FRANFIDEL NIGERIA LIMITED v. MRS. GINIKA OBI-OKOLI
(2018)LCN/11985(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
RATIO
APPEAL: WHERE THERE IS MANDATORY NOTICE OF APPEAL
“Therefore, clearly from the above set-out provisions, it is mandatory for the notice of appeal of the Appellant herein which is against an interlocutory decision of the trial Court to be lodged within fourteen days of the delivery of the said decision. However, if an appellant was unable to file the notice of appeal within the prescribed period, this Court is empowered to extend the period upon the application of the appellant for the purpose. By simple mathematical computation, the notice of appeal under scrutiny filed on 9th of October, 2017 against the interlocutory decision delivered on 5th of September, 2017, was filed twenty-seven days after the delivery of the said decision being sought to be appealed against. The Appellant herein was obviously out of time by thirteen days in filing its said notice of appeal. I have perused the record of appeal and am unable to find any application therein at the instance of the Appellant to avail it of the grace for an extended period in tune with Section 24(4) of the Act, since it was already out of time, save of course, it was ignorant of this very fundamental provisions of the law.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JURISDICTION: THE VALIDITY OF AN ORIGINATING PROCESS
“The validity of an originating process, a very germane ingredient of due process of law has become very crucial also to adjudication that, many actions and appeals have hit the rocks before they ever get started, once the originating process has been successfully impugned. See amongst an army of judicial authorities, the cases of: (1) Madukolu v. Nkemdilim (1964) 3NSCC p. 374 at pgs. 379-380; (2) Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) p. 377; (3) Braithwaite v. Skye Bank Plc. (2012) LPELR-15532 (SC) and (4) Kente v. Ishaku & Ors. (2017) LPELR-42077 (SC). What is more, failure to commence an action or appeal with a valid originating process clearly borders on the issue of jurisdiction, that is, the competence of both the action/appeal and Court to adjudicate upon the matter. This legal principle was again pointedly restated by the Apex Court recently, in the case of: Okpe v. Fan Milk Plc. & Anor. (2016) LPELR-42562 at p. 36, paras. A-D, per Muhammad, J.S.C, as follows: An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.”PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Anambra State holden at Awka (hereinafter referred to as the trial Court) per C.C. Okaa, J., delivered on 5th of September, 2017 in Suit No. AG/134/2017.
At the trial Court, the Respondent as plaintiff on 17th of August, 2017 took a Writ of Summons accompanied by a Statement of Claim against the Appellant as defendant and claimed as follows (unedited):
i. A DECLARATION that by virtue of the correspondence dated 13th of February, 2017, the Plaintiff is entitled to manage and collect park management levies at Ekwulobia Motor Park without any interference from the Defendant.
ii. AN ORDER OF INJUNCTION restraining the Defendant, her agents, associates, privies howsoever called from interfering in the management of Ekwulobia Motor Park by the Plaintiff.
iii. The cost of this action including legal fees.
The Respondent, inter alia, also alongside the Writ filed a Motion on Notice under Order 39 Rule 1(1) and (2) of the High Court of Anambra State (Civil Procedure) Rules, 2006 and the inherent jurisdiction of the Court and sought against the Appellant the orders of the trial Court for the following unedited reliefs:
1. AN ORDER of INTERLOCUTORY INJUNCTION restraining the Defendant by itself, agents, officers, associates, privies from interfering with the Plaintiffs proprietary interest in any manner whatsoever from carrying out her daily business transactions of management and collection of park management levies in Ekwulobia Motor Park, in Aguata Local Government Area of Anambra Sate pending the determination of the substantive case.
2. AN ORDER directing the Inspector General of Police to give effect to this order and ensure adequate compliance hereto.
3. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The said application of the Respondent was argued on 30th of August, 2017 when the Appellant was neither present nor represented by counsel in Court, see page 58 of the record of appeal. The Ruling of the trial Court in the application contained in pages 59 to 62 of the same record of appeal was delivered on 5th of September, 2017 in which the trial Court held that the application was meritorious thereby granting the reliefs sought by the Respondent.
