Court must answer is whether the Appellant’s failure to file the Notice of Appeal at the lower court renders the Notice of Appeal fundamentally defective and therefore incompetent?
In FBN PLC VS. T. S. A. INDUSTRIES LTD (2010) LPELR ? 1283 (SC) per Muhammad, J.S.C it was held:
“A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.” PER MOHAMMED BABA IDRIS, J.C.A..

JUSTICES

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria

Between

CHIGOZIE ADAUGO OBIORA-OKONKWO Appellant(s)

AND

OBIORA FRANCIS OKONKWO Respondent(s)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Lead Ruling): The Appellant in this appeal filed a Motion on Notice on the 11th of June 2019 praying this Honourable Court to grant the following orders:
1. AN ORDER extending the time within which to comply with the Order of Court of 21st February, 2018 directing the Applicant to file her Notice of Appeal within 7 (seven) days from the said 21st February, 2018; viz:
“Time is extended by 7 days from today within which the Appellant/Applicant would file the Notice of Appeal as per Exhibit B, the Proposed Notice of Appeal.”
2. AN ORDER of this honourable Court deeming the Applicant’s Notice of Appeal filed on 3rd June, 2019 as having been properly filed and served.
3. AND for such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances of this appeal.

?The Appellant argued that the grounds upon which this application is premised are that by Order of this Court made on 21st February 2018, time was extended by 7 (seven) days within which the Appellant/Applicant was to file her Notice of Appeal against the Ruling/Decision of the High

Court of Justice of the Federal Capital Territory, Abuja (Coram: V. V. M. Venda J) delivered on 9th March, 2017 in Suit No: FCT/HC/PET/163/2016. In compliance with said Order of this Court, the Appellant/Applicant filed her Notice of Appeal on 28th February but in the rush to file inadvertently filed same at the Registry of this Court. This Appellant/Applicant was supposed to file the Notice of Appeal at the Registry of the Court below. That the 7 (seven) days period within which the Applicant was directed by this Court to file said Notice has elapsed. The Appellant/Applicant has now filed her Notice of Appeal separately on the 3rd of June, 2019 hence the prayer for a deeming order of this Court to regularize same as properly filed and served. That the grounds of appeal in the Appellant’s Notice of Appeal raise substantial and arguable issues of law to be determined by this honourable Court.

?The Appellant also filed an Affidavit in Support of her Motion on Notice dated the 11th June 2019. The Affidavit was deposed to by one Mercy Okolo, a Legal Practitioner in the Law Firm of Abdullahi & Co of No. 45 Haile Selassie Street, Asokoro,

Abuja. She stated that she knows as a fact that the High Court of the Federal Capital Territory, (Coram: V. V. M. Venda J.) delivered a Ruling in Suit No: FCT/HC/PET/163/2016 on 9th March, 2017 wherein the Applicant’s application Nos. M/4246/17 and M/4258 seeking to save and/or ensure that Suit No: FCT/HC/PET/163/2016 is determined on its merits, would only be heard after the hearing and determination of the Respondent’s Answer Under Protest seeking to terminate the said suit in limine. That the Appellant filed a Motion on Notice 23rd November, 2017 before this Honourable Court praying for the following prayers:
1. AN ORDER extending the time within which the Applicant may seek leave to appeal against the Ruling/Decision of the High Court of the Federal Capital Territory, Abuja (Coram: V. V. M. Venda J) delivered on 9th March, 2017 in Suit No: FCT/HC/PET/163/2016.
2. AN ORDER granting leave to the Applicant to appeal against the Ruling/Decision of the High Court of the Federal Capital Territory, Abuja (Coram: V. V. M. Venda J) delivered on 9th March, 2017 in Suit No:FCT/HC/PET/163/2016.
3. AN ORDER extending the time within which the Applicant

may file an appeal against the Ruling/Decision High Court of the Federal Capital Territory, Abuja (Coram: V. V. M. Venda J) delivered on 9th March, 2017 in Suit No: FCT/HC/PET/163/2016. The said motion was taken on 21st of February, 2018.

