DOMINIC ONYEGIRIGWAM & ORS v. CHRISTOPHER UZOKWE & ORS
(2019)LCN/12572(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/OW/364M/2017(R)
RATIO
APPEAL: LEAVE OF COURT
“In my considered view, this much would appear to be clear from the decision of the Supreme Court in the case of ADELEKAN V. ECU-LINE NV(2006) LPELR 113(SC) wherein the Supreme Court per Onnoghen, JSC; (now CJN) said as follows: – ‘It is settled law that where an appeal requires leave of Court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time within which to apply for leave and leave to appeal.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JURISDICTION: INHERENT JURISDICTION
“This is because acts or steps taken by a party pursuant to the inherent jurisdiction of this Court, must not run against the clear statutory provisions governing the procedure of the Court and/or provisions of its Rules. That inherent jurisdiction being only a part or an aspect of the general jurisdiction of a superior Court of record is meant to supplement the express jurisdiction and power of the Court and not to supplant same. See also the cases of YONWUREN V. MODERN SIGNS (NIG.) LTD. (1985) LPELR 3529 (SC), (1985) 1 NWLR (Pt. 2) 244; AKILU V. FAWEHINMI (NO. 2) (1989) LPELR ? 339 (SC), (1989) NWLR (Pt. 102) 122; and KRAUS THOMPSON ORGANISATION V. N.I.P.S.S (2004) LPELR ? 1714 (SC) amongst many others in respect of ‘inherent jurisdiction’.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. DOMINIC ONYEGIRIGWAM
2. EMMANUEL ONYEGIRIGWAM
3. BONIFACE NNABUIHE Appellant(s)
AND
1. CHRISTOPHER UZOKWE
2. JOSEPHAT AGUMAEME
3. CLETUS AGUMAEME
4. AUGUSTINE AGUMAEME
5. PAULINUS AGUMAEME Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling):
The motion on notice dated 3/10/2018 and filed on 4/10/2018 (hereafter to be simply referred to as ‘the motion’) was brought by the Applicants pursuant to Order 6 Rules 1, 2, 7 and 10 of the Court of Appeal Rules, 2016 and the inherent jurisdiction of the Court. The orders being sought by the Applicants in the motion are as follows:-
1. An order of Court granting the Applicant, Emmanuel Onyegirigwam (the only surviving person amongst the Defendants/Appellants in Appeal No. CCA/OW/A/19/95) leave to appeal against the judgment of the Customary Court of Appeal, Owerri in Appeal No. CCA/OW/A/19/95 delivered on 5/3/96 out of time.
2. An order of Court striking out the names of the deceased 1st and 3rd Defendants/Appellants i.e., Dominic Onyegirigwam and Boniface Nnabuihein Appeal No. CCA/OW/A/19/95.
3. Upon the grant of the foregoing, an order of Court substituting the names of the deceased 1st and 3rd Defendants/Appellants i.e., Dominic Onyegirigwam and Boniface Nnabuihe in Appeal No. CCA/OW/A/19/95 with Matthew Onyegirigwam and Ethelbert Nnabuihe respectively.
The grounds on which the motion is predicated or founded are: –
1. The Applicant and Dominic Onyegirigwam and Boniface Nnabuihe were the appellants in Appeal No. CCA/OW/A/19/95 holden at the Customary Court of Appeal, Owerri.
2. Judgment was delivered on 5/3/96 per A.B.C. Egu J. who delivered the lead judgment with Hon. Justice L. I. Okonkwo dissenting.
3. The appeal was dismissed but the Applicant and Dominic Onyegirigwam and Boniface Nnabuihe could not appeal against the said judgment due to ill-health and subsequent deaths of Dominic Onyegirigwam and Boniface Nnabuihe.
4. The time within which they were to appeal against the said judgment of the Customary Court of Appeal has elapsed hence this application.
5. The persons sought to be substituted with the names of the deceased Dominic Onyegirigwam and Boniface Nnabuihe are their survivors.
In the supporting affidavit of the motion it was deposed amongst others as follows: –
1. That the deponent is the wife of the 1st Appellant in CCA/OW/A/19/95 and has the consent and authority of the sole surviving Appellant, who is now bedridden (now Applicant) to make the depositions contained in the affidavit.