Irritated by the said Ruling of the trial Court, the Appellant filed this appeal against it to this Court through its notice of appeal dated 9th of October, 2017 filed on the same date. The notice of appeal containing three grounds of appeal can be located at pages 135 to 138 of the record of appeal.
In obedience to the Rules of practice of this Court, both parties duly filed and exchanged briefs of argument. The briefs filed by the Appellant were settled by its counsel, J.A.C. Onuoha & Co. While Alex Ejesieme, Esq. of the law firm of Alex Ejesieme & Co. settled the Respondents brief of argument.
The Appellants brief of argument is dated 4th of December, 2017 and was filed on the same date. In it, the four issues distilled from the three grounds of appeal read unedited as follows:
i. Whether the trial Court has jurisdiction to make an order against a party in a suit without having given the party an opportunity to defend himself/herself ?
ii. Whether service of Court processes on a corporate entity is one and the same with service on individuals ?
iii. Whether service of processes of Court is a condition precedent before the Court can exercise its jurisdiction ?
iv. Whether the trial Court has the jurisdiction to make an order against an agent/party in a matter without joining the necessary party who is a disclosed principal to the agent?
Upon service of the Appellants brief on the Respondent, the latter filed a notice of preliminary objection to challenge the competency of the appeal. The notice of preliminary objection dated 5th of January, 2018 was filed on 8th of January, 2018. The submissions of the Respondents counsel on the preliminary objection are contained in paragraphs 3.02 to 3.18 at pages 3 to 8 of the Respondents brief of argument dated 5th of January, 2018, filed on 8th of January, 2018. In the said brief, the sole issue crafted for the determination of the substantive appeal reads unedited as follows:
Whether considering the facts and circumstances of this Appeal, the trial Court was right in granting the Order of Interlocutory Injunction ?
The Appellants responses to both the Respondents notice of preliminary objection and the Respondents brief in the main are contained in the Appellants Reply brief dated 31st of January, 2018 and filed on the same date.
At the oral hearing of the appeal on 26th of April, 2018, Mr. M. I. Ataka held the brief of the Appellants counsel. In addition to this, the Registrar of this Court handed over to us a letter dated 26th of April, 2018 under the hand of the Appellants substantive counsel, Mr. J.A.C. Onuoha. In it, the learned substantive counsel for the Appellant sought for an adjournment of the hearing of the appeal on grounds of ill-health. The learned counsel for the Respondent, Mr. Alex Ejesieme objected to the application for an adjournment.
He submitted that, since all the briefs of the parties have been duly filed and exchanged, even if the Appellants counsel or indeed counsel for any of the parties or both parties are absent without seeking for an indulgence in that regard and with nobody holding their briefs, this Court is empowered under its Rules in the prevailing circumstances to deem the briefs of argument of the parties duly adopted as the case may be and consequently the appeal will be deemed duly argued.
He referred on this position to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. What is more, Mr. M. I. Ataka who announced himself as holding the brief of the Appellants counsel is deemed in law to have accepted to step into the shoes of the substantive counsel. He therefore urged upon us to refuse the application for an adjournment but rather, go ahead to deem the appeal duly argued or call on Mr. Ataka to do the needful.
In response, Mr. Ataka stood his ground that he did not have the mandate of the Appellant substantive counsel to argue the appeal.
This Court was at one in toto with the stance of the Respondents counsel. The application of the Appellants counsel for an adjournment was refused. We found that, the briefs of argument of both parties in the appeal have been duly filed and exchanged by their respective counsel. Hence, although the Appellants substantive counsel was absent from Court, by Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, the appeal could and would be deemed duly argued notwithstanding the letter from the Appellants substantive counsel and the stance of Mr. Ataka who held his brief. The application of the learned counsel for the Respondent for permission to argue the preliminary objection of the Respondent was granted. The learned counsel for the Respondent accordingly urged upon this Court to uphold the preliminary objection and strike out the appeal for being incompetent having been filed outside the time prescribed under the rules of this Court.