However, in a rush to comply with the said Order the Litigation Clerk inadvertently filed the Notice of Appeal on the 28th of February, 2018 in the Registry of the Court of Appeal contrary to the practice of their chamber and Rules of this Court, now marked Exhibit B. That it was only on the 3rd of June, 2019 when the appeal came up that they realized that the Notice of Appeal had been inadvertently filed at the Registry of the Court of Appeal. The Appellant/Applicant has now filed her Notice of Appeal on the 3rd of June 2019 at the Registry of the trial Court and same has been served on the Respondent, marked Exhibit C.

The Appellant argued that time limit of 7 (seven) days granted to the Applicant to file her Notice of Appeal in compliance with the Orders of this Court has elapsed. That Exhibit C raises very substantial and arguable issues of law which affect the Applicant and upon which the Applicant prays to be

heard. That the Applicant requires an Order of this Honourable Court to further extend the time within which she can properly comply with the Order of 21st February, 2018 and an Order deeming the Notice of Appeal filed on 3rd June, 2019 as properly filed and served.

The Appellant also filed a written address in Support of the Motion on Notice filed 11th June 2019. Wherein they distilled one issue for determination:
Whether having regards to the facts and circumstance of this application, the Applicant is entitled to the discretion of this Honourable Court being exercising in her favour.

The Appellant on this issue argued that in an application of this nature seeking the exercise of the discretionary powers of this Court, the Applicant is required to place before the Court materials which will persuade it in the Applicant’s favour. See ALAMIEYESEIGHA VS. FEDERAL REPUBLIC OF NIGERIA (2006) 16 NWLR (PT. 1004) 1 @ 115; SCOA (NIG) PLC VS. OMATSHOLA (2009) 11 NWLR (PT. 1151) 106 @ 115; ENEH VS. NDIC (2018) 16 NWLR (PT. 1645) 355 @ 369; ADESANYA VS. LAWAL (2007) 7 NWLR (PT. 1032) 54.

?The Appellant argued that the Court will not hesitate to exercise its

discretion in favour of an Applicant where sufficient material facts and/or good and substantial reasons are provided in the affidavit in support of the Applicant’s application such as would enable the Court to favourably exercise such discretion or that would justify the exercise of the Court’s discretion. See OBOMHENSE VS. ERHAHON (1993) 7 NWLR (PT. 303) 22 @ 41; ANACHEBE VS. IJEOMA (2014) 14 NWLR (PT. 1426) 168 @ 183 – 184.

The Appellant further argued that upon discovering their mistake on the 3rd of June, 2019 she did not go to sleep but immediately swung into action and filed a fresh Notice of Appeal at the Court below few hours later on same day and subsequently filed this instant application on 11th June, 2019. That the position of law is that the Courts would usually exercise its discretion in favour of an applicant where being out of time is due to the inadvertence of Counsel as in the instant case. See AHMED VS. TRADE BANK (1996) 3 NWLR (PT. 437) 445 @ 451 para C – F; DOHERTY & ANOR VS. R.A DOHERTY (1964) 1 ALL NLR 162 @ 299; G.B.A. AKINYEDE VS. THE APPRAISER (1971) 1 ALL NLR 162.

?Citing the Supreme Court decision in

NALSA & TEAM ASSOCIATES VS. NNPC (1991) 8 NWLR (PT. 212) 652 @ 676 ? 677 paras H-A the Appellant argued that the Court must “in the exercise of its discretion to hear applications before it, the Court is guided by consideration of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merit”. See KHAWAM VS. ELIAS (1960) FSC. 244; (1960) SCNLR 516. The Appellant also cited other cases including SOUTH ATLANTIC PETROLEUM LTD VS. MINISTER OF PETROLEUM RESOURCES (2014) 4 NWLR (PT. 1396) and ALIU BELLO & 13 ORS VS. ATTORNEY ? GENERAL OF OYO STATE (1986) 5 NWLR (PT. 45) 828 @ 886 para E ? F.

The Appellant in concluding their argument stated that the instant application which seeks to correct the mistake of filing the Notice of Appeal at this Court instead of the lower Court should be granted.

