ETUBOM (DR) ANTHONY ASUQUO ANI & 4 ORS V ETUBOM EKPO OKON ABASI OUT & 4 (2017)

ETUBOM (DR) ANTHONY ASUQUO ANI & 4 ORS V ETUBOM EKPO OKON ABASI OUT & 4

(2017) LCN/4561(SC)

In the Supreme Court of Nigeria

Friday, February 24, 2017


Case Number: SC.633/2013

 

JUSTICES:

1. Etubom (Dr) Anthony Asuquo Ani2. Etinyin Okon Effiong Offiong3. Chief Offiong Eyo Offiong4. Chief Emmanuel Eniang Offiong5. Anthony Eniang Offiong [For themselves and on behalf of Ufot Ikot Nkpor Clan. Mbiabo Ikoneto, Odukpani Local Government Area)

 

APPELLANTS

DR. HARRY EZIM       (Suing through his Attorney-Arc. David Moh)

 

RESPONDENTS

1. Etubom Ekpo Okon Abasi Otu2. Etubom Out Efa Out (For themselves and representing the Eslt Edik Traditional Council)3. Etubom Essien Ekpenyong Effiok4. Etubom Okon Asuquo5. Etubom Micah Archibong (For themselves and representing Etubom’s Traditional Council, Obong’s Palace)?

 

 

 

 

 

 

 

 

 

RATIO

NOTICE OF APPEAL

“An appeal, which is the continuation of a case from a trial Court, is commenced by notice of appeal. So, the notice of appeal is the foundation of an appeal, and the Respondents are right – an incompetent notice of appeal deprives an appellate Court of jurisdiction to hear the appeal- see Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150) 592 SC, cited by the 1st set of Respondents, where Muhammad, JSC, explained as follows – A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective no proper appeal can stand. It will, certainly, collapse. A notice ‘of appeal can be competent and valid if it contains at least one valid ground of appeal – -A bare notice of appeal without any ground of grounds of appeal, is valueless and incompetent – – It is incurably bad. The defect cannot be cured by amendment. That is true; but there is room for the Appellant to maneuver. Order 2 rule 31 of the Rules of this Court, provides as follows – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice. (2) Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period… In other words, where an appeal requires leave of Court and the time within which to appeal has also expired, the Appellant may apply for extension of time to seek leave to appeal. To this end, it is crucial that an intending Appellant file a tripod application – a prayer for (a) extension of time to seek leave to appeal; (b) leave to appeal; (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be granted by the Court – see Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 at 375SC. In that case, Odofin V. Agu (supra), the Respondents filed an Application at the Court below without the said three prayers and it granted the Application, heard the appeal, and allowed it. But the Appellants’ appeal to this Court was allowed because – The 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. The Judgment appealed against was decided on 16/5/1985. Thus, on the 4th and21st 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. The notice of appeal – is the real and constitutional signal of dissatisfaction against the Judgment. Whereas 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. [Karibi-Whyte, JSC] Piecing the above principles together, the fact that an Appellant had filed an incompetent notice of appeal does not preclude him from applying to an appellate Court for an extension of time within which to file the notice of appeal, and salvage the appeal – see Nalsa &Team Associates V. NNPC (supra).”

Per AMINA ADAMU AUGIE               JUSTICE, SUPREME COURT

PRELIMINARY OBJECTION NO JURISDICTION 

“In Nalsa &Team Associates V. NNPC (supra), this Court, per Nnaemeka-Agu, JSC, held that – Where the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental Issue which goes to the vires of the Court has been raised. When such is the case, one of two factual situations may arise. The Respondent’s motion may be one [that] is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. – – In the hey days of technicality, the practice was to take the motion, which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal If he liked, I am of the view that that does not accord with the present Inclination of the Courts to do substantial justice, for, the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather than technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal, where there is ex-facie a proper application for such, before taking the one which seeks to strike out the appeal is incompetent, I can see nothing wrong with the practice. To adopt that course will save both time and expenses. In saying so, I am not unaware that In Awote V. Owodunni &Anor – – my learned brother Oputa, JSC, expressed the opinion that this was not the proper course because as the appeal was incompetent, ex nihllo nihil fit (you can build nothing out of nothing). But with respect, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first.”

