BARR. MOHAMMED BELLO MUSTAPHA v. MR. DANBABA DANFULANI SUNTAI (GOVERNOR OF TARABA STATE) & ORS
(2013)LCN/6440(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of July, 2013
CA/YL/38/2013
RATIO
RATIONALE FOR THE REQUIREMENT OF LEAVE FOR A PARTY WITH AN INTEREST TO APPEAL FROM THE HIGH COURT TO THE COURT OF APPEAL.
A party who has an interest to appeal from the High Court to the Court of Appeal, must, under section 242 (1) of the Constitution, (as amended), seek either the leave of the High Court or that of the Court of Appeal, ‘Leave’ in this con, has been interpreted to mean ‘permission’. The rational for the provision is to enable the court to determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See Otu V ACB (2008) 1 SCNJ 189; In Re Williams (No. 1) 2001) 9 NWLR (Pt. 718) 329; The Regd. Trustees, Christ Apostolic Church Nigeria V. Uffiem (1998) 10 NWLR (Pt. 569) 312; In Re Ojukwu (1998) 5 NWLR (Pt. 551) 673.
Where leave is required, either in the Constitution or in the rules of court, and such leave is not sought and granted, the court has no jurisdiction to entertain an appeal as it is incompetent. It is well to note and to keep in perspective the time-honoured finding of my noble lord, Niki Tobi, JSC, in the case of Auto Import V Adebayo (2003) 2 MJSC 44 at page 60 where he said:
“Rules of Court are meant to be obeyed. Failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.” PER JUMMAI HANNATU SANKEY, J.C.A.
EFFECT OF AN ORIGINATING PROCESS FILED OUT OF COURT WITHOUT AN ORDER FOR EXTENSION OF TIME
It is now settled that where a party files an originating process in Court and same was filed out of time without an order for extension of time being granted by the Court, then such an originating process is to all intents and purposes incompetent and completely lacking in validity See Nwankwo V. Abazie (2003) 12 NWLR (Pt. 834) 381 @ 391 ratio 7, Ifelogun Local Govt. v. Bello (2012) 4 NWLR (Pt. 1289) 17 @ 22 ration 3.
Further in Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) @ 384 ratio 6, this Court stated thus:-
“The validity of the originating process in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine quo non to the legitimacy of any suit. Failure to commence an action without a valid originating process goes to the root of the case and same makes the case incompetent and a nullity.” PER SOTONYE DENTON WEST,J.C.A.
JUSTICES
SOTONYE DENTON WEST (PJ) Justice of The Court of Appeal of Nigeria
JUMMAI H. SANKEY Justice of The Court of Appeal of Nigeria
IGWE IGNATIUS AGUBE Justice of The Court of Appeal of Nigeria
Between
BARR. MOHAMMED BELLO MUSTAPHA
(CPC Governorship Candidate in 2011 General Elections) for himself and Taraba Concerned Citizens Forum Appellant(s)
AND
1. MR. DANBABA DANFULANI SUNTAI (GOVERNOR OF TARABA STATE).
2. ALH. GARBA UMAR, ACTING GOVERNOR, TARABA STATE, (DEPUTY GOVERNOR).
3. THE TARABA STATE EXECUTIVE COUNCIL
4. MR. ISTIFANUS H. GBANA, SPEAKER, TARABA STATE HOUSE OF ASSEMBLY.
5. THE TARABA STATE HOUSE OF ASSEMBLY.
6. THE ATTORNEY GENERAL OF TARABA STATE. Respondent(s)
SOTONYE DENTON WEST,J.C.A.: (Delivering the Leading Ruling/Judgment): The Appellant’s exparte application is a tripod upon which the main appeal can stand and be that the case, lam obliged to consider the application before the main appeal.
The Appellant’s exparte application is dated 17th of May, 2013 and filed on the 28th May, 2013 and was brought pursuant to Order 4 Rule 1, Order 6 Rule 2(1) Order 7 Rule 4, Order 18 Rule 11 of the Court of Appeal Rules, 2011 and under the inherent powers of this court.
By the application, the Appellant prayed for the following orders:
1. An order granting leave to the applicants to appeal against the judgment/ruling/final decision of the Taraba State High Court of Justice No. 1 Jalingo (copy attached as exhibit “A”) delivered by Hon. Justice Josephine Y. Tuktur, the Chief Judge, on the 27th of March, 2013 over an exparte motion for leave to apply for orders of mandamus in the interest of Justice.
2. An order deeming the notice of appeal of the Appellant/Applicant dated the 28th day of March, 2013 but filed on the 9th of April, 2013 (copy attached as exhibit “B” and contained in the transmitted record of appeal) and the Appellants brief of argument, already filed on the 1st of May, 2013 as properly filed having paid the necessary filing fees, in the interest of Justice.
3. An order departing from the rules of the court, to dispense with the Respondents brief of argument, as the ruling over the motion appealed against was heard and determined exparte and was refused/struck out before the substantive application could have been filed and the Respondents brief’s not necessary.
4. An order that applicant’s appeal against the Judgment/Ruling/final decision of the Taraba State High Court of Justice Nos. 1 Jalingo delivered by Hon. Justice Josephine Y. Tuktur, the Chief Judge, on the 27th May, 2013 over an exparte motion for leave to apply for order of mandamus be heard exparte in the interest of justice.
5. Any other order or orders as the Honourable Court may deem fit to make in the circumstances of the case. Accompanied to the motion is a 4 paragraph affidavit deposed to by one Blessing Gabriel, a litigation secretary in the office of the Applicant’s Counsel.
In support of this application, is a four paragraphs affidavit wherein the deponent Blessing Gabriel, Litigation Secretary of No. 5, Tanko Street, Sabon Gari, Zaria, do hereby make Oath and state as follows:-
I Blessing Gabriel, Female, Adult, Christian, Nigerian, Litigations Secretary, resident at No.5, Tanko Street, Sabon Gari, Zaria, do hereby make Oath and state as follows:-
That I am the Litigations Secretary in the Chambers of Bello Ibrahim & Co., Applicant’s Counsel, and by my said position, i am conversant with the facts leading to this application.
1. That I have the authority of the Applicants and the authority of Bello Ibrahim Esq., their Counsel to depose and swear to this affidavit.
2. That I was informed by the Applicant’s Counsel, Bello Ibrahim Esq., on the 16th day of May, 2013 at the hour of 4:30pm at our office No. 45, New Jos Road, Tudun Wada, Zaria, in the circumstances of preparing this application; which information he got from the Applicant’s briefing, and I verily believe same as true, as follows:-
a. That the Appellants’ case at the lower Court was, in the main, for leave to apply for Orders of Mandamus to issue against the Respondents, especially the 4th Respondent, to discharge his constitutional duties to set, establish and appoint medical panel to determine the medical fitness of the 1st Respondent to discharge the functions of the Governor of Taraba State.
b. That the motion seeking for the leave of the lower court was heard exparte and the Respondents were not served with any process, but the motion was struck out.
c. That it was against the ruling of the Court, which is compiled and transmitted to this court along with the Appellants’ brief of argument and no Respondents’ brief is going to be filed.
d. That it will serve the interest of justice to depart from the requirements of the rules of this Court in respect of filing of the Respondent’s brief before the hearing of the appeal.
e. That the interest of justice will best be served to hear this appeal exparte without the Respondents’ brief of argument, as the initial case was heard as a motion exparte seeking for leave to apply for judicial review; orders of mandamus.
f. That the Appellants have long ago filed their brief of argument, seeking for a date and time to hear and argue the appeal.
g. That the Respondents will not be prejudiced by the grant of this application.
