ENYIBROS FOOD PROCESSING COMPANY (NIG) LTD & ANOR v. NDIC & ANOR
(2022)LCN/16344(CA)
In The Supreme Court
On Friday, May 07, 2021
SC.231/2009
Before Our Lordships:
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
ENYIBROS FOOD PROCESSING COMPANY (NIGERIA) LIMITED CHIEF CHRISTOPHER O. ENYINWA APPELANT(S)
And
NIGERIA DEPOSIT INSURANCE CORPORATION CHARLES NDUBUISI MBAMALU RESPONDENT(S)
RATIO:
POSITION OF LAW WHEN AN APPEAL IS VOID AB INITIO
The law is settled that an appeal, incompetent by reason of its being invalid, void ab initio and illegal cannot be regularized. It cannot be saved by a purported amendment that is sham as the instant appeal is. When a notice of appeal is invalid, void and incompetent, no additional ground(s) of appeal can be hung on it in order to either launder it or regularize it. See ADERIBIGBE v. ABIDOYE (2009) LPELR – 140 (SC). EJEMBI EKO, J.S.C.
FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENT OF FILING AN APPEAL
“The failure to comply with the statutory requirement of filing an appeal within the prescribed time has been held to be fundamental, and not a mere irregularity, as it deprives the appellate Court of jurisdiction to entertain or hear the appeal. See Owoh & Ors vs Asuk & Anor. (2008) 16 NWILR (Pt.1112) 113; (2008) LPELR – 2883 (SC) at 19 E-G; Auto Import vs Adebayo & Ors. (2002) LPELR – 643 (SC) 15 A-E; Okereke vs James (2012) 16 NWLR (Pt. 1326) 339.” KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. EJEMBI EKO, J.S.C.
FAILURE TO SEEK AND OBTAIN LEAVE BEFORE FILING THE NOTICE OF APPEAL
Failure to seek and obtain leave before filing the Notice of Appeal containing the Grounds of facts and mixed law and facts has rendered the entire process defective and only liable to be thrown out.
See Abubakar v. Dankwambo (2015) 18 NWLR (pt. 1491) 213; Achonu v. Okuwobi (2017) 14 NWLR (pt. 1584) 142 SC. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
DIFFICULTY IN DIFFERENTIATING BETWEEN WHAT CONSTITUTE GROUND OF LAW AND GROUND OF MIXED LAW AND FACTS
When faced with such a situation, my advice is to reiterate the words of my learned brother, Sanusi, JSC in the case of Stanbic IBTC Bank v. Longterm Global Capital Ltd and Anor. (2017) 18 NWLR (pt. 1598) 431 at 452 where he stated that:
“It is usually difficult to outrightly determine whether a ground of appeal is purely one of law alone or is of mixed law and fact. Where a counsel is confronted with such difficulty, the safest thing for him to do, is apply for leave on the ground or grounds of mixed law and facts.” JOHN INYANG OKORO, J.S.C.
POSITION OF LAW COMPETENT NOTICE OF APPEAL
“The law is well settled beyond per adventure, that without a competent notice of appeal, an appellate Court, the apex Court inclusive, is devoid of jurisdictional competence to adjudicate and determine the appeal on the merits. See MADUKOLU VS NKEMDILIM (1962) 1 All NLR 595 at 597; SKEN CONSULT VS. UKEY (1980) 1 SC 6 at 26” IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
WHETHER AN INCOMPETENT NOTICE OF APPEAL CAN BE AMENDED
It is trite that an incompetent process cannot be amended. You cannot place something on nothing and expect it to stand, it will collapse. See UAC V. MACFOY (1961) 3 ALL ER 1169; RE: APEH & ORS (2017) LPELR – 42035 (SC). ADAMU JAURO, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): On 2nd March, 2009, the Court of Appeal (Coram: Omage, Allagoa & Bage, JJCA), sitting at Enugu made the following interlocutory order pending the determination of the appeal no. CA/E/104/01:
It is hereby ordered that S. O. Chinwuba and Company, an Estate Agent and Valuer, of No. 45 Chime Avenue, New Haven Enugu be appointed a receiver in respect of the property situation at No. 9, Nwosu Street, Achara Layout, Enugu for the purpose of collecting all rents accruing from the said property with effect from from today, and generally oversee the maintenance of the said property. (Further) an order that all such rents collected be paid into an interest yielding account pending the determination of the appeal. (And further) an order for a comprehensive account of the rent so far collected on the property from June, 2001 to date by the Defendant/Respondent.
Aggrieved by this order, the Defendant, as the 2nd respondent at the lower Court, filed the subject notice of appeal on 16th March, 2009. The notice of appeal, at pages 145 – 148 of record, has the following 5 grounds of appeal; that is –
GROUND 1
The Court of Appeal erred in law by making the order appointing a receiver.
