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AEPB v. OJEHOMON (2022)

AEPB v. OJEHOMON

(2022)LCN/16070(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/ABJ/CR/15/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

ABUJA ENVIRONMENTAL PROTECTION BOARD APPELANT(S)

And

AKINWANDE OJEHOMON (OCCUPANT NO. 12 MICHAEL JACKSON CRESCENT, GWARINPA) 

RESPONDENT(S)

 

RATIO

THE PURPOSE OF A MOTION ON NOTICE

In our law, a Motion on Notice is filed to object to some incompetent grounds of appeal and not to object to the entire Notice of Appeal.
​A Preliminary Objection is filed by a respondent against hearing of an appeal. The main aim is to contend and canvass that the appeal is fundamentally defective or incompetent. If he succeeds, the appeal abates. On the other hand, if the respondent objects to a ground or some grounds of appeal filed, he ought to file and rely on a Motion on Notice. If the Motion succeeds, the appeal would still be heard on other ground(s) that can sustain the appeal. Let it be underlined again that a successful Preliminary Objection terminates the hearing of the appeal. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, 296; Dangana & Anor v. Hon. Atai Aidoko Ali Usman & Ors., (2012) LPELR-25012 (SC); Odedo v. INEC (2008) LPELR-2204 (SC). PER ADAH, J.C.A.

WHETHER OR NOT THE RIGHT TO APPEAL IS ABSOLUTE AND A CONSTITUTIONAL RIGHT

Let me say in clear terms that in Nigeria, the right of appeal is a constitutional right but the right is not absolute. See Yaki (Rtd.) & Anor v. Abubakar Bagudu & Ors. (2015) LPELR-25721 (SC). The exercise of the right of appeal is circumscribed and limited by Rules of Court which are meant to be obeyed. In the case of Kente v. Ishaku & Ors., (2017) LPELR-42077 (SC), the Supreme Court held that:
“The Court cannot exercise appellate jurisdiction beyond what and how Section 240, 241 and 243 of the 1999 Constitution as amended cumulatively confer on it. Appellant’s right of appeal, as donated by the Constitution is not at large. By Section 241 (1)(a) of the Constitution, it is only when he appeals against the specific decision of the trial Court he is aggrieved with that the lower Court’s jurisdiction to entertain the appeal avails him. The lower Court’s refusal to assume jurisdiction when it has none does not amount to undue and untoward inclination at doing technical justice. The Court’s primary function is to dispense justice according to law”.
​This position as in that Kente v. Ishaku (supra) is very apt because it is an elementary principle of law that the right to appeal is constitutional. However, it is also the law that the exercise of that right must be within bounds and in accordance with the law. A right of appeal, I must emphasize, cannot be exercised without compliance with the law granting the right or the law regulating the exercise of the right. See Ekunola v. CBN & Anor., (2013) 15 NWLR (Pt. 1377) 224.
PER ADAH, J.C.A.

THE POSITION OF LAW WHERE PRIOR LEAVE TO APPEAL IS REQUIRED BUT WAS NOT SOUGHT AND OBTAINED BEFORE AN APPEAL WHICH REQUIRES LEAVE BE FILED

​It follows therefore, in law that where prior leave to appeal is required but it was not sought and obtained before an appeal which requires leave was filed, such an appeal is incompetent and is dead on arrival with no redeeming feature. It must be brought to an end and without much ado if its competence was challenged or even raised suo motu by the Court. In Akinbisehin V. Olajide (2018) LPELR-51172 (CA), this Court per Sir Biobele Abraham Georgewill, JCA, had reiterated inter alia thus:
“it is only where the High Court had exercised its appellate jurisdiction, and therefore not sitting as a Court of first instance, that the leave of Court is required to appeal against its final or interlocutory decision on grounds of facts or mixed law and facts. See Section 241(1) and 242(1) of the Constitution of Nigeria 1999 (as amended).”
See also Oguejifor & Anor V. Ubakason (2022) LPELR- 56783 (CA) per Sir Biobele Abraham Georgewill JCA.
PER GEORGEWILL, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, sitting in its appellate jurisdiction in Suit No: CR/4/2020, delivered on the 14th October, 2020.