JUDGMENT AMINA ADAMU AUGIE, JSC: The Appellants challenged the nomination and selection of the 1st Respondent as Obong of Calabar, in Suit No. HC/102/2008; which they filed at the High Court of Cross River State, Calabar.   The learned trial Judge, Ogar, J., delivered his Judgment on 30/1/2012, wherein he found in favour of the Appellants and granted the seven reliefs sought, including a declaration that – The presentation and/or selection of the 4th Defendant [i.e. the 1st Respondent], who was Chairman of the Screening Committee for the selection of a candidate for the stool of Obong of Calabar, as a candidate for the Obong of Calabar throne or purported selection of the 4th Defendant as the Obong of Calabar elect is contrary to natural justice, equity and good conscience. Dissatisfied, the 1st set of Respondents appealed to the Court below – Appeal No. CA/C/97A/2012. In its Judgment delivered on 4/7/2013, the Court below ordered that the 1st Applicant, who was not capped/inducted into Etubom’s Council of the Palace at the time of the selection process, was not traditionally qualified and eligible to vote and be voted for as the Obong of Calabar. The Appellants filed an Application at the Court below on 11/9/2013 for leave to appeal, etc., which they later withdrew, but they still filed a Notice of Appeal in this Court on 3/10/2013; complaining against part of the decision of the Court below i.e. – The finding as to the disqualification of the 1st Appellant and qualification of the 1st Respondent herein to vie for the position of Obong of Calabar ha vinp regard to the state of the evidence. It was based on this Notice of Appeal that the Record of Appeal was compiled and transmitted to this Court. They later filed an Application on 23/5/2014 to amend the said Notice of Appeal, and to seek leave to appeal on grounds of mixed law and facts. The Application that was opposed by the Respondents came up for hearing on 25/6/2015, and was later adjourned to 2/2/2016, for Written Addresses to be filed, and conclusion of arguments.   Meanwhile, the Appellants did not wait for the said 2/2/2016, and filed this Application on 30/12/2015 praying this Court for – 1.    An Order extending time for [them] to seek leave to appeal against the Judgment of the Court of Appeal sitting in Calabar delivered on 4/7/2013 in Appeal CA/C/97A/2012. 2.    An Order granting [them] leave to appeal. 3.    An Order extending time for [them] within which to file the Notice and Grounds of Appeal against the said Judgment. 4.    An Order granting [them] leave to appeal on grounds of mixed laws and facts. 5.    An Order deeming the Record of Appeal earlier transmitted by the lower Court as the Record of Appeal. 6.    An Order deeming Notice and Grounds of Appeal dated and filed separately on 30/12/2015 as properly filed and served appropriate fees have been paid. 7.    An Order deeming the Appellants’ Brief of Argument dated and filed on 30/12/2015 as duly filed and served. The Grounds upon which the Application is predicated are that- i. They filed an Application before the lower Court on 11/9/2013 for leave to appeal on grounds of mixed law and fact timeously but unfortunately the lower Court could not hear the Application until the time allowed to appeal expired on 5/10/2013 and the Motion was withdrawn and struck out. ii. However, on sensing that time was running out, they filed a Notice and Grounds of Appeal on 3/10/2013, believing that Ground 1 In the said Notice of Appeal Is ground of law not requiring leave of Court so as to sustain the Appeal. iii. Upon the transmission of the Record of Appeal to [this] Court, they brought an application for leave to appeal on grounds of mixed law and facts as it relates to the other grounds perceived to be grounds of mixed law and facts, which was fixed for hearing on 25/6/2015. The Respondents opposed the Application and [it] was adjourned to 2/2/2016 for full argument. iv.    In order not to dissipate energy and waste valuable judicial time, they have chosen to bring a fresh Application as contained in this Motion herein. v.    The proposed Notice of Appeal raise very substantial and arguable grounds of appeal. vi.    The delay in bringing this Application is not deliberate but as a result of the fact that the distinction between grounds of law alone and grounds of mixed law and facts are not easily discernible and the peculiar circumstances of this matter. vii Valuable time and energy will be saved by starting the process all over again instead of insisting on arguing the earlier Application, which will be withdrawn. viii.   The time allowed by law to appeal expired on 5/10/2013. ix. They are desirous of expeditious hearing of this appeal and so have also filed their Appellants Brief of Argument. x.    It is in the interest of justice for the Application to be granted. The Application is supported by a 16-paragraph Affidavit, and annexed thereto are the relevant processes, as Exhibits A – E. In opposing the Application, the 1st set of Respondents filed a 4- paragraph Counter-Affidavit; attached thereto are Exhibits 1-5. The 2nd set of Respondents, are also opposing the Application, and they filed a 16-paragraph Counter-Affidavit to that effect. In addition to their respective Counter-Affidavits, the two sets of Respondents also filed Notices of Preliminary Objection. The 1st set of Respondents, are by their Notice of Preliminary Objection filed on 1/2/2016, praying this Court for the following – (i) An Order that this Court lacks jurisdiction to hear this Appeal No. SC.633/2013 for failure of the Appellants to first obtain leave of the Court before filing the Appeal on 30/12/2015 as required under Section 233(3) of the 1999 Constitution (As Amended). (ii)    An Order to dismiss/strike out the 2nd Appeal No. SC633/2013 filed on 30/12/2015 for being defective and and/or incompetent. (iii) An Order to dismiss the Appellants’ Motion on Notice on of 30/12/2015 for being an abuse of the process of this Court. The Grounds for the Application (sic) are as follows – 1. The Appellants’ Grounds of Appeal filed on 30/12/2015 contain grounds other than law alone (i.e. grounds of facts and of mixed law and facts) 2.    [They] ought to have first sought and obtained leave of either the Court below or this Court before filing the Appeal on 30/12/2015. 3.    The failure to FIRST seek and obtain such leave of Court before filing their Notice of Appeal on 30/12/2015 contravenes Section 233(3) of the 1999 Constitution (as amended) 4.    [They] admitted in paragraph 12 of the Affidavit in Support of their Application of 30/12/2015 that their said Notice and Grounds of Appeal raises grounds of mixed law and facts requiring the leave of this Court, and they filed their Notice and Grounds of Appeal. 5.    The said admission in paragraph 12 of their said Affidavit – – is an admission that they have filed to comply with Section 233 (3) of the Constitution – – which is a condition precedent to filing an appeal containing grounds of facts and of mixed law and facts. 6.    The Appellants Brief of Argument filed separately as admitted by them in paragraph 13 of their Affidavit in Support filed on 30/12/2015 is premised on an incompetent Notice of Appeal. 7.    Where [they] failed to satisfy a condition /precedent for filing an appeal containing grounds of fact and of mixed law and facts, this Court cannot proceed with the determination of such an appeal. 8.    Seeking and obtaining leave is a condition precedent to filing the Notice of Appeal filed on 30/12/2015 and having failed to obtain such leave (as required under Section 233 (3) of the Constitution, they cannot invoke adjudicatory power/jurisdiction of the Court. 9.    The Motion filed on 30/12/2015 in SC.633/2013 is an abuse of Court process having regard to their Motion on Notice filed on 23/5/2014 in the same SC/633/2013 seeking similar prayers, and the proceedings in this Court in SC. 633/2013 on 25/6/2015. 