Particulars
1. To make an order for appointment, the appointment of a receiver, must be just and convenient in the circumstances of the case.
2. A person in possession who claims to have legal title cannot be ousted through appointment of a receiver until true ownership is determined.
3. A receiver shall not be appointed where the Applicant has an alternative remedy in law.
4. A receiver shall not be appointed where the claim or writ is not so endorsed nor the relief sought on appeal is not so endorsed.
b. By appointing a receiver, the Court has determined the main issue in controversy, in the appeal.
GROUND 2
The learned Justices of the Court of Appeal erred in law by appointing Messr. S. O. Chinwuba and Co., a non-legal person as a receiver.
Particulars
1. No person unknown to law can be appointed as a receiver.
2. Messr. S. O. Chinwuba and Co., is not a person.
GROUND 3
The Court of Appeal misdirected itself when it held “the respondent has filed a counter-affidavit and have come to the conclusion that the submission of Respondent has no relevance to the fight which the Respondent admit was given by the Supreme Court to the Applicant.”
Particulars
1. The 2nd defendant/Appellant did not admit in any paragraph of his affidavit that Applicant/Respondent has any right at all in the property.
2. The Respondent/Applicant also did not admit that the Supreme Court conferred any right on the Applicant/Respondent in the Respondent.
3. The only right which the Supreme Court conferred on the Applicant/Respondent is the right to appeal as a party affected by the judgment of the High Court.
GROUND 4
The Court of Appeal misdirected itself when it made an order for a comprehensive account of the rent collected.
Particulars
1. A Court cannot in an interlocutory application determine the substantive appeal.
2. The relief sought in the substantive appeal does not support this order made by the Court below.
3. The substantive appeal cannot determine the issue of ownership of the house.
4. The party affected/Respondent has not shown that he is entitled to the rent.
GROUND 5
Judgment is against the weight of evidence.
The appeal was filed as of right, on 16th March, 2009 (the 15th day from the date the interlocutory decision was delivered on 2nd March, 2009. Section 27(2)(a) of the Supreme Court Act, 2004 enjoins the appellant complaining in an interlocutory appeal to file his notice of appeal within a period of 14 days. This interlocutory appeal would appear to have been filed out of time and therefore incompetent, invalid and void ab initio.
My Lords, because only a competent appeal, validly filed, ensures to the appellant to invoke the jurisdiction of this Court, vested in it by Section 233(1) of the Constitution, “to hear and determine appeals from the Court of Appeal” when an appeal appears to be incompetent, it will be properly interrogated to ensure that we do not proceed in an exercise that will eventually be a nullity as well. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587; BRONIK MOTORS LTD & ANOR. v. WEMA BANK LTD (1983) 1 SCNLR 296; CBN v. OKOJIE (2015) 5-6 SC (pt. ii) 173.
I earlier reproduced the 5 original grounds of appeal in the interlocutory appeal. Ground 5 is an omnibus ground. It is one of pure fact, complaining that the decision appeal is against the weight of evidence. It requires leave first sought and obtained to be valid.
Ground 4 is at best a ground complaining of mixed law and fact. Particular 4, for instance, involves interrogation of facts for the determination whether “the affected/Respondent has shown that he is entitled to the rent”. Particulars 1 and 3, in support of this ground 4 do not arise from the decision appealed, which I had earlier reproduced. Particulars 2 & 3 read together would require probing facts to determine whether or not ownership of the disputed house is in issue in the substantive appeal. The ground also requires leave first and obtained to be valid.
Ground 3, like ground 4, is a complaint on facts as to whether or not the appellant did admit in his affidavit “that the Supreme Court conferred any right on the Applicant/Respondent in the property.”
The question: whether Chinwuba & Co., appointed as a receiver, “is a non-legal person” is one of fact. This is the core complaint in ground 2. The ground is therefore one of fact requiring leave first sought and obtained to be valid. Ground 1 is a challenge to improper exercise of discretion which necessarily involves acts and circumstances, and it is at best, a question of mixed law and fact. See OGBECHIE v. ONOCHIE (1986) 2 NWLR (pt. 23) 84; METAL CONSTRUCTION (WA) LTD v. MIGLIORE (1990) 1 NWLR (pt. 126) 299; CBN v. OKOJIE (supra). The Court of Appeal’s discretion, vested by Order 4 Rule 6 of its rules entails it to act judicially and judiciously. Facts in the circumstance remain the governing factor.