?The Appellant also filed a further affidavit in support of the motion on notice filed on the 11th June, 2019 dated 24th day of June, 2019. The Affidavit was also deposed by Mercy Okolo. She stated that she had seen and read the Counter Affidavit of the Respondent and in response to

paragraphs 4, 5, 7, 8, 9 and 10 she knows as a fact that:
a. The Applicant filed a Notice of Appeal on 28th February, 2018 pursuant to the Order this Honourable Court made on 21 February, 2018.
b. This applicant does not seek to amend, cure, rectify or revive the Applicant’s Notice of Appeal filed on 28th February, 2018 rather it seeks the leave of this Honourable Court to comply with the Order of Court made on 21st February 2018 extending time within which the Applicant may file her Notice of Appeal.
c. The filing of the said Notice of Appeal of 28th February, 2018 in the Registry of this Court was due to inadvertence of the Chamber’s staff and Counsel handling this matter on behalf of the Applicant and it was upon discovery of this mistake that a subsequent Notice of Appeal was filed on 11th June, 2019 in compliance with the Orders of this Honourable Court of 21st February, 2018 and the Rules of Court. That the Applicant’s Notice of Appeal is not incurably bad or defective as alleged.
d. This Honourable Court has the inherent powers and jurisdiction to determine this application given the peculiar circumstances of this

application as shown in the Affidavit in Support.

In response to paragraphs 11, 12, 13, 14, 15, 16 and 18 of the said Counter Affidavit, she deposed to the fact that she was informed by Olabisi O. Soyebo, SAN of the following facts:
a. On the 3rd of June 2019, when the issue relating to the filing of the Notice of Appeal of 28th February, 2018 was raised, she was under the impression that the said Notice of Appeal was filed both at the trial Court and this Honourable Court in line with the practice pf the chamber.
b. It was upon her return to the Chambers and after a thorough search in the case file that she discovered that the ligation clerk inadvertently filed the Notice of Appeal of 28th February, 2018 only at the Registry of this Honourable Court.
c. The grounds of this application and the deposition contained in the Affidavit in Support demonstrates the peculiar circumstances that necessitated the filing of this instant application.
d. There is a Valid Order of this Honourable Court made on 21st February, 2018 and this application is premised on the said Order and it seeks the leave of this Honourable Court to comply with same.

In response to paragraph 17 of the Counter Affidavit, the Appellant held that the appeal came up on 3rd October, 2018 and the attention of this Court was drawn to the mix up with the appeal numbers in this instant appeal and the sister Appeal NO: CA/ABJ/446A/2017 at the registry of this Court and same was subsequently rectified. The Appellant argued that contrary to the depositions in paragraph 19 of the counter affidavit, the filing of the notice of appeal in the Registry of this Court was an honest mistake.

The appellant also argued that paragraph 20 of the counter affidavit is untrue, false, unsubstantiated and fabricated and calculated to mislead this Court. That she was in Court on the 25th of May, 2017 but never made or heard such statements and knows the following facts to be true. That:
a. The deposition in paragraph 20 of the counter Affidavit is an untrue, false, unsubstantiated and fabricated statement which is unfortunately calculated to mislead this Honourable Court and impugn her reputation. She never made such threats to anyone whomsoever nor did she engage in such improper and unethical

conversation/ ‘threats’ with the Respondent’s counsel.
b. The Applicant’s grounds of appeal as in Exhibit C attached to the Affidavit in Support clearly demonstrates that this appeal seeks to obtain justice for the Applicant and if the said Ruling of the trial Court is not set aside by the Honourable Court, same will terminate the applicants position in limine.
c. Contrary to the deposition in paragraph 22 of the counter Affidavit, this applicant is not intended to delay this appeal but to seek leave of this Honourable Court to comply with the orders of the Court and rules of this honourable Court to file the applicants notice of appeal out of time.
d. In reference to paragraph 23 of the counter Affidavit, the respondent has not taken and proper or legal steps towards ensuring that the Applicdnt’s petition will be determined on its merits.
e. The letter mentioned in paragraph 24 of the counter Affidavit which is dated 6th May 2019, was written directly to the trial Judge, Hon. Justice V.V.M Venda only and same was not served on our office as alleged but was merely forwarded to her personal telephone number at about

11:00pm on 6th June 2019 via WhatsApp. The said letter substantially contained derogatory statements about the Applicant. A copy of the respondent’s said letter dated 6th May, 2019 forwarded as stated, is annexed hereto and marketed EXHIBIT D.

