ELVIS S. CHINDA v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/13233(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/A/280/2019(R)
RATIO
APPEAL: NOTICE OF APPEAL: NATURE
There is no doubt that a notice of appeal as an originating process and thereby an essential and fundamental process which must be competent before the jurisdiction of the appellate Court can be triggered. See FBN PLC V. T.S.A IND. LTD (2010) 15 NWLR (PT1216) 247; OKARIKA V. SAMUEL (2013) 7 NWLR (PT 1352) 19; SPDCN LTD V. AGBARA (2016) 2 NWLR (PT1496) 353; ALLANAH V. KPOLOKWU (2016); NWLR (PT 1507).PER STEPHEN JONAH ADAH, J.C.A.
ORIGINATING PROCESS: AN INVALID ORIGINATING PROCESS MAKES THE COURT LOSE JURISDICTION
An incompetent originating process cannot activate the jurisdiction of the Court. I must however emphasise the fact that what incapacitates an originating process such as Notice of Appeal must be something tangible and substantial and not just technicalities or irrelevances.PER STEPHEN JONAH ADAH, J.C.A.
APPEAL: THE EFFECT OF AN APPEAL BEING HEADED WRONGLY
In the case of the Regd Trustees of Airline Operators V. N.A.M.A (2014) 8 NWLR (Pt. 1408), cited by the Learned Court held at Pages 30, 31 and 48 as follows:
Where an appeal is wrongly headed but parties are not in doubt, it cannot affect the competence of the Court to hear the appeal on its merit. In other words, a wrong heading of an appeal does not fetter the hearing of an appeal on merits. In the instant case, there was nothing to show that any of the parties was in doubt as to the parties and the issues in Court and there was no indication that there was any miscarriage of justice. Onwunali V. State (1982)PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES:
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
ELVIS S. CHINDA – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
2. EZENWO NYESOM WIKE
3. PEOPLES DEMOCRATIC PARTY – Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling): On the 11th day of April 2019, the Court in this appeal entertained and granted to the appellant his motion filed on 8th April 2019. That motion was seeking a sole relief couched as follows:
AN ORDER of this Honorable Court granting the Appellant leave to amend the Notice of Appeal in Appeal No. CA/A/280/2019 between Elvis S. Chinda vs. Independent National Electoral Commission & 2 Ors; dated 19/03/2019 and filed 20/03/2019 by correcting the Name of the Court on the heading of the said Notice of Appeal, and as set out on the Proposed Amended Notice of Appeal herein attached (Underlining mine for emphasis)
The 2nd and 3rd Respondents through their Counsel did not oppose the grant of the motion. The Court in a Bench ruling granted the application of the appellant and amended the notice of appeal by the altering as prayed the name of the Court in the heading of the said notice of appeal.
On 23/04/2019, the 2nd and 3rd Respondents now brought this instant application praying for the following reliefs:
1. AN ORDER of the Honorable Court setting aside its Ruling/Order
1
made on 11 April 2019 in this Appeal No. CA/A/280/2019 Between Elvis S. Chinda V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS wherein it granted leave to the Appellant to amended his Notice of Appeal dated 19th March 2019 but filed 20th March 2019: in that the said Order was null and void having been made without jurisdiction on the part of this Honorable Court.
2. AN ORDER striking out and/or dismissing the Appellant’s Appeal No. CA/A/280/2019 Between Elvis S. Chinda V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORSon the ground that the Notice of Appeal is fundamentally defective and incurably incompetent.
3. AND for such further ORDER or other ORDERS as this Honorable Court may deem fit to make in the circumstances of this case.
The grounds for this application are nine and they are couched as follows:
1. The Appellant commence this Appeal vide a Notice of Appeal dated 19th March 2019 but on 20th March 2019.
2. The Order of the Court made on 11 April 2019 for the Appellant to amend his Notice of Appeal was made in the absence of jurisdiction, hence, a nullity.
3. The Notice of Appeal, which initiated the
2
present appeal, was headed in the Federal High Court of Nigeria, which is a fundamental defect and it is incurably incompetent and cannot confer jurisdiction on the Court of Appeal to entertain the matter or any interlocutory application.
4. Notice of Appeal is the process of Court, which initiates an appeal at the Court of Appeal, and any virus/fundamental defect in this process, invariably corrodes or taints the entire appeal thereby rendering it incompetent.