All the original grounds of appeal raise issues of fact and/or mixed law and fact which, by virtue of Section 233(2) & (3) of the 1999 Constitution, they require leave first sought and obtained before the notice of appeal could competently invoke the jurisdiction of this Court. There being no such leave, the notice of appeal filed on 16th March, 2009 was invalid, illegal and a nullity. Courts do not condone illegality, no matter whom by.
On 15th April, 2014, a purported Amended Notice of Appeal filed on 11th April, 2014 was deemed properly filed. The said Amended Notice of Appeal contains five grounds of appeal ipssima verba with the offensive 5 grounds in the original notice of appeal.
The purported amendment was procured by a fraudulent hoax played on this Court. The law is settled that an appeal, incompetent by reason of its being invalid, void ab initio and illegal cannot be regularized. It cannot be saved by a purported amendment that is sham as the instant appeal is. When a notice of appeal is invalid, void and incompetent, no additional ground(s) of appeal can be hung on it in order to either launder it or regularize it. See ADERIBIGBE v. ABIDOYE (2009) LPELR – 140 (SC).
Both the original and the amended notice of appeal have, each, a common fundamental feature or deficiency – the said Chinwuba & Co., Estate Agent and Valuer, whose appointment as a receiver is the hotshot and cynosure of the appeal, is not a party to the appeal. There is no doubt he is a necessary party, and any decision in this interlocutory appeal will affect him. Section 36(1) of the Constitution enjoins that in the determination of his civil rights and obligations, every person likely to be affected by the decision of a Court of law, shall be entitled to a fair hearing. The question whether: Chinwuba & Co. is a juristic persona and entitled to be appointed a receiver would requires that he be given an opportunity to be heard and also a fresh or further evidence to prove the assertion. Leave is also necessary to prove that fact. These deficiencies are serious and fundamental. They go to the root.
This appeal, as I have been trying to demonstrate being incompetent, illegal and invalid, shall be, and is hereby, struck out.
The appeal appears to be gagging appeal designed only to frustrate the substantive appeal no. CA/E/104/01. Accordingly, in view of the implicit abuse of the Court’s process in this misadventure, the appellant, at the lower Court, who herein is the 1st Respondent deserves to be indemnified in costs. The Appellants in the interlocutory appeal are hereby ordered to pay, as costs, the sum of N1,000,00.00 to the said appellant (NDIC) at the lower Court who herein is the 1st respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Ejembi Eko, JSC just delivered. I agree with the reasoning and conclusion reached therein.
The precursor to this appeal is an interlocutory ruling delivered by the lower Court on 2/3/2009 at the instance of one Charles Ndubuisi Mbamalu, described as “party affected/appellant” whereby it ordered the appointment of S.O. Chinwuba & Co., an estate agent, in respect of the property at No. 9 Nwosu Street, Achara Layout, Enugu, for the purpose of collecting rents accruing from the said property and to generally oversee the maintenance of the property. The Court also ordered that the rents collected should be paid into an interest yielding account pending the determination of the appeal. The said estate agent was further ordered to render a comprehensive account of the rent so far collected from June 2001 to the date of the ruling.
The 2nd respondent, Chief Christopher Enyinwa, was unhappy with the ruling and appealed to the lower Court vide a notice of appeal filed on 16/3/2009 containing 5 grounds of appeal.
By Section 27(2) (a) of the Supreme Court Act, a person intending to appeal against an interlocutory decision of the Court below must do so within 14 days from the date of the decision complained of.
In the instant case, the appeal was filed one day outside the 14 days prescribed. In the absence of an application for extension of time within which to seek leave to appeal, the notice of appeal is incompetent and liable to be struck out. The failure to comply with the statutory requirement of filing an appeal within the prescribed time has been held to be fundamental, and not a mere irregularity, as it deprives the appellate Court of jurisdiction to entertain or hear the appeal. See Owoh & Ors vs Asuk & Anor. (2008) 16 NWILR (Pt.1112) 113; (2008) LPELR – 2883 (SC) at 19 E-G; Auto Import vs Adebayo & Ors. (2002) LPELR – 643 (SC) 15 A-E; Okereke vs James (2012) 16 NWLR (Pt. 1326) 339.
In the circumstances, I agree with my learned brother, Ejembi Eko, JSC, that this appeal is incompetent. It is hereby struck out. I abide by the order on costs.
Appeal struck out.
JOHN INYANG OKORO, J.S.C.: I have read in its draft form the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in agreement with my learned brother that this appeal is bereft of merit and deserves an order of dismissal.
In this appeal, the Court below granted an application by the party interested, Charles Ndubuisi Mbamalu, appointing S. O. Chinwuba and Company, Estate Agent and Valuer as receiver in respect of property situate at No. 9, Nwosu Street, Achara Layout, Enugu. Aggrieved by that order of Court contending inter alia, that Messr. S. O. Chinwuba and Co., is not a person known to law, thus, cannot be appointed as a receiver.