10.    The Motion on Notice filed on 30/12/2015 will deprive the 1st and 2nd Respondents of the right to fair hearing having regard to the proceedings in the first Appeal No. SC.633/2013 on 25/5/2015. 11.    The [Application] filed on 30/12/2015 is aimed at overreaching [the Respondents] having regard to the proceedings – – on 25/6/2015 in – – and the processes [they] filed on 22/6/2015, and 5/10/2015 and served on the Appellants on 6/10/2015. 12.    The Appellants have seen and read the 1st and 2nd Respondents Counter Affidavit, application in objection (to their Application filed on 23/5/2014) and Amended Notice of Appeal filed on 22/5/2014, Notice of Appeal filed on 3/10/2013 and their Brief of Argument in support of their objection, after which they filed a fresh application for leave and a fresh Notice of Appeal on 30/12/2015 in the same SC.633/2013. 13.    There is no Further Affidavit, Counter Affidavit nor Brief of Argument filed in response to 1st and 216 Respondents processes mentioned in paragraph 13 above before [they] filed a fresh application for leave and fresh Notice of Appeal on 30/12/2015. 14.    The deeming Orders being sought by [them] in their Application filed on 30/12/2015 and their averment that they have paid penalties charged them for filing their processes cannot cure their failure to comply with Section 233/(3) of the 1999 Constitution – – The Notice of Preliminary Objection is supported by an Affidavit containing the same averments as in their Counter-Affidavit, and they also attached the same Exhibits 1 to 5 to the Affidavit. The 2nd set of Respondents also challenged the competency of this Application in their Notice of Preliminary Objection filed on 25/1/2015, and their Grounds of Objection, are as follows – 1. All the grounds of the Appellants’ Notice of Appeal are grounds of mixed law and facts. 2.    None of the grounds – – are grounds based on law alone. 3.    [They] did not obtain leave – – before filling their Notice of Appeal in accordance with Section 233(2) and (3) of the 1999 Constitution – -and Order 2 rule 30, Supreme Court Rules (as amended) as a condition precedent to bringing the Notice of Appeal. 4.    It is the same Notice of Appeal that the Appellants seek to amend by their application filed on the 23/4/2014. 5.    The Appellants’ Brief of Argument sought to be deemed properly filed and served is settled based on the same Notice of Appeal. 6.    The defect of the Notice of Appeal cannot be cured by an order of amendment or extension of time being sought by the Appellants. They filed a 13-paragraph Affidavit in support of their Objection. Parties filed Written Addresses for and against the Application, and Written Addresses and Replies thereto, for the Objections. The Respondents proffered, more or less, the same arguments in opposing the Application and in objecting to its competency. However, the crux of their Objections to the Application is that this Court lacks jurisdiction to hear this Appeal because the Applicants failed to first obtain leave before filing the Appeal, contrary to Section 233(3) of the Constitution, which provides – Subject to the provisions of sub-section (2) of this Section, an appeal shall lie from the decisions of the Court of Appeal with the leave of the Court of Appealer the Supreme Court. The said sub-section (2) of Section 233 referred to, provides – An appeal shall lie from decisions of the Court of Appeal as of right in the following cases – (a)    Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal. They contend that since the Applicants failed to seek leave of Court to file the Notice of Appeal, containing grounds of facts and mixed law and facts, the Appeal is incompetent, defective, and incurably bad, so this Court lacks the jurisdiction to hear it. The 1st set of Respondents submitted that the Application is an abuse of Court process having regard to the previous one, and proceedings of 25/6/2015; that the Application is aimed at overreaching them; and the Applicants had seen their Counter-Affidavit and the Objection to the earlier Application before they filed this fresh Application for leave and fresh Notice of Appeal. The 2nd set of Respondents also argued that none of the six Grounds of Appeal in the said Notice of Appeal are based on question of law alone, and that the fundamental defect in such an originating process, cannot be cured by any amendment, therefore, this Court ought to dismiss or strike out this Appeal. The Applicants argued in their Replies that this Court has jurisdiction to hear the Application, and give life to the Appeal, citing Nalsa & Team Associates V. NNPC (1991) 11-12 SC 83; that the grant or refusal of this Application is at the discretion of this Court; and that the said Objections will not stop them from correcting errors in the process of the appeal, citing Tsokwa Oil Marketing Co. V. B.O.N. (2002) 11NWLR (Pt. 777) 163 SC. At this point, the issue is not whether there is any merit in this Application or not, it is whether this Court has jurisdiction to entertain this Application filed on 30/12/2015, in the first place. Jurisdiction is the authority that the Court has to decide or take cognizance of matters presented for its decision – Mobil Prod. (Nig.) Unltd. V. LASEPA (2002) 18 NWLR (PL 798) 1. An appeal, which is the continuation of a case from a trial Court, is commenced by notice of appeal. So, the notice of appeal is the foundation of an appeal, and the Respondents are right -an incompetent notice of appeal deprives an appellate Court of jurisdiction to hear the appeal- see Aderibigbe V. Abidoye (2009) 10 NWLR (PL 1150) 592 SC, cited by the 1st set of Respondents, PAGE| 8 where Muhammad, JSC, explained as follows – A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective no proper appeal can stand. It will, certainly, collapse – -A notice ‘of appeal can be competent and valid if it contains at least one valid ground of appeal – – A bare notice of appeal without any ground of grounds of appeal, is valueless and incompetent – – It is incurably bad. The defect cannot be cured by amendment. That is true; but there is room for the Appellant to maneuver. Order 2 rule 31 of the Rules of this Court, provides as follows – (1)    The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice. (2)    Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period- — In other words, where an appeal requires leave of Court and the time within which to appeal has also expired, the Appellant may apply for extension of time to seek leave to appeal. To this end, it is crucial that an intending Appellant file a tripod application -a prayer for (a) extension of time to seek leave to appeal; (b) leave to appeal; (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be granted by the Court -see Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 at 375 SC. In that case, Odofin V. Agu (supra), the Respondents filed an Application at the Court below without the said three prayers and it granted the Application, heard the appeal, and allowed it. But the Appellants’ appeal to this Court was allowed because – The 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 – – the Judgment appealed against was decided on 16/5/1985. 