EMOKPAE v. STANBIC IBTC PENSION MANAGERS LTD
(2021) LCN/4966(SC)
In The Supreme Court
On Friday, January 22, 2021
SC.812/2015
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
AYI EMOKPAE APPELANT(S)
And
STANBIC IBTC PENSION MANAGERS LTD RESPONDENT(S)
RATIO
WHETHER OR NOT LEAVE OF COURT IS A CONDITION PRECEDENT TO THE EXERCISE OF THE RIGHT OF APPEAL
Now, leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. See Nwaolisah v. Nwabufoh (2011) LPELR – 2115 (SC). As such, failure to obtain such leave, where it is required, will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. Hence, an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. See Nalsa Team Associates v. NNPC [1991] 8 NWLR (pt 212) 652; SPDC (Nig) Ltd V. Katad Nig) Ltd [2006] 1 NWLR (pt 960) 199; Nwaolisah v. Nwabufoh (supra). PER NWEZE, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Notice of Appeal at pages 373 – 375 of the Records has two grounds of appeal namely: – the complaint against the finding of fact that “the Appellant failed to prove that the Respondent breached its duty of care”, and the omnibus ground of appeal complaining that the judgment of the Court of Appeal (the lower Court) was against the weight of evidence. Both grounds are complaints against the lower Court’s findings of fact. The grounds require leave first sought and granted before they could be legitimately filed in the further appeal to this Court from the lower Court, an intermediate Court.
Section 233(2) & (3) of the Constitution is mandatory. A ground of appeal against concurrent findings of fact requires leave first sought and granted before filing. These two grounds of appeal, being grounds of pure facts against the decision of the Court of Appeal, an intermediate Court, filed in defiance or insubordination of the provisions of Section 233(2) & (3) of the Constitution, are incurably defective – no leave having been first sought and granted before they were filed are incompetent.
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The incompetence of the Notice of Appeal vitiated the appeal predicated thereon.
Appellant who, purporting to exercise his constitutional right of appeal, brings his appeal in a manner flagrantly violative of the Constitution cannot be countenanced. It will be ultra vires to grant to such litigant a right denied to him by the Constitution. Similarly, if exercise of the right of appeal is conditional; unless the mandatory conditions are met and fulfilled, the Court acts ultra vires to entertain such appeal process.
In part 2 of the Notice of Appeal, the part requiring the appellant to show the part of the decision of the lower Court complained of, the Appellant herein stated that he was complaining against “part of the decision not allowed”. Which part if I may ask? He gave no particulars of the “part of decision not allowed”. He left it to speculation as to that “part of the decision not allowed”. This ambiguity defeats the very essence of fair hearing, particularly audi alteram partem, requiring the respondent to have particulars and notice of the complaint in the case he is going to meet in order that he must adequately prepare for and against
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As it is presently constituted, the Notice of Appeal in part 2 thereof is not explicit as to whether the “decision not allowed” includes the trial Court’s decision which the Supreme Court has no jurisdiction to entertain, or that portion of the lower Court’s decision the appellant cannot complain of as of right.
In the Relief Sought, the Appellant merely sought the “setting aside of part of the judgment of the Court of Appeal granting the last relief claimed by the Appellant”. The last relief claimed at the trial by the Appellant against the Respondent was the claim for damages for negligence against the defendant. There were no particulars of the damages claimed by the Appellant herein against the Respondent. The question: which damages did he seek for negligence against the Respondent? Again this Court lacks jurisdiction to entertain complaints against or from the decision of a Court of first instance: Section 233(1) of the Constitution.
The bottom-line is that the only two grounds of appeal in the instant appeal are incompetent in view of Section 233(2) & (3) of the Constitution. The two original grounds of appeal were filed in clear
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violation of the mandatory provision of Section 233 (2) & (3) of the Constitution. Consequently, there is no valid or legitimate ground of appeal existing that can, or sustains, the appeal. The Notice of Appeal at the time it was filed was fundamentally defective and void ab initio. It is hereby accordingly struck out.
I also observe that the clumsy manner the Notice of Appeal was conceived and contrived was intended to deny fair hearing to the Respondent particularly having regard to the substance of the grouse of the Appellant.
The appeal is hereby struck out. Parties shall bear their respective costs.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ejembi Eko JSC and to underscore the support, I have in the reasonings from which the decision emanated, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, delivered on 26th day of June, 2015. The appellant herein was the appellant in the Court below and the respondent herein, also respondent in that lower Court.
