ABI YARKWA & ORS v. BARTA SHALLANGWA (1996)

ABI YARKWA & ORS v. BARTA SHALLANGWA

(1996)LCN/0230(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of March, 1996

CA/J/28/94 (R)

RATIO

APPEAL: WHERE LEAVE IF COURT IS NECESSARY BEFORE APPEAL CAN BE VALIDLY FILED 

In Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350, the Supreme Court held: “Where leave of court is necessary before an appeal can be validly filed, the leave must be applied for and obtained and the Notice of Appeal filed within the statutory period (Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550 at 557-558; Amudipe v. Arijodi (1978) 2 LRN 128; Atanda v. Olarewaju (1988) 4 NWLR (Pt. 89) 394; Lamar v. Orbih (1980) 5-7 SC 28 referred to (p 71 para. H). PER ORAH, J.C.A.

JUSTICES:

GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria

ADRIAN CHUKWUEMEKA ORAH Justice of The Court of Appeal of Nigeria

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

Between

ABI YARKWA

 ASHIRYU BODE

 ANYIRU DABAR

 IJIBIR AYUWOJA                                                                    Appellants

AND

BARTA SHALLANGWA                                                          Respondent

 

ORAH, J.C.A. (Delivering the Lead Ruling): The appellants/applicants brought an application on notice dated 31st April, 1995 and filed on 16/5/95 in the Court of Appeal pursuant to Order 3 Rules 3 and 4 the Court of Appeal Rules 1981 (as Amended) and Section 6(6)(A) of the Constitution of the Federal Republic of Nigeria 1979 (as Amended) praying the court for the following orders:-
(1) An order extending time within which to apply for leave to file Grounds of Appeal on facts and/or mixed law and facts.
(2) An order for leave to file additional grounds of appeal on facts and/or mixed law and facts as appeared in the attached proposed additional grounds of appeal marked Exhibit “B”.
(3) An order for leave to amend the NOTICE and GROUNDS OF APPEAL by substituting grounds 1, 2, 3 and 5 filed without leave of court with additional Grounds 1, 2, 3 and 5 as appeared and underlined in the proposed Amended Notice and Grounds of Appeal marked Exhibit “C”.
(4) Any such further of other Order(s) as this Honourable Court may deem expedient in the circumstances.

The application is supported by an 8 paragraph affidavit sworn to with the consent of his employers and the appellant/applicants by one Sunday Ali, a litigation secretary in the law Chambers of Messrs Kyari.
Annexed to the affidavit in support of the application are three (3) Exhibits “A”, “B” and “C”.
(1) Exhibit “A” is the Original Notice of Appeal dated the 19th of October, 1993. consisting of 5 grounds of appeal of which grounds 1,2, 3 and 5 are grounds of fact, and/or mixed law and fact while ground 4 is a ground of law (see paragraph 5 (a) of the affidavit in support).
(2) Exhibit “B” is the proposed Additional Ground of Appeal dated the 31st of April, 1995, of ground of appeal which are grounds of fact and/or mixed law and facts (see paragraph 5(a) of the affidavit in support).

3) Exhibit “C” is the “Proposed Amended NOTICE OF APPEAL: ORDER 3 RULE 2”, dated the 31st day of April, 1995 consisting of 5 grounds of appeal of law, and/or mixed law and facts.
The application came up before us for hearing on the 6th of January, 1996.
Jeo Kyari Gadzama, learned counsel for the appellants/applicants moved the application in terms of the motion paper and the affidavit in support, upon which he relied and referred to Exhibits’ A’, ‘B’ and ‘C’ aforesaid. In summary, counsel for the appellants/applicants submitted as follows:-
(i) That the original Notice and Grounds of Appeal Exhibit ‘A’ consisting of grounds of facts and/or mixed law and fact filed without leave of court is competent. It is covered by Section 220(1)(b) of the 1979 Federal Constitution of Nigeria to which Section 221 is subject.
(ii) That the original notice and grounds of appeal being competent, all the applicants require in this application is a prayer for leave of this court to file the additional grounds of appeal on facts and/or mixed law and facts.