3. That I solemnly swear to this affidavit, conscientiously believing same to be true and correct, by virtue of the Oaths Act, 1963, L. F. N. 2004.
The Applicant’s Counsel, Bello Ibrahim did not file any address in support of the application, nevertheless, the learned Counsel submitted that the Appellant filed a Notice of Appeal on 9th April, 2013 against the final decision and issues of law and that they realized that the leave of court ought to be first sought and obtained. Reliance was placed on the case of Chief Joh Oyegun V. Arthur Nzeribe (2010) 6 SCNJ page 74 particularly page 77.
I have taken a cursory look at the prayers in the motion and I have no doubt that the Appellant’s exparte application filed at the trial court which is the subject of the present appeal principally sought for the exercise of discretion by the trial chief Judge. This is so because the entire reliefs endorsed on the face of the motion exparte are discretionary remedies. See pages 2-4 of the records of appeal. It is now settled that an appeal against the exercise of discretion by a trial High Court Judge is not an appeal as of right and as such before, same is filed, the leave of either the trial High Court or this Honourable Court to be first sought and obtained. This point has been unmistakably entrenched in our legal jurisprudence by section 242(1) of the 1999 constitution (as amended).
The said Section 241(1) provides thus;
“Subject to the provisions of Section 241 of the constitution, an appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or a High Court to the Court of Appeal”
See also Oyegun V. Nzeribe (2010) 16 NWLR (Pt. 1218-1220) page 558 at 572 ration 4, Int’l Equitable Ass. Ltd. V. Okehie (1999) 5 NWLR (Pt. 604) 620, Welli V. Okechukwu (1935) 2 NWLR (Pt. 5) 63 P. 550 paras E-F.
A calm perusal of the records of Appeal would show that the Appellants did not seek and obtain the leave of either the trial High Court or this Honourable Court before proceeding to file the present appeal. This failure on the part of the Appellant is fatal to the competence of the Appeal. In Oyegun V. Nzeribe (supra) our apex Court per the erudite scholar Honourable Justice Niki Tobi JSC (as he then was) firmly stated thus:-
“An appeal against the exercise of discretion of the Court is not as of right. Leave is required in such a circumstance. Where leave was not obtained, as in the instant case, the Appeal is incompetent and liable to be struck out”.
Furthermore, in Prudent Bank Plc. V. Obaraki, (2012) NWLR (Pt. 1285) 504 at 513 ratio II, this Court held thus:-
“Where an appeal can only be lodged with the leave of Court, it is the leave that confers jurisdiction on the Court and it is fundamental the leave must be obtained before a notice is filed”.
Therefore by virtue of Section 241(1) of the 1999 Constitution (as amended), an appeal lies from the decision of the Federal High Court or a State High Court to the Court of Appeal as of right in the following cases:
(a) final decision in any civil or criminal proceedings before the Federal High Court or a State High Court sitting at first instance; and (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. Other appeals from a decision of the Federal High Court or the High Court of a State to the Court of Appeal shall be with leave of court.
See: Wile V. Bogunjoke (2007) 6 NWLR (pt. 1029) 123, First Fuels Ltd. N.N.P.C. (2007) 2 NWLR (pt. 1018) 276, Maduabuchukwu V. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475.
Consequently, since the Applicant/Appellant did not obtain the leave of court which is condition precedent to the exercise of the right to appeal in this appeal, his failure to obtain the leave of the trial court or even of this court before filing of his appeal renders the appeal incompetent and as such debars the appellate court of jurisdiction, and consequently renders the application incompetent, null and void and of no effect whatsoever and subject to be struck out.
See: Nyambi V. Osadim (1997) 2 NWLR (Pt. 485) 1 SC, Olanrewaju V. Ogunleye (1997) 2 NWLR (Pt. 485) 12 SC, Nalsa & Team Associates V. N.N.P.C. (1991) 8 NWLR (pt. 212) 652 SC, Ayansina V. Coop. Bank Ltd. (1994) 5 NWL (pt.347) 742, Shaka V. Salisu (1996) 2 NWLR (pt.428) 22, F.B.N. Plc. V. Bukar (1997) 1 NWLR (pt. 483) 625, S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (pt.960) 198.
The application herein sought is in my view was not only belated but has not disclosed from the facts in the supporting affidavit why the leave of the court was not first sought and obtained before filing the notice of the appeal, being pre-requisite for the competence of the appeal in the circumstances. It therefore behoves this court not to go into merit. Be that as it may, this application lacks merit and it is hereby refused.
JUDGMENT
In respect of the main or substantive appeal, I wish to state that ordinarily and having ruled refusing the application upon which this appeal is predicated upon, it is needless delving into the determination of this appeal. Nevertheless, it will be useful for posterity purposes to look into the issues as canvassed by the parties and make pronouncement on them. Furthermore, in my view, the ruling just pronounced on the motion exparte which belatedly seeks the leave of this court to appeal against the decision of the lower court should invariably be the end of this matter, but for the fact that this court being, a penultimate court, it behoves me to proceed to consider the merits of this substantive appeal in the event that I am overruled by the apex court.
The Supreme Court in its wisdom had always stressed that this court should endeavour to convey its views expressed one way or the other in matters before it, before it may proceed to the apex court, that is the Supreme Court which will then have a pillar upon which to mail its binding pronouncements in our jurisprudential system that anchors on precedents.
It is for the above reasons that I proceed to state that this appeal stems from the decision of Hon. Justice Josephine Y. Tuktur of Taraba State High Court of Justice delivered on the 27th day of March, 2013 in which the Court struck out the Appellant’s experte application for leave to apply for order of mandamus to compel the Taraba State Executive Council to forthwith convene a meeting for the purpose of passing a resolution to declare that the Governor of Taraba State, Mr. Danbaba D. Suntai is incapable of discharging his duties and to compel the Speaker of the Taraba State House of Assembly to do his legal and constitutional duties in relation of the incapability of the Governor of Taraba State on the discharge of his public and constitutional duties by setting up a medical panel to immediately examine the Governor of Taraba State in relation to his incapacity to discharge the functions of the office of the Governor due to infirmity of his mind and body.
The Appellant commenced the suit at the lower court in a representative capacity for himself and on behalf of the association known as: Taraba Concerned Citizens Forum. The court in its wisdom ruled that the application was filed without authorization by the persons said to be represented. The Appellant being dissatisfied with the decision appealed to this court (See page III – IV of the records of appeal.)
The appellant in a notice of appeal dated 28th March, 2013 filed six (6) grounds of appeal. The appellant further, in his brief of argument dated 30th of April, 2013 and filed on the 7th of May, 2013 formulated three (3) issues for determination to wit:
1. Whether the lower court was right to have struck out the applicant’s motion ex parte for leave to apply for order of mandamus to compel the respondents to perform their legal duties on the ground that the application was filed in a representative capacity there being no authorization by the person said to be represented?
2. Whether at the stage of seeking for leave to apply for order of mandamus in a judicial review process, the law imposes a duty on the applicant to prove that his legal interest forming the ground of his application was violated by the refusal of the respondents to perform their legal duties?
3. Whether in view of the totality of the affidavit evidence and statement in support placed before the lower court in the ex parte motion, the applicant has not established the necessary sufficient interest in the matter or legal interests and such other legal requirements for the grant of the application for leave to apply for the orders of mandamus (Judicial Review)?
