BAYNAN (NIG) LTD. V. GERALD ONWUEKWEIKPE
(2011)LCN/4618(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of June, 2011
CA/PH/510/2008
RATIO
PRELIMINARY OBJECTION: RATIONALE FOR DETERMINING THE ISSUE OF PRELIMINARY OBJECTION FIRST
Preliminary objection to competence of appeal is very necessary and important to determine first, because the rationale is that where it is sustained, the issues raised for determination will no longer be considered and the appeal will be struck out or dismissed as the case may require; see AMADASUN vs. UME [2007] 13 NWLR (Pt.1051) 214;. PER ISTIFANUS THOMAS, J.C.A.
COMPETENCE OF THE COURT: WHEN IS A COURT SAID TO BE COMPETENT TO ENTERTAIN A CASE
…the decision of ADEKEYE, JSC, in the case of AGBITI VS. NIGERIA NAVY 2011, 4 NWLR (Pt.1236) at 206 and 208.There is no doubt, a court is competent to entertain a case when: (a) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another. (b) The subject of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) The case comes before the court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction, See the case of MADUKOLU vs. NKEMDILIM (1962) SCNLR 34; TUKUR v. GOV. OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 513, and AGBITI vs. NIGERIAN NAVY (Supra) at 208 – 209. PER ISTIFANUS THOMAS, J.C.A.
STATUTORY PROVISION: PROVISION OF THE STATUTE ON THE PERIODS FOR GIVING NOTICE OF APPEAL
Section 24(2) of the court of Appeal Act 2004 specifies the period for giving notice of appeal. “24(2)The periods for the giving of notice of appeal or notice of application for leave to appeal are – (a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision; (b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.” Section 24(4) of the same Act empowers the Court of Appeal to extent the i periods prescribed in section 24(2) of the Act. PER T.O. AWOTOYE J.C.A.
JUSTICES
M.D. MUHAMMAD Justice of The Court of Appeal of Nigeria
(OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TUNDE AWOTOYE Justice of The Court of Appeal of Nigeria
Between
BAYNAN (NIG) LTD. Appellant(s)
AND
GERALD ONWUEKWEIKPE Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of S.E. Charles Granvile, sitting in High Court of Justice, Port Harcourt in suit NO. PHC/1304/99 delivered on 11th December 2002.
At the lower court, the plaintiff but now to be referred to as responded, entered into a Partnership Agreement with the defendant but now appellant for contract job. After the completion of the contract, the parties failed in sharing of the proceeds which was to be paid by the Shell Petroleum Development Dev. Coy (Nig) Ltd. Having failed to share the proceeds, the respondent filed by Writ of Summons Claiming five reliefs in the High Court of Justice, Rivers State, Port Harcourt Division. The reliefs are as follows
(a) A declaration of this Honourable Court that the Partnership agreement executed on the 11th January 1997 is binding on the Plaintiff and the 1st Defendant as regards contract jobs contained in clause 15 Partnership Agreement viz, Loading core date into CBASE SCIW SPDC- W, contract No W-0180, Backloding of Historical drilling and completion well data into ERIDORIS and WICON, WEME SPDC-E, Contract No. E-02497 and geological and petrophysical data (GEODE) cleanup PEME SPDC-E. Tender No. E-02609.
(b) A declaration of this Honourable Court that the plaintiff is entitled to be paid 40% of the Net Profit derivable as contained in clause 9 of the Partnership Agreement executed on the 11th January, 1997 between the Plaintiff and the 1st Defendant in this suit.
(c) An order of this Honourable court directing the 1st Defendant to render an account of all monies or payments collected or received from the 2nd Defendant by virtue of the partnership agreement executed between the 1st Defendant and plaintiff in respect of the following contracts titles: Loading core data into CBASE, SCIW, SPDC-W, Contract No. W-0180, Backloding of Historical drilling and completion well data into EPIDORIS and WILCON, WEME SPDC-E, Contract No. 02497 and geological and petrophysical data (GEODE) cleanup PEME SPDC-E. Tender No. E-02609.