The substantive appeal was therefore deemed duly argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
In the alternative, the learned counsel for the Respondent on the substantive appeal adopted the Respondents brief of argument in urging upon this Court to dismiss the appeal for being devoid of merit and contrariwise affirm the decision of the trial Court being appealed against herein by the Appellant.
As adverted to earlier on above in this judgment, the learned counsel for the Respondent has filed a notice of preliminary objection to the competence of this appeal. Generally, the whole aim of a preliminary objection to an action, including an appeal, is to short-circuit an action/appeal based on preliminary points of law to show that the action/appeal cannot be maintained and sustained. Therefore, the law is well settled that when the competence of an appeal is challenged as in the instant appeal, the Court is duty bound to first and foremost consider the charge of incompetency and rule on it. See the cases of: (1) Alabi vs. Amoo (2003) 12 NWLR (pt. 835) p. 537; (2) NEPA vs. Ango (2001) 15 NWLR (Pt. 737) p. 627; (3) A.-G., Fed. vs. ANPP (2003) 12 SCNJ p. 67 and (4) Afribank (Nig.) Plc. Vs. Akwara (2006) 5NWLR (Pt. 974) p. 619.
The grounds upon which the objection of the Respondent is predicated as crafted by the learned counsel for the Respondent are as follows:
(i) The Notice of Appeal filed on the 9th of October, 2017 was filed outside the prescribed statutory period for the filling of an Interlocutory Appeal;
(ii) The Four Issues formulated for determination exceeded the Grounds of Appeal as embodied in the Appellants Notice of Appeal of 9th of October, 2017, and the issues were not tied to any Ground of Appeal;
(iii) GROUND ONE of the Notice of Appeal does not arise from the Ruling the subject matter of Appeal;
(iv) GROUND TWO of the Notice of Appeal does not arise from the Ruling;
(v) GROUND THREE does not arise from the Ruling;
(vi) The Four Issues articulated from the Three (3) Grounds of Appeal and the entire argument contained in the Appellants Brief of Argument did not arise from the Ruling appealed against;
(vii) The Three Grounds of Appeal embodied in the Notice of Appeal of 9th of October, 2017, are grounds of mixed law and facts, for which prior leave, either of the trial Court or this Honourable Court is required.
The above grounds can be classified into four limbs. Under the first limb, a jurisdictional issue, the learned counsel for the Respondent pointed out that, the appeal, an interlocutory one, was filed outside the period of time specified by the Rules of this Court, thereby rendering the notice of appeal in respect thereof, an originating process, incompetent and consequently liable to be struck out.
The second limb, a constitutional and also jurisdictional issue is based on the point that, in the opinion of the learned counsel for the Respondent,the three grounds of appeal contained in the notice of appeal are grounds of mixed law and facts. Hence, sequel to Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the leave of either the trial Court or this Court is a condition precedent to the commencement of this appeal. Therefore, failure of the Appellant to first seek and obtain the said leave before initiating the appeal renders the appeal filed nugatory.
The third limb has to do with the alleged incompetence of grounds one, two and three of the notice of appeal, which according to the learned counsel for the Respondent, do not arise from the decision of the trial Court being appealed against by the Appellant.
The fourth limb is a challenge to the competence of the Appellants brief of argument. In the said brief, four issues were formulated from the three grounds of appeal. According to learned counsel, this amounts to proliferation of issues. What is more, none of the four issues was linked to any of the grounds of appeal. Hence, what this means is that no issue has been formulated for the determination of the appeal by the Appellant, as the said brief of argument is liable to be struck out for incompetence. For an appeal can only be argued based on the issues formulated for determination by parties counsel in the parties briefs of argument. Hence, it can be implied that, there is no arguable appeal herein before this Court. What is more, the arguments proffered under the issues do not arise from the decision of the trial Court being appealed against by the Appellant.