On their own part, the 1st, 2nd, 3rd and 6th respondents in their brief dated and filed on the 21st of May, 2013 challenged the competence of the appeal.
Similarly, the 4th and 5th respondents in their brief dated 26th of May, 2013 and filed on the 31st of May, 3013 also challenged the competence of the appeal.
I have gone through the records of appeal, the grounds of the appeal, issues formulated there from, the objections against the appeal and it will be a futile exercise for me to consider the appeal on the face of the challenges by the respondents. The life of this appeal no doubt is dependent on the success or otherwise of the said preliminary objections. I will therefore proceed with the consideration of the preliminary objections.
The learned counsel for the 1st, 2nd, 3rd and 6th respondents John Okezie Esq. submitted that appellant’s preliminary objection is anchored on six grounds to wit:-
1. That the action of the Appellant is statute barred and caught up by the effluxion of time by virtue of the public officers (Protection) law of Taraba State, Cap 115.
2. The appeal is incompetent as same which is an appeal against the discretionary orders of the trial High Court was filed without the leave of either the trial High Court or of the Court of appeal having been first sought and obtained.
3. That the action of the appellant to which this appeal is predicated upon was commenced at the trial High Court with a fundamentally defective and incompetent originating process.
4. That Ground 3 of the appellant’s Grounds of Appeal and issue no 1 formulated therefrom are incompetent as the particulars to the ground of appeal do not flow from the ground of appeal.
5. That Ground 1 and 5 of the Appellant’s grounds of appeal both being grounds of mixed law and facts are incompetent as they were filed without leave of either the High Court or the Court of Appeal having been first sought and obtained.
6. That Grounds 2 and 4 of the Appellants Grounds of Appeal both being grounds of facts are incompetent as they were filed without leave of either the trial High Court or of the Court of Appeal having been first sought and obtained.
The Counsel to the 1st, 2nd, 3rd and 6th Respondents, John Okezie Esq. submitted that by virtue of paragraph 4, 6, 7, 8, 9 and 10 respectively of the affidavit in support of appellant/applicant’s motion exparte at pages 6 and 7 of the records of this appeal and Section 316 of the Interpretation law of Taraba State, Cap 69, the 2nd, 3rd, and that the 6th Respondents are public officers. Also that by virtue of Section 2(a) of the Public Officers (Protection) Law of Taraba State, an action against a public officer shall be commenced within three (3) months from the date of the commission of the act been complained against.
It was submitted that the Appellant’s cause of action arose the very day the plane crashed wherein the 1st respondent (in the very words of the Appellant) purportedly sustained injuries that adversely affected his mind and body to the extent that he can no longer perform and discharge the functions and responsibilities of the office of the governor of Taraba State. Paragraph 4 of the affidavit in support of the Appellant/applicant’s motion exparte at page 6 of the records of appeal was referred to. It was argued that the said plane crash occurred on the 25th day of October, 2012.
It was argued further that if the 1st respondent immediately became incapacitated upon his involvement in the plane crash on the 25th day of October, 2012, as alleged by the Appellant, then, the time within which the 2nd – 6th Respondents are bound in law to perform their public duties in removing him (1″ Respondent) started running from the same day of the plane crash. The learned counsel referred to the case of NPA V. Lotus Plastics Ltd (2006) 2 M.J.S.C. 41 at 57 paragraph A – B, Eboigbe V. Nigeria National Petroleum Corporation (1994) 5 NWLR (Pt.347) 649-657.
It was submitted that the Appellant only filed his action at the trial court on the 13th of Febndry, 2013 that is over four months after then and be that as it may, the said action was instituted by this Appellant outside the three months period prescribed by the Public Officers (Protection) Law of Taraba State and any action commenced outside the stipulated period of three (3) months becomes statute barred.
The cases of Osun State Government V. Dalami Nig. Limited (2007) 101.148 LRCN 1311 @ 1313 1324 ratios 1 and 7, Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 @ 555 were referred to.
It was submitted that since the Appellant on his own volition included the prayer for extension of time in his motion ex parte and even made same the first and principal relief, that it goes without saying that the said action was filed outside the three (3) months period prescribed by the Public Officers (Protection) Law. Further that had the Learned Chief Judge proceeded to grant that prayer for extension of time, same would have been erroneous in law as there is no portion in the Public Officers (Protection) Law for grant of extension of time to the action filed outside the prescribed three months. The counsel referred to the case of PDP V. Okorocha (2012) Vol. 206 LRCN I @ II ratio 7.
This court was urged to strike out the appeal on this ground.
On ground two (2) of the objection, it was submitted that the Appellant’s motion exparte filed at the trial court which is the subject of the present appeal, principally sought for the exercise of discretion by the trial Chief Judge. That the entire reliefs endorsed on the face of the motion exparte and as found at pages 2-4 of the records of appeal are discretionary. Order 46 Rule 3 (5) of the Taraba State of Nigeria High Court (Civil Procedure) Rules 2011 was referred to.
It was submitted that it is settled that appeal against the exercise of discretion of a trial High Court Judge is not an appeal as of right and as such before same is filed, the leave of either the trial High Court or this Honourable Court ought to be sought and obtained. Section 242 (1) of the 1999 constitution (as amended) was relied upon. The learned counsel further submitted that a calm perusal of the records would show that the Appellant did not seek nor obtain the leave of either the trial High Court or this Honourable court before proceeding to file the present appeal. That this failure on the part of the appellant is fatal to the competence of the appeal. The case of Prudent Bank Plc. Vs Obadaki (2012) NWLR (1285) 504 @ 513 ratio II was referred to.
This court was urged to strike out this appeal for being grossly incompetent.
On ground three (3) of the objection, it was submitted that motion exparte of the appellant filed at the trial court was filed by Bello Ibrahim Esq. of Bello Ibrahim & co. and it is not also in doubt that the said Bello Ibrahim Esq. resides and carries on his legal practice at No. 45, New Jos road, Tudun Wada, Zaria, Kaduna State as found at pages 4, 52, 60, 79 of the records of appeal. That it goes without saying that the said Bello Ibrahim Esq. neither resides nor carries on his business of legal practice within the jurisdiction of the High Court of justice of Taraba State. Meanwhile, Order 4 rule 6 of the Taraba State of Nigeria High Court (Civil Procedure) Rules, 2011 mandatorily requires that a legal practitioner who resides outside jurisdiction must endorse on every court process he files in court an address of a law firm within jurisdiction. It was argued that failure of the appellant to indicate/ endorse his address within jurisdiction is fatal to the case.
It was further submitted that relief 1 of the appellant at the trial court was for extension of time within which to apply for orders of mandamus as found at page 2 of the record and that the validity of other reliefs rests squarely upon the grant of the said relief No. 1 and what this means according to the learned counsel is that Appellant’s motion exp arte before the trial court was and still a lifeless application that can only be given life and validity by the grant of the relief I thereof.
It was argued that all the reliefs being the difference between life and death of the motion exparte was not supported by affidavit evidence and neither was it accompanied by a written address. That the law is now settled that a relief or prayer on the face of a motion paper which is not canvassed or argued is deemed abandoned. The cases of Societebic S.A vs. Charzin Industries Ltd. (2006) ALL FWLR (pt.297) 1109, SCOA Nig. Plc. V. Danbata (2003) FWLR (Pt. 175) 1001 were relied on.