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. The notice of appeal – is the real and constitutional signal of dissatisfaction against the Judgment – -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. [Karibi-Whyte, JSC] PAGE| 9 Piecing the above principles together, the fact that an Appellant had filed an incompetent notice of appeal does not preclude him from applying to an appellate Court for an extension of time within which to file the notice of appeal, and salvage the appeal – see Naisa & Team Associates V. NNPC (supra). In this case, the Notice of Appeal is incompetent and the Applicants are not contesting that fact because in Ground ii of the Grounds for this Application, they said they filed it believing that Ground 1 is a ground of law not requiring leave of Court”, and as the 2nd set of Respondents pointed out, they admitted in paragraph 12 of the Affidavit in support of this Application that – The Grounds of Appeal all raises grounds of mixed law and facts requiring leave of the Honourable Court. By their own admission, the Notice of Appeal filed in this Court on 3/10/2013, which required leave of Court, and which leave was not sought and obtained before it was filed, is incompetent. But they filed the “tripod application”: to save their appeal, and this Court is now faced with the Preliminary Objections, which are aimed at determining this Application in limine and the said Application, which seeks to give life to the said Appeal. What to do is the question? In Nalsa & Team Associates V. NNPC (supra), this Court, per Nnaemeka-Agu, JSC, held that – Where the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental issue which goes to the vires of the Court has been raised. When such is the case, one of two factual situations may arise. The Respondent’s motion may be one [that] is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. – – In the hey days of technicality, the practice was to take the motion, which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the Courts to do substantial justice, for, the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather than technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal, where there is ex-facie a proper application for such, before taking the one which seeks to strike out the appeal is incompetent, I can see nothing wrong with the practice. To adopt that course will save both time and expenses. In saying so, I am not unaware that in Awote V. Owodunni & Anor – – my learned brother Oputa, JSC, expressed the opinion that this was not the proper  course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respect, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first. In this case, the complaint is that there is no competent appeal before the Court, and this Court lacks the jurisdiction to hear it. But the fact remains that the Applicants have a right of appeal, guaranteed to them by the 1999 Constitution (as amended), which overrides any negative principles aimed at its foreclosing- see Anachebe V. Ijeoma (2014) 14 NWLR (Part 1426) 168, cited by the Appellants, where Ogunbiyi, JSC, aptly observed – It is well settled that a right of appeal is constitutional as is provided in the Constitution. The right being constitutional therefore, it stands to override most other negative principles aimed at its foreclosing. The rider also stands clear that the exercise of this right is only permissible within limit as provided by law. The right is lost outside the prescribed statutory period allowed but will only be exercised by leave of Court; hence the reason for seeking an order for leave and extending the time within which to appeal. While the constitutional right cannot be extended if the Applicant fails to adduce good and substantial reason for obliging the Application, the Court will also not hesitate to exercise its discretion in favour thereof provided sufficient materials – – are contained in the affidavit to justify the exercise. The 2nd set of Respondents also complained that the Appellants had seen the processes they filed in respect of the Application of 23/5/2015 before they filed this one, but that is of no moment. The fact that the Applicants filed this Application after they had filed a Preliminary Objection challenging the competency of the said Application of 23/5/2015, will not bar the Applicants from correcting any errors that will put them on the right footing – see Shanu V. Afribank (supra), where Ayoola, JSC, clearly stated – The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the Applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing. See also Nalsa & Team Associates V. NNPC (supra), where this Court, per Karibi-Whyte, JSC, also explained as follows – If a preliminary objection to dismiss an appeal is taken during the pendency of an Application to correct the errors on which the preliminary objection is based, the preliminary objection will succeed and the action dismissed. This is because the error remains extant, the question whether the error can be corrected having not been  investigated. This is clearly unjust and against our concept of administration of justice. – – Whenever a party – -detects an error – – which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it. It is important to appreciate the basic distinction between hearing an application and granting the prayers in it Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can be argued.   In this case, there is nothing more that I need to add or explain. Yes, the Application filed on 23/5/2015 was still pending when the Applicants filed this Application on 30/12/2016, but they are not foreclosed by the preliminary objections filed against same, from starting the process afresh on a more appropriate footing -see Shanu V. Afribank (supra), which is exactly what they did. The law makes room for them to realize their mistakes and file an Application, which if granted, will correct defects in the Notice of Appeal, and bring about a valid and competent appeal – see Nalsa & Team Associates V. NNPC (supra). Therefore, the Respondents’ Preliminary Objections are overruled and this Application filed on 30/12/2015, will be decided on its merits. The Application pertains to leave of Court, and whenever leave of Court is a condition precedent for exercise of a right, the discretion of the Court is implied, and a party applying to the Court to exercise its discretionary power in his favour must put up a convincing argument showing that in fact and in law he is entitled to a decision which he has applied for – see Re: Alase (2002) 10 NWLR (PL 776) 553 SC. In this case, the Applicants are praying for an extension of time to seek leave to appeal; leave to appeal; extension of time within which to file the notice of appeal; leave to appeal on grounds of mixed law and facts. The other Reliefs 5. 6 & 7 are prayers for deeming orders that are dependent on the outcome of the main Reliefs 1, 2 & 3. The question now is whether the Applicants provided sufficient materials and reasons to grant this Application in their favour. To this end, the Applicants have to show that the delay in bringing this Application is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and their grounds of appeal must prima facie show good cause why the appeal should be heard. The two conditions are conjunctive and not disjunctive; they must co-exist. If one is missing, the Application must fail -see Nwora V. Nwabueze (2011) 15 NWLR (PL 1271) 467 SC. In this case, the essence of the Applicants’ Application is that – – They are out of time to seek leave to appeal. – They are also out of the statutory period allowed to file their notice and grounds of appeal. – They are appealing on grounds of mixed law and facts. – The grounds of appeal are substantial and arguable. – The delay in filing of the Notice of Appeal is not deliberate, but due to the inability of the lower Court to grant them leave, before the expiration of the statutory time to file the appeal. – They filed the appeal timeously with the hope of regularizing same at this Court, but have chosen to restart the whole process. They submitted that they have a constitutional right of appeal albeit with leave of the lower Court and within three months -Abba-Tukur V. Gongola State Govt. (1988) 1 NWLR (PL 68) 39, and that the Grounds of Appeal raise substantial