The Appellant argued that contrary to paragraph 26 of the Counter Affidavit she knows as a fact that the Appellant initial Notice of Appeal was filed on the 28th February 2018 upon obtaining leave of this Court on the 21st February 2018. That contrary to paragraph 28 of the Counter Affidavit, she knows as a fact that the applicant has always had the interest of the children at heart.

In concluding her argument, the appellant argued that contrary to paragraph 29 she knows as a fact that:
a. When this matter came up on 3rd June 2019, the Court enquired from the Respondents counsel as to whether she was willing to withdraw the objections precluding the applicants from moving her application NOS. M/4246/17 and M/4258/17 seeking to save and/or ensure that SUIT NO: FCT/HC/PET/163/2016 is determined on its merits.

b. The respondent has not offered any olive branch to the applicant as the respondent has amongst other things, not taken any proper or legal steps in line with paragraph (a) above.

The Respondent on the other hand filed a Counter Affidavit dated 21 June 2019 deposed to by one Kehinde Ifeoluwa Oyewole, a counsel at the law firm of Okungbowa Adesina SAN & Co of House 2, Close 7, Drive 5, Prince and Princess Estate Abuja. The deponent stated that they had seen and read the motion and affidavit in support of the Appellant’s motion on Notice dated the 11th day of June 2019. That in response they are aware that this Court on the 21th of February 2019 granted the Appellant leave to file her Notice of Appeal. That the said Notice of Appeal was filed in this Court and the initiating process gives life to an action and ought to be filed at the trial Court. The deponent stated that Appellant’s application is seeking to rectify an incurably bad and defective Notice of Appeal.

The Deponent argued this Court lacks the jurisdiction to hear and determine this application as there is no appeal before this Court. That it is only a valid Notice of Appeal that clothes this Court with

requisite jurisdiction to hear and determine this matter. The Deponent stated that the Respondent raised the issue of jurisdiction on the 3rd of June 2019. That the Appellant’s counsel on the 3rd of June 2019 informed the Court that it is the practice of their firm to file their notice at both the Trial Court and the Court of Appeal. That she needed time to confirm that the Notice of Appeal was filed at the trial Court and also available in the law firm. Which is the basis of which the Court granted an adjournment. That instead of the Appellant bringing the Notice of Appeal they brought an Application seeking extension of time to comply with the order of Court.

The deponent stated that Appellant’s application for extension of time cannot be heard by this Court because the purposed Notice of Appeal filed on the 28th of February 2019 is non-existent. That the Applicant’s application for extension was brought under Appeal No. CA/A/882/2018. That there is no appeal before the Court as such the application cannot bring to life a dead appeal.

?The deponent stated in response to paragraph 7 and 10 of the affidavit, that the filing of the Notice is a not

mistake. That the deponent was informed by Martin Opara on the 25th May 2017 that after the Court sitting he overheard the Appellant’s Counsel threatening in the Court premises at Jabi in the presence of the Respondent’s counsel that if the trial Court doesn’t let her have her way i.e take her application before Answer under protest, she will go and hang the matter on appeal. That all the steps taken so far by the Appellant are in actualization of the threat and this act is deliberate to delay this matter knowing full well that the Respondent loves his children and desires to be with them.

The deponent stated that on the 3rd of June, Mrs J. O. Adesina informed the Court that the Respondent wrote to the trial Court to set the matter down for hearing since the issue in Appeal No: CA/A/446/2017 had been taken care of by the Appellant’s Counsel. That till now the Appellant’s counsel has not deemed it fit to dignify her with a response. That this appeal is an interlocutory one and it has taken over a year for the Appellant to file a Notice of Appeal. This is a matrimonial proceeding and children are involved. The Applicant is not interested in what is in the

best interest of the children. The deponent stated that it will be in the best interest of justice to order the Applicant to accept the olive branch extended by the Respondent to go back to the trial Court and let the petition be heard on merit.