On whether the motion exparte of the appellant which was lifeless and completely bereft of any efficacy without an order for extension of time was valid and subsisting, it was submitted that it has now become well settled that where a party files any process in court and same was filed out of time without an order of extension being granted by the court, then, such court process is to all intents and purposes incompetent and completely lacking in merit and validity. The learned counsel referred to Nwankwo V. Abazie (2003) 12 NWLR (pt. 834) 381 @ 391 ratio 7, Helodun local Government V. Bello (2012) 4 NWLR (Pt. 259) 17 @ 22 ratio 3, Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) @ 354 ratio 6.
It was more argued that the affidavit in support of appellant’s motion exparte starting from paragraph 4 – 26 thereof are drafted in the second person plural and communally deposed to, contrary to the express and mandatory provision of the Evidence Act, 2011 particularly Section 117 (1) (1) thereof.
That the affidavit in support of the Appellant’s motion exparte is incompetent for being in gross non- compliance with Section 117 (1) (1) of the Evidence Act. It was submitted on this ground that in view of the above fundamental defect that afflicted the motion exparte and same with the present appeal, there is therefore no competent appeal before this court as incompetent originating process of the trial court cannot ground a competent appeal.
On ground (a) of the objection, it was submitted that the grounds of appeal contained in the notice of the appeal filed to this Honourable court are regulated by order 6 rule 2 (2) of the said rules.
It was submitted that calm perusal of Appellant’s grounds of appeal at pages 75 – 78 of the record of appeal with their particulars of error world reveal that the said particulars of error are not in any way related to the grounds of appeal. This defect according to learned counsel is very fundamental and renders the said grounds incompetent. The case of Manguno V. Blue Whales & Co. (2011) 2 NWLR (pt. 1231) 273 @ 252 ratio 8 was referred to.
It was further submitted that the Appellant formulated the issues for determination from the said ground 3 and that the two issues no 1 and 2 respectively. Pages four (4) and eleven (11) of the Appellant’s brief of argument dated 30th April, 2013 and filed on the 7th of May, 2013 were referred.
It was submitted that the two (2) issues formulated from the ground 3 of the appeal are invalid and the case of Akpan V. Bob (2010) SSCNJ 141 @ 144 was referred to. On grounds 5 of the objection, it was submitted that a careful reading of Appellant’s Ground one (1) and five (5) of the Grounds of appeal will reveal that they are questioning the evaluation of facts by the trial court before its application of the law. Pages 74-75 & 77 of the records were referred to. Further that this is a mixed law and facts and by virtue section 242 (1) of the constitution of Nigeria 1999 (as amended) a ground of mixed law and fact, such as Appellant’s Ground one (1) and five (5), leave of either the lower court or of this Honourable Court ought to have been first sought and obtained. The case of Olorunkunle v. Adigun (2012) 6 NWLR (Pt. 1294) 406 @ 412 – 413 ratios 5 and 6 was referred to. It was submitted that a careful perusal of the entire records of the Court of Appeal would reveal that before filing the notice of appeal, the Appellant did not seek nor obtain the leave of either the trial High Court or this Honourable Court before filing grounds 1 and 5. It was submitted that the Appellant’s Grounds 1 and 5 of the notice of appeal which were filed without leave of court even when leave is absolutely required are by that fact incompetent and liable to be struck out.
Consequently, it was argued that the three (3) issues for determination formulated by the Appellant i.e. issues 1, 2 & 3 are distilled from the said Grounds 1 and 5 among other Grounds of appeal are incompetent, same having been distilled from incompetent grounds of appeal. This court was urged to so hold relying on the authority of Christaben Group Ltd. Vs Oni (2008) 11 NWLR (Pt. 1097) @ 94 ratio 13. Also the case of Abalaka V. President of FRN (2012) 5 NWLR (Pt. 1292) 103 @ 104 – 104 ratio 2 was referred to.
It was submitted that by virtue of section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 such as Appellant’s Grounds 2 and 4, ought to have been filed with the leave of either the High Court or of this Honourable Court having been first sought and obtained.
On the whole, this court was urged to strike out issues 1, 2 and 3 formulated by the Appellant for being incompetent as same were distilled from grounds 2 and 4 of the grounds of appeal that are wholly incompetent.
On their own part, 4th and 5th respondents through their Counsel E.A. Ibrahim – Effiong submitted that the particulars to Ground 2 of the appeal are not by any stretch of imagination related to the ground. That while the ground questions or attacks the lower court’s ruling on leave to sue in a representative capacity which the lower court held that the application in that regard was not meritorious for lack of authorization by the persons the Appellant claimed to have represented. That the said particulars relate to Ground I of the notice of appeal. Pages 70 -71 of the record of the appeal were referred to.
It was submitted that particulars of grounds of appeal are ancillary to the grounds and not independent complaint. The following cases were referred to Anambra Motor Manufacturing Co. Ltd. Vs First Marine Trust Ltd. (2000) NWLR (Pt. 640) 308 @ 317, Alhaji Yusuf Adodo & Anor vs. Alhaji Abdul Ismaila (1998) II NWLR (Pt. 573) 214 @ 222. Senator Mammam Ali v. Senator Usman Albishir & 3 ors (2008) FWLR (Pt. 415) 1681 @ 1712 paras E.F Kalu v. Onwuegbu (2008) ALL FWLR (Pt. 435) 1713 @ 1726 paras D – E. Briggs v. Chig Lands Officer Rivers State (2005) ALL FWLR (Pt. 268) 1626 order 6 rule of 1 – 3 the court of appeal rules Usman v. Kaduna State House of Assembly (2005) ALL FWLR (Pt. 397P 78 @ 101 paras E – F.
It was further submitted that ground itself is an affront to Order 6 rules (1) – (3) of the court of Appeal Rules. Further that apart from the fact that the ground is unprecise and vague, the particulars do not project the error alleged to have been committed by the lower court.
It was finally submitted that Ground 2 and 5 of the appeal are incompetent having unrelated particulars. This court was urged to so hold and strike out the appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
The grouse of the Appellant’s case at the lower court was that on 25th day October, 2012, the first respondent who is the Governor of Tabara State was involved in a plane crash in Adamawa State and in which crash, he sustained injuries that adversely affected his mind and body that he can no longer perform and discharge his functions as the Governor of Taraba State. See paragraph 4, 6, 7, 8, 9 and 10 respectively of the affidavit in support of the Appellant’s motion exparte at pages 6 and 7 of the records of the appeal. It would be recalled that the said plane crash which according to the Appellant caused injuries that adversely affected the 1st respondent’s mind and body to the extent that he can no longer perform and discharge the functions and responsibilities of the office of the Governor of Tanba State occurred on the 25th day of October, 2012. Nevertheless, a perusal of the Appellant’s motion exparte at page 4 of the record of appeal, will reveal that Appellant’s action at the trial court was instituted on the 13th of February, 2013, that is over four (4) months after the occurrence of the plane crash which gave rise to the said action in the lower court.
It is trite that by virtue of section 2(a) of the Public Officers (Protection) Law of Taraba State, cap. 115 laws of Taraba State, 1999, actions against public officers shall be commenced within a specific period of time. For avoidance of doubt the Section 2(a) of the Public Officers (Protection) Law provides thus:
“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or interval execution of any law or of any public duty or authority the following provision shall have effect.