2. That the Respondent, Christopher Uzokwe sued the Appellants in CCA/OW/A/19/95 and the other Respondents over the parcel of land known as “Ala Uzokwe” at the Customary Court, Ihitte Owerri in Suit No. CC/OL/53/91.
3. That judgment was entered in favour of Christopher Uzokwe on 21/10/1994 and consequently, the then Appellants appealed against the said judgment to the Customary Court of Appeal of Imo State holden at Owerri in Appeal No. CCA/OW/A/19/95.
4. That the said appeal was disallowed by the Customary Court of Appeal by 2/3 majority on 5/3/96.
5. That before the judgment of the Customary Court of Appeal, the 1st Appellant in CCA/OW/A/19/95 due to old age had started developing some health complications ranging from bad sight to hernia, Parkinson disease, etc.
6. That the 1st Appellant in CCA/OW/A/19/95 was taken from one hospital to the other as his sight kept deteriorating until he was operated upon in 2006.
7. That the 1st Appellant in CCA/OW/A/19/95 was operated upon for hernia in 2002.
8. That while the 1st Appellant in CCA/OW/A/19/95 was yet to recover from these surgeries, he had prostate cancer which he suffered until his death in 2012.
9. That within the same period, both the 2nd and 3rd Appellants in CCA/OW/A/19/95 were sick until the 3rd Appellant in CCA/OW/A/19/95 died about 2006.
10. That the sole Applicant is still sick and yet to recover from the said sickness which has destabilized him.
11. That when the Appellants in CCA/OW/A/19/95 wanted to appeal against the said judgment, they went to the registry of the Customary Court of Appeal, Owerri but were told that the Court’s registry was razed by fire including case files.
12. That I went back to the registry of the Customary Court to see if they could assist me by re-transmitting their own record to the registry of the Customary Court of Appeal so that the registry of the Customary Court could use it to compile our record.
13. That it took us a very long time to get the registry of the Customary Court to re-transmit their record to the registry of the Customary Court of Appeal.
14. That the non-filing of our appeal against the judgment of the Customary Court of Appeal is not deliberate but due to the intervening circumstances.
14. That recondite issues that need to be resolved by this Court has been raised in the proposed notice of appeal.
15. That the jurisdiction of the Customary Court of Appeal, Owerri to entertain the appeal it entertained is being sought to be challenged in the instant appeal.
The motion came up for hearing on 30/10/2018 and learned counsel, E.O. Eme moved in terms and urged the Court to grant the motion before it.
C.C. Ejiaga of counsel for the 1st Respondent in opposing the motion, relied on the preliminary objection filed therein, and urged the Court to dismiss the said motion. The parties described as the 2nd Set of Respondents and which consist of the 1st & 4th Respondents, did not participate at the hearing of the motion even though these Respondents given the presence in Court of the 3rd and 4th Respondents, unarguably had notice of the hearing date of 30/10/2018.
The notice of preliminary objection (hereafter to be simply referred to as ‘Notice of P.O.’ or ‘P.O.’ where the con so admits) filed on 27/6/2018 by the Respondent in the Applicant’s motion is dated 27/6/2018. It was brought pursuant to ‘Order 10 Rule 1 of the Court of Appeal Rules, 2011 and the inherent jurisdiction of the Honourable Court’. In the Notice of P.O., the Respondent seeks for: –
‘An order striking out and/or dismissing this appeal/application for lack of jurisdiction to entertain same.’
The grounds upon which the objection is predicated are as follows: –
a) The mandatory tripartite prayers required to invoke the Honourable Court’s jurisdiction were not complied with by the appellants.
b) The proposed grounds of appeal failed to reveal any ground of customary law as to invoke the Honourable Court to entertain an appeal from the Customary Court of Appeal.
c) The affidavit in support of application disclosed no good and substantial reasons why the appellants failed to appeal within the time prescribed by law.
d) The judgment purported to be appealed against is a final judgment and not interlocutory as to require leave of the Court.
The Respondent deposed to a 14-paragraph affidavit in support of the Notice of P.O. Therein, it is deposed to, amongst others thus:
1. That the 1st Respondent sued the Appellants herein in CC/OL/53/91 over the parcel of land known as and called ‘Ala Uzokwe’ at the Customary Court, Ihitte, Owerri.
2. That the trial Customary Court entered judgment in favour of the 1st Respondent on 21/10/1994.
3. That being dissatisfied with the judgment of the trial Customary Court, the Appellants herein appealed to the Customary Court of Appeal of Imo State holden at Owerri in Appeal No. CCA/OW/A/19/95.