issues – Chief F.RA Williams (SAN) V. Nwosu (2000) 9 NWLR (PL 671) 215, Ikenta Best V. AG, Rivers State (2008) 6 NWLR (PL 1084) 612. The Respondents restated that failure to obtain leave robs a Court of jurisdiction; and since Applicants cannot put a legal process on an illegal foundation, the appeal must be withdrawn; so they commence a fresh one with valid and legal foundation. The 1st set of Respondents also argued that they will suffer great injustice by the grant of this Application, which is brought mala fide and is aimed at overreaching them and shortchange them of their right to fair hearing; and that this fresh Application filed on 30/12/2013, is an abuse of the process of this Court. The 2nd set of Respondents argued along the same lines. They submitted that the Applicants cannot bring this Application without withdrawing the similar application filed on 27/5/2014, and citing CBN V. Ahmed & Ors (2001) 5 SC (PT.11) 146, on what constitutes an abuse of Court process, they argued that – The Applicants filed an Application while waiting for the pending Application to be fully heard, and also filed the present Application seeking substantially the same reliefs. Nothing can be more irritating and annoying than this. The Application is targeted at irritating, annoying and misleading the Respondents. I have read the Exhibits attached to this Application, including Exhibit F – Proposed Notice and Grounds of Appeal, and I am of the view that in the circumstances of this case, this Application should be granted as prayed. To start with, the Applicants have explained why the said Notice of Appeal was filed out of time. They filed the Application of 11/9/2013 timeously but the Court below did not hear it until time to appeal expired on 5/10/2013. I am also satisfied that the thirteen Grounds of Appeal in the said Exhibit F, touching on wrongful evaluation of evidence, raise substantial issues that are arguable on appeal, particularly in this case, where there are conflicting findings of facts by the two lower Courts; the trial Court found in the Applicants’ favour and the Court below set it aside and found for the Respondents.   Generally, it is difficult to obtain leave where an appeal is against a finding of fact made by a trial Court and concurred to, by the Court below because appeals from concurrent findings of facts by those Courts are granted in exceptional circumstances – Order 2 rule 32 of the Supreme Court Rules (as amended). In this case, the reverse is the case; there are conflicting findings of facts by the two Courts, and that is reason enough, in my view, to grant this Application to regularize the Appeal. The Respondents, who say they will suffer great injustice if this Application is granted, have not shown how they will suffer any negative consequences, if this matter proceeds on appeal. They also argued that the Application was brought in bad faith, to overreach them and deprive them of their right of fair hearing. The word “overreach” simply means “to take advantage of – see Webster’s Comprehensive Dictionary. How will they be denied of their right of fair hearing if this Application is granted? How is that even possible? The Respondents took part in the trial at the High Court, Calabar [trial Court] where they lost. They exercised their constitutional right of appeal and appealed to the Court below, where they got Judgment in their favour. The Applicants seek to exercise their constitutional right of appeal by appealing against the Judgment of the Court below, which set aside the decision of the trial Court in their favour. What is good for the goose is good for the gander – no one stopped the Respondents from exercising their right of appeal, and the Applicants cannot be deprived of their right of appeal. This is the apex Court – the last Bus Stop for litigants and as Ogunbiyi, JSC, explained in Anachebe V. Ijeoma (supra), the right of appeal, being a constitutional right, overrides most other negative principles as long as an Applicant adduces good and substantial reason for obliging an Application of this nature. The Respondents also say it is an abuse of Court process, for the same reasons canvassed for the Preliminary Objections. Let me quickly reiterate the point I made that the Applicants are not barred from filing this Application to give life to the Appeal. The argument that the earlier Application must be withdrawn before the Applicants can bring this Application also lacks merit. There is no rule of law or practice that stops a Party from filing a new application when a similar application is pending in the file. The practice in Court is that a previous application can be withdrawn before the fresh application is moved or thereafter. As to multiplicity of notices of appeal, this Court made it clear in Tukur V. Govt, of Gongola State (supra) that an Appellant can file two notices of appeal, and can validly withdraw any of them. This Application filed on 30/12/2015 is granted as prayed. The Applicants are, therefore, granted the following Orders – 1.    An extension of time to seek leave to appeal against the Judgment of the Court of Appeal sitting in Calabar; delivered on 4/7/2013 in Appeal CA/C/97A/2012.  2.    Leave to appeal against the said Judgment. 3 An extension of time within which the Applicants may file the Notice and Grounds of Appeal against the Judgment in Appeal CA/C/97A/2012. 4. Leave to appeal on grounds of mixed laws and facts.   In the circumstances of this case, Reliefs 5, 6 and 7 praying for three deeming Orders are refused and struck out. The Applicants are, however, granted an extension of [21] twenty one days from today to file their Notice and Grounds of Appeal against the Judgment of the Court of Appeal sitting in Calabar, delivered on 4/7/2013 in Appeal CA/C/97A7201Z Each Party will bear their respective costs.   AMIRU SANUSI. JSC: I had a preview of the ruling prepared by my lord Justice Amina Augie JSC just delivered. I am in full agreement with the reason and conclusion arrived at. The applicants herein filed a motion on notice on 30/12/2015 seeking seven reliefs as reproduced in the lead judgment which need not be reproduced here. The two sets of respondents filed separate counter affidavits and also each filed Notice of Preliminary Objection challenging the jurisdiction of this court to hear the main appeal i.e Appeal no.SC.633/2015 due to failure of the applicants to first seek and obtain leave before filing the appeal on 30/12/2015. In keeping with the provisions of Section 233(3) of the 1999 Constitution as amended. Other reliefs advanced by the first sets respondent in their Preliminary Objection were that the application be dismissed or struck out for being defective and incompetent and that this motion be dismissed for being an abuse of court process. On their part, the 2nd set of respondents’ preliminary objection was premised on the grounds/inter alia, that all the grounds of appeal in the notice of appeal are grounds of mixed law and fact and not of law alone yet no prior leave of this court was sought and obtained. To my mind, the pith of the application which calls for determination here, is centred on applicants’ failure to obtain leave before filing the notice of appeal as required by Section 233(1) of the 1999 Constitution. This want of leave, as argued by the 1st set of respondents, renders this court to be bereft of jurisdiction since all the grounds of appeal are of mixed law and facts. They argued that this defect of absence of leave, rendered the notice and grounds of appeal incurably defective. The 2nd set of respondents hammered on the point that the application is abuse of process of this court in view of the previous application and proceedings of 25/9/2015. They therefore complained that the present application was filed with the aim of overreaching