A careful perusal of the Notice of Appeal filed by the Appellant would reveal that apart from the fact that the said S. O. Chinwuba and Co., is not made a party to this appeal, which would have afforded it the opportunity to state its own side, the 5 Grounds of appeal raised in the amended Notice of Appeal are all incompetent. They are all grounds of facts or mixed law and facts which require leave of this Court before they could be validly raised. Failure to seek and obtain leave before filing the Notice of Appeal containing the Grounds of facts and mixed law and facts has rendered the entire process defective and only liable to be thrown out.
See Abubakar v. Dankwambo (2015) 18 NWLR (pt. 1491) 213; Achonu v. Okuwobi (2017) 14 NWLR (pt. 1584) 142 sc. They are hereby struck out.
I understand that the line between what constitute ground of law and ground of mixed law and facts may be so slim such that counsel may be unable to discern one from the other. When faced with such a situation, my advice is to reiterate the words of my learned brother, Sanusi, JSC in the case of Stanbic IBTC Bank v. Longterm Global Capital Ltd and Anor. (2017) 18 NWLR (pt. 1598) 431 at 452 where he stated that:
“It is usually difficult to outrightly determine whether a ground of appeal is purely one of law alone or is of mixed law and fact. Where a counsel is confronted with such difficulty, the safest thing for him to do, is apply for leave on the ground or grounds of mixed law and facts.”
Applying for leave out of abundance of caution would sufficiently take care of any eventuality which may spring up in the course of considering the appeal.
In the final analysis, all I have laboured to say above is that this appeal is incompetent and is hereby struck out. I abide by the consequential orders made in the lead judgment, that relating to costs, inclusive.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have had a preview of the judgment just delivered by my learned brother, the Hon. Justice Ejembi Eko, JSC. Unhesitatingly, I concur with the reasoning eloquently reached in the lead judgment, to the conclusive effect that the instant appeal is implicitly an abuse of Court’s process.
Most instructively, the instant appeal is against the interlocutory ruling of the Court of Appeal, Enugu Judicial Division, Coram: VAO Omage, JCA, SS Alagoa, JCA and S. D. Bage, JCA (as he then was). The ruling in question was evidently on the face of the Record of Appeal (pages 141 – 144) delivered on 02/03/2009.
Curiously, however, the original Notice of Appeal (pages 145 – 148) was filed, paid for and stamped in the Court below on 16/03/2009. That was on the 15th day the ruling appealed against was delivered (02/03/2009). Undoubtedly, by virtue of the provisions of Section 27 (2) (a) of the Supreme Court Act, 2004, that originating Notice of Appeal was filed out of the statutory 14 days allowed. See Section 27 (2) (a) of the Supreme Court Act, 2004:
27 (1) where a person desires to appeal to the Supreme Court, he shall give notice of appeal or 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 Subsection (2) of this Section that is applicable to the case.
(2) The period is prescribed for the giving notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
The original Notice of Appeal having been filed out of time, is rendered incompetent ab initio. By implication, the purported Amended Notice filed on 16/03/2009, having been predicated upon an incurably defective original Notice of Appeal, is equally rendered incompetent.
The law is well settled beyond per adventure, that without a competent notice of appeal, an appellate Court, the apex Court inclusive, is devoid of jurisdictional competence to adjudicate and determine the appeal on the merits. See MADUKOLU VS NKEMDILIM (1962) 1 All NLR 595 at 597; SKEN CONSULT VS. UKEY (1980) 1 SC 6 at 26.
Hence, having adopted the reasoning and conclusion reached in the lead judgment as mine, I too hereby strike out the appeal and abide by the order in regard to costs.
ADAMU JAURO, J.S.C.: I had the opportunity of reading before now a draft copy of the lead judgment just delivered by my learned brother, Ejembi Eko, JSC. I completely agree with the reasoning contained therein and the inevitable conclusion that the appeal is grossly incompetent and ought to be struck out.
This Court cannot exercise jurisdiction over an appeal based on an incompetent notice of appeal, even though as in the instant appeal, same was said to have been purportedly amended. It is trite that an incompetent process cannot be amended. You cannot place something on nothing and expect it to stand, it will collapse. See UAC V. MACFOY (1961) 3 ALL ER 1169; RE: APEH & ORS (2017) LPELR – 42035 (SC).
In conclusion, the appeal is accordingly struck out for being incompetent. I abide by the order as to costs made in the lead judgment.
Appearances:
Prisca Ozoilesike Arnah, Esq. For Appellant(s)
Dan O. Uruakpa Esq. for the 1st Respondent For Respondent(s)