4. That after hearing the appeal on the merit, the Customary Court of Appeal dismissed same on 5/3/1996 and confirmed the judgment of the trial Customary Court.
5. That the Appellants failed or refused to appeal against the judgment of the Customary Court of Appeal since it was delivered on 5/3/1996.
7. That the 2nd Appellant has been hale and hearty since after the delivery of the judgment of the Customary Court of Appeal of Imo State.
8. That the 1st and 3rd appellants were hale and hearty all through after the delivery of the judgment until when they both died in 2012 and 2008 respectively.
9. That the 1st Appellant was very healthy after the delivery of the judgment by the Customary Court of Appeal to the extent that he was appointed the traditional Prime Minister of Awo-Idemili Ancient Kingdom on 10/8/2008.
10. That the Appellants have not shown any good ground(s) for their delay in appealing against the judgment of the Customary Court of Appeal delivered on 5/3/1996.
It is worrisome that in apparent disdain or disregard for the 2016 Rules of the Court under which the Applicant brought the instant motion, the Respondent chose to bring the Notice of P.O. filed on 27/6/2018 to the said motion, pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011 and under the inherent jurisdiction of the Court. While it might be that the Respondent does not have the extant Rules of the Court, and notwithstanding that the provision of Order 10 Rule 1 of the repealed 2011 Rules of the Court and that of the 2016 Rules of Court are the same word for word, one would have expected the Respondent in a show of awareness and compliance with the extant Rules of the Court, to have brought the Notice of P.O. in question pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2016. Be that as it may.
Aside from the neglect or refusal of the Respondent to accept as it were the extant Rules of this Court, and given the provision of the said Rules in Order 1 Rule 3 and which states thus:-
‘The practice and procedure of the Court shall be as prescribed by these Rules notwithstanding any written law or rule of practice to the contrary obtaining in any of the States.’
I cannot but state that the Respondent would appear not ready to be guided by decisions of this Court to the effect that the Rules of the Court in respect of bringing a P.O. to an appeal cannot be stretched to interlocutory proceedings in the appeal. It is a settled position of the law that an appeal is lodged or brought when a notice of appeal in respect of a decision or judgment is properly lodged (i.e. filed within the periods provided by the Court of Appeal Act, 2004). Ditto, an appeal that has to be initiated by an application for leave to appeal can only be said to be properly lodged only if the application for leave to appeal, is filed and the requisite leave procured within the periods provided by the Court of Appeal Act (supra); or pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2016, within such extended time the Court might grant, if the application for leave to appeal though brought within the periods stipulated by the Court of Appeal Act, was not heard within the said periods and there was no unreasonable delay in bringing the application for leave in the first place. It is also settled law, that an appeal is entered when the record of appeal has been properly compiled and transmitted to this Court pursuant to the relevant provisions of its Rules. I am therefore of the considered view, that it is indisputable that it is only an appeal that the notice of appeal is or was properly filed or the position of which has been duly regularized and also properly entered in this Court, that the respondent therein, can properly raise a preliminary objection to its hearing.
Suffice it to say that the propriety of filing a P.O. to a motion filed by an applicant either pursuant to the Rules of the Court and/or under its inherent jurisdiction, was given extensive consideration by this Court in its decision (unreported) delivered on 28/5/2018 in APPEAL NO: CA/OW/116/2013 NIGERIA BOTTLING COMPANY LIMITED V. VACU-NAK BEVERAGES (NIGERIA) LIMITED.
Therein, it was stated amongst others to the effect that the filing of a Notice of P.O. to a motion has no foundation in the Rules of this Court and that doing so under the inherent jurisdiction of the Court equally cannot validate such a notice against the backdrop of the concept of ‘inherent jurisdiction of this Court’. This is because acts or steps taken by a party pursuant to the inherent jurisdiction of this Court, must not run against the clear statutory provisions governing the procedure of the Court and/or provisions of its Rules. That inherent jurisdiction being only a part or an aspect of the general jurisdiction of a superior Court of record is meant to supplement the express jurisdiction and power of the Court and not to supplant same. See also the cases of YONWUREN V. MODERN SIGNS (NIG.) LTD. (1985) LPELR 3529 (SC), (1985) 1 NWLR (Pt. 2) 244; AKILU V. FAWEHINMI (NO. 2) (1989) LPELR ? 339 (SC), (1989) NWLR (Pt. 102) 122; and KRAUS THOMPSON ORGANISATION V. N.I.P.S.S (2004) LPELR ? 1714 (SC) amongst many others in respect of ‘inherent jurisdiction’.