The Respondent also filed a written address dated 11th June 2019, wherein counsel distilled a sole issue for determination thus:
“Whether this honourable Court has the jurisdiction to grant the Appellant/Applicant’s application filed on the 11th day of June, 2019 when the initiating process of this appeal is defective.”

In arguing this issue, the Respondent argued that jurisdiction has been clearly defined as the lifeblood of any adjudication, the power from which a Court derives their authority to entertain matters placed before them for adjudication. That it is the body and soul of every judicial process before it. They also argued that it is settled law that jurisdiction is the life wire of adjudication which cannot be waived or compromised. The Court must be clothed with jurisdiction before it can properly and competently operate and where it lacks jurisdiction, all proceedings it conducts including a

ruling or judgment delivered are a nullity. Reference was made to A. & S. B CO. (NIG) LTD VS. FCMB LTD (2013) 10 NWLR (PT. 1363) 501; CPC VS. OMBUGADU (2013) 18 NWLR (PT. 1385) 66 @ 144 Paras E – G.

The Respondent stated that when an issue of jurisdiction is raised, it imposed and imbues on the Court to check if it has jurisdiction to entertain such matter. That for the jurisdiction of a Court to be activated, the 3 (three) elements/conditions that confers jurisdiction must be fulfilled. One of the element is that the case must come before the Court initiated by due process of law and upon fulfilment of all conditions precedent to the exercise of jurisdiction. That every defect in the competence of a Court process is fatal and the proceeding arising there from will be rendered a nullity.

The Respondent argued that the basis upon which any application can be heard or determined is that the initiating process which is the Notice of Appeal must be valid and competent. That the law is trite that the Notice of Appeal is the bedrock of initiating an action at the Court of Appeal and where there is a defect thereto, the Notice of Appeal becomes

defective. Reference was made to OGE VS. EDE (1995) 3 NWLR (PT. 385) 564; IKUEPENIKAN VS. STATE (2015) 9 NWLR (PT. 1465) 518 @ 552 Paras C ? E.

The Respondent quoted Order 6 Rule 10 of the Court of Appeal Rules 2016 which provides thus:
“An appeal shall be deemed to have been brought when the Notice of Appeal has been filed in the Registry of the Court below.”

The Respondent submitted that Appeals are creatures of statutes which are meant to be obeyed and compiled with. They are not in the books for window dressing. Consequently, the jurisdiction of the Court of Appeal to adjudicate on any matter is statutory provision. That the relevant law or rules under which an Appeal may be proper before the Court will deprive the appellate Court of jurisdiction to entertain or adjudicate over the appeal. Reliance was placed on IDEGWU VS. STATE (2015) 6 NWLR (PT. 1455) 286.

The Respondent argued that failure to comply with the rules of Court affects the jurisdiction of the Court. That the question to be answered is whether this Court can grant the application filed on the 11th day of June 2019, seeking leave to comply with the order of Court when

the initiating process (Notice of Appeal) is defective. That the Court on 21st day of February 2018, granted the Appellant’s prayers for extension of time to appeal against the decision of the trial Court.

That on the 3rd day of June 2019, when the matter came up hearing, the Respondent’s Counsel raised Preliminary Objection as to the competence of the Notice of Appeal and the jurisdiction of this Court to hear and determine any matter before it. It was the submission of the Appellant that it was a mistake but the Respondent maintained that a mistake that affects the jurisdiction of the Court are such that the Court cannot exercise any discretion to amend so as to confer any jurisdiction on itself. The case of ASORE VS. LEMOMU (1994) 7 NWLR (PT. 356) 284 was cited.

The Respondent submitted that the only thing that can confer this Court with jurisdiction is a valid and competent Notice of appeal which gives life to the appeal. That the only thing that can be done by this Court is to strike out the Appeal No: CA/A/882/2018.