(a) The action,prosecution or proceedings shall not lie or be instituted unless it is commenced within three (3) months next after the act, neglect or default complained of, or in case of continuous damage or injury, within three months next after the ceasing thereof provided that if the action prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
From the above provision, it is settled that there are two conditions to be fulfilled and are:
i) That the persons against whom to be sued must be a public officer.
ii) That the act alleged to be done is a public duty. See Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547 @ 558 ratio 4.
In view of the above authority, two questions readily come to mind to wit: (1) whether the 2nd-6th Respondents, particularly the 3rd and 4th Respondents against whom the order of mandamus is been sought are public officers and (2) whether their duties which the Appellants have alleged that they neglected or defaulted in performing, are public duties or authorities?
Indeed, a public officer is defined by section 3 (1) of the interpretation law of Taraba State, Cap. 69 thus:
“Public Officer” or “Public Department” extends to and includes every officer or department invested with or performing duties of a public nature whether under the immediate control of the president or of the Governor of a state or not”.
It is therefore my view from the above that the 2nd – 6th respondents are public officer, who can and could avail themselves of the protection afforded by section of the Public Officers protection Law of Taraba State, while discharging their duties, if the action against them was not brought within three months from the date of the commission of the Act complained of. See Araka vs. Ejeagwu (2001) 5 WRN 1, Yare Vs. Nunku (1995) 5 NWLR (Pt 394) 129, Lautech V. Ogunwobi (2006) 4 NWLR (Pt. 971) 569.
The next question that agitates the mind is: when exactly did the neglect or default by the 2nd-6th Respondents to perform their public duties or authority complained of by the Appellant in his action before the trial Court occur? In other words, when did the cause of action arose? To my mind the cause of action arose when the plane crashed occurred and the 1st respondent sustained the alleged injury which incapacitated him to perform his official duties and that is on the 25th day of October, 2012. See para 4 of the affidavit in support of Appellant’s motion exparte found at page 6 of the records of appeals. The said paragraph stated thus:
“That we, (myself and the Taraba concerned citizens forum) are aware that the 1st respondent on the 25th of October, 2012 in Adamawa State of Nigeria where he sustained injuries that adversely affected his mind and body to the extent that he cannot attend to nor discharge his official duties and functions, now for over three months.”
From the above facts, it is ascertainable that the Appellant has by himself admitted that their action before the trial court was commenced over three months after their cause of action arose. Be that as it may, the cause of action in this case at the trial lower court arose from the day the incident that rendered the 1st respondent incapable of discharging his official duties occurred. See NPA v. LOTUS Plastic Ltd (2008) 2 M.J.S.C 41 @ 57 paras A – B Eboigbe v NNPC (1994) 5 NWLR (pt. 347) 649 @ 659. In Eboigbe v NNPC (Supra) the apex court held:
“The next question is when does time begin to run for the purpose of statute limitation? Time begins to run from the date on which the cause of action accrues. The cause of action generally accrues on the date on which the incident giving rise to the cause of action accrues.”
Having earlier stated that the cause of action arose on the 25th day of October, 2012 and the Appellant only filed his action at the trial Court on the 13th of February, 2013, that is over four months after, then the said action was instituted by the Appellant outside the three months period prescribed by the Public Officer (Protection) Law of Taraba State (supra). Holding the above view, the question that readily comes to mind is what is the validity of Appellant’s action before the trial Court in view of the fact that same was filed outside the three months prescribed by the Public Officer (Protection) Law (supra). This has been answered in a plethora of authorities – See Osun State Governor v. Dalami Nig. (2007) Vol. 148 LRCN BII @ B13 – 1324 ratio 1 and 7.
In Hassan v. Aliyu (supra) at 562 ratio 13 the apex court stated thus:-
“When an action is statute barred, the plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had lapsed. An section commenced after the expiration of the statutory period within which an action must be initiated is not maintainable. In other words, when a statute of limitation prescribes o period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period.”
The courts are very wary and reticent or out rightly refuse to extend time where the limitation of time is imposed in a statute, unless the statute makes provision for extension of time or where there exists other persuasive factors. However there has been no persuasive factors or reasons in this appeal, for it is clear that a legal right to enforce an action is not a perpetual right but a right generally limited by statute. Maybe the Appellant/Party was in slumber from 25th October, 2012 and when they woke up on 13th February, 2013, time had elapsed or veered off against them because a cause of action is statute barred, if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law or act had elapsed.
See Akinnuoye Vs. Military Administrator (1997) 1 NWLR (Pt. 453) 564 at 566, Ade-Osun Vs. Jibesin (2001) 14 WRN 106.
The grouse of the Appellant in this appeal as could be gleaned from their action at the lower court is very vague. A cause of action arises on the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain their action, but this is not so in this action as the trial court held inter-alia that the position of the law through decided cases is that for authorization to sue or to defend on behalf of the others to be established there must be evidence of some authorization given by the said Respondents, the persons or the community to be represented in the suit. See the case of Ndulue V. Idezim (2002) 99 LRNCN page 1568 at 1570 – 71 ratios 4 and 6 and Okukujev V. Akwido (2001) 10 WRN 7, where the Apex Court held inter-alia that a representative who is authorized to act or speak for others must obtain the authorization to sue or defend from the person or persons he wishes to represent.
In the instant application it is clear that the motion was instituted without due authorization of the persons contained in Exhibit “A” having not found any evidence of such authorization in support.
This application having been filed without the authorization by the persons said to be represented and filed on their behalf, the only one thing is simply to strike out the application in its entirety. See the case of Plateau State V. A-G Federation (2006) 137 LRCN page 1400 at 14007 ratio 5. Also in PDD V. Okorocha (2002) vol. 2206 LRCN 1 @ II ratio of the apex Court held:-
“Where the limitation of time is imposed in a constitution or statute, unless they make provision for extension of time, the Court cannot extend time”.
There is no doubt that the present appeal draws its validity and competence from the Appellant’s action at the trial court and since the said action has turned out to be incompetent, this ground is hereby upheld.
On ground 2 of the objection, I posit that a calm perusal of the records of Appeal would show that the Appellants did not seek and obtain the leave of either the trial High Court or this Honourable Court before proceeding to file the present appeal. This failure on the part of the Appellant is fatal to the competence of the Appeal. In Oyegun V. Nzeribe (supra) our apex Court per the erudite scholar Honourable Justice Niki Tobi JSC (as he then was) firmly stated thus:-
“An appeal against the exercise of discretion of the Court is not as of right. Leave is required in such a circumstance. Where leave was not obtained, as in the instant case, the Appeal is incompetent and liable to be struck out”.
Furthermore, in Prudent Bank Plc. V. Obaraki, (2012) NWLR (Pt. 1285) 504 at 513 ratio II, this Court held thus:-
“Where an appeal can only be lodged with the leave of Court, it is the leave that confers jurisdiction on the Court and it is fundamental the leave must be obtained before a notice is filed”.
Therefore by virtue of Section 241(1) of the 1999 Constitution (as amended), an appeal lies from the decision of the Federal High Court or a State High Court to the Court of Appeal as of right in the following cases: (a) final decision in any civil or criminal proceedings before the Federal High Court or a State High Court sitting at first instance; and (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. Other appeals from a decision of the Federal High Court or the High Court of a State to the Court of Appeal shall be with leave of court.
See: Wile V. Bogunjoke (2007) 6 NWLR (pt. 1029) 123, First Fuels Ltd. vs. N.N.P.C. (2007) 2 NWLR (Pt. 1018) 276, Maduabuchukwu V. Maduabuchukwu (2006) 10 NWLR (Pt. 989) 475.