In any event this Court discountenanced the P.O. filed in the NBC Ltd case (supra), specifically relying on the decision in the case of EGWU V. MAINSTREET BANK LTD (2017) LPELR 43395 (CA) wherein Onyemenam, JCA; stated thus: –
‘Order 10 of the Court of Appeal Rules provides for Preliminary objection in an appeal. As argued by the Applicant’s learned senior counsel at paragraph 2. 01 of the Applicant’s reply to Respondent’s written address, there is no place for preliminary objection in Notice of Motions in the Court of Appeal Rules. By the order referred to; a preliminary objection is an objection to the hearing of an appeal that if upheld, would render further proceedings before the Court impossible or unnecessary. Preliminary objection does not seek to address issue(s) or delve into the merits of the appeal nor seek to determine any aspect of the merit of the appeal. Accordingly, a preliminary objection is to be filed only when there is a fundamental defect in the Appellant’s process in an appeal as its purpose is to terminate an appeal principally on ground of incompetence.
By the nature and purpose of preliminary objection, the procedure is only adopted for the hearing of an appeal and not for any other process. In other words, preliminary objection cannot be raised in normal interlocutory applications which come up in the usual conduct of the business of the Court..
Seeking to terminate a notice of motion by way of preliminary objection is unknown to our rules of Court. Such practice has been held by the apex Court to be outside the contemplation of Order 2 Rule 9 of the Supreme Court Rules which is akin to Order 10 of the Court of Appeal Rules. It is therefore my view that the preliminary objection raised by the Respondent in challenge of the Applicant’s notice of motion is not proper in law and as such incompetent. The same is hereby discountenanced.
This Court is bound by its decisions particularly as the decision in the case cited above is an exposition of relevant provisions of its Rules in respect of preliminary objection. See also the case of DOWELL SCHLUMBERGER (NIG) LTD V. ANIEKAN (2018) LPELR 44811 (CA). In the circumstances, and as there is obviously no appeal before the Court, the Notice of P.O. of the Respondent in respect of the Applicant’s motion before the Court, must therefore be and is hereby discountenanced.
Discountenancing, the P.O. of the Respondent to the Applicant’s motion however does not mean that the Court must grant the orders being sought by the Applicant willy-nilly or whether the Court likes it or not. This is against the backdrop of the settled position of the law that it is for a party seeking an indulgence from the Court to place before the Court sufficient and relevant materials that entitle him to the indulgence being sought.
In the motion before the Court, the Applicant is seeking for leave to appeal against the judgment delivered on 5/3/1996 by the Customary Court of Appeal, Owerri (hereafter to be simply referred to as ?CCA, Imo State?) in Appeal No. CCA/OW/A/19/95 out of time in addition to two other orders. The orders being sought by the Applicant have been re-produced hereinbefore and I am of the considered view that it is clear as crystal that the order for leave to appeal out of time is the principal order being sought by the Applicant for the purpose of initiating the appeal he has conceived and which he intends to bring. This is because it is glaring that the success of the other two orders being sought in the motion, are obviously predicated on the success of the said principal order, i.e. leave to appeal out of time.
Against the backdrop of what has been said before now, I am of the considered view that it is therefore clear as crystal that whether or not the Respondent is opposing the motion, the Applicant having not brought the motion before the Court within a period of 3 months of the date of delivery of the judgment of the CCA, Imo State in question (the judgment being a final decision) as stipulated by Section 24 of the Court of Appeal Act, 2004, and given the peculiar manner in which he couched the principal order he seeks, must necessarily seek for the trinity prayers, namely, (i) an order extending the time within which to seek leave to appeal; (ii) leave to appeal; and (iii) extension of time within which to appeal, in order to initiate the appeal he has conceived. And needless to say, the Applicant must in compliance with the provision of Orders 6 Rules 9 of the Rules of this Court support his application for enlargement of time within which to initiate the appeal as conceived by him, with an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions by settled law must be found to co-exist before the Court can venture to grant an applicant who seeks for the leave of the Court to appeal, such an order.
