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GILBERT v. OPIA & ORS (2022)

GILBERT v. OPIA & ORS

(2022)LCN/16733(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, February 14, 2022

CA/PH/2/2014

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

LONGLIFE GILBERT APPELANT(S)

And

1. MR. JOSEPH MANDRY OPIA 2. ENG. TALENT L. DIGIFA 3. MISS FAITH TALENT RESPONDENT(S)

 

RATIO

THE ORIGINATING PROCESS IN ALL APPEALS

The originating process in all appeals is the notice of appeal and once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain the appeal in whatever form. In effect, a defective notice of appeal renders an appeal non-existent in the eyes of the law. Thus any defect therein goes to the root of the appeal and robs the Court of jurisdiction to hear the appeal. This is because the notice of appeal sets the ball rolling for the valid and lawful commencement of an appeal. In effect, the absence of a competent notice of appeal, simply translates to the non-existence of an appeal. A defective notice of appeal, which is incompetent affects not just the appeal, but anything that comes out of it. See Iwunze V. FRN (2014) 6 NWLR (Pt. 1404) 580; FRN V. Dairo (2015)6 NWLR (Pt.1454)141 and Pagade Chemicals Ltd v. NDIC (2019) 2 NWLR (Pt.1657) 430.
Since the Notice of Appeal is the foundation of a proper and valid appeal, where the notice is not proper before the Court, there can be no valid appeal pending before the appellate Court. In the instant case the Notice of Appeal being incompetent, the Court has no jurisdiction to hear the appeal. The appeal will be struck out for being incompetent. See Ezim V. Menakaya (2018) 9 NWLR (Pt. 1623) 113 and Raji V. Unilorin (2018) 15 NWLR (Pt.1642) 220.
PER HASSAN, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is fundamental in any proceedings and consequently raises the question of competence of the Court to adjudicate in the matter. It follows therefore where a Court is devoid of jurisdiction to entertain a case, such proceedings becomes a nullity ab initio no matter how well conducted and decided. 

A Court of law is vested with jurisdiction to hear a matter when:
(a) It is properly constituted as regard the number and qualification of the members of the bench and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; FHA V. Olayemi (2017) LPELR 43376; A-G Oyo State V. NLC (2003) 8 NWLR (pt.821) 1 and Diamond bank Ltd V. Ugochukwu (2016) 9 NWLR (Pt.1517) 193.
A Court is only competent to exercise jurisdiction in respect of any matter if the case comes before it by due process of law and upon condition precedent to the exercise of jurisdiction. As such a defect in competence is fatal to the proceedings.
PER HASSAN, J.C.A.

THE POSITION OF LAW ON THE TWO TYPES OF JURISDICTION

In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348; Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; and F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non-compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See: U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This clearly is not the reasons of the rules of Courts.”
PER HASSAN, J.C.A.

WHETHER OR NOT A PARTY CAN FORMULATE MORE THAN ONE ISSUES FOR DETERMINATION FROM A GROUND OF APPEAL
The Supreme Court in Nweze V. State (2018) 6 NWLR (Pt.1615) 197 at 206 paragraph F held that the Court have constantly frowned at formulating more issues from fewer grounds of appeal. In other words, there should be no proliferation of issues over and above the grounds of appeal. In support of this principle is the case of Orji V. State (2008) 4 SCJN 85 at 203; (2008) 10 NWLR (Pt. 1094) 31. See also Amodu V. State FWLR (Pt.488) 195 at 196;Makon Engr. & Tech Services Ltd V. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165.
Issues for determination must be formulated in such a way that they do not present obvious proliferation. This is because proliferation of issues is not ideal as it tends to obscure the core issue to be determined. It creates the impression that the appellant is shipping for issues to aid his case, thus reducing the issues to trifle. Appeals are not won on the number of issues but on the quality of the content of the ground of appeal and issues decoded therefrom. See Ibrahim v. Ojomo (2004) 4 NWLR (Pt. 862) 89 and Duru V. FRN (2018) 12 NWLR (Pt.1632)20.  PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Bayelsa State High Court, Yenagoa in suit no. YHC/244/2008 delivered on the 30th of May, 2013 by Honourable Justice D.E. Adokeme.

