AMADI & ORS v. ODUM & ORS
(2022)LCN/16202(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, February 14, 2022
CA/PH/507/2017
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. H.R.H. EZE JONATHAN AMADI (Paramount Ruler/Nyenweli Of Oginigba Community) 2. ELDER AGEARAKA AMADI 3. OJI-OWHOR AUGUSTUS W. AMADI (For Themselves And On Behalf Of Eparaoluozu) APPELANT(S)
And
1. CHIEF GERSHON BEKWELE ODUM 2. CHIEF SAMUEL A.W. AMADI 3. MR. EZEBUNWO AMADI (For Themselves And Representing Anyaogu Family Of Oro-Ikeani Compound Oginigba Community) RESPONDENT(S)
RATIO
THE RIGHT OF APPEAL FROM THE DECISIONS OF THE FEDERAL HIGH COURT OR HIGH COURT TO THE COURT OF APPEAL
Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
The right of appeal of a party who is aggrieved by a final judgment of a High Court sitting at first instance is provided in Section 241 of the Nigeria Constitution 1999 (as amended) and governed by the provisions of Section 24 of the Court of Appeal Act 2004. The Constitutional right of appeal from a final decision of the Federal High Court or High Court under Section 241 of the Constitution must be exercised within three months from the date of the decision as stipulated by Section 24(2) of the Court of Appeal Act. In other words, the appellants had three (3) months to file their notice of appeal from the judgment of the High Court of Rivers State, Port Harcourt delivered on the 25th of June, 2008. By filing their notice of appeal on the 17th of July, 2017, the appellant exceeded the period allowed by law and as of right under Section 241(1) of the Constitution of Nigeria 1999(as amended). The appellants having exceeded the period allowed by law by nine(9) years, the Constitutional right of appeal was no longer open to the appellants but had been lost. See Ngere V. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147 and Petgas Resources Ltd V. Mbanefo (2018) 1 NWLR (Pt. 1601) 442.
Where an appellant is out of time in filing an appeal from the Federal High Court or High Court, the law will avail the appellant only upon an application containing trinity prayers for an extention of time within which to file the notice of appeal. The Court of Appeal may extend the period prescribed in Section 24(2) and (3) of final judgment which must be filed within three months of the delivery of the decision. In this case, there is nothing to show that the appellants applied for extension of time within which to file the Notice of Appeal. Their failure to seek and obtain leave to appeal out of time rendered the Notice of appeal and also the appeal incompetent. See Afribank (Nig.) PLC V. Akwara (2006) 5 NWLR (Pt.974)619; Braithwaite V. Dalhatu (2016) 13 NWLR (Pt.1528) 32; Auto Import Export V Adebayo (2002) 18 NWLR (Pt. 799) 554; Nwora V. Nwabueze (2019) 7 NWLR (Pt.1670) 1;C.G.G. (Nig.) Ltd V. Eronini (2019) 14 NWLR (Pt. 1692) 219 and Onwuzulike V. State (2020)10 NWLR (Pt. 1731) 91. PER HASSAN, J.C.A.
THE ESSENCE OF A NOTICE OF APPEAL
In SPDCN LTD V. Agbara (2016) 2 NWLR (Pt.1496) 353, the Supreme Court held thus:
“An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. Where an appeal lies as of right, it is brought by the appellant filing in the registry of the High Court or any other Court or tribunal from the decision of which the appeal is brought, a notice of appeal. Where notice of appeal is null and void, there can be no valid appeal pending before the appellate Court. The notice of appeal is filed in the registry of the Court below and not in that of the appellate Court. An appeal is deemed to have been brought upon filing a notice of appeal in the registry of the High Court.” See Okorie V. Olughur (1995) 5 SCNJ 217;I.B.W.A. Ltd. V. Pavex international Co. Ltd.(2000) 7 NWLR (Pt. 663) 105 and NBC V. Suleiman (Supra).