It would however appear that it would be an exercise in futility for the Court to even proceed to consider whether or not the Applicant has complied with the provision of Order 6 Rule 9(2) (supra) in respect of what he has to establish to procure the requisite order of the Court granting him leave to appeal out of time against the judgment of the CCA, Imo State, as he has glaringly not sought for an order granting him extension of time within which to apply for leave to appeal; as well as an order extending the time within which he is to appeal. In my considered view, this much would appear to be clear from the decision of the Supreme Court in the case of ADELEKAN V. ECU-LINE NV(2006) LPELR 113(SC) wherein the Supreme Court per Onnoghen, JSC; (now CJN) said as follows: –
‘It is settled law that where an appeal requires leave of Court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time within which to apply for leave and leave to appeal.’
The declaration of his lordship the CJN in the ADELEKAN case (supra) is no different from what the same Court stated per Onu, JSC as far back as 11/7/1997 in the case of INCAR (NIG) PLC V. BOLEX ENTERPRISES (NIG) LTD (1997) LPELR 1513 (SC). His lordship said thus: –
‘in as much as it is the procedural law that a person who wishes to seek leave of Court on any grounds of appeal after the expiration of the statutory periods prescribed under Section 25 of the Court of Appeal Act, 1976 and Section 31 of the Supreme Court Act, 1960 as the case may be, requires THREE substantive prayers, namely:
(a) Extension of time to seek leave to appeal
(b) Leave to appeal
(c) Extension of time within which to appeal
Prayer (a) hereof is missing and the application is fundamentally defective.
It is immaterial that the applicants had already filed the appellants’ notices of appeal which contained some grounds of law. It will be struck out as incompetent since Chief Williams cannot be said to be on a firm ground here.?
See also the cases of ODOFIN V. AGU (1992) LPELR 2225 (SC) and ANACHEBE V. IJEOMA (2014) LPELR ? 23181 (SC) amongst many others.
Flowing from all that has been said before now, is that inasmuch as the Applicant conceived that he required the leave of this Court to appeal against the final judgment of the CCA, Imo State, out of time; and as he has neglected to seek for an order extending the time within which he is to seek leave to appeal as well as an order extending the time within which he is to appeal, it becomes obvious that this Court, no matter how far backwards it is ready to bend in order to let the Applicant exercise his constitutional right of appeal, cannot in the remotest grant the Applicant the order for leave to appeal out of time.
May, I state that but for the contributory judgment of Eko, JSC; in the case of CUSTOMARY COURT OF APPEAL EDO STATE V. AGUELE (2017) LPELR 44632 (SC); wherein his lordship by way of obiter dictum would appear to have said that an appeal can be lodged against a decision of a Customary Court of Appeal by leave of this Court in respect of such questions as may be prescribed by a Law of the House of Assembly of the State for which it is established pursuant to Section 282(2) of the amended 1999 Constitution, I would have thought that it is settled law that the only window open to the Applicant who was the 1st Appellant in the appeal in which the CCA, Imo State, delivered its judgment on 5/3/1996 is that provided by Section 245 of the amended 1999 Constitution and which donates the right of appeal ‘as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly’.
In this regard, see the case of HIRNOR V. YONGO (2003) 9 NWLR (Pt. 824) 77, (2003) 12 MJSC 118. This position of the law that it is an appeal ‘as of right in any civil proceedings before a Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly’ that the Constitution has expressly donated to a party and/or ‘any other person having interest in the matter’ in my considered view remains sacrosanct even as the concept of jurisdiction which is of universal application and therefore known to customary law has been held to be applicable to customary Courts or Customary Courts of Appeal. This is because the concept of jurisdiction (being an error of jurisdiction and which, is a defect intrinsic to adjudication) is an issue or question of customary law as it were within the meaning of Section 245 of the amended 1999 Constitution and is therefore appealable as an issue of customary law up to the Supreme Court. This position of law was enunciated or articulated by Onnoghen, JSC (now CJN) as far back as 30/5/2008 in the case of NWAIGWE V. OKERE (2008) LPELR 2095 (SC).