(d) An order for payment by the 1st defendant to the Plaintiff the sum of 40% of the Net profit by virtue of the Partnership agreement executed between the 1st defendant and the Plaintiff in respect of contracts titles mentioned in (c) above.
(e) An order of injunction restraining the 2nd Defendant, its agents, and/or servants from paying to the 1st Defendant, its agents, and/or servant or howsoever described any further sum in respect of the contract titles mentioned in (c) above.
The respondent then filed on 4th June, 2001, a motion on notice for:
“An ORDER of this honorable Court making the Arbitration Award dated 1st June, 2001 and registered at the High Court Registry the same date as the Final Judgment of this Court.”
The appellant on being served with the motion, also on 12th July, 2001, filed a Notice of Preliminary objection to set aside the arbitral award. On 11th December 2002 trial judge heard the parties motions though the appellant was conspicuously absent in the court, and therefore struck out the appellants motion papers, and then heard the respondent motion and granted the reliefs stated above, in other words, the trial court delivered its decision on 11th December 2002 per Justices E. Charles – Granville (pages 42 – 44) of the record. The relevant findings and reasons or decisions of the trial court are, contained on pages 42 – 43 as follows:-
“Mr. Ogochukwu Mbamah counsel for the Defendants is not in court. He has also not written to this court to explain his absence despite the several adjournments which this case has suffered at his instance.
Mr. Dan Magbo for the Plaintiffs applies that the application for setting aside the award made in favour of the Plaintiff on 01/06/2001 be struck out says there had been not less that four (4) adjournments at the instance of the Defendants. They do not seem to have any interest in moving their application. Prays the court to strike out this application.
COURT: Application for striking out the Defendants would have been entertained a long time ago, but for the court which had adjourned the matter to enable the Defence Counsel to appear to move his motion.
This is about the 5th time this matter is coming up, yet the Defence counsel is not in court to move his application. To show the level of their disinterestedness, the Defendants are also not in Court as was the case in previous dates when this matter came up. I do not see why I should continue to low their motion filed on 12/07/2001 to surface for hearing. As I have earlier said, there is no letter from the Defence Counsel to explain why he is not in Court today. In the circumstance, I hereby strike out their Application to set aside the Arbitration Award of 01/06/2001 filed on 12/07/2001.
Mr. Dan Magbo now moves his Motion on Notice filed on 05/06/2001.
It is brought under order 19.R.I. HCR 87. Prays the Court for an order making the Arbitration Award dated 01/6/2001 and registered at the High Court Registry same days as the final Judgment of the Court. The award as annexed as Exhibit ‘A’.”
Dissatisfied with the decision stated above, the appellant filed on 2nd September, 2008 its notice of appeal containing two grounds of appeal. At this stage, it is to be noted that, the notice of appeal was filed five years after the delivery of the judgment on 11th December, 2002.
As usual, parties filed and exchanged their respective briefs of arguments. The respondent filed on 20th March, 2009 his notice of preliminary objection to the appellant’s notice of appeal on the ground that, whilst the judgment of trial court was delivered on 11- 12-2002, the notice of appeal was filed on 2-9-2008, a period of over five years with out seeking leave of this Court for extension of time to file notice of appeal.
Parties filed and exchanged their briefs of argument. The respondent’s brief was filed on 20-3-2009, but deemed filed on 9-2-2001 by leave of this court. Learned counsel for the respondent has included a preliminary objection to the notice of appeal and raised a sole issue on the preliminary objection that reads as follows:
“Whether the Notice of Appeal filed on 2-9-2008 in the case constitutes an appeal against Judgment delivered on the 11-12-2002”,
Counsel referred to and relied on the statutory provision of (a) the Court of appeal Act 2004 and (b) the Court of Appeal Rules 2007. Counsel referred to section 24(1) and(2)(a) of the Court of Appeal Act where it is stated thus:
“(1) Where a person desires to appeal to the Court of Appeal, he shall give Notice of appeal of Notice of his application for leave to appeal in such manner as may be directed by the Rules of Court within the period prescribed by the Provision of sub-section (2) of this section that is applicable to the case.