RESOLUTION OF THE ISSUE
The law is trite that a Notice of Appeal as an originating process is the foundation of the

appellate process. The fundamental nature of the Notice of Appeal means that parties must be careful and ensure that it is not defective. This is because a faulty foundation is one that robs the Appellate Court of its jurisdiction. A defective Notice of Appeal is therefore capable of rendering an appeal incompetent. In essence an Appellate Court derives the required jurisdiction to entertain an appeal on its merit or any interlocutory application from the Notice of Appeal. In the recent case of UMEZINNE VS. FRN (2018) LPELR ? 46334 (SC) the apex Court per Augie, JSC held:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal.”
Augie, JSC in the same case referred to NONYE IWUNZE VS. FRN (2015) 6 NWLR (PT. 1404) 580, wherein Rhodes-Vivour, JSC, observed that:
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals… The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process

in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form.”
In FRN VS. DAIRO (2015) 6 NWLR (PT. 1454) 141 AT 166/177, C. C. Nweze, JSC held that:
“The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court… As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent… The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process… In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal… This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. The importance of a notice of appeal in the process of an appeal is therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent.”
Order 6 Rule 10 of the Court of Appeal Rules 2016

provides that:
“An Appeal shall be deemed to have been brought when the notice of Appeal has been filed in the registry of the Court below.”
While Order 7 Rule 2 (1) of the Court of Appeal Rules provides that:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal’) to be filed in the registry of the Court below which shall set forth the grounds of appeal…”
From the two rules above the following are trite:
a. An appeal is initiated by a Notice of Appeal
b. The Notice of Appeal shall be filed in the registry of the lower Court.
These two features above must therefore be present in every given appeal. Given that the Notice of Appeal as I have mentioned above is the foundation and substratum of any appeal, any incurable defect therein renders the whole appeal incompetent and in turn the appellate Court will lack the required jurisdiction to entertain said appeal.

Let me state here the purpose of a Notice of Appeal which is for the:
a. Initiation of Appeal
b. Embodiment of the complaints against the decision of the lower Court.

c. Indication of the parties on Appeal
d. Statement of the relief(s) sought from the Appellate Court

because if a proper Notice of Appeal is not filed at the trial Court, there is in effect no Appeal before the Court of Appeal. See also KANO PLASTICS LTD VS. CENTURY MERCHANT BANK (1998) 3 NWLR (PT. 543) 567; OYEBADE VS. AJAYI (1993) 1 NWLR (PT.269) 313; OLANREWAJU VS. B. O. N. LTD (1994) 8 NWLR (PT. 364) 622.
However, in the same CBN VS. OKOJIE (supra) the Supreme Court in answering whether a Notice of Appeal can be filed at the Registry of the Court of Appeal held:
“Although by virtue of Order 3 Rule 2(1) of the Court of Appeal Rules, a notice of appeal should be filed in the registry of the trial Court, a notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all parties; and the appeal has been entered, is properly filed because it would amount to duplicity of effort, resources and ultimately a waste of time if such notice of appeal is filed at the registry of the trial Court. In the instant case, the notice of appeal filed at the registry of the Court of Appeal was properly filed.”

Similarly, the Supreme Court in a ruling per Katsina-Alu, JSC of blessed memory in the case of PETER OBI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2008) LPELR ? 2167 (SC) held that:
“The simple question for resolution is simply whether a Notice of Appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the Court of trial. It does not further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further Order 7 Rule 3 of the Court of Appeal Rules provides: The Court may in an exceptional circumstance and where it considers in the interest of justice so to do waive compliance by the parties with these Rules or any part thereof I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most rules of Court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1