It is submitted, that a tripod application namely:-
(i) Extension of time within which to apply for leave to appeal;
(ii) Leave to appeal; and
(iii) Extension of time within which to appeal against the said decision; is not required. (See the case of Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt. 309) 27 P 49 cited in support).
Learned counsel for the applicants urged the court to grant the application.
In reply, O.P. Popoola, learned counsel for the respondent who did not file any counter-affidavit to the affidavit in support of the application, opposed the application on points of law only. He submitted briefly as follows:-
(a) That there is no valid appeal before this court, in that the original Notice of Appeal is incompetent, having been filed without leave of court.

(b) That for the appellants/applicants to bring this application, they need the (3) three prayers (i), (ii) and (iii) above stated. This is so because under Section 221 (1) of the 1979 Federal Constitution of Nigeria, an applicant requires to apply for leave or to seek leave of court to appeal failure to seek leave of court with the three prayers aforesaid is fatal to the application. Counsel urged the court to dismiss the application.

The facts of the case are as follows:
The respondent as plaintiff took out an action against the appellants/applicants as defendants at the Uba Area Court No.1, claiming declaration of title and possession of the piece of land in dispute. At the end of the hearing, judgment was entered in favour of the plaintiff/respondent. Dissatisfied with the judgment of the Uba Area Court No.1, the defendant/appellants appealed against the said decision to the Upper Area Court Askira, which on 1st March, 1989 confirmed the judgment of the trial Uba Area Court.
Still dissatisfied with the said judgment, the appellants/applicants appealed against the said judgment to the High Court of Justice, Borno State sitting on its appellate jurisdiction at Zama, which in its judgment delivered on the 13th of October, 1993 dismissed the appeal. It is against this decision of the High Court of Justice, Borno State, sitting at Zama delivered on 13/10/93, that the appellants/ applicants have now appealed to the Court of Appeal before us on an original notice and grounds of appeal Exhibit ‘ A’ dated 19th October, 1993, consisting of 5 grounds of appeal, of which grounds 1, 2, 3 and 5 are grounds of fact, and/or mixed law and fact, while ground 4 is a ground of law (see paragraph 5(a) of the affidavit in support. The said Notice and Grounds of appeal was filed without the leave of either the appellate High Court or this Court.
The appellants/applicants at paragraphs 5 of their affidavit in support of their application now before us averred that:-
(i) They omitted to seek leave of the Maiduguri High Court which sat on appeal in its appellate jurisdiction to file the original Notice and Grounds of Appeal which is comprised of grounds of facts and/or mixed law and facts. (See para. S(b) of the affidavit in support.
(ii) That the High Court of Maiduguri no longer has jurisdiction over the matter since the appeal has been entered (see para. S(c) of the affidavit in support).
(iii) That leave of this Honourable Court is mandatory for him to file grounds of appeal on facts and/or mixed law and facts (see para. 5(a) of the affidavit in support.)
With the foregoing background facts in view, the appellants/applicants have brought the present application on notice, in accordance with the Rules of court, praying the court for the following orders:-
(1) An order extending time within which to apply for leave to file Grounds of Appeal on facts and/or mixed law and fact.
An order for leave to file additional Grounds of Appeal on facts and/or mixed law and facts as appears in the attached “Proposed Additional Grounds of Appeal marked “Exhibit “B”.
An order for leave to amend the Notice and Grounds of Appeal by substituting Grounds 1, 2, 3 and 5 filed without leave of court with the Additional Grounds 1, 2, 3 and 5 as appeared and underlined in the Proposed Amended Notice and Grounds of Appeal marked Exhibit “C”,
Any such further or other orders as this Honourable Court may deem expedient in the circumstances.”
Having aptly stated the brief facts of this case, the facts, that leave is required and is mandatory is conceded by learned counsel in the affidavit in support of this application, on an appeal on facts and/or mixed law and facts from a decision of the High Court of Justice Borno State, which was not obtained before the original Notice and grounds (Exhibit’ A”) on facts and/or mixed law and facts was filed.
The issues which call for determination in my respectful view are as follows:-
(i) Is the original Notice of Appeal consisting of grounds of facts and/or mixed law and fact filed by the appellants/applicants against the decision of the High Court of Justice Bama, Borno State, sitting in its appellate jurisdiction on 13/10/93 without the leave of either the lower court or this court, competent?
(ii) If the original Notice and grounds of appeal filed is incompetent, is there a valid appeal and if not, can the appellants/applicants rightly bring this application before the Court of Appeal to amend the original notice of appeal originally filed without leave of court where leave (as in the instant case) is admittedly required and mandatory?
(iii) What prayers are required in an application where leave is required to file and argue grounds of appeal on mixed law and fact; where Notice of Appeal consisting of one ground of law and other grounds of facts and/or mixed law and facts had been filed without the leave of court.
The foregoing issues in my respectful view appear to me to be the only issues that fall for determination in this case and I propose to consider the arguments and submissions of learned counsel for the parties on these issues.
There is no doubt, that the Appeal before us is one from the High Court of Borno State, Maiduguri, in its appellate jurisdiction and by virtue of Section 221 of the 1979 Federal Constitution of Nigeria, an appeal therefrom to the Court of Appeal on any ground other than law requires leave of either the court below or this court having first been sought and obtained before the ground(s) could be validly filed and argued.