The rules of Court are enacted to assist the Court in dispensing justice with ease, certainty and dispatch. They are also to ensure fairness and a level playing for all parties. It is therefore imperative that rules of Court should be complied with strict compliance, ensures speedy and efficient dispensation of justice. Failure to comply with the rules of Court may attract the sanction of incompetence, which may ultimately lead to striking out or dismissal of a process or indeed the entire suit- Adeniyi V. Tina George Ind. Ltd (2019) 16 NWLR (Pt. 1699) 560 at 564. The Supreme Court in Ogunpehin V. Nucleus venture (2019) 16 NWLR (Pt. 1699) 533 at 539 held that Rules of Court are not made for fun but to be obeyed by the parties. They are meant not only to be obeyed but also to be strictly complied with. See Stowe V. Benstowe (2012) 12 NWLR (Pt.1306)450; FBN PLC V. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247 and University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) 143. PER HASSAN, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is very fundamental to adjudication because it goes to the foundation and competence of the Court. It is indeed the epicenter of the entire litigation process and thus without it, there can be no validity in any proceedings or resultant judgment of the Court.
Where a Court acts without jurisdiction, it acts in futility and the proceedings no matter how well conducted amounts to a nullity. See Abiola & Sons Bottling Company Nig. Ltd. V. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501; Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Onwuzulike v. State (2020) 10 NWLR (Pt. 1731) 179; Zubair V. Kolawole (2019) 11 NWLR (Pt.1682) 299 and A – G Kano State V. A-G Federation (2007) 6 NWLR (Pt. 1029) 164. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The Appellants as claimants at the Rivers State High Court, Port Harcourt commenced an action by Writ of summons on the 22nd of June, 2001. By an Amended Statement of Claim dated and filed on the 10th day of July, 2002, the claimants/appellants claimed against the defendants/respondents as follows:
1. A declaration that the Eparaoluozu family of Oginigba Community by the native law and custom of Oginigba Community has the executive right to produce a paramount Ruler (Nye-Nweli) of Oginigba.
2. A declaration that the Paramount Ruler (Nye-Nweli) of Oginigba Community is hereditary Stool of the Eparaoluozu family Oginigba Community.
3. A declaration that the 1st Plaintiff on record is the incumbent paramount Ruler (Nye- Nweli) of Oginigba Community.
4. An order of perpetual injunction restraining the Defendant, whether action by himself, his agents, servants or privies howsoever described from parading himself or usurping the duties, functions, powers, right and privileges of the plaintiff as the incumbent paramount Ruler (Nye-Nweli) of Oginigba Community.
5. N5,000,000.00 as general damages.
The defendants/respondents in response to the claimants/ appellants’ claims filed an amended statement of defence dated 3rd August, 2002 and filed on 24th March, 2003 with leave of the Court, and counter claimed against the claimants/appellants as follows:
i. A declaration that the defendants Anyaogu family of Oro-Ikeani compound Oginigba (the plaintiffs in PHC/1502/01) is by Ikwerre native law and custom applicable in Oginigba entitled exclusively to produce the paramount ruler (Nye-Nweli) of Oginigba.
ii. A declaration that the Defendant is the incumbent Paramount Ruler (Nye-Nweli) of Oginigba having been duly so elected and installed.
iii. An Order of perpetual injunction restraining the plaintiffs whether acting individually, jointly, severally, through their family Chidamati (Or Epara-Oliozu) or through their agents, servants or privies howsoever described from parading himself or themselves as or usurping the duties, functions, power, rights and privileges of the defendant as the incumbent paramount Ruler (Nye-Nweli) of Oginigba.
iv. An order of perpetual injunction restraining the plaintiffs either by themselves and or acting through their servants, agents, privies, collaborator, howsoever from further interfering or disturbing the defendant in the exercise of his right, privileges, powers and duties as the paramount Ruler (Nye-Nweli) of Oginigba Community.
v. N5,000,000.00 (Five Million Naira) general damages for loss and inconvenience suffered by the defendant in consequence of the plaintiffs’ action.
The claimants/appellants filed a reply and defence to the counter claim. After the exchange of pleadings by the parties, trial commenced. At the conclusion of trial, judgment was entered in favour of the defendants/counterclaimants/respondents, delivered on the 25th day of June, 2008. The decision gave rise to this appeal.
The Notice of Appeal was dated and filed on the 17th of July, 2017. It is anchored on eight grounds of appeal with their particulars and reliefs sought.