It is the appellant’s case that the
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respondent was negligent in handling the processing of her application to access 25% of her retirement savings otherwise the guidelines issued by PENCOM would not have caught up with her application. However, the guideline did not detract from the provisions of the Act as it followed the Act in its provisions. The appellant sued the respondent at the trial Court claiming as follows:
[1] A DECLARATION that the respondent was negligent in handling the application for the release of 25% of the Pension fund of the [claimant] now respondent.
[2] AN ORDER directing the defendant [now respondent] to pay the claimant the sum of N25,000,000.00 being general and special damages for negligent misconduct.
The respondent denied all the allegations of the appellant. It is the case of the respondent that the appellant as at the time she made the application to access 25% of her retirement savings, her account was not funded, she was below the age of 50 years contrary to the stipulations of the Pension Reform Act of 2004, that the appellant resigned from her employment as against retirement as provided for by the extant law and that the applicant’s application
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was submitted without the necessary documents.
On the 2/11/2020, date of hearing, learned counsel for the appellant, Mr. William Valentine adopted the brief of argument settled by Emeka Priscilla (Mrs) and filed on 20/1/2016 in which were distilled two issues for determination which are as follows:-
1. Whether the 50 years as stipulated by PENCOM a regulatory body should supersede the 2004 Pension Reform Act which was the law governing all Pension related matters and the applicable law governing the subject matter at the time.
2. Whether from the judgment of the Court of Appeal (Lagos Division), the appellant is not entitled to damages as claimed.
Learned Senior Advocate for the respondent, Samuel N. Agweh adopted the brief of argument filed on 8/3/2016. He formulated a single issue as follows:
Whether from the facts of this case, the evidence before the Court vis-a-vis Section 3 (1) and 4 (1) of the Pension Reform Act, 2004, the Court below was right when it held thus; the appeal has merit only on the issue of the entitlement of the appellant to the pension fund upon her attainment of the age 50 years. I would allow the appeal in part on the said issue only.”
(Grounds 1 & 2)
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I have had the opportunity of going through the records and seen that the appeal before the Court lacked validity, the grounds of appeal being of facts or mixed law and facts or mixed law and facts without leave of either the Court below or the Supreme Court, there is nothing to do but to strike the appeal out. See S. 233 (2) & (3) of the 1999 Constitution. The appeal being incompetent, it stands on nothing and so I hereby strike it out in line with the judicial authorities of Skenconsult Nig Ltd v. Ukey (1981) 1 SC 6; Ilona v. Idakwo (2003) 12 35.
Leave of Court prior to bringing an appeal on ground other than of law. I rely on Order 6 Rule 5 (1) of the Supreme Court Rules 1985. See Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (pt.109) 250 at 266; Ajuwon & Ors v. Adeoti (1990) 2 NWLR (pt. 132).271.
Appeal is struck out.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Ejembi Eko, JSC, just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal lacks merit and should be
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struck out. I too will strike it out.
Appeal struck out.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ejembi Eko, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that, being incompetent, this appeal should be struck out.
As His Lordship observed in the leading judgment, the two original Grounds of Appeal were filed in clear violation of the mandatory provisions of Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Now, leave of Court, where it is required, is a condition precedent to the exercise of the right of appeal. See Nwaolisah v. Nwabufoh (2011) LPELR – 2115 (SC). As such, failure to obtain such leave, where it is required, will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. Hence, an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. See Nalsa Team Associates v. NNPC [1991] 8 NWLR (pt 212) 652; SPDC (Nig) Ltd V. Katad Nig) Ltd [2006] 1 NWLR (pt 960) 199; Nwaolisah v. Nwabufoh (supra).
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Having not first obtained leave of Court before filing the Notice of Appeal, it, [the said Notice], was incompetent. It is for this and the more detailed reasons in the leading judgment that I shall enter an order striking this appeal out. Appeal struck out as being incompetent.
UWANI MUSA ABBA AJI, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion that the only two grounds of appeal sustaining the Appellant’s appeal are incompetent; being grounds of mixed law and fact that require the leave of this Honourable Court, which leave was not sought nor granted before filing same.
In conclusion, this appeal is incompetent and is hereby struck out. Parties are to bear their costs.
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Appearances:
William Valentine, Esq. For Appellant(s)
Samuel A. Agweh, SAN with him, M. A. Isiomoya, Esq., M. K. Balonwu Esq. and Q. N. Onuta, Esq. For Respondent(s)