The appellant as 2nd defendant at the lower Court, by a Motion on Notice dated and filed on the 12th of April, 2013 prayed the Court for the followings:
1. An order extending the time within which the 2nd defendant/applicant may file his statement of defence, memorandum of appearance and other accompanying processes in this suit.
2. An order deeming as properly filed and served the 2nd defendant/applicant’s statement of defence memorandum of appearance and other accompanying processes, the appropriate filing fees having been paid.
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The application was supported by an affidavit of 23 paragraphs and a written address. The trial Court in a considered ruling delivered on the 30th of May, 2013 dismissed the application.

Aggrieved with the ruling, the appellant appealed to this Court on three grounds of appeal with their particulars and reliefs sought. The Notice of Appeal dated 10th day of June, 2013 was filed on the 11th of June, 2013.

The appellant’s brief settled by Chuks Muoma Esq. was filed on the 21st day of June, 2016 but deemed properly filed on the 18th of May, 2017. In the brief, five issues were distilled for determination:
A. “Whether the appellant’s 2nd and 3rd application for extention of time within which the 2nd defendant/appellant may enter appearance file and serve his statement of defence, witness written depositions as well as other documents to be relied on and deeming same as properly filed and served the said statement of defence, written depositions and documents to be relied upon in compliance with the rules of Bayelsa State High Court having been already filed waiting for Court to grant the application, amounts to an abuse of Court process.”
B. “Whether the Bayelsa State High Court refusing the 2nd defendant/ appellant’s motion for extention of time within which to enter appearance and defend the cases against him when 2nd and 3rd respondents (1st and 3rd defendants) just opened their defence does not violate the 2nd defendant/appellant’s fundamental right to fair hearing.”
C. “Whether the refusal of the application for extention of time within which to file and serve the appellant’s statement of defence with all the accompanying process and the prayer for an order deeming same as properly filed and served does not nullify the entire proceedings when it barred the appellant from participating in the proceedings and violated the appellant’s fundamental right to fair hearing.”
D. “Whether in the circumstances, the refusal of the application for extention of time and the deeming prayer thereof does not amount to final judgment on the case and right of the appellant at the trial Court.”
E. “Whether the trial High Court have jurisdiction to refuse motion for extention of time within which to comply with the rule of Court.”

The appellant’s reply brief dated 20th September, 2017 and filed on the 21st of September, 2017, was deemed properly filed and served on the 5th of February, 2019.

Learned counsel for the appellant adopted both briefs and urged the Court to allow the appeal and set aside the ruling of the lower Court.

The 1st respondent’s brief settled by Ukari E. Oduma Esq., was filed on the 15th of June, 2017. Learned counsel for the 1st respondent adopted the issues formulated by the appellant’s counsel as issues for determination of the appeal. Learned counsel adopted the brief and urged the Court to dismiss the appeal. There is also a Notice of preliminary objection dated 19th March, 2018 and filed on the 21st of March, 2018 by the 1st respondent.

Ordinarily, the Notice of Preliminary Objection would have been taken first before going into the merit of the appeal. However, the defects in the appeal will not allow that. First of all, the Notice of Appeal at pages 401 – 406 of the record was dated 10th June, 2013 and filed on the 11th of June, 2013. The record of appeal was transmitted on the 7th of January, 2014. However Order 8 Rule 1 of the Court of Appeal Rules, 2021 which provided the period of sixty days within which the Registrar of the lower Court shall compile and transmit record is not applicable in this case being an interlocutory appeal. Section 3 (a) (ii) of the Court of Appeal Practice Direction, 2013 specifically refers to interlocutory appeal challenging the ruling of the Court below on an interlocutory application filed in that Court. Further, Section 6(h) of the Practice Directions provides that where at the expiration of 7 days after the filing of an appeal the registrar has failed and or neglected to compile and transmit the record of appeal, it shall become mandatory for the appellant to compile the records and all documents and exhibits necessary for his appeal and transmit same to the Court within 7 days after the registrar’s failure or neglect. In essence, the relevant applicable rule of Court is Section 3(a)(ii) and Section 6(b)and (h) of the Court of Appeal Practice Directions 2013 in this case. See G.T.B. PLC V. Kuti (2020) 9 NWLR (Pt.1730) 448.