The Appellants’ brief dated 11th October, 2017 was filed on the 12th of October, 2017. Learned counsel for the appellants M.S. Agwu formulated four issues for determination thus:
i. “Whether the traditional titles of “Nye-Nweli” and Oji-Owhor-eli are held by one and the same person in Oginigba, or whether they are two distinct traditional positions which cannot be held by one person.” (Ground 6).
ii. “Whether Section 149 (d) of the Evidence Act was applicable in resolving the question whether Rewhua, the alleged ancestor of the Respondents was an adopted child of Ikeani? If not applicable, did the respondents effectively deny the allegation of adoption and in the circumstance was the plaintiffs/claimants’ claim that “Rhewhua” was an adopted but not a biological child of Ikeani not proved?”(Ground 7).
iii. “Whether the learned trial judge was right when he failed to give effect to the decision of the native arbitration in Exhibit E and proceeded to give effect to Exhibit x4; thereby coming to the conclusion that the Anyaogwu family is the ruling family to produce the Nye-Nweli/Paramount Ruler of Oginigba Community?” (Ground 5).
iv. “Whether the learned trial judge properly evaluated the evidence before him and whether upon the balance of evidence before him he was right in entering judgment for the Defendants” (Grounds 1, 2, 3, 4 and 8).
The Appellants Reply Brief dated and filed on the 18th of October, 2019 was deemed properly filed and served on 2nd of December, 2020.
Learned counsel adopted the brief and the reply brief and urged the Court to allow the appeal and set aside the judgment of the lower Court.
The respondents’ brief settled by Nwibe Chinwe dated 9th April, 2018 was filed on 12th April, 2018 but deemed properly filed on 19th March, 2019. In it two issues were distilled thus:
1. “Whether the trial judge is right in holding that the two traditional positions of Oji-Owhor and Nyenweli are separate and distinct and are not held by one and the same person from the appellants’ Eparaoluozo family?” (Ground 6).
2. “Whether the decisions of the learned trial judge in dismissing the claims of the appellants and entering judgment in favour of the respondents are right and a result of proper evaluation of the evidence adduced by the parties in the trial Court?” (Grounds 1, 2, 3, 4 and 8).
Learned counsel for the respondent adopted the brief and urged the Court to dismiss the appeal. In the respondent’s brief there is incorporated a Notice of Preliminary Objection.
It is imperative to point out at this stage that the Notice of Appeal reflected at pages 540 – 546 of the record was dated and filed on the 17th of July, 2017, while the judgment in the case was delivered on the 25th of June, 2008.
Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
The right of appeal of a party who is aggrieved by a final judgment of a High Court sitting at first instance is provided in Section 241 of the Nigeria Constitution 1999 (as amended) and governed by the provisions of Section 24 of the Court of Appeal Act 2004. The Constitutional right of appeal from a final decision of the Federal High Court or High Court under Section 241 of the Constitution must be exercised within three months from the date of the decision as stipulated by Section 24(2) of the Court of Appeal Act. In other words, the appellants had three (3) months to file their notice of appeal from the judgment of the High Court of Rivers State, Port Harcourt delivered on the 25th of June, 2008. By filing their notice of appeal on the 17th of July, 2017, the appellant exceeded the period allowed by law and as of right under Section 241(1) of the Constitution of Nigeria 1999(as amended). The appellants having exceeded the period allowed by law by nine(9) years, the Constitutional right of appeal was no longer open to the appellants but had been lost. See Ngere V. Okuruket XIV (2014) 11 NWLR (Pt. 1417) 147 and Petgas Resources Ltd V. Mbanefo (2018) 1 NWLR (Pt. 1601) 442.
Where an appellant is out of time in filing an appeal from the Federal High Court or High Court, the law will avail the appellant only upon an application containing trinity prayers for an extention of time within which to file the notice of appeal. The Court of Appeal may extend the period prescribed in Section 24(2) and (3) of final judgment which must be filed within three months of the delivery of the decision. In this case, there is nothing to show that the appellants applied for extension of time within which to file the Notice of Appeal. Their failure to seek and obtain leave to appeal out of time rendered the Notice of appeal and also the appeal incompetent. See Afribank (Nig.) PLC V. Akwara (2006) 5 NWLR (Pt.974)619; Braithwaite V. Dalhatu (2016) 13 NWLR (Pt.1528) 32; Auto Import Export V Adebayo (2002) 18 NWLR (Pt. 799) 554; Nwora V. Nwabueze (2019) 7 NWLR (Pt.1670) 1;C.G.G. (Nig.) Ltd V. Eronini (2019) 14 NWLR (Pt. 1692) 219 and Onwuzulike V. State (2020)10 NWLR (Pt. 1731) 91.