Now, because the first limb touches on the validity of the Appellants Notice of Appeal, an originating process, it is rightly a jurisdictional issue that must first be resolved. For the competence of a notice of appeal is fundamental to the due process of law in the commencement of an appeal and consequentially a condition precedent to the adjudicatory jurisdiction of the Court of Appeal over the Appellants appeal. I shall therefore tackle this point of law first, what is more, it is capable of terminating the entire appeal in-limine, if of a fact, it is ruled that the notice of appeal is invalid.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
On this point, the learned counsel for the Respondent submitted that the interlocutory order of injunction being appealed against by the Appellant was made on the 5th of September, 2017, while the appeal against that decision was lodged at the Registry of the trial Court through its notice of appeal filed on the 9th of October, 2017, a period clearly outside the fourteen days required by Section 24 of the Court of Appeal Act, 2004. The Appellant having not filed this appeal within the said period allowed renders this appeal incompetent. He relied on the cases of: (1) Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) p. 237; (2) Funduk Engineering Ltd. V. J. Mcarthur & 4 Ors. In RE Madaki (1996) 7 NWLR (Pt. 459) p. 153 SC and (3) N.E.W. Ltd. V. Denap Ltd. (1997) 10 NWLR (Pt. 459) p.481 at p.517. It is a trite and fundamental principle of law that an appeal which is filed out of time, without the permission of Court, is incompetent. Therefore, this Court, indeed no Court, has jurisdiction to entertain an incompetent appeal. On this legal position, he referred to the cases of: (1) Creek View Property Dev. Co. Ltd. V. Ebun Olu Adegboruwa (2011) 3 NWLR (Pt. 1234) p. 239 at p. 246 para. F and (2) Ebokam v. Ekwenibe & Sons Ltd. (1993) 6NWLR (Pt. 297) p.108 at p.119, paras. B-C.
The learned counsel for the Respondent urged upon this Court to strike out the Appellants appeal for being incompetent and consequently the want of jurisdiction of this Court to adjudicate upon same.
It is to be noted that, the learned counsel for the Appellant throughout the entire length and breadth of his submissions in the Appellants Reply Brief failed to respond to this all-important point of law.
RESOLUTION
As I stated at the debut of this judgment, the notice of appeal in this matter purportedly filed on 9th of October, 2017 is against the decision of the trial Court delivered on 5th of September, 2017 in an interlocutory application filed alongside the substantive action of the Respondent in Suit No. AG/134/2017 vide its Writ of Summons and Statement of Claim dated and issued on 17th of August, 2017. I have equally earlier on above in this judgment reproduced the reliefs sought in the said application.
The procedure for the commencement of an appeal in this Court in civil causes like the instant appeal, is as prescribed by Section 24 of the Court of Appeal Act, 2004.
The said Section 24 provides as follows:
S.24 (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Sub-section (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.
Therefore, clearly from the above set-out provisions, it is mandatory for the notice of appeal of the Appellant herein which is against an interlocutory decision of the trial Court to be lodged within fourteen days of the delivery of the said decision. However, if an appellant was unable to file the notice of appeal within the prescribed period, this Court is empowered to extend the period upon the application of the appellant for the purpose. By simple mathematical computation, the notice of appeal under scrutiny filed on 9th of October, 2017 against the interlocutory decision delivered on 5th of September, 2017, was filed twenty-seven days after the delivery of the said decision being sought to be appealed against. The Appellant herein was obviously out of time by thirteen days in filing its said notice of appeal. I have perused the record of appeal and am unable to find any application therein at the instance of the Appellant to avail it of the grace for an extended period in tune with Section 24(4) of the Act, since it was already out of time, save of course, it was ignorant of this very fundamental provisions of the law.