Consequently, since the Applicant/Appellant did not obtain the leave of court which is condition precedent to the exercise of the right to appeal in this appeal, his failure to obtain the leave of the trial court or even of this court before filing of his appeal renders the appeal incompetent as such debars the appellate court of jurisdiction, and consequently renders appeal the incompetent null and of no effect and subject to be struck out.
See: Nyambi V. Osadim (1997) 2 NWLR (Pt. 485) 1 SC, Olanrewaju V. Ogunleye (1997) 2 NWLR (Pt. 485) 12 SC, Nalsa & Team Associates V. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 SC, Ayansina V. Coop. Bank Ltd. (1994) 5 NWLR (Pt. 347) 742, Shaka V. Salisu (1996) 2 NWLR (Pt. 428) 22, F.B.N. Plc. V. Bukar (1997) 1 NWLR (Pt. 483) 625, S.P.D.C. (Nig.) Ltd. v. Katad (Nig.) Ltd. (2006) 1 NWLR (Pt. 960) 198.
In view of the foregoing, this ground is upheld.
On ground three (3) of the objection, I agree with the learned counsel for the 1st, 2nd, 3rd and 6th respondents that it is obvious that the motion ex parte of the Appellant filed at the trial lower Court was filed by Bello Ibrahim Esq. of Bello Ibrahim & Co. and that the said Bello Ibrahim Esq. resides and carries on his legal practice at No. 45 new Jos road, Tudun Wada, Zaria, Kaduna State. See pages 4, 52, 60 and 79 of the records of appeal. Thus, it goes without gain saying that the said Bello Ibrahim neither resides nor carries on his business legal practice within the jurisdiction of the High Court of Justice of Taraba State contrary to the provision of Order 4 rules 6 (2) of the Taraba State High Court (civil procedure rules 2011 which state thus:
“where a plaintiff sues through a legal practitioner, the legal practitioner shall state on the originating process his chamber’s address as the address for service. If the legal practitioner is based outside the jurisdiction, he shall state a chamber address within the jurisdiction as his address for service.”
The word “shall” in the above provision means that the compliance with the provision is compulsory. See Equity Bank of Nig. LHC v. Halilco Nig. Ltd. (2006) ALL FWLR (pt. 337) 438.
It is imperative to note that relief 1 of the Appellant at the trial Court was for extension of time within which to apply for order of mandamus. See page 2 of the records of appeal. It stands with no equivocation that the validity of other reliefs rest squarely upon the grant of the said relief No. 1. It is important to note that all the relevant reliefs sought by the Appellant at the lower Court was not supported by affidavit evidence and neither was it argued. See pages 2 – 60 of the records of appeal. The likely conclusion is that the said relief I was abandoned there being no evidence in support. See Societe BIC S.A v Charzin Industries Ltd. (2006) ALL FWLR (Pt. 297) 1109.
The question now is whether the motion ex-parte of the Appellant which was lifeless and bereft of any efficacy without an order for extension of time is valid and sustaining even when the order for extension of time was not granted by the Court? The answer is in the negative.
It is now settled that where a party files an originating process in Court and same was filed out of time without an order for extension of time being granted by the Court, then such an originating process is to all intents and purposes incompetent and completely lacking in validity See Nwankwo V. Abazie (2003) 12 NWLR (Pt. 834) 381 @ 391 ratio 7, Ifelogun Local Govt. v. Bello (2012) 4 NWLR (Pt. 1289) 17 @ 22 ration 3.
Further in Kida V. Ogunmola (2006) 13 NWLR (Pt. 997) @ 384 ratio 6, this Court stated thus:-
“The validity of the originating process in a proceeding before a Court is fundamental, as the competence of the proceeding is a condition sine quo non to the legitimacy of any suit. Failure to commence an action without a valid originating process goes to the root of the case and same makes the case incompetent and a nullity.”
Further down, the affidavit in support of Appellant’s motion ex parte from paragraph 4 to 26 of these are drafted in the 2nd person plural and commonly deposed to contrary to the express and mandatory provisions of the evidence Act, 2011; See Section 117 (1) (c) thereof which states thus:
(1) Every affidavit taken in a cause or matter shall-
(a) be headed in the Court and in the cause or matter;
(b) State the full name, trade or profession, residence and nationality of the despondent; and
(c) Be in the first person and divided into convenient paragraphs numbered consecutively.”
In the light of the above, the affidavit in support of Appellant/applicant’s motion ex parte is therefore incompetent. See Apapa v. INEC (2012) & NWLR (Pt. 1303) 409 @ 416 ration 12 where this court stated thus:
“When a statute provides a procedure for performing a duty that procedure alone must be adopted otherwise, the act will be a nullity”
Having held that there was no valid and competent affidavit in support of Appellant/applicant’s motion ex parte, the said motion ex parte was and still remains incompetent for it is now settled that one cannot place something upon nothing and expect it to stand, it must surely collapse. See Mac foy v. United Africa Co. Ltd. (1962) AC 152
See further Abayomi v. AG Ondo State (2007) All FWLR (pt. 391) 1683.
On the strength of the foregoing, this ground succeeds.
On grounds 4 of the objection, it is settled that grounds of Appeal contained in a notice of appeal filed to this Honourable Court are regulated by the rules of this honourable Court. See Order 6 rules 2 (2) of the Court of Appeal rules, 2011. The said order (6) rules 2 (2) states thus:
“where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”
Ground 3 of the Appellant’s Grounds of appeal is not in pari-material with the particulars thereof. See pages 75 – 76 of the records of appeal.
For clarity of purpose, grounds 3 states:-
“The lower Court erred in la (sic) occasion substantial miscarriage of Justice on the Applicant when it held that; “… In this application the affidavit in support of the leave sought falls short of the requirement which has to be placed before the court for proper consideration of the application for leave for the issuance of the writ of mandamus. I hove read through the statement in support, its verifying affidavit and the said paragraph 11 – 25 of the affidavit in support and have not been able to find specifically the legal right of the applicant that has been violated by the non-discharge of the duties of the 3rd and 4th respondents.”
PARTICULARS OF ERROR
a. “The Court relied on the authority of Lord Ellenbobury C.J. in R.V. Arcbishop of Canterbury and Bashir Alade Shitta Beyvs Federal Republic Service Commission (1982) ISC, 40 at pp 68, 69 paragraph 677A that “there ought to in all cases specific legal right as well as want of s specific legal right in order to found on application for a writ of mandamus.
b. The authorities relied by the Court are for the substantive application for the order of mandamus.
c. The application before the Court is for leave to appeal for order of mandamus.”
Taking a look at the above quoted ground 3 and its particulars of error, it is obvious they are not related and the ground is therefore defective. See Munguno v. Blue Whales & Co. (2011) 2 NWLR (pt. 1231) 273 @ 282 ratio 8 where this Honourable Court held thus:
“Where particulars of error stated in a ground of appeal do not relates to the ground of appeal it will leave such ground bare of particulars and therefore incompetent”
Also order 6 rule 3 of the rules of this Court 2011 provides thus:-
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted under this rule and maybe struck out by the Court of its own motion or on application by the respondent”.
It is worthy of note that the Appellant formulated two issues for determination from the said ground 3 and the two issues so formulated are issue nos 1 and 2 respectively. See page 4 and 11 of the Appellant’s brief of the augment dated 30th April, 2013 and filed on the 7th of May, 2013. Having held that the ground is incompetent by virtue of the difference between the said ground and the particulars, the issues formulated therefrom are of no moment and are therefore incompetent there being no foundation to stand on.