Appeals generally are creations of statute. Consequently, failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court, deprives the appellate Court of jurisdiction to entertain the appeal. Failure to meet the statutory requirements, which are conditions precedent to the filing of a valid appeal, constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate Court could lawfully entertain. Such irregularity constitutes an incurable defect that deprives the appellate Court of jurisdiction. In this case, the appellants’ notice of appeal filed on the 17th of July, 2017 was filed out of time, further the appellants did not seek and obtain an extension of time within which to appeal in order to regularize the defective notice of appeal. Consequently, there is no valid appeal before the Court of appeal. The Notice of Appeal is incompetent and it is struck out.
It is also observed, the Notice of Appeal filed on the 17th of July, 2017 was filed at the registry of the Court of Appeal, Port Harcourt instead of the registry of the Rivers State High Court as provided by Order 7 Rule 2(1) of Court of Appeal Rules, 2021 which is the same as Court of Appeal Rule 2016, and reads:
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by sufficient number of copies for service on such parties.”
The provision of Order 7 Rule 2 (1) of the Court of Appeal Rules provides that a notice of appeal shall be filed in the registry of the Court below which presupposes the Court the decision of which is being appealed against, and in the instant case, the decision of the Rivers State High Court Port Harcourt. See N.B.C. V. Suleiman (2019) 18 NWLR (Pt.1703)80.
The provision of Order 7 Rule 2(1) of the Court of Appeal Rules is mandatory. The use of the word “shall” in Order 7 Rules 2(1) of the Court of Appeal Rules is mandatory. The use of the word “shall” in a statute or rules of Court makes it mandatory that the rule or provision must be obeyed. “Shall” is used to express command or exhortation or what is legally mandatory. The word “shall’ when used in a statutory provision imports, that thing must be done. It is a form of command or mandatoriness. It is not permissive. The word is normally given a compulsory meaning as it is intended to denote obligation.
It follows that the word “shall” used in Order 7 Rule 2(1) of the Court of Appeal Rules makes it mandatory for the Court of Appeal to consider and ensure its application whether or not the issue is raised by the parties. See INEC V. Asuquo (2018) 9 NWLR (Pt. 1624) 305 at 317 and Governor of Bayelsa State V. Ogugubeni (2020) 10 NWLR (Pt. 1733) 464.
The effect as provided under Order 7 Rule 2(1) for all intent and purposes is that the Notice of Appeal shall be filed at the registry of the Court below, and in this case, the High Court of Rivers State, Port Harcourt.
In SPDCN LTD V. Agbara (2016) 2 NWLR (Pt.1496) 353, the Supreme Court held thus:
“An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. Where an appeal lies as of right, it is brought by the appellant filing in the registry of the High Court or any other Court or tribunal from the decision of which the appeal is brought, a notice of appeal. Where notice of appeal is null and void, there can be no valid appeal pending before the appellate Court. The notice of appeal is filed in the registry of the Court below and not in that of the appellate Court. An appeal is deemed to have been brought upon filing a notice of appeal in the registry of the High Court.” See Okorie V. Olughur (1995) 5 SCNJ 217;I.B.W.A. Ltd. V. Pavex international Co. Ltd.(2000) 7 NWLR (Pt. 663) 105 and NBC V. Suleiman (Supra).
The rules of Court are enacted to assist the Court in dispensing justice with ease, certainty and dispatch. They are also to ensure fairness and a level playing for all parties. It is therefore imperative that rules of Court should be complied with strict compliance, ensures speedy and efficient dispensation of justice. Failure to comply with the rules of Court may attract the sanction of incompetence, which may ultimately lead to striking out or dismissal of a process or indeed the entire suit- Adeniyi V. Tina George Ind. Ltd (2019) 16 NWLR (Pt. 1699) 560 at 564. The Supreme Court in Ogunpehin V. Nucleus venture (2019) 16 NWLR (Pt. 1699) 533 at 539 held that Rules of Court are not made for fun but to be obeyed by the parties. They are meant not only to be obeyed but also to be strictly complied with. See Stowe V. Benstowe (2012) 12 NWLR (Pt.1306)450; FBN PLC V. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247 and University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) 143.