(2) The periods for the giving of Notices of Appeal or Notice of application for leave to appeal are-
(a) An appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
Learned counsel for the respondent then argued to which I entirely agree that the decision appealed upon, is a final decision which fell under section 24(2)(a) of the Court of Appeal Act, 2004. The above subsection is very clear that the right of appeal against the final decision extinguishes after three months’ unless and until court’s consent was granted for enlargement of time to appeal. To buttress his point, learned counsel referred to and relied on the Supreme Court’s decision in Akinsanya vs. UBA (1986) 4 NWLR (Pt.35) 273. Counsel has also submitted that it is trite that an appeal shall be deemed to have been filed when a notice of appeal has been filed on time at the registry of the court below. Counsel also referred to and relied on Order 7 Rule 11 of the rules of this court, 2007, and then concluded that the effect of non-compliance with the provisions of sections 24(2)(a) of the Court of Appeal Act, 2004 is based on the provisions of section 243(b) of the Constitution of Nigeria 1999, and that a purported Notice of Appeal filed against the final decision of the lower Court outside the stipulated 3 months period is invalid, incompetent and void ab initio, because it can not give jurisdiction to the appellate court. Counsel for objector has urged this court to uphold his submission that there is no appeal in this matter.
On the part of the appellant in opposition to the respondent’s preliminary objection, counsel relied on the 13 paragraphs counter-affidavit deposed to on 23-6-2009 which are to the effect that it is true the judgment appealed against was delivered on 11-12-2002 in the absence of the appellant without hearing or given an opportunity to be heard. That the judgment came to his notice for the first time in august 2008, and that the notice of Appeal was filed on 2-9-08, counsel for appellant then submitted which I do not subscribe to, is that, the provisions of section 24(2)(a) of the Court of appeal Act, provides 3 months period within which to appeal is merely a template 10, and a limitation of the exercise of the Constitutional rights. In conclusion, appellant counsel has urged this court to dismiss the preliminary objection raised by the respondent, and has asked to give an exercise for his obligation of filing notice of appeal 3 months from 11-12-2002 being the date of delivery of the judgment and relied on the supreme court decision in Aladegbemi vs. Fasanmade (1988) 1 NSCC 1087 and Nigerian Navy vs. Lt. Commander S.A. Ibe Lambert (2007) All FWLR (Pt 396) 574.
I have carefully read and considered the objection and opposition to same. Preliminary objection to competence of appeal is very necessary and important to determine first, because the rationale is that where it is sustained, the issues raised for determination will no longer be considered and the appeal will be struck out or dismissed as the case may require; see AMADASUN vs. UME [2007] 13 NWLR (Pt.1051) 214;.
For this appellate court, to see whether it has jurisdiction to hear the appeal, or not, or to hear the issue on notice for preliminary objection to the appeal, it is very important, to determine same because the Supreme Court and this Court had powerfully maintained that the issues of fair hearing and jurisdiction are fundamental and threshold of court is the basis, foundation and life wire of access to court in adjudication under our judicial system. Jurisdiction has been defined as a term of comprehensive import embracing every kind of judicial action.
It is therefore a radical and crucial question of competence, for if the court has no jurisdiction to hear the case’ the proceedings are and remain a nullity, however well conducted and brilliantly decided they might otherwise have been, as a defect in competence is not intrinsic but rather extrinsic to adjudication, see the decision of ADEKEYE, JSC, in the case of AGBITI VS. NIGERIA NAVY 2011, 4 NWLR (Pt.1236) at 206 and 208.
There is no doubt, a court is competent to entertain a case when:
(a) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another.