This case was originated by the appellant who as the plaintiff before the trial Magistrate Court instituted an action against the Respondent for failure to pay waste disposal fees. The trial Magistrate Court found the respondent guilty and ordered the Respondent to pay the fees to the appellant.

Aggrieved by the decision of the trial Magistrate Court, the respondent appealed to the High Court of the Federal Capital Territory, and on the 14th day October, 2020, the High Court of the FCT sitting in its appellate jurisdiction set aside the judgment of the trial Magistrate Court and held that the bill served on the respondent was unlawful.

​The appellant now dissatisfied with the decision of the FCT High Court in its appellate jurisdiction, filed the instant appeal vide an Amended Notice of Appeal on the 22nd February, 2021. There are four grounds of appeal listed in the notice of appeal. The Record of Appeal was transmitted to this Court on the 11th October, 2021.

However, the respondent filed a Motion on Notice seeking for a striking out of the appellant’s appeal for failure to seek leave to appeal. The Motion was supported by an eight (8) paragraph affidavit and a written address. The facts in support of this application are:
a. The appellant filed a fundamentally flawed and defective Notice of Appeal dated 20th October, 2020 in the Court of Appeal.
b. This was in view of the fact that the Appellant failed to obtain leave of the lower Court to file a notice of application for leave to appeal in view of the fact that all the grounds of appeal and the particulars thereof involved QUESTIONS OF FACT AND MIXED LAW AND FACT.
c. The Appellant was therefore disqualified from filing a Notice of Appeal as a Notice of Appeal can only be filed as of right if it contains QUESTIONS OF LAW only.

The appellant raised a lone issue in his written address for determination. This issue is worded as follows:
Whether or not the appellant’s Notice of Appeal dated 20th October, 2020 is incompetent and void ab initio as a result of the failure of the appellant to obtain the leave of the lower Court before filing the Notice of Appeal. That leave is a condition precedent without which the jurisdiction of this Honorable Court is not activated.

ARGUMENT ON RESPONDENT’S MOTION TO STRIKE OUT
Learned counsel for the respondent argued that all the appellant’s ground of appeal questions the evaluation of facts and that examining the 4 grounds of appeal would lead to a further examination of the facts on which the Court exercised its discretion or made its decision thereby being issues of mixed law and fact. More importantly the determination of status of the bungalow at 12 Michael Jackson Crescent, Gwarinpa is a question of fact as the Appellant disputes the fact that 12 Michael Jackson Crescent, Gwarinpa is a bungalow in grounds one and three. Counsel cited Garuba v. Omokhodion (2011) LPELR-1309 (SC); Uzoho v. Asugha (2017) LPELR-42073 CA; Order 6 Rules 2 & 3 Court of Appeal Rules, 2021.

Learned counsel for the respondent argued that the appellant appears to confuse leave to amend with leave for appeal. For the avoidance of doubt, they are two different things. A Court is at liberty to direct an amendment at any time of any valid Court process, the emphasis being on valid i.e. lawful. However, leave to appeal must be obtained before the filing of a Court process viz., the notice, without which the Notice of Appeal is not a valid Court process. A Court process that is a nullity and incompetent cannot be amended. Counsel relied on Queen Chioma Ezuma & Anor v. Federal Republic of Nigeria CA/OW/10C/2015, (2017) LCN/10398 (CA); Uzoho v. Asugha CA/OW/111/2012; Nigercar Dev. Co Ltd v. ASWB (2008) 9 NWLR (Pt. 1093) 498 at 520; Garuba v. Omokhodion (2011) LPELR-1309 (SC)

In response, learned counsel for the appellant in his Reply Brief of Argument argued that the essence of Respondent’s Notice is to seek to affirm the judgment of the lower Court appealed against on grounds other than may have been given in the judgment. The essential position of a respondent who files a Respondent’s Notice is that the judgment is correct, but that there are other grounds which could either be in substitution for some or, the reasons given for it or addition to the grounds for the judgment. Counsel relied on Isaac J Essien Esq. v. Diamond Bank Nigeria Plc (2009) 17 NWLR (Pt. 1171) 466; Bob Manuel v. Briggs (2003) 5 NWLR (Pt. 813) 323.