In the instant case except ground 4 which is a ground of law, grounds 1, 2, 3 and 5 are grounds of fact and/or mixed law and fact. In the instant case, the appellant/applicant in filing the Notice consisting of the said five grounds of appeal obtained neither the leave of the High Court of Borno State, Maiduguri nor that or this court.
In Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350, the Supreme Court held:
“Where leave of court is necessary before an appeal can be validly filed, the leave must be applied for and obtained and the Notice of Appeal filed within the statutory period (Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 NWLR (Pt.199) 550 at 557-558; Amudipe v. Arijodi (1978) 2 LRN 128; Atanda v. Olarewaju (1988) 4 NWLR (Pt. 89) 394; Lamar v. Orbih (1980) 5-7 SC 28 referred to (p 71 para. H).
The issue for determination is therefore, the competence of the Notice of appeal consisting of one ground of appeal of law and four others on facts and/or mixed law and facts without leave- of court. It seems to me, that the 1979 Constitution creates two rights of appeal (sic) (i) an appeal as of right on grounds of law and fact from the final decisions of a High Court in civil and criminal proceedings sitting at first instance (see Section 220(1) (a) and (b) of the 1979 Constitution and (ii) an appeal on fact with leave on any other ground other than law (See Section 221 of the 1979 Constitution.
Section 221 of the 1979 Constitution applies to the instant appeal from a High Court sitting in its appellate jurisdiction.
It seems clear from the application of Section 220(1) (a) and (b) of the 1979 Constitution, that the Notice of Appeal which contains ground 4 on law, which is a competent ground of Appeal saves the Notice of Appeal, (see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 491; Nigeria National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 548; while by virtue of the application of Section 221 of the 1979 Constitution, grounds 1, 2, 3 and 5 on facts and/or mixed law and facts filed without leave of court, for which leave is a pre-condition are incompetent and should be struck out. (See Oge v. Ede (1995) 3 NWLR (Pt.385) 564 at p 569 where this court held:-
“By the combined effect of Section 221(1) and 213(3)(4) and (5) of the 1979 Constitution, grounds of appeal which involve issues of law and fact can only be argued with leave of Court of Appeal or of the Supreme Court. Failure to obtain leave where necessary renders the ground incompetent (Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 60; Ogbechie v. Onochie (No.1) (1986) 2 NWLR (Pt. 23) 484 at 486; Nwadike. v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Obi v. Owolabi (1990) 5 NWLR (Pt 153) 702; Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214 at 218-219.
It is therefore clear from the foregoing analysis and decided cases, that where there is only one valid ground of appeal, it sustains the Notice of Appeal filed notwithstanding that, the Notice of Appeal so filed consists of other incompetent grounds. In such a situation as in the instant case, what is incompetent are the ground of appeal on facts and/or mixed law and fact requiring leave of court as a pre-condition to their being filed and argued. It is not the Notice of Appeal which is competent with a valid or competent ground 4 on law. In the instant case, we hold, that the Notice of Appeal Exhibit’ A’ consisting of 5 grounds of appeal (sic) one ground of law and four other grounds of fact and/or mixed fact and law is a competent Notice of appeal. The situation would however be different, where all the grounds of appeal filed are incompetent in which case, the Appeal would be incompetent and there will be nothing to amend. The latin maxim is Ex Nihilo Niril Fit which means (from the nothing comes nothing). You cannot put something on nothing and expect it to stay there. It will collapse and founder to pieces. (See Mac Foy v. U.A.C. (1962) AC 156 at 160. The foregoing resolves issue one in favour of the appellant/applicant.
It is therefore without question, that the Notice of Appeal Exhibit ‘A’ is competent, can be validly amended by Exhibit ‘B’ the proposed additional grounds of appeal dated the 31st of April, 1995 consisting of 4 grounds of appeal which are grounds of fact and/or mixed law and facts (see paragraph 5(m) of the affidavit in support) with leave of this court, since leave of court of the Maiduguri High Court was not obtained and the High Court Maiduguri has no longer jurisdiction to enter the application by effluxion of time. This resolves issue 2 in favour of the appellant/ applicant.
It follows as the night the day, that since this court can grant leave to file grounds and argue grounds of appeal on fact and/or mixed law and facts, it can grant leave to amend the Notice and grounds of Appeal by substituting grounds 1, 2, 3 and 5 filed without leave of court with additional ground 1, 2, 3 and 5 as appeared and underlined in the proposed Amended Notice and grounds of appeal marked Exhibit ‘C’. This also resolves issue 3 in favour of the applicant.
No extension of time is required under the law to file a ground of appeal on fact and/or mixed law and/or facts. What is required is leave of court of file those grounds. In a situation as in the instant case, where there is a competent Notice of Appeal filed within time, only leave of court is required to file and argue ground(s) of appeal on fact and/or mixed law and facts as in the instant case. A tripod applications: (i) to apply for leave, (ii) leave to appeal and (iii) extension of time within which to appeal is not required in this case, and the submission that it is necessary, is misconceived by counsel for the respondent.
I am satisfied, that the application is supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period. The proposed grounds of appeal show good cause why the appeal should be heard.
(See Order 3 Rules 3 and 4 of the Court of Appeal Rules, 1981. (as amended).
In the final analysis, applying the principles in the cases which I have examined, this application is meritorious and must succeed. I hereby grant the application as prayed and order that:-
(1) Leave of the court is hereby granted to the applicant to
(a) file and argue the proposed additional grounds of appeal as per Exhibit ‘C’ the AMENDED NOTICE OF APPEAL dated the 31st day of Appeal, 1995 consisting of 5 grounds of appeal of law, and/or mixed law and facts.
(b) The AMENDED NOTICE OF APPEAL as per Exhibit ‘C’ to be filed within 14 days.
(c) No order as to costs.

