CATHERINE OKON v. PETER IBOM
(2010)LCN/3729(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of April, 2010
CA/C/11/09
RATIO
APPEAL: IMPORTANCE OF NOTICE OF APPEAL
A notice of appeal is an originating process and its heading affects the Jurisdiction of the Court to entertain the appeal. The Court cannot entertain a matter headed in the Court below. This is not a mere irregularity. It is a fatal defect in the initiation of the appeal which is rendered incompetent and is hereby struck out.
See Uwazurike v. AG of the federate (2007) 40 WRN 87. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
CATHERINE OKON Appellant(s)
AND
PETER IBOM Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling delivered by Anjor J. on 27/10/08. The Plaintiff in the Court below said he paid the sum of N800.000 to the Defendant for a plot of land at Ekorinim town in Calabar but when he took steps to develop the land he discovered that the Defendant who sold to him had no title to the land.
His attempts to recover the N800.000 from the Defendant failed whereupon he instituted an action to recover his money. On his ex-parte application before the High Court of Justice, Calabar Judicial Division the matter was placed in the undefended list and the defendant served.
The defendant filed a notice of intention to defend along with a 21 paragraph affidavit supposedly disclosing a defence on the merit.
In the ruling delivered on 27/10/08 the learned trial judge considered the averments in the affidavit accompanying the notice of intention to defend and came to the conclusion”
“…That the defendant’s notice of intention to defend and the supporting affidavit had failed to disclose a defence on the merit.”
See page 22 of the records.
Based on the above finding the trial court entered judgment for the plaintiff as follows:
“1. The defendant is hereby ordered to pay to plaintiff the sum of N800,000 being money paid by the plaintiff to defendant for a plot of land at Ikot Erim which transaction turned out to be false.
2. Cost of 5,000 is hereby awareded in favour of the plaintiff against defendant.”
See page 22 of the records.
The Defendant now Appellant appealed the Judgment on three grounds from which the following issue was distilled:
“Whether the learned trial Judge properly applied the provision of order 10 of the High Court (Civil Procedure) Rules of Cross River State 2008 to the case before him.”
The Plaintiff now Respondent filed a notice of preliminary objection on the ground that:
“The Appellant did not comply with the provision of order 6 r. 2 of the Court of Appeal Rules 2007 and the annex form 3 thereto in commencing this appeal.”
In his brief of argument learned Counsel for the Respondent presented two issues for determination:
(a) Whether or not the notice of appeal filed on 25/11/08 is detective and therefore incompetent.
(b) Whether the Respondent has a legal right to institute Civil proceeding for recovery of debt and at the same time lodge criminal complaint to the Police on the same subject matter.”
The two issues reproduced above came from the blues. They are not derivable from either or both of the Appellant’s grounds of appeal. They are incompetent and of no value in the determination of the appeal. They are hereby struck out. See Omo v. JSC Delta state (2000) 7 sc (Pt 11) 1.
When the Respondent in an appeal files a notice of preliminary objection, the grounds of objection are argued separately or incorporated in the Respondent’s brief of argument. The Counsel for the Respondent, in his brief of argument, formulated and argued incompetent issues. No reference was made to the notice and the same is deemed abandoned and struck out, leaving only the Appellant’s brief.
The notice and grounds of appeal filed on 28/11/08 was Headed
“In the High Court of Cross River State. In the Calabar Judicial Division. Holden at Calabar.”
See page 23 of the records
Appellant departed from the form in the first schedule to the rules. See order 6 r.2 of the Court of Appeal Rules 2002 for the contents and requirement of notice of appeal.
Apart from the defects in the content of the notice which could be over looked the heading poses a jurisdictional problem. A notice of appeal is an originating process and its heading affects the Jurisdiction of the Court to entertain the appeal. The Court cannot entertain a matter headed in the Court below. This is not a mere irregularity. It is a fatal defect in the initiation of the appeal which is rendered incompetent and is hereby struck out.
See Uwazurike v. AG of the federate (2007) 40 WRN 87.
I make no order as to Costs.
JA’AFARU MIKA’ILU, J.C.A.: Having read the lead judgment of my learned brother, N. S. Ngwuta, J.C.A., I agree with it entirely.
The appeal is therefore struck-out.
JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this appeal and agreed in conference that the appeal should be struck out. Pursuant to the proviso to section 294 (2) of the Constitution I hereby pronounce his opinion striking out the appeal.
Appearances
Gideon Onwok Esq.For Appellant
AND
Ukpong Eba Esq.For Respondent