Learned counsel cite Order 17 Rule 3 (3) of the Court of Appeal Rules, 2016 and submitted that the heading of the Appellant’s Notice of Appeal under a wrong law is an irregularity, which can be remedied by the Court of its own Motion or on the application of the appellant. Counsel relied on Falobi v. Falobi (1976) 9-10 SC (Reprint) 1.

Learned counsel for the appellant submitted that in determining whether a ground of appeal alleges issue of law or fact, the general requirement or duty of Court is to examine thoroughly the grounds of appeal to see whether the grounds reveal a misunderstanding by the lower Court of the law or a mis-application by it of the law to the facts already proved or admitted, in which case it would be question of law. Counsel relied on the cases of Samuel Ononuju v. Attorney General, Anambra State (2009) 10 NWLR (Pt. 1148)182; Dogo v. The State (2013) 221 LRCN (Pt. 1) 164; Section 30 (4) of the AEPB Act, 1997; Abuja Environmental Protection Board Act (Waste Management Rates/Charges) Regulation 2012. Counsel urged the Court to dismiss all the Respondent’s Contentions and set aside the judgment of the lower Court.

The respondent in the instant case brought a Preliminary Objection against this appeal. The respondent had filed a Motion on Notice on 17/3/2022. I want to say this Motion having regard to the nature of our appellate procedure and practice under the Rules of this Court. This to me is significant because the respondent represented himself all through this appeal and he from his processes is a Lawyer. Please see his NBA Practice Seal on his Respondent’s Brief of Argument filed on 10/02/2021.

In our law, a Motion on Notice is filed to object to some incompetent grounds of appeal and not to object to the entire Notice of Appeal.
​A Preliminary Objection is filed by a respondent against hearing of an appeal. The main aim is to contend and canvass that the appeal is fundamentally defective or incompetent. If he succeeds, the appeal abates. On the other hand, if the respondent objects to a ground or some grounds of appeal filed, he ought to file and rely on a Motion on Notice. If the Motion succeeds, the appeal would still be heard on other ground(s) that can sustain the appeal. Let it be underlined again that a successful Preliminary Objection terminates the hearing of the appeal. See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, 296; Dangana & Anor v. Hon. Atai Aidoko Ali Usman & Ors., (2012) LPELR-25012 (SC); Odedo v. INEC (2008) LPELR-2204 (SC).