See Amadi v. Orisakwe (1997) 7 NWLR (pt. 511) 161 Fasunwa V. Adibi (2004) 17 NWLR (pt. 903) 544 pp. 468 paras E-H; 493 paras C-D.
In Akpan v. Bob (2010) 17 NWLR (pt. 1223) 421 @ 444 ratio 32, the Supreme Court held thus:
“An issue for determination in an appeal is distilled from a competent issue which must and can be examined. On the other hand, any issue for determination which is distilled from an incompetent ground of appeal is incompetent and liable to be struck out.
Any incompetent ground of appeal cannot give rise to a competent issue for determination. Thus, any issue arising from an incompetent ground of appeal is in itself incompetent and liable to be struck out along with any submissions based thereon.
In the instant case, all the issues which arose from incompetent grounds of appeal nos. 4, 6, 7, 8, and 9 were incompetent.”
On the strength of the above, Appellant’s issue nos. 1 and 2 distilled from the incompetent ground 3 of the Appellant grounds of appeal are liable to be struck out and are hereby struck out.
On ground 5 of the preliminary objection, it is discoverable from a careful reading of the Appellant grounds 1 and 5 of the grounds of appeal that the said grounds 1 and 5 with the particulars are questioning the evaluation of facts by the trial Court before the application of the relevant laws. See pages 74 -75 and 77 of the record of the appeal. These grounds are to my mind are of mixed law and facts, requiring the leave of either the High Court or this Court before filing them. See section 242(10 of the 1999 Constitution of Nigeria (as amended). See Lurunkunle v. Adigun (2012) 6 NWLR (pt. 1297) 406 @ 412.
A ground of appeal filed without leave of Court where leave is required is incompetent is liable to be struck out.
See Olurunkunle v. Adigun (supra) Abdulsalam v. Salawa (2002) 13 NWLR (pt. 785) 505 Yaro v. Arewa Construction Ltd. (2007) 14 NWLR (pt. 1063) 333, Erisi v. Idika (1987) 4 NWLR (pt. 66) 503, Opuuiyo v. Omoniloan (2004) 16 NWLR (pt. 1060) 415.
The pertinent question now is how do we ascertain a ground of mixed law and facts in an appeal? This Honourable Court in Oraekwe v. Chukwuka (2012) 1 NWLR (pt. 1280) 169 @ 175 ratio 4 stated thus;
“It is always difficult to distinguish a ground of law from a ground of facts. However, in making grounds thoroughly to see whether it reveals a misapplication by it of the law to the proved or admitted facts, in which case it would be a question of law; or one before the application of the law and which case it would amount to a question of mixed law and facts.”
See further Ononuju v. AG Anambra State (2009) 10 NWLR (pt. 1148) 182 Ogbedie v. Onochie (1986) 2 NWLR (pt. 28) 484.
I have gone through the records of appeal and I cannot see where the Appellants first sought leave to file grounds 1 and 5 of their ground of appeal. The grounds are therefore incompetent and are hereby struck out. On ground 6 of the preliminary objection, I wish to state that grounds 2 and 4 of the Appellant grounds of appeal are grounds which raise question of facts and the assessment of the affidavit evidence of the Appellant by the learned trial Judge. See page 75 and 76 of the records of appeal.
It is now the law that grounds of appeals, which raise questions of this nature require the leave of Court before filing. See S.242(1) of the 1999 constitution of Nigeria (as amended). See Olorunkunle v. Adigun (supra) 413 ratio Sand 6.
By virtue of the provision of Section 242 (1) of the 1999 constitution (as amended), an appeal can only be validly filed with the leave of the either the lower Court or the Appellate Court for it to be competent. In other words, leave of the Court must first be obtained as a condition for such an appeal to be competent in law and be capable of effectively invoking the constitutional jurisdiction of the Appellate Court over the appeal. Where such requisite or necessary leave was not obtained or given by the Court, as in the instant appeal, a notice of such an appeal filed without it would be clearly incompetent and the Court lacks the jurisdiction to act on it or entertain the appeal. See Abalaka V. President ERN (2012) 5 NWLR (pt. 1292) 103 @ 104 Ogidi V. Egbe (1999) 10 NWLR (pt. 621) 42, Kashadadi V. Noma (2007) 13 NWLR (Pt.1052) 510; Ugboaju V. Akitoye Sowenumo (2008) 16 NWLR (PT – III) 278.
The records of the appeal show that no leave was sought and obtained before filling the above stated grounds 2 and 4 of the grounds of appeal. They are therefore incompetent together with the issue nos. 1, 2 and 3 formulated therefrom on the strength of the afore cited authorities.
See further Christaben Group Ltd. V. Oni (2008) II NWLR (pt. 10970 @ 94 ratio 14 where this Court held thus:
“Where an issue for determination is distilled from both competent and incompetent grounds of appeal it is not the duty of the Court to separate the arguments in respect of the competent grounds from the argument in respect of the incompetent grounds. The said issue would be incompetent in its entirety.”
See also Ngigi V. Obi (2006) 14 NWLR (pt. 999) 1 Sehindemi V. Gov. Lagos State (2006) 10 NWLR (Pt.987) 1; Ayalogu V. Agil (1998) NWLR (Pt. 532) 129.
The 4th and 5th respondents preliminary objection on the competency of groups 2 and 5 of the Appellant’s groups of appeal have been elaborately considered in the resolution of the 1st, 2nd, 3rd and 6th respondents preliminary objection on the competency of the entire appeal before this Honourable Court and I will not re-state same to avoid unguided repetitions.
Before I drop my hammer on this appeal, may I state that in the present democratic dispensation, good governance is both a product of the leader and the led. Good policies and programmes are ought to be initiated and implemented for the generality of the citizens and the citizens on their own part should maximumly support the people in government, for good and smooth running of the activities of the government.
Moreso, the immunity of the people in government especially, the governor and the deputy should be observed and respected to reduce baseless and frivolous distractions which hamper development rather than contribute to the growth and development of the society.
However, the people in favour of whom immunity is constitutionally provided for, should not hide under the concept to perpetrate evil and enthrone hardship on the led. This would be unfair and will absolutely defeat the whole essence of democracy in our society. I had earlier commented on this in the case of Alamieyeseigha V. F.R.N. reported in (2006) 16 NWLR (Pt. 1004) 41 as follows:-
“It is certainly not the purport of that provision for the beneficiaries of the said immunity to hide behind the constitution and offend the law. To the contrary, it is intended to protect the beneficiaries from the hindrance of frivolous court actions and from litigation aimed to them for actions taken in public interest against any individual interest. It is to allow the executives function without fear or favour in the discharge of their duties. I make bold to say that it is even in the furtherance of the independence of the executive arm of government from the caprice and unrestrained control of the judiciary and the legislature, otherwise I must wonder how the law allowed such immunity to elude the members of the legislative houses who made the laws.”
Furthermore, the rationale behind immunity under Section 308 of the 1999 constitution (as amended) is also to consolidate the achievements of democracy, to prevent harassment through political witch hunting and to save cost because every time a chief executive is sued in court, costs are incurred which are paid by the tax payer’s money.
See Alamieyeseigha V. Yerima (2001) WRN 94.