them since the applicants had seen and were aware of their attitude towards the previous application, especially as contained in their counter affidavit and preliminary objection before they filed fresh application for leave to file fresh notice of appeal. A cursory look at the prayers sought in this application, clearly shows that the applicants are basically desirous of appealing against the decision of the Court of Appeal in No.CA/C/97/2012, having noticed or realised that their earlier notice and ground of appeal was  defective due to want of prior leave sought and obtained as the grounds of appeal in the proposed notice of appeal being of mixed law and fact recorded that leave be sought and obtained. It is in view of the applicants need to rigorously pursue their appeal that they wanted to correct the anomaly by filing this application in order to rectify the defect or to correct their past mistakes. In the instant application, the first three prayers i.e Prayers 1, 2, and 3 are the normal and routine trinity prayers. Prayer 4 seeks leave to appeal on grounds of mixed law and facts. It is apparent that the applicants by their instant application, are desirous of exercising their constitutional right to appeal against the judgment of the court below which they are dissatisfied with. This constitutional right of appeal, has been entrenched in Section 233(1} the constitution. Now since notice of appeal is an originating process and the starting point of the journey of appeal and the applicants in their grounds of the application provided or supplied the reasons why they did not appeal timeously or why they failed to seek and obtain leave of the court to appeal or leave to argue the grounds of mixed law and facts, I think it is only fair and it will also serve the interest of justice, if their time to seek leave to appeal and leave to appeal is extended. In the circumstance of this case, interest of justice will also be best served, if they are not shut out and by indulging them the opportunity to kick-start the process of their appeal by granting the tripartite prayers sought. I therefore grant the first three prayers i.e the trinity prayers. Also since all the proposed grounds of appeal are of mixed law and fact and not of law alone, it will be absurd, useless and meaningless if after granting the trinity prayers I refuse to grant the fourth prayer for leave to argue grounds of mixed law and fact For that reason, the fourth prayer for leave to argue grounds of mixed law and fact is also hereby granted. With regard to Prayers 5, 6 and 7 which deal with deeming orders relating to Record of appeal, Notice of appeal and appellant’s brief of argument respectfully, I am hesitant in granting them because it is premature to grant them since there is yet to be a valid appeal filed by the appellant since the leave to appeal is only granted today, likewise the record of appeal could only be properly transmitted after a valid notice of appeal is filed, hence same can be deemed as properly filed and transmitted only from the date the appeal is filed. It will therefore be superfluous to deem the documents mentioned in prayers 5, 6, and 7 as properly filed today or now. Prayers 5, 6 and 7 are therefore premature and are hereby refused and struck out accordingly. On the respondents’ counsel submission that this motion amounts to abuse of court process, I do not share his view on that. This is because the applicants herein, have advanced cogent reason why they filed the earlier notice of appeal out of time which was due to failure of the court below to hear it until the time stipulated by law to file same had expired on 4/10/2013. That, in my view is a cogent and valid reason or excuse. This application is therefore not an abuse of court process. Thus, for these few comments and for the fuller and detailed reasons contained in the lead ruling, I hereby grant the application in part as it relates to prayers 1, 2, 3 and 4 only. On the other part, I refuse to grant and therefore hereby strike out prayers 5, 6, and 7 in the application. These three prayers are accordingly struck out. I abide by all the consequential orders made in the lead ruling. Application therefore succeeds in part. OLABODE RHODES-VIVOUR, JSC: I have had the benefit of reading in draft the Ruling of my learned brother Augie JSC, and I agree with the reasoning therein that the application should be granted. The application filed on 30 December 2015 seeks the following: 1. Order extending time for them to seek leave to appeal against the judgment of the Court of Appeal sitting in Calabar delivered on 4/7/2013 in Appeal CA/C/97A/2012. 2.   An Order granting them leave to appeal. 3.    An Order extending time for them within which to file the Notice and Grounds of Appeal against the said Judgment. 4.    An Order granting them leave to appeal on grounds of mixed law and facts. 5.    An Order deeming the Record of Appeal earlier transmitted by the lower court as the Record of Appeal. 6.    An Order deeming Notice and Grounds of Appeal dated and filed separately on 30/12/2015 as properly filed and served appropriate fees have been paid. 7.    An Order deeming the appellants’ brief of argument dated and filed on 30/12/2015 as duly filed and served. The full history and circumstances have already been set out in the leading Ruling just delivered and need not be repeated.   This application became necessary after the appellants’ realized that in their bid to appeal several processes filed by them were riddled with one blunder or the other. They were able, though to file a notice of appeal without leave of the Court of Appeal or   this   court.      This   application once granted   would   set   the   stage   for the appellants’ to proceed with their appeal. It has long been the practice of the top court to grant an extension of time to a litigant to do an act if failure to do such act was   occasioned   by   the   negligence or carelessness of the litigant’s counsel. See Bowaje v Adediwura (1976) 6 SC p. 143 The well stated position of the law is that in applications for extension of time the court will not grant any indulgence to a party who does not offer explanation to the court to justify the court exercising its discretion to extend time. That is to say adequate reasons must be given for the delay. See FHA v KalajaJye (2010) 10NWLR (Pt.1226) p. 147 The grant of prayers 1, 2, and 3 are in order since good reasons were given for the delay. As regards prayer 4, a notice of appeal that can only be filed after obtaining leave, but the applicant failed to obtain leave is incompetent. Prayer 4 corrects such an omission in the filing process. It is hereby granted as prayed. The applicants are granted 21 days from today to file Notice of Appeal. Prayers 5, 6 and 7 praying for deeming orders are refused and struck out.  CLARA BATA OGUNBIYI, JSC: I read in draft the lead Ruling just delivered by my learned brother Hon. Justice Amina Adamu Augie, JSC. I agree that the application has merit and I also grant same in terms of the orders made in the lead Ruling. The facts leading to the application at hand are all set out in the lead ruling and principally, I just wish to say that the notice of preliminary objection raised is against the hearing of the application seeking an order of this court extending the time within which the appellants/applicants are to seek leave to appeal against the judgment of the Court of Appeal sitting in Calabar and which was delivered on the 4th day of July, 2013 in appeal CA/C/97A/2012.   