In the instant case, the Respondent filed a Motion on Notice on 17/03/2022. The Motion Paper reads as follows:
MOTION ON NOTICE TO STRIKE OUT BROUGHT PURSUANT TO ORDER 6 & ORDER 17 COURT OF APPEAL RULES 2021, THE 1999 CONSTITUTION (AS AMENDED) AND UNDER THE INHERENT POWERS OF THE COURT
TAKE NOTICE that this Honourable Court will be moved on the … day of …, 2022 in the hours of 9 o’clock in the forenoon or so soon thereafter as counsel for the Respondent may be heard on behalf of the Respondent praying the Court for the following:
1. AN ORDER of this Honourable Court striking out the Appellant’s appeal and all processes thereto attached, for failure to file an application of notice for leave to appeal and the Motion of refusal by the Court below;
2. AN ORDER of this Honourable Court striking out the Appellant’s Notice of Appeal dated 20th October 2020, as being unconstitutional, null and void, for failing to seek leave from the Court below or this Honourable Court, within the prescribed time lit, thereby rendering the appeal incompetent;
3. AN ORDER of this Honourable Court striking out the Appellant’s “Amended Notice of Appeal” of 9th February 2021 and all attached Court processes thereto in view of the fact that it is based on the void and incompetent Notice of Appeal on 20th October 2020;
4. AN ORDER of this Honourable Court deeming this Motion and all its processes thereto attached have been properly filed within the prescribed time limit provided in Order 6 Rule 1;
5. A RULING of this Honourable Court on the Respondent’s Preliminary Objection of 14th January 2021 on which the Appellant based its Motion on Notice filed in this Honourable Court 22nd February 2021.
AND TAKE NOTICE that the grounds of the said Motion Strike out are as follows:
1. The 1999 Constitution (as amended) and the Rules of Court mandates that any appeal that contains QUESTIONS OF FACT AND QUESTIONS OF MIXED LAW AND FACT imposes a statutory and constitutional obligation on the Appellant to seek leave of the lower Court to appeal.
2. In such circumstances the Notice of Appeal would be titled NOTICE OF APPLICATION FOR LEAVE TO APPEAL which would indicate that the Appellant had obtained the prior leave of the lower Court to appeal as required by the 1999 Constitution (as amended) and the relevant Rules of Court.
3. Where leave is not obtained, being a CONDITION PRECEDENT to file a notice of application for leave to appeal, within the prescribed time limit, the Notice is incompetent, unconstitutional, null and void.
4. The void Notice of Appeal of 20th October 2020 and its appurtenances thereof cannot be amended by this Honourable Court as requested by the Appellant as this Honourable Court is constitutionally barred from amending a “Notice of Appeal” that is incompetent, a nullity and void ab initio.

​This Motion with all due respect, with all its imperfections is meant to object to the competence of the appeal and which ought to be out rightly a Preliminary Objection. Inspite of the imperfections of the Motion and the fact that it was not a Notice of Preliminary Objection so called, I do understand the subject of its complaint. It is as to the incompetence of the Notice of Appeal filed without the Leave of either the Court below or this Court. Fortunately, the respondent at pages 1 to 9 of the Respondent’s Brief raised and argued in some way the preliminary issue of the competence of this appeal. This therefore, has opened the lid of consideration of this essentially fundamental issue of absence of leave to appeal as required by the 1999 Constitution of the Federal Republic of Nigeria (as amended).

​From the record of appeal before us, it is expressly clear that the appeal in the instant case is against the decision of the FCT High Court in its appellate jurisdiction. The matter started from the Chief Magistrate Court. The respondent in this appeal was the appellant at the High Court. See the Notice of Appeal from the Chief Magistrate’s Court to the lower Court at pages 60 to 65 of the Record of Appeal. The appeal was heard by the FCT High Court before a further appeal to this Court vide the Notice of Appeal at pages 128 to 132 of the Record of Appeal. This Notice was later amended by the appellant in this appeal and the appeal was argued on the amended

Notice of Appeal.

Let me say in clear terms that in Nigeria, the right of appeal is a constitutional right but the right is not absolute. See Yaki (Rtd.) & Anor v. Abubakar Bagudu & Ors. (2015) LPELR-25721 (SC). The exercise of the right of appeal is circumscribed and limited by Rules of Court which are meant to be obeyed. In the case of Kente v. Ishaku & Ors., (2017) LPELR-42077 (SC), the Supreme Court held that:
“The Court cannot exercise appellate jurisdiction beyond what and how Section 240, 241 and 243 of the 1999 Constitution as amended cumulatively confer on it. Appellant’s right of appeal, as donated by the Constitution is not at large. By Section 241 (1)(a) of the Constitution, it is only when he appeals against the specific decision of the trial Court he is aggrieved with that the lower Court’s jurisdiction to entertain the appeal avails him. The lower Court’s refusal to assume jurisdiction when it has none does not amount to undue and untoward inclination at doing technical justice. The Court’s primary function is to dispense justice according to law”.
​This position as in that Kente v. Ishaku (supra) is very apt because it is an elementary principle of law that the right to appeal is constitutional. However, it is also the law that the exercise of that right must be within bounds and in accordance with the law. A right of appeal, I must emphasize, cannot be exercised without compliance with the law granting the right or the law regulating the exercise of the right. See Ekunola v. CBN & Anor., (2013) 15 NWLR (Pt. 1377) 224.