However, suffice it to say that whether or not an appeal against the decision or judgment of a Customary Court of Appeal to this Court is with respect to any customary law or is with respect to an issue of jurisdiction that is intrinsic to adjudication in the appeal, the right of appeal donated to an applicant is one that is exercisable as of right and there is no window for leave to appeal in those situations. The only exception in the situations is where the appeal is at the instance of ?any other person having interest in the matter? who can only initiate his appeal with leave of Court not being a party to the appeal before the Customary Court of Appeal. In other words, and but for the judgment of Eko, JSC; in the CUSTOMARY COURT OF APPEAL EDO STATE case (supra); the Applicant in my considered view could only have appealed against the judgment of the CCA, Imo State on a question of customary law (includes an issue of jurisdiction intrinsic to the judgment) and would thereby have prayed this Court only for an order extending the time for him to appeal against the said judgment and not for the trinity orders or prayers. This much would appear to have been brought out with clarity in the case of THE NIGERIAN AIR FORCE V. SHEKETE(2002) LPELR 3193(SC) wherein Niki Tobi, JSC; said thus: –
‘There is a world of difference between leave to appeal and leave for extension of time to appeal, which is leave to appeal out of time. Leave to appeal and leave for extension of time to appeal are not synonyms or procedures of a similar or like content. An application or motion for leave to appeal presupposes that appeal, by the relevant rule, is not as of right. The appellant therefore seeks permission of the Court to file an appeal. On the other hand, leave for extension of time to appeal presupposes that the statutory time for appeal has expired and so the appellant seeks permission of the Court to extend time within which he can appeal. Both counsel and the Courts must appreciate the above difference in our adjectival law.”
Flowing from all that has been said is that the Applicant who by his own showing does not qualify as ?any other person having interest in the matter? and who is also not seeking to appeal against the judgment of the CCA, Imo State as of right and seeking for appropriate prayer to regularize the position of any such appeal; but is seeking for leave to appeal even though he was a party in the appeal decided by the CCA, Imo State without other necessary orders to regularize an appeal to be initiated by leave of Court, it in my considered view becomes obvious that the instant motion must fail. This is because the Applicant not being ‘Any other person having interest in the matter’ but a party having decided to initiate his intended appeal by seeking for the leave of the Court to appeal, must seek for an order extending the time within which he is to seek for leave to appeal and extension of time to appeal in addition to an order granting him leave to appeal.
In other words, the Applicant not being ‘any other person having interest in the matter? but a party on record, cannot take advantage of the position of the law that ‘a person appealing as a party interested does not need to seek for the order of Court for extension of time within which to seek for leave to appeal as enunciated in the case of FUNDUK ENGINEERING LTD. V. Mc ARTHUR (1996) LPELR 1291(SC).
The orders which the Applicant neglected to include in his motion before the Court are undoubtedly not ones which the Court can grant under its inherent jurisdiction. In this regard see the case of ODOFIN (supra) wherein the Supreme Court per Karibi-Whyte, JSC; said thus: –
It is a well settled principle of law that the exercise of appellate jurisdiction is entirely statutory, An appellate Court derives its jurisdiction from the statute creating it and other enabling statutory powers.
The Court of Appeal is a creature of the Court of Appeal Act, 1976, and Section 217 of the Constitution 1979. The exercise of its appellate jurisdiction is spelt out in the Constitution. Section 219 vests in the Court of Appeal, the jurisdiction to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State, and Customary Court of Appeal of a State. Sections 220-225, prescribe the circumstances.
The procedure and time for appealing is prescribed in Part V of the Court of Appeal Act 1976. Section 25(1) provides that the time to give notice of appeal or notice of application for leave to appeal, shall be in such manner as may be prescribed by the provision of Sub-section (2) of this Section that is applicable to the case.
Subsection (2); then provides that
(a)
The provision of Section 25(1) of the Court of Appeal Act has clearly stated that the notice of appeal or application for leave to appeal shall be made in such manner as maybe directed by Rules of Court within the period prescribed in Subsection(2) set out above.
Respondent as Appellant in the Court below made the application to satisfy the provisions of Section 25(1) of the Court of Appeal Act, 1976,when pursuant to Order 3 Rule 3, 4, of the Court of Appeal Rules 1981, he brought his application by notice of motion dated 4th October, 1985.
The provisions of Section 25(1) of the Court of Appeal Act, 1976, with the expression “shall give notice of appeal or notice of his application for leave to appeal” are clearly mandatory. Effect must be given to the words.