Without any ado, the notice of appeal purportedly filed by the Appellant on 9th of October, 2017 having been filed thirteen days out of the period of fourteen days prescribed by law is patently defective. Now, the law is very well settled, as the Apex Court and this Court have consistently held that, the validity of an originating process in all actions including appeals, like an originating summons, a writ of summons,petition and notice of appeal, is a sine qua non for the competence of the process and the proceedings that follow it.
The validity of an originating process, a very germane ingredient of due process of law has become very crucial also to adjudication that, many actions and appeals have hit the rocks before they ever get started, once the originating process has been successfully impugned. See amongst an army of judicial authorities, the cases of: (1) Madukolu v. Nkemdilim (1964) 3NSCC p. 374 at pgs. 379-380; (2) Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) p. 377; (3) Braithwaite v. Skye Bank Plc. (2012) LPELR-15532 (SC) and (4) Kente v. Ishaku & Ors. (2017) LPELR-42077 (SC). What is more, failure to commence an action or appeal with a valid originating process clearly borders on the issue of jurisdiction, that is, the competence of both the action/appeal and Court to adjudicate upon the matter. This legal principle was again pointedly restated by the Apex Court recently, in the case of: Okpe v. Fan Milk Plc. & Anor. (2016) LPELR-42562 at p. 36, paras. A-D, per Muhammad, J.S.C, as follows:
An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.
Therefore, the defect in the Appellants notice of appeal herein renders the appeal invalid and consequently robs this Court of the competence or jurisdiction to adjudicate upon the substantive appeal or any subject arising therefrom. Hence, all the other issues identified for resolution in the substantive appeal as well as under the notice of preliminary objection of the Respondent become abated, as this Court is devoid of the requisite jurisdiction to competently consider them at this juncture. For it is not in all cases that this Court is required to consider all issues arising in an appeal as an intermediate Court, as to engage in such a course will amount to an academic or a moot exercise and thereby occasion a waste of precious and sparse judicial time.
What is more, since the jurisdiction of this Court is wanting in the instant matter, the purported notice and grounds of appeal and the issues distilled therefrom are altogether incompetent and incapable of being used by this Court to resolve the facts that are being disputed by the parties herein. I am fortified in my opinion by the stance of the Apex Court in the case of: Dr. Okey Ikechukwu v. F.R.N. & 2 Ors. (2015) 7NWLR (Pt. 1457) p.1, where Nweze, JSC, at p.21, paras. B-G, and p.22, para. C, had the following to say:
As a general rule, an intermediate Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondents Preliminary Objection to the competence of the Appellants appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal.
Consequent upon the foregoing analysis, the preliminary objection of the Respondent is a success and hereby upheld.
This Appeal No. CA/E/636/2017 is accordingly struck out for being incompetent.
The Respondent is entitled to the costs of this ill-fated appeal which I accordingly assessed in the sum of Fifty Thousand Naira to be paid to her by the Appellant and I so order.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother OYEBISI FOLAYEMI OMOLEYE JCA. I agree entirely with my learned brother that the notice of appeal was fundamentally defective and should be struck out.
The notice of appeal in Appeal No. CA/E/636/2017 is hereby struck out for being incompetent.
I abide by all other orders in the lead judgment including the order as to costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my noble law Lord, Oyebisi Folayemi Omoleye, JCA with whom I agree that the appeal before us should be struck out viewed from the fact that the Process which heralded the appeal, that is the Notice of Appeal being, fundamentally defective, is not a Process to covey a valid appeal. On the authority of the decisions in Madukolu Vs. Nkemdilim (1962) LPELR-24023 (SC) and Mcfoy V. UAC (1961) 2 All ER 1169, 1172 the appeal must be struck out as still-born hence the Preliminary Objection raised by respondents counsel is hereby sustained.
Appearances:
M. I. Ataka holding the brief of J. A. C OnuohaFor Appellant(s)
Alex Ejesieme with him, Ike Nwamefor, E.E. Molokwu, C.O. Elea and Y.C. OkohFor Respondent(s)