By Section 241 of the 1999 Constitution of the Federal Republic of Nigeria, an appeal shall lie as of right from the final decisions of any proceeding before the lower Court if the Court is sitting at first instance. If the appeal is from its decision in an appellate jurisdiction, then, there must be leave of Court in line with the right to appeal with leave under Section 242 of the Constitution.
The instant appeal is coming from the decision of the FCT High Court in its appellate jurisdiction, so leave must be had and obtained before any appeal of such character can be competent. Where leave is a condition precedent, leave must be sought and obtained, failing which the appeal will be incompetent. The Court would lack jurisdiction to entertain the appeal. The failure of the appellant to obtain leave in this appeal is fatal. The objection is upheld. The appeal is grossly incompetent. The appeal shall therefore, and it is hereby dismissed.
No cost is awarded.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the advantage of reading in advance, the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.

I am in complete agreement with the reasoning and conclusion reached therein. I also therefore, dismiss the appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, the draft copy of the leading judgment just delivered by noble lord, Stephen Jonah Adah JCA, and I am in complete agreement with the lucid reasoning and the impeccable conclusions reached therein to the effect that the preliminary objection, though brought by means of a Motion on Notice, which ordinarily ought not to be the proper procedure but yet, challenging the competence of the Notice of Appeal on the ground of failure of the Appellant to seek and obtain leave to appeal against the judgment of the lower Court, the High Court of the Federal Capital Territory, sitting not in its original jurisdiction, but in its appellate jurisdiction, for which leave to appeal is sine quo non, ought to succeed.
Now, by Section 241 (1) of the Constitution of Nigeria, 1999 (as amended), it is provided as follows:
An appeal shall lie from decisions of the Federal High Court or High Court to the Court of Appeal as of right in the following cases;
a. Final decisions in a civil or criminal proceedings before the Federal High Court or High Court sitting at first instant”
My lords, from the above succinct and clear provisions of the organic law of the land, the Constitution, whilst an appeal against the final decision of the lower Court, being the High Court of the Federal Capital Territory, is as of right when the lower Court is sitting as a Court of first instances, it is not so with appeal against decisions of the lower Court when it is sitting in its appellate jurisdiction, in which latter case leave of Court, either of the lower Court or this Court is sine quo non.
​It follows therefore, in law that where prior leave to appeal is required but it was not sought and obtained before an appeal which requires leave was filed, such an appeal is incompetent and is dead on arrival with no redeeming feature. It must be brought to an end and without much ado if its competence was challenged or even raised suo motu by the Court. In Akinbisehin V. Olajide (2018) LPELR-51172 (CA), this Court per Sir Biobele Abraham Georgewill, JCA, had reiterated inter alia thus:
“it is only where the High Court had exercised its appellate jurisdiction, and therefore not sitting as a Court of first instance, that the leave of Court is required to appeal against its final or interlocutory decision on grounds of facts or mixed law and facts. See Section 241(1) and 242(1) of the Constitution of Nigeria 1999 (as amended).”
See also Oguejifor & Anor V. Ubakason (2022) LPELR- 56783 (CA) per Sir Biobele Abraham Georgewill JCA.

​It is for the above few words of mine and the fuller reasons marshalled out in the leading judgment that I too hold that the appeal is grossly incompetent and thus, liable to be struck out. It is hereby also struck out by me.

Appearances:

U. Umanah, Esq. For Appellant(s)

Respondent in person. For Respondent(s)