There are several reliefs sought by the application. Specifically relief No. 4 of the motion paper seeks; “4 An ORDER granting leave to the Applicants to appeal on grounds of mixed laws and facts.” The   preliminary   objection   filed   27/9/2016   by the respondents seriously opposes the hearing of the application on the ground that this court is not vested with the requisite jurisdiction to entertain and/or grant the prayers sought for. As a matter of fact, it is the respondents ‘ submission that the entire purported notice of appeal dated 3rd October, 2013 should be dismissed for incompetence. The Constitution is very well spelt out regarding a party’s right of appeal. In other words, it is available and should be exercised without any hindrance. See the case of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168. The constraint however comes in where the exercise is outside the time provided by the law. Hence the application now at hand and seeking the exercise of discretion by the court. In the application of this nature, the guiding principle is whether the applicants have placed sufficient materials before the court for the grant of their application. The exercise of discretion is not made in a vacuum. It is also not granted as a matter of course. There must be cogent and convincing facts placed before the court and supporting the reason why the discretion should tilt in favour of the applicants despite their failure to come within the time provided by the law. See the case of E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt.1039) 216; Nuhu v. Ogeie (2003) 18 NWLR (Pt. 852) 251, Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527. There are 10 grounds predicating the application and there are also facts deposed to in support as shown on the affidavit evidence. Section 233(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) under which the application is brought states thus: “(3) subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.” Also order 2 Rule 31 (1) of the Rules of Court has this to say:- “The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of Justice. “(emphasis is supplied). For all intents and purposes, even in the face of all the facts and materials placed before the court, the exercise of discretion must be judicial and judicious. It is expected of the court to strike the balance of justice and convenience between the parties. The foregoing consideration and the rule of court serve a tremendous guiding principle. See the case of Williams v. Hope Rising voluntary Funds Society (1982) ANLR 1; Okere v. Nkem (1992) 4 NWLR (Pt. 234) 132; U. B.A. v. 6.M.B.H & Co. (1989) 3 NWLR (Pt. 110) 374. My learned brother Augie JSC, has dealt exhaustively with the matter in issue. Therefore, with the few words of mine and more particularly on the reasoning and conclusion arrived at in the lead ruling, I also over rule the Preliminary Objection raised and grant the application in terms of the reliefs and orders made by my learned brother inclusive of the order made as to costs.   PAUL ADAMU GALINJE, JSC I have read before now the draft of the ruling just delivered by my learned brother AUGIE, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The motion on notice that gave rise to this ruling is dated 29th December, 2015 and filed on the 30th December, 2015. The prayers are reproduced in the lead ruling. I do not need to repeat them here. It is however sufficient to state that the 1st and 2nd, sets of Respondents separately issued preliminary objection to the competence of this application. Chief Ladi Rotimi Williams, learned senior counsel for the 1st set of Respondents issued the following preliminary objection thus:- i. An order that this Honourable Court lacks the jurisdiction to hear this Appeal NO. SC/633/2013 for failure of the Appellants/Respondents to first obtain leave of the court before filing the appeal herein on 30fh day of December, 2015 as required under Section 233(3) of the 1999 Constitution (As Amended). ii. An order to dismiss/strike out the 2nd Appeal NO. SC633/2013 filed on 30fh day of December, 2015 for being defective and/ or incompetent. iii. An order to dismiss the Appellants/Respondents Motion on Notice filed on 30th day of December, 2015 for being an abuse of the process of this Honourable Court. Mrs. Nella Andem-Rabana, learned senior counsel for the 2nd set of Respondent also issued a preliminary objection which was filed on the 27th September, 2016 in the following terms:- 1. An order dismissing the Appellants’ motion on notice dated 29th day of December, 2015 and filed on the 30th December, 2015 on the ground that the Supreme Court is not vested with the requisite jurisdiction to entertain and / or grant the prayers in the application filed. 2.    An order striking out and/ or dismissing the Notice of Appeal dated 3rd October, 2013 as same is incompetent, null and void. 3.    An order striking out and/ or dismissing the Record of Proceedings already transmitted to this court in the said appeal. 4.    An order striking out and/ or dismissing this Appeal NO. SC.633/2013 between the parties hereto as same is incompetent, null and void. I wish to state clearly that what is before this court for consideration is an application for extension of time to seek leave to appeal, leave to appeal and extension of time to file the appeal. The first set of Respondents’ 1st and 2nd objection are not relevant to this application as their objection are directed against the hearing of the Appeal NO. SC 633/2013. The only objection that is relevant to the determination of this application is the 3rd objection which, even at the risk of repetition, is hereunder reproduced as follows:- “An order to dismiss the Appellants’/Respondents motion on notice filed on 30th day of December, 2015 for being an abuse of the process of this Honourable Court.” I am also of the firm view that the only relevant objection to the motion under consideration contained in the 2nd set of the Respondents’ preliminary objection, is the first objection which I also reproduce hereunder as follows:- “An order dismissing the Appellants7 motion on notice dated 29th day of December, 2015 and filed on the 30th December, 2015 on the ground that the Supreme Court is not vested with requisite jurisdiction to entertain and/ or grant the prayers is the application filed.” The 2nd, 3rd and objections are irrelevant as they are directed at the hearing of the appeal and record of proceedings which the court is urged to either dismiss or strike out. The only objection to the motion under consideration therefore is whether it is an abuse of court process and liable to be dismissed.” In his argument learned senior counsel for the 1st set of Respondent argued that the filing of three similar processes in the same matter constitutes an abuse of court processes. Learned counsel listed the processes as follows:- 1. Notice of appeal filed on the 3rd day of October, 2013 with Appeal NO.SC633/2013. 2.    Amended Notice of Appeal filed on the 22nd May, 2014 with Appeal NO. SC633/2013 without leave of court. 3.    The Appellants/Respondents Notice and Ground of Appeal filed on the 30fh December, 2015 with Appeal NO. SC. 633/2013. In addition, learned senior counsel referred to the earlier motion for leave to appeal filed on 23rd May, 2014 and an identical motion for leave filed on the 23rd December, 2015 and contended that the documents aforementioned constitute gross abuse of the processes of this court on  ground that they are similar and are used in respect of the exercise of the same right. In aid learned senior counsel cited Ubaka & Sons Ltd v Ezekween & Co. (200) FWLR (Pt. 1) 77; Arubo v Aiyeleru (1993) NWLR (Pt. 280) 126 at 146. In a further argument, learned senior counsel submitted that the present application is meant to overreach the 2nd set of Respondents as such the court should either strike it out or dismiss it. In support of this argument learned counsel cited National Inland Waterways Authority v The Shell Petroleum Development Company of Nigeria (2008) 13 NWLR (Pt. 1105) 48 at 68; In Efetiorore v Okpalefe (1991) 5 NWLR (Pt. 193) 517; Nwokedi v R.T.A Limited (2002) 6 NWLR (Pt. 762) 181 at 192; Olumesan v Ogundepo (1996) 2 NWLR (Pt. 433) 628 at 645. Still in argument, learned counsel submitted that the Applicants should not be allowed to   have a second bite at the cherry as the Applicant failed to obtain leave before filing his appeal. In support, learned counsel cited Ekudano v Keregbe (2008) 4 NWLR (Pt. 1077) 422 at 433-434. Learned counsel for the 2nd set of Respondents, that is 3rd – 4th Respondents formulated the following issues for determination of this application as follows:- 1.    