The Notice of Appeal filed by the appellants at the Registry of the Court of Appeal Port Harcourt is incompetent having been filed in violation of Order 7 Rule 2(1) of the Court of Appeal Rules. It is therefore liable to be struck out for being incompetent and depriving the Court of jurisdiction to determine the appeal.
For the Court of law to properly assume jurisdiction to entertain a case or affirm any decision made thereon on appeal, the three conditions which must be fulfilled are:
(a) The case must be commenced by due process of law;
(b) There must be no feature which deprives the Court of its jurisdiction in respect of the subject matter of the case; and
(c) The Court must be properly constituted, therefore any defect in competence is fatal for the proceedings and a nullity however well conducted and decided because the defect is extrinsic to the adjudication. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341 and Okpe V. Fan Milk PLC (2017) 2 NWLR (Pt.1549) 282.
Jurisdiction is very fundamental to adjudication because it goes to the foundation and competence of the Court. It is indeed the epicenter of the entire litigation process and thus without it, there can be no validity in any proceedings or resultant judgment of the Court.
Where a Court acts without jurisdiction, it acts in futility and the proceedings no matter how well conducted amounts to a nullity. See Abiola & Sons Bottling Company Nig. Ltd. V. F.C.M.B. Ltd (2013) 10 NWLR (Pt. 1363) 501; Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Onwuzulike v. State (2020) 10 NWLR (Pt. 1731) 179; Zubair V. Kolawole (2019) 11 NWLR (Pt.1682) 299 and A – G Kano State V. A-G Federation (2007) 6 NWLR (Pt. 1029) 164.
Although the Constitution has given every aggrieved person the right to appeal, such appeal must be prosecuted in accordance with due process. These processes are put in place for speedy and orderly disposal of these appeals.
In the instant case, the appellants Notice of Appeal having not commenced or initiated by due process of law is incompetent and deprived this Court of jurisdiction to determine the appeal. The appeal is liable to be struck out. This appeal is grossly incompetent and it is accordingly struck out for incompetency.
PAUL OBI ELECHI, J.C.A.: I read in advance the judgment of my learned brother just delivered by Tani Yusuf Hassan, JCA.
I agree with her that the appeal be struck-out for being incompetent.
Accordingly, I also strike-out out the said appeal.
Appeal struck-out.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (DISSENTING JUDGMENT): At the hearing of the appeal, on 19/01/2022, M. S. Agwu Esq. appeared for the appellants (with Dr. M. C. Ogbonna and R. W. B. Nnwoka Esq.). C. Nwibe Esq. appeared for the respondents.
Nwibe Esq. reminded the Court that his clients filed a notice of preliminary objection, which is incorporated in the respondents’ brief of argument, filed on 12/04/2018, at pages 6-9 thereof. The respondents’ brief of argument was deemed on 19/03/2019, as properly filed and served. He urged the Court to uphold the objection.
Agwu Esq. indicated to Court that the appellant responded to the preliminary objection in the appellant’s reply brief of argument, filed on 18/10/2019, which was deemed properly filed and served on 02/12/2020. He urged the Court to discountenance the objection.
Thereafter, appellants’ counsel adopted appellants’ brief of argument filed on 12/10/2017 and appellants’ reply brief of argument, as argument of the appeal, which he urged the Court to allow, and set aside the judgment of the lower Court.
Nwibe Esq., on behalf of the respondents, adopted the respondents’ brief of argument filed on 12/04/2018 and deemed properly filed and served on 19/03/2019, as argument of opposition to the appeal. He urged the Court to dismiss the appeal.
DETERMINING THE RESPONDENTS’ OBJECTION
The case of F.A.A.N. v. W.E.S. Ltd. (2011) 8 NWLR (Pt. 1249) 219 at 255 instructs that a notice of preliminary objection that has been moved, and for which argument has been proffered in the brief, must be considered by the Court and findings made thereon.
At pages 6-9 of the respondents’ brief of argument, the respondent set up complaint and argument challenging the competence of grounds 5 and 7 out of the eight grounds of appeal in the notice of appeal. The implication is that, even where this Court holds that the two grounds of appeal are incompetent, the appeal can still be sustained on the strength of the six remaining grounds of appeal. It is therefore my view that the notice of preliminary objection has been deployed wrongly in this appeal and should be discountenanced. A notice of preliminary objection should be targeted at decapitating the entire appeal, not nibbling at some of the grounds of appeal. See the cases of E.F.C.C. v. Yanaty (2017) 3 NWLR (Pt. 1552) 171 and Diamond Mortgage Ltd. v. Azunna Enterprises (Nig.) Ltd. (2020) 10 NWLR (Pt. 1733) 528.