The Court is however, empowered by Order 3 R.4(1) of the Court of Appeal Rules, 1981 to enlarge the time provided by these Rules for doing anything to which these Rules apply. These rules apply to the time within which to give notice to appeal, leave to appeal, etc. Thus except where the Court has enlarged time pursuant to an application properly brought before it seeking to enlarge the periods to appeal in a civil cause or matter, the period prescribed in Section 25 (2)(a) applies. In the case before us Appellant made his application as prescribed by the rules, but omitted a relevant prayer. That is the prayer extending time to give notice of Appeal. This notice is crucial and decisive because as admitted on both sides the judgment appealed against was decided on the 16th May, 1985. The three months within which to give notice of appeal expired on the 15th August, 1985. Thus on the 4th and 21st October, 1985 when the application was made and the Court of Appeal gave the ruling respectively, the Appellant was more than six weeks out of time. It was therefore necessary for the Court to enlarge the time for giving notice, to have a valid notice of appeal before the Court.
See Order 3 Rule 4 Court of Appeal Rules 1981,
“Now, where as in this case, the application to appeal was made out of time, a notice of appeal made out of time will require a prayer for enlargement of time within which to file such notice of appeal. In the absence of a notice of appeal, namely, the foundation of the appeal, there is no appeal before the Court”
Now then, Mr. Adedoyin’s main contention is that the Court of Appeal has an inherent power to make a consequential order. He includes a gratuitous order for extension of time to file a notice of appeal as a consequential order. There are few misconceptions here. First, I have pointed out the exercise of appellate jurisdiction is entirely statutory. There can therefore not be an inherent jurisdiction outside the statute. Secondly, learned counsel was confusing the exercise of jurisdiction with exercise of power.
Power cannot be exercised unless where there is jurisdiction in respect of the subject-matter.
It is not exercised in vacuo.
In this case the exercise of jurisdiction to extend time in respect of period to give notice of appeal is statutory and prescribed under Section 25(2)(a) of the Court of Appeal Act,1976. It is not a power which can be exercised outside the provisions of the enabling statutory provisions.
The provisions of Section 6 of the Constitution 1979 which deal with inherent powers is of assistance only where there is a valid exercise of jurisdiction.
The competence vel non of a Court is a legal condition which cannot be waived by the parties. Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by considerations of substantial justice. Mr. Adedoyin can therefore not rely on the inherent jurisdiction of the Court or waiver by Respondent for the exercise of the jurisdiction in this case.
I shall now turn to the issue whether the Court of Appeal was right to have granted a prayer not asked for by the applicant. Mr. Igbokwe has correctly pointed out that the motion relied upon did not contain the prayer for extension of time to give notice of appeal. I agree with his submission that there was no prayer on which to found the order for extension of time so made.
\Our adjudicatory system has severely circumscribed and restricted the awards to be made by the Court within the scope of the claims made and reliefs sought by parties before the Court. The view of this Court is that it is without power to award to a claimant or grant a relief that which he did not claim.
In the instant case, it is not easy to conceive how the Court of Appeal could have validly made the order extending time to give notice of appeal, in the absence of a prayer. Where the Court observes the defect in the application, the proper course was to draw the attention of the Applicant to the omission and to give the applicant the opportunity to rectify it. In the circumstances of this case, the application remained throughout with its fatal defect. Accordingly, at the time the appeal was heard and decided by the Court of Appeal, there was no valid notice of appeal on which the appeal was founded. There was no valid ground of appeal on which the appeal was argued. Indeed there was no valid appeal before the Court of Appeal. The entire exercise was a nullity and in the now commonly used expression, it was an exercise in futility.
See also the case of THE NIGERIAN AIR FORCE V. SHEKETE (2002) LPELR ? 3193 (SC)(supra).
Flowing from all that has been said before now, is that there is absolutely no assistance the Applicant can get from the Court in order to initiate the appeal he intends to bring against the judgment of the CCA, Imo State delivered on 5/3/1996. The motion before the Court brought by the Applicant to enable him initiate an appeal against the said judgment must therefore be and it is hereby dismissed.
Costs of N20,000.00 is awarded in favour of the Respondent and against the Applicant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead Ruling just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA.
I agree with his reasoning and conclusion.
‘I also dismiss the motion for leave to appeal. ‘
I abide by the consequential order made as to costs.
Appearances:
E.O. EMEFor Appellant(s)
C.C. EJIAGAFor Respondent(s)