Having regard to the fact and circumstances of this case, whether the motion on notice dated 29th December, 2015 can be predicated on the invalid Notice of Appeal dated 3rd October, 2013. 2.    Whether or not granting of trinity prayers or deeming orders of the Supreme Court can validate an incompetent Notice of Appeal. 3.    Having regards to the provisions of Order 7 Rule 2(e) of the Supreme Court Rules 1999, whether the Record of Appeal can be deemed as properly filed. 4.    Having regard to the peculiar facts and circumstances of this case, whether the processes of this Honourable Court have not been abused. In arguing the preliminary objection, learned counsel for the 2nd set of Respondents submitted that the Appellants’ notice of appeal filed on the 3rd October,2013 cannot support the extant motion as same is incompetent for failure to seek and obtain leave before it was filed. According to the learned counsel, the motion on notice is an application predicated on a defective notice of appeal and therefore it should be struck out for being incompetent. In a further argument, learned counsel submitted that the said Motion on Notice dated 29th December, 2015 which seeks to deem a fresh Notice of Appeal dated and filed on the 30th December, 2015 is an attempt to substitute the incompetent Notice of Appeal filed on 3rd October, 2013 through the back door and in contravention of Order 2 Rule 28(5) of the Supreme Court Rules 1 999, thereby resorting to the use of improper   judicial   process   to interfer with the due administration of justice. Learned senior counsel contended that the extant motion is an abuse of court process whereby a procedure unknown to law is being applied to amend a defective notice of appeal. In support, learned counsel cited Ugesi v Siki (2007) 8 NWLR (Pt. 1037) 452; Ogoejeofa v Ogoejeofo (2006) 3 NWLR (Pt. 966) 205; Abubakar v B. O & A.P Ltd (2007) 18 NWLR (Pt. 1066) 319. In reply to the submissions by learned counsel for the 1st set of Respondents, learned  counsel for the Applicant submitted that this court has jurisdiction to hear the Appellants’ motion so as to give life to the appeal. In aid learned counsel cited Nalsa & Team Associates V Nigerian National Petroleum Corporation 11 – 12 SC 83 at 92-93. It is learned counsels’ submission that the Appellants have the constitutional right of appeal guaranteed by the 1999 Constitution and nothing should be done to deny them that right as is being contended by the Respondents. In aid learned senior counsel cited Anachebe v Ijeoma (2014) 14 NWLR (Pt. 1426) 168. Learned senior counsel repeated this argument in his reply to the 2nd set of Respondents’ written address as well as the reply to the 5th Respondent’s address. From the onset, I wish to state that the motion dated 29th December, 2015 on its face is not predicated on the notice of appeal filed on the 3rd October, 2013. Both learned senior counsel for the 1st and 2nd set of Respondents have admitted that the notice of appeal filed on the 3rd October, 2013 is incompetent because the applicant did not obtain leave before same was filed. Now having discovered that the notice of appeal is incompetent, was the Applicant required to do nothing to ventilate his right of appeal. What then is the position of an incompetent notice of appeal. In Odoemena Nwaigwe & Ors v Nze Edwin Okere (2008) 13 NWLR (Pf. 1105) 445 at 474 Paragraph C-F, which was cited and relied upon by learned counsel for the 2nd set of Respondent, this court per Onnoghen JSC (as he then was) held:- “The issue of the filing of six additional grounds of appeal is a nonstarter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising question of customary law for determination. Since there was no valid motion and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. If is settled law thai you cannot amend a fundamentally defective document such as a Notice of Appeal so as to infuse live into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the law is non-existent or dead.” The application before this court has not prayed for an amendment of a previous notice of appeal. The prayers are for extension of time to seek leave to appeal, leave to appeal, extension of time to appeal and leave to appeal on grounds of mixed law and facts. Prayer 5, 6 and 7 that sought for deeming orders are independent of prayers 1 – 4. Parties agreed that the Notice of Appeal filed on the 3rd of October, 201 3 is incompetent. By the authority of Nwaigwe & Ors v Okere (Supra) that notice of appeal is non-existent or dead in the eye of the law. Therefore any attempt to file a fresh valid notice of appeal cannot amount to an abuse of court process or deprive this court of its jurisdiction to hear same. I am therefore of the firm view that the applicant having realized that he had no appeal because of his failure to apply for and obtain leave to appeal on grounds of mixed law and facts, decided to file this application in order to bring a valid notice of appeal before this court. See First Bank of Nigeria Pic v T.S.A Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Olanrewaju v Bon Ltd (1994) 8 NWLR (Pt. 364) 622; Nwaigwe v Okere (Supra). On whether appeal is a constitutional right, I wish to state that an appeal lodged within the prescribed period cannot be ignored by the court, as doing so will deprive the appellant of his constitutional right. However, when an aggrieved party fails to appeal within the time prescribed by Court of Appeal Act and the Act of this court, his right of appeal becomes subject to the discretion of this court. The preliminary objection herein is bereft of any merit, as same is overruled accordingly. With respect to the application before this court, I agree with my learned brother, that by the averments in the affidavit in support, I find merit therein and same is granted in terms of Prayers 1 – 4. This is so because the applicant did not sleep over his right. He mistakenly filed notice of appeal without the leave of either the lower court or this court, and on discovery that he made a mistake, he went on to file this motion. However the deeming Order sought by the Applicant in respect of the record of appeal, notice of appeal and the brief of argument cannot be granted. A notice of appeal cannot be deemed as having been duly filed and served because it is a document which by definition commences an appeal. The documents which a court can deem are those which parties exchange between themselves during the course of proceedings, such as statement of claim or defence and briefs of argument, and not those which require the signature of the registrar for their validity. The time for transmission of the record of appeal and the filing of briefs of argument can only begin to run after the appeal is filed. Prayers 5 – 7 are hereby refused. I abide by the consequential order of 21 days made in the lead ruling for the applicant to file the notice of appeal and any other orders. APPEARANCES OF COUNSELS: O.F. EKENGBA, ESQ with Olubola Olusegun, Esq for the applicants. CHIEF LADI ROTIMI WILLAMS SAN with Daniella Ikeokwu (Miss) for the 1st Set of Respondent. NELLA ANDEM-RABANA SAN with Peter O. Abang for the 2nd Set of Respondent

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