Similarly, this court as well as other courts of records should in my view enjoy a certain level of immunity in order to be concentrated in the dispensation of justice. In other words, frivolous baseless petitioners and unguided comments against the courts ought to be sanctioned to discourage same and to protect and preserve the sanctity of the duties of our courts.
I also wish to state that judicial notice has been taken of the various political ranglings in the country, inclusive of the recent brutal drama that beclouded some Legislative Houses. This is a political quagmire that makes smooth administration of justice and good governances impracticable.
I therefore call on the government, bodies, agencies and individuals to embrace peace in order to create enabling environment for our democratic arrangement.
Ordinarily, this appeal would to my mind be regarded as step in the right direction much as I would not recommend inordinate or incessant litigations that tend to paralyze effective working services of the three arms of government. The reason is not far fetched, aggrieved parties have no other lawful means of ventilating their grievances other than in courts but must be via a laid down procedure. If the originating process is defective, as in this appeal it invariably means that the entire suit/appeal has nothing to rest on and will consequently collapse.
I therefore hold that the preliminary objection succeeds and is hereby upheld. The appeal against the Judgment of the lower Court delivered on 27th day of March, 2013 is hereby struck out for being incompetent.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the Judgment just delivered by my learned brother, Denton-West, J.C.A. I agree with the reasons therein advanced to arrive at the conclusion that the Appeal is incompetent and liable to be struck out. I will add a few words in agreement.
The Appellant filed a motion ex-parte on the 28th May, 2013 after the Briefs of argument by parties to the Appeal had been duly filed and exchanged and the Appeal set down for hearing. Prior to this, the 1st to 6th Respondents had filed a Notice of preliminary objection to the hearing of this Appeal on the 21st May, 2013 complaining on several grounds, the second ground being that:
“2. The appeal is incompetent as same which is an appeal against the discretionary order(s) of the trial High Court was filed without the leave of either the High Court or the Court of Appeal having been first sought and obtained.”
It is not in dispute that the Ruling of the lower Court, (sought to be appealed against), was delivered in exercise of the discretionary powers of that Court. It goes without saying that an appeal against the discretionary orders of the High Court is not as of right. By virtue of Section 242 (1) of the 1999 Constitution, an aspiring appellant requires the prior leave of court to file such an appeal. Section 242 (2) is set out hereunder for ease of reference:
“242 –
(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
This is a pre-condition which must be met within the time specified by the relevant rules of court. A would-be appellant therefore needs to seek either the leave of the High Court or that of the Court of Appeal; and such leave appeal must also be sought within the period limited for the filing of an appeal. Having failed to meet this constitutional prerequisite to the filing of such an appeal, the motion ex-parte now seeking leave to appeal is both belated and tardy, the Notice and Grounds of appeal having long been filed without the requisite leave of either the lower Court or this Court. The Applicant has therefore put the cart before the horse.
The irregularity afflicting this initiating process cannot be rectified after the fact, as it goes to the competence of the appeal already filed. The Notice and Grounds of Appeal filed on the 9th April, 2013, is thus fundamentally defective, and this defect in competence is intrinsic and goes to the root of the Appeal. Where leave is required, either in the Constitution or by the rules of court, and such leave is not sought and granted, the Court has no jurisdiction to grant the application as it is, since the Appeal is incompetent and any order made thereon will serve no useful purpose. Indeed, any order made on such an incompetent motion is invalid. See Rean Plc V. Anumnu (2003) 6 NWLR (Pt. 815) 52; The Nigerian Air force V. Shekete (2002) 18 NWLR (Pt. 798) 129; UTB v. Odofin (2001) 8 NWLR (Pt. 715) 296; Ardo v Ardo (1998) 10 NWLR (Pt. 571) 700; Savannah Bank of Nigeria Plc V. Kyentu (1998) 2 NWLR (Pt. 536) 41; Nwadike V. Ibekwe (1997) 4 NWLR (Pt. 67) 718.
It is for this reason and, the fuller reasons in the lead Judgment that I find the present application incompetent and liable to be struck out. Thus, the preliminary objection has merit and same is upheld.
Having found as above, this should normally be the end of the matter. However, this Court being a penultimate Court, I will go on to consider the Appeal filed on its merit.
The substantive Appeal is against the Ruling of the Taraba State High Court, Jalingo, delivered on 27th March, 2013. The said Ruling was predicated upon a motion ex parte which sought the exercise of the discretionary powers of the lower Court to grant the Applicant leave to apply for an order of mandamus. That being the case, leave of either the lower Court or of this Court was a precondition for filing an appeal against the said decision of the lower Court.
While Section 241 of the 1999 Constitution, (as amended), provides for instances when an appeal is as of right, Section 242 (1) thereof provides for situations where appeals can only be filed with the leave of court. As the appeal against the ruling of the lower Court does not come within the purview of Section 241 of the Constitution, it must necessarily be filed only with the leave of the lower Court or of this Court sought and obtained. Was the appeal of the Appellant filed with the leave of Court within the con of Section 242 of the Constitution?
A party who has an interest to appeal from the High Court to the Court of Appeal, must, under section 242 (1) of the Constitution, (as amended), seek either the leave of the High Court or that of the Court of Appeal, ‘Leave’ in this con, has been interpreted to mean ‘permission’. The rational for the provision is to enable the court to determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See Otu V ACB (2008) 1 SCNJ 189; In Re Williams (No. 1) 2001) 9 NWLR (Pt. 718) 329; The Regd. Trustees, Christ Apostolic Church Nigeria V. Uffiem (1998) 10 NWLR (Pt. 569) 312; In Re Ojukwu (1998) 5 NWLR (Pt. 551) 673.
Where leave is required, either in the Constitution or in the rules of court, and such leave is not sought and granted, the court has no jurisdiction to entertain an appeal as it is incompetent. It is well to note and to keep in perspective the time-honoured finding of my noble lord, Niki Tobi, JSC, in the case of Auto Import V Adebayo (2003) 2 MJSC 44 at page 60 where he said:
“Rules of Court are meant to be obeyed. Failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.”
(Underlining supplied for emphasis)
It is not in dispute that the Notice and Grounds of Appeal filed by the Applicant herein on the 09-04-13 against the Ruling of the lower Court delivered on 27th March, 2013, was filed without the leave of either the lower Court or of this Court.
From the contents of the Ruling of the lower court and the Grounds of appeal, it is evident that the appeal is against the exercise of the discretionary powers of the lower court. Since that is so, the Applicant now before this court has certainly contravened the substantive raw, Section 242 (1) of the 1999 constitution, having filed his Appeal without the leave of court. See Oyegun v. Nzeribe (2010) 6 SCNJ 74; International Equitable Associations v. Okehie (1999) 5 NWLR (Pt. 604) 620; Welli v. Okechukwu (1985) 2 NWLR (Pt. 5) 63.
It is for these reasons, and for the more detailed reasons contained in the lead Judgment, that I find the Appeal devoid of merit. Thus, it is liable to be struck out for its incompetence. I endorse the orders made therein.
IGNATIUS IGWE AGUBE, JCA: I agree.
Appearances
Bello Ibrahim Esq.For Appellant
AND
John Okezie Esq. for the 1st, 2nd, 3rd & 6th Respondents. With him are Joseph Oguche Esq. Maduakolam Oleka Esq. & Aiasha Hassan. Esq. M.E. Ibrahim Effiong Esq. for the 4th & 5th Respondents. With him are P.O. Olusuyi Esq. & S.F. Kizedu Esq.For Respondent