5. By virtue of Section 285(11) of the Constitution, 1999 (as amended), the Appellant has 14 days from the date of delivery of the judgment appealed against to file his Notice of Appeal.
6. The Order of Amendment and Filing of the Amended Notice of Appeal were both carried out outside the Constitutional time limit to appeal in a pre-election matter.
7. Constitutional time limit is mandatory as it admits of no discretion whatsoever and cannot be extended by any Court including this honorable Court.
8. Order 6 Rule 11 of the Court of Appeal Rules, 2016 permits an applicant to apply to set aside any judgment or ruling within 14 days from the date of delivery of such judgment or ruling.
3
9. The Court has inherent power to set aside its decision where the judgment or ruling is nullity or given in the absence of jurisdiction on the part of the Court. A person affected by a null and void Order of Court, is entitled ex debito justitiae to have it set aside.
The gravamen of the applicant’s complaint is encapsulated in grounds 3, 4, 5 and 6 of the above listed grounds. The complaint is that the notice of appeal initiating this appeal was wrongly headed and that such is a fundamental defect. That it renders the notice of appeal incompetent. That the amendment was also carried out outside the time set by Section 285 (11) of the 1999 Constitution (as amended).
The parties joined issues in this application and the Court is now to look into the position of the law on the issue raised therein. There is no doubt that a notice of appeal as an originating process and thereby an essential and fundamental process which must be competent before the jurisdiction of the appellate Court can be triggered. See FBN PLC V. T.S.A IND. LTD (2010) 15 NWLR (PT1216) 247; OKARIKA V. SAMUEL (2013) 7 NWLR (PT 1352) 19; SPDCN LTD V. AGBARA (2016) 2 NWLR (PT
4
1496) 353; ALLANAH V. KPOLOKWU (2016); NWLR (PT 1507).
An incompetent originating process cannot activate the jurisdiction of the Court. I must however emphasise the fact that what incapacitates an originating process such as Notice of Appeal must be something tangible and substantial and not just technicalities or irrelevances.
In the instant application the complaint is the wrongful heading of a notice of appeal. This manifests here wherein the appellant heads the notice of appeal “IN THE FEDREAL HIGH COURT” instead of “IN THE COURT OF APPEAL”. It is clear that, apart from the wrong heading, nothing else is wrong with the Notice of appeal. The Notice was timeously filed and the Parties are all in place. Be encouraged or allowed to thrive. But technical or clerical errors such as wrongful heading of a notice of appeal has been held by the Supreme Court in (many) cases not to have the capacity to jeopardise or ruin the competence of an appeal. See Onwunali V. State (1982) LPELR 2724 (SC).
In the case of the Regd Trustees of Airline Operators V. N.A.M.A (2014) 8 NWLR (Pt. 1408), cited by the Learned Court held at Pages 30, 31 and 48 as follows:
5
Where an appeal is wrongly headed but parties are not in doubt, it cannot affect the competence of the Court to hear the appeal on its merit. In other words, a wrong heading of an appeal does not fetter the hearing of an appeal on merits. In the instant case, there was nothing to show that any of the parties was in doubt as to the parties and the issues in Court and there was no indication that there was any miscarriage of justice. Onwunali V. State (1982).
From the case of Regd trustees of Airline Operators V. NAMA (Supra), an appeal does not hinder or clog the hearing of an appeal on its merit.
Furthermore, in the instant case there was never a time this Court granted any extension of time to file an appeal.
The effect of an amendment of a notice of appeal was considered in the case of Unity Bank PLC & Anor V. Bouari (2008) 7 NWLR (Pt. 1086) 372, where the Supreme Court held that an amendment relates back to the date in which the document was originally field. This was also echoed in the case of Regd Trustees of Airline Operators V. Nama (Supra) that an amendment duly made takes effect from the date of the Original
6
document sought to be amended.
Since the wrongful heading of an appeal does not affect the Competence of the notice of appeal, the notice of appeal in this case is intact and competent. Being a competent notice of appeal, there is nothing fundamentally wrong with this appeal. I therefore come to the conclusion that this appeal is competent and it is hereby set down for hearing.
The instant motion of the 2nd and 3rd Respondents is therefore lacking in substance. The motion is accordingly dismissed. APPEAL No: CA/A/280/2019 is Competent and it is hereby set down for hearing.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree
7
Appearances:
For Appellant(s)
For Respondent(s)
Appearances
For Appellant
AND
For Respondent