APPLICATION GRANTED.

OGUNTADE, J.C.A.: I read before now a copy of the ruling by my learned brother Orah J.C.A. I agree with his reasoning and conclusions. I would also grant the prayers.

MUNTAKA-COOMASSIE, J.C.A.: I have read before now the lead Ruling just read and delivered by my learned brother Orah J.CA. I entirely agree and endorse the reasoning and conclusion therein adumbrated I, with respect, adopt them as mine.
It is not in serious dispute based on the proper interpretation of Section 221 of the 1979 Constitution as amended to the effect that leave is required before a valid appeal can be filed in respect of grounds of appeal on facts and mixed facts and law. Considering the fact that the appeal before us emenated from the High Court of Borno State in its appellate capacity. If it were on grounds of law alone there was no necessity for the leave to be sought and obtained.
The grounds of appeal numbers 1, 2, 3 and 5 are either on facts and or mixed facts and law and no leave in respect of them were sought and obtained. They are therefore incompetent. Ground 4 of the appeal is on law and even though leave was not sought nonetheless it is compent by virtue of Section 220(1)(b) of the 1979 Constitution as amended, as such leave was unnecessary, See also Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 per Karibi Whute, J.S.C
The big question in this appeal is whether the valid and competent ground can sustain the notice of appeal filed or it has effectively contaminated the whole matter. It is gratifying that my learned brother Orah, J.CA. has removed the possible doubt on whether or not the competent ground can save the Notice of appeal which, is the main issue in controversy. It is clear of course that it can do so and the notice of appeal sustained by ground 4 can be conformably amended.
His decision is in line with the recent decision in Nigeria National Supply Co Ltd. v. Establishment Sima of vaduz (1990) 3 NWLR (Pt. 164) 526/548. Those incompetent grounds (is 1, 2, 3 and 5) are not capable of contaminating a competent ground which sustains the Notice of appeal in Exhibit A. Amendments thereto can therefore be granted with leave of the Court rather than extension of time within which to do so.
For this and the fuller reasons in the lead ruling, I too, will and hereby grant the applicants’ application and ordered as prayed. I abide by the consequential orders made in the lead ruling. I make no order as to costs.
Application granted.

 

Appearances

Joe Kyari Gadzama Esq., For Appellant

Popoola, Esq. For Respondent