In my view, the non-compliance with Order 3 Rule 2(i) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.”
In the same PETER OBI VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (supra), F. F. Tabai JSC held:
“There is nothing so sacrosanct or immutable about the provisions of Order 3 Rule 2(1) or 5as to render the rights or benefits derivable thereat from being waived. Rules of Court remain rules of Court and cannot be accorded a status as immutable as statutory provisions. In FRANCIS ADESEGUN KATTO V. CENTRAL BANK OF NIGERIA (1991) 11 ? 12 S.C. 176; (1991) 9 NWLR (PT. 214) 126 AT 147, this Court stated the status of rules of Court as follows:
As mandatory rules of Court are not as sacrosanct as mandatory statutory provisions, Courts of justice are more inclined to regard as directory or permissive any provision in rules of Court which appears mandatory, if it is implicit in the provision in question or if combination of other provision with the provision in

question so dictated or if the ends of justice demands that it be so construed and in OLOBA V. AKEREJA (1988) 7 S.C. (PT. I) 1; (1988) 3 NWLR (PT. 84) 508 AT 528, this Court per OPUTA JSC, said:
All rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rule compliance with which will lead to outright injustice. It is clear from the above authorities that rules of Court including Order 3 Rules 2(1) or 5 of the Court of Appeal Rules can be waived.”
Following the decisions in the cases above, I am also of the firm view that filing the Notice of Appeal at the Court of Appeal instead of the Trial Court does not render the Notice of Appeal defective and as a result incompetent.
I therefore hold that the Notice of Appeal filed on the 28th February 2018 in the registry of this Court was properly filed and in the light of the decisions of the apex Court above, it appears that the present application was unnecessary in the circumstances. However, I will grant the application as prayed in the interest of justice.

The application succeeds and it is granted as prayed.

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TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the Ruling just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA.
I am in agreement with his reasoning and conclusion reached in granting the application.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the ruling just delivered by my Learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning, conclusions and orders therein.

Order 7 Rule 1 of the Court of Appeal Rules 2016 provides that “All appeals shall be brought by notice (hereinafter called “The notice of appeal”) to be filed in the registry of the Court below?.”
Contrary to this provision, the appellant herein, upon obtaining the leave of this Court to appeal, filed notice of this appeal on 28-2-2018 in the Registry of this Court within the 7 days extended by this Court.
Being unsure about the validity of the said notice of appeal, the appellant applied for a further extension of time to file a notice of appeal, so as to enable him file a notice of appeal in the registry of the lower Court. One of the issues

thrown up by this application is the validity or invalidity of the notice of appeal already filed on 28-2-2018 in the registry of the Court contrary to the requirement of Order 7 Rule 1 of the Court of Appeal Rules that an appeal to this Court from the judgment of a lower Court shall be brought by a notice of appeal filed in the Registry of the lower Court.
This issue has been settled by the Supreme Court in CBN V. Okojie (2004) 10 NWLR (Pt 882) 488 and Obi V INEC & Ors (2008) LPELR ? 2167 (SC). The restatements of the Law Lords in Obi V. INEC illuminate the subject comprehensively and conclusively. The apex Court held that the filing of the notice of an appeal to this Court in the registry of this Court instead of the registry of the lower Court does not render it void, that the compliance with Order 7 Rule 1 of the Court of Appeal Rules can be waived by this Court and the notice of appeal saved, condoned and deemed as valid. Some of the restatements are reproduced in the lead judgment. So there is no need reproducing them here.
Order 21 Rule 2 and Rule 3 (1) and (2) of the Court of Appeal Rules 2016 provides thusly-

“2. The Court may direct a departure from these Rules where this is required in the interest of justice.
3.-(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.”
Provisions exactly similar to the provisions of Order 21 Rule 3 of the 2016 Court of Appeal Rules were held by the Supreme Court in Obi v. INEC to be saving provisions for non-compliance with the Court of Appeal Rules.
In the light of the foregoing, the notice of appeal filed on 28-2-2018 in the registry of this Court is deemed properly filed and served and it is hereby ordered that this appeal proceed.

Appearances:

O. Soyebo, SAN with him, M. Okolo Esq. and H.A. Haruna, Esq.For Appellant(s)

J.O. Adesina, SAN with him, K. Oyewole, Esq. and O. Adesina, Esq.For Respondent(s)

Appearances

O. Soyebo, SAN with him, M. Okolo Esq. and H.A. Haruna, Esq.For Appellant

AND

J.O. Adesina, SAN with him, K. Oyewole, Esq. and O. Adesina, Esq.For Respondent