(b) The subject of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction, See the case of MADUKOLU vs. NKEMDILIM (1962) SCNLR 34; TUKUR v. GOV. OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 513, and AGBITI vs. NIGERIAN NAVY (Supra) at 208 – 209.Now, since this court is competent to hear the issue of Notice of preliminary objection raised by the respondent in this appeal, there is need to determine whether the appellant’s notice of appeal was initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. It is no more in doubt that the right of appeal does not exist unless qualifications and limitations as constitutionally stated in section 243(b) of Nigerian Constitution 1999, where it is provided as follows:
“243(b) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be ….
(b) Exercised in accordance with any Act of the National Assembly and Rules of court for the time being inforce, regulating the Power’ and procedure of the Court of Appeal”
In section 24(1) and (2)(a) of the Court of Appeal Act, 2004 is also to the effect that, (1) where a person desires to appeal to this court he shall give Notice of Appeal or notice of his application for LEAVE to appeal in such manner s may be directed by the rules of court within the period prescribed by the provisions of subjection 2 of this section that is applicable to the case.
In this appeal, the appellant has clearly conceded that, because he was not aware of the final decision of the lower court delivered on 11th December, 2002 on which he has appealed. Appellant has also conceded that he filed his notice of appeal on 2nd September, 2008. I have carefully observed that, it took appellant, over 5 years before he purportedly filed his notice of appeal, and I can not find any application for extension of time to appeal since the time to appeal had expired. Since Appellants time to appeal that had expired had not been extended by the court by virtue of its powers under Section 24(4) of the court of Appeal Act and order 7 rule 10(2) of the court of Appeal rules 2007, the Notice of Appeal filed on 2nd September 2008 is of no effect. It is incompetent and invalid as it can not be ignited to give the jurisdiction of this court and it is void ab initio as ably argued by the respondent in his Notice of Preliminary objection which was timely served on the appellant and was argued on hearing of the parties’ briefs.
I am satisfied that, the respondent’s objection to the appellant’s Notice of appeal is well established and is sustained.
The notice of appeal filed on 2nd September, 2008 is dismissed by me. Costs of N50,000.00 in favour of the respondent objector.
M. DATTIJO MUHAMMAD J.C.A.: I read in draft the lead judgment of my learned brother THOMAS JCA whose reasoning and conclusion I entirely agree with.
No court can proceed to adjudicate in a matter without the necessary jurisdiction. The Notice of the instant appeal filed outside the time prescribed by the law is clearly incompetent. This court lacks the jurisdiction to proceed and it is futile to so do. I adopt the fuller reasons contained in the lead judgment to strike out the incompetent Notice of Appeal. I abide by all the consequential orders contained in the lead judgment.
T.O. AWOTOYE J.C.A.: I have the opportunity of reading the draft of the judgment just delivered by my learned brother THOMAS JCA.
I am in total agreement that the appeal is incompetent.
Section 24(2) of the court of Appeal Act 2004 specifies the period for giving notice of appeal. “24(2)The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed
against.”
Section 24(4) of the same Act empowers the Court of Appeal to extent the i periods prescribed in section 24(2) of the Act.
In this appeal judgment was delivered on 11/12/2008. The Notice of Appeal was given on 2/9/2002 i.e. more than 5 years after the judgment.
The appellant in its Reply Brief explained that the judgment was delivered in its absence and it only became aware of it in August 2008. That might be a good reason for granting extension of the period prescribed under section 24(2a) of the Act. But the appellant has to apply for extension time to appeal against the said judgment.
This, it has not done. This renders the appeal incompetent. See IROEGBU V. OKWORDU (1990) 6 NWLR (PT. 159) 643; CCB (NIG) LTD. V. OGWURU (1993) 3 NWLR (PT, 284) page 630; IDRIS V. AUDU (2005) 1 NWLR (PT. 908) 612.
In consequence this appeal is struck out. I abide by the order as to costs as awarded in the lead judgment.
Appearances
J. O. MbamaluFor Appellant
AND
Dan Magbo, Esq.;
Nnenna OzohoFor Respondent