Respondents’ preliminary objection is hereby discountenanced.
THE APPEAL
In the introductory part, at page 1, of the appellants’ brief of argument, it is recorded, thus:
“This is an appeal against the judgment of Hon. Justice S. E. Charles Granville of the High Court of Rivers State. The said judgment is at pages 514-541 of the Records of Appeal. The Appellants had appealed to this Honourable Court in Appeal No. CA/PH/670/2008. The said Appeal was struck out on the 23rd day of September 2015 based on the Respondents’ preliminary objection to the effect that the Notice of Appeal was signed by an unknown proxy. The Appellants were granted leave to appeal by this Honourable Court on the 4th day of July 2017 in Appeal No. CA/PH/378M/2015. The Appellants applied for the said order, but same was not available to them for the purpose of compiling their record within the time allowed by the Rules of this Honourable Court. The said application for the Ruling and Order of this Court is contained at page 550 of the Record and the Appellants’ Notice of Appeal is at pages 540 to 546 of the Record of Appeal.”
The record of appeal was transmitted to this Court on 15/09/2017. This appeal, as noted above, was heard on 19/01/2021.
At the point of hearing the appeal, there was no enrolled order filed before the Court, showing that prior leave was sought and obtained by the appellants. There was no enrolled order of this Court or of any other Court showing that the appellants sought and obtained an order for extension of time to file their appeal, since, obviously, the appeal was filed outside the three-month window allowed by Section 24(2)(a) of the Court of Appeal Act, 1976, being a final decision of the lower Court.
The only document, in the record of appeal, suggesting that an order was obtained on 04/07/2017, is the appellants’ counsel’s letter, dated 05/07/2017, addressed to the Deputy Chief Registrar of this Court, which lies at page 550 of the record of appeal. That letter falls short of claiming that there was an order made by this Court for extension of time within which appellants may file their appeal. Furthermore, the letter cites appeal number as CA/PH/378M/2015, which is different from the appeal number of the appeal before us. I agree with the lead judgment, in this appeal, which correctly struck out the appeal because there is no evidence before us that the appellants sought and obtained any order for extension of time to file their appeal outside the three months appellate window allowed by Section 24(2)(a) of the Court of Appeal Act, 1976.
As the appellants, by their own showing, stated that they obtained leave to appeal against the judgment of the lower Court, without including the enrolled order of the Court in the record of appeal before us, either as additional or supplementary record of appeal, even if they could not include the document in the record of appeal, transmitted on 15/09/2017. In the circumstances of this appeal, it is not confirmed that there was leave granted by this Court, in favour of the appellants,’ prior to their filing their notice of appeal, on 17/07/2017, against the judgment of the lower Court, dated 25/06/2008, signed by Justice S. E. Charles-Glanville, in consolidated suits nos. PHC/1280/2001 and PHC/1502/2001. See Section 128 of the Evidence Act, 2011. SeeI.B.W.A. Ltd. v. John Elue Construction Company Ltd. (2004) 7 NWLR (Pt. 873) 601. This Court is bound by the record before it. See Bashir v. Audu [1999] 5 NWLR (Pt. 603) 433.
I also strike out this appeal for incompetence and this Court lack of jurisdiction.
The second reason for striking out the appeal, with which I do not agree with, is that the appellant filed his notice of appeal in the registry of this Court, instead of filing it at registry of the lower Court. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, provides thus:
“2(1) 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, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names of and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.”
I have examined the notice of appeal and there is nothing written on the document to suggest that it was filed in the registry of this Court. The notice of appeal, deriving from the prescribed Form in the First Schedule to the Court of Appeal Rules, either of 2016 or 2021 (Forms 3 and 5, respectively), has the Court of Appeal as its heading, though expected to be filed in the lower Court. With respect and great humility, I hold that the notice of appeal was not filed in the registry of this Court. The notice of appeal was appropriately filed in the registry of the lower Court, as it should be.