The ruling in the instant case was delivered on the 30th of May, 2013 and the Notice of Appeal was filed on the 11th of June, 2013 which is more than seven days as provided by the rules. The position of the law is that leave of Court where it is required is a condition precedent to the exercise of the right of appeal. Thus failure to obtain leave where leave is required will render the appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. See Shaka V. Salisu (1996) 2 NWLR (Pt.428) 22;SPDC (Nig.) Ltd V. Katad (Nig.) Ltd (2006) 1 NWLR (Pt.960) 198 andF.D.D. Ltd V. Faiceck Pet Ltd (2020) 11 NWLR (Pt. 1736) 535.
In the instant case, the appellant’s failure to seek and obtain leave before filing the notice of appeal rendered the appeal incompetent and deprived the Court of jurisdiction to entertain the appeal.

The Notice of Appeal filed on the 11th of June, 2013 at the registry of the Court of Appeal, Port Harcourt instead of High Court of Bayelsa Yenagoa, the lower Court, as provided by the rules is also incompetent. An appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See Okpe V. Fan Milk PLC (2017) 2 NWLR (Pt.1549) 282 at 285; I.B.W.A V. Pavex Int. Co. (Nig.) Ltd (2000) 7 NWLR (Pt.663) 105.
It follows therefore a notice of appeal is filed in the registry of the Court below and not in that of the appellate Court. See SPDCN Ltd V. Agbara (2016) 2 NWLR (Pt.1496) 353 and Okotie V. Olughur (1995)5 SCNJ 217.

In both the practice directions of the Court of Appeal and Order 7 Rule 2(1) of the Court of Appeal Rules, the use of the word “shall” is mandatory. The word “shall” used in a statute or rules of Court is mandatory and admits no discretion whatsoever. See Sanwo-Olu V. Awamaridi (2020)11 NWLR (Pt.1736) 458 and Maitumbi V. Baraya (2017) 2 NWLR (Pt.1550)347.

The originating process in all appeals is the notice of appeal and once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain the appeal in whatever form. In effect, a defective notice of appeal renders an appeal non-existent in the eyes of the law. Thus any defect therein goes to the root of the appeal and robs the Court of jurisdiction to hear the appeal. This is because the notice of appeal sets the ball rolling for the valid and lawful commencement of an appeal. In effect, the absence of a competent notice of appeal, simply translates to the non-existence of an appeal. A defective notice of appeal, which is incompetent affects not just the appeal, but anything that comes out of it. See Iwunze V. FRN (2014) 6 NWLR (Pt. 1404) 580; FRN V. Dairo (2015)6 NWLR (Pt.1454)141 and Pagade Chemicals Ltd v. NDIC (2019) 2 NWLR (Pt.1657) 430.
Since the Notice of Appeal is the foundation of a proper and valid appeal, where the notice is not proper before the Court, there can be no valid appeal pending before the appellate Court. In the instant case the Notice of Appeal being incompetent, the Court has no jurisdiction to hear the appeal. The appeal will be struck out for being incompetent. See Ezim V. Menakaya (2018) 9 NWLR (Pt. 1623) 113 and Raji V. Unilorin (2018) 15 NWLR (Pt.1642) 220.

Jurisdiction is fundamental in any proceedings and consequently raises the question of competence of the Court to adjudicate in the matter. It follows therefore where a Court is devoid of jurisdiction to entertain a case, such proceedings becomes a nullity ab initio no matter how well conducted and decided. 

A Court of law is vested with jurisdiction to hear a matter when:
(a) It is properly constituted as regard the number and qualification of the members of the bench and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu V. Nkemdilim (1962) 2 SCNLR 341; FHA V. Olayemi (2017) LPELR 43376; A-G Oyo State V. NLC (2003) 8 NWLR (pt.821) 1 and Diamond bank Ltd V. Ugochukwu (2016) 9 NWLR (Pt.1517) 193.
A Court is only competent to exercise jurisdiction in respect of any matter if the case comes before it by due process of law and upon condition precedent to the exercise of jurisdiction. As such a defect in competence is fatal to the proceedings.

Another defect in the