Even where an application is brought, which is not the case here, by any of the parties to strike out the notice of appeal, this Court would have been guided by Order 21 Rule 5(1) and (2) of the Court of Appeal Rules, 2016, which provides:
“5.-(1) An application to strike out or set aside for noncompliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before any party applying has taken any step after becoming aware of the irregularity.
(2) An application under this Rule may be made by motion on notice and the grounds of objection must be stated therein.”
No one has complained in this appeal about the notice of appeal being filed in this Court. Even if there was a complaint, it could not have succeeded where parties argued the appeal, based on the processes filed and went away from Court only to await judgment. Parties saw no evil in the notice of appeal.
In keeping with the direction of the provision quoted above, the Courts have over the years insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts. In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; and Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
In the case of Odom v. PDP [2015] 6 NWLR (Pt. 1456) 527, M. D. Mohammad, JSC. stated, in respect of filing notice of appeal in a wrong registry:-
“In arguing their preliminary objection to the cross-appeal, learned appellants/cross-respondents counsel submits that the notice of cross-appeal filed on 25-04-2014 at the Supreme Court’s Registry instead of the Registry of the Court of Appeal, on the authority of Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 at 496 is incompetent inspite of this Court’s order of 26-05-2014 deeming the notice as duly filed. The notice having been filed in contravention of Order 2 Rule 30 of the Supreme Court’s Rules remains incompetent. It follows also that the cross-appellant’s brief that is filed pursuit to the incompetent notice of appeal is also incompetent. Further relying on Ogbechie v. Onochie (No.2) (1988) 1 NWLR (Pt. 70) 370 at 402, learned appellants/cross-respondents’ counsel submits that the cross-appeal be struck out.
Replying, learned cross-appellant’s counsel contends that the appellants/cross-respondents’ preliminary objection to the competence of the cross-appeal is misconceived. The objection, it is submitted, having failed to take account of Order 6 Rule 4, Order 8 Rule 11 and Order 10 Rule 1 sub-rules (1) and (2) of the Supreme Court Rules cannot be taken seriously. Supporting his submission with the decision in Obi v. I.N.E.C. In Re: Dr Andy Uba (2008) 7 NWLR (Pt. 1085) 68 at 78 learned counsel urges that the objection be overruled.
It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned appellants’/cross-respondents’ counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction of the constitution or the statute vests in the Court. Unless it is expressly stated that non compliance with the rules particularly renders a cause incompetent, the Court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve.
In the case at hand, appellants’/cross-respondents’ preliminary objection, given the fundamentality of the cross-appellant’s right of appeal as guaranteed by the Constitution; cannot be given the effect the appellants/cross-respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross-appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise the jurisdiction the constitution confers on it. These rules should not provide the means of compromising the appellant’s right of appeal as conferred by the constitution. See Ogunremi v. Dada (1962) 1All NLR 663 at 671; (1962) 2 SCNLR 417.”
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1, it decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348; Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; and F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See: U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This clearly is not the reasons of the rules of Courts.”
See also, Olufeagba & Ors v. Abdur-Raheem & Ors (2009) 18NWLR (Pt. 1173) 384; (2009) 11-12 (Pt. 1) SCM 125; (2009) LPELR – 2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam v. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-
“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”
In Odom & Ors v. PDP & Ors (2015) 2 SCN 209 at 226, (2015) 6 NWLR (Pt. 1456) 527 at 555, para. B-D this Court, per Dattijo Muhammad, JSC, in considering similar situation of non compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:
“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross appellant’s noncompliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”
However, Order 20 Rule 5 of the 2016 Court of Appeal Rules, formerly of 2011, provides that, an appeal will not be struck out for non compliance with the rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.
Further still, it should be noted that this non compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See: Ndayako v. Dantoro (2004) 13 NWLR (Pt.889) 187 at 219; Ibeanu v. Ogbeide (1994) 7NWLR (Pt. 359) 697 at 716.
In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court below, instead of the trial Court valid.”
In the case of In Re: Uba [2008] 7 NWLR (Pt. 1085) 68 at 77-79, the Supreme Court had the following to say about filing a notice of appeal in a wrong registry:
“It needs be said however that these applications would appear to be one of no ado about nothing. The presentation before us and the array of counsel involved notwithstanding, 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 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 justices 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 provisions in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(1) 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.
Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that Court. He never objected or raised issue about the irregularity. The Court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent Ifeanyi Okonkwo had raised the point. If the Court below had not at the time struck out the appeal or penalized the appellant/respondent it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time.
The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the Court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the Court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case SC.161/2001 – The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 relied upon in counsel’s address only related to an order made by this Court upon an application heard in chambers. The order made in chambers was overruled by this Court sitting in open Court. This is quite a regular situation unlike the situation on hand.
In the case of CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488 at 512-513, this Court stated thus:
The question of whether or not a proper notice of appeal has been filed in the Court below is a question which touches on the jurisdiction of this Court. If no proper notice of appeal has been filed then there is no appeal for this Court to entertain. See Kano Plastics Ltd. v. Century Merchant Bank (1998) 3 NWLR (Pt. 543) 567 at 572-573; Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313; Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt.364) 622. From the wording of Order 3 Rule 2 (1) the notice of appeal shall be filed in the registry of the lower Court. However, I find the contention of the respondent in this appeal baseless in law. On examination of the records of proceedings it shows at pages 8-10 that 1st and 2nd appellants were 1st and 2nd defendants at the Court below, whereas the 3rd -7th appellants were 3rd – 7th defendants respectively. The 1st and 2nd appellants were represented by counsel at the trial and filed their statement of defence. The 3rd – 7th defendants were not represented and did not file any defence. All through the trial and proceedings at the Court below the 3rd – 7th appellants did not participate. Written addresses were ordered. The respondent and 1st and 2nd appellants filed addresses and judgment was entered in favour of the respondent.
The 1st and 2nd appellants being dissatisfied with the said judgment appealed against it. In the appeal filed by the 1st and 2nd appellants, the present 3rd – 7th appellants were 2nd – 6th respondents. See page 81A of Volume 1 of the record of appeal and all the cover pages of Volumes 1 and 11 of the records. The 1st and 2nd appellants caused the appeal record to be compiled and thereafter transmitted by the Registrar of the Court below to the Registry of this Court in line with the rules of this Court. The 1st and 2nd appellants later filed their brief of argument. The 3rd – 7th appellants later filed an application filed on 8/9/99 for extension of time within which to seek leave to appeal against the same judgment. The essence of that application was to allow the 3rd – 7th appellants participate in the appeal and not as respondents. When time was extended to the 3rd – 7th respondents to appeal was granted and the record of appeal had been transmitted from the Court below, and the appeal entered in the Court of Appeal list, in line with the provisions of Order 3 Rule 13(1) and (2) of the Court of Appeal Rules, the appeal is said to be properly filed because, the Registrar of the Court below became “functus officio”. The notice of appeal filed by the 3rd – 7th respondents was pursuant to leave granted by this Court. Besides, when this Court granted application of the 3rd – 7th appellants, it ordered that fresh notice and grounds of appeal be comprehensively filed. All these were filed in this Court not in the Court below. I agree with the learned counsel for the 3rd – 7th appellants that since the record of appeal had been properly transmitted and served on all the parties, and appeal entered, it will amount to duplicity of effort, resources and ultimately lead to delay of these appellants, pursuant to the leave granted, to file the notice and ground of appeal at the Registry of Court below. It is not the practice in this Court that where the record of appeal had been properly transmitted and served on all parties and appeal entered in the cause list with appeal number as contemplated by Order 3 Rule 5 of this Court, for the appellant to go to the lower Court to file the notice and grounds of appeal at the Court below. It would have been different if the record had not been transmitted and appeal not duly entered in the cause list.
It is on this basis I dismiss the respondent’s preliminary objection as unmeritorious and baseless.”
I therefore refuse to agree to strike out the notice of appeal and this appeal, solely on the basis of where it was filed, apart from the fact that I have held that the notice of appeal was filed in the registry of the lower Court, where it was certified as a true copy.
CONCLUSION
On the whole, I hereby strike out this appeal for incompetence and lack of jurisdiction in this Court, as the condition precedent for the exercise of jurisdiction by this Court has not been made available or proved to exist.
Appearances:
Dr. M.C. Ogbonnah, Esq., with him, R.W.B. Nnwoka, Esq. For Appellant(s)
C. Nwibe, Esq., with him, G. Obinna, Esq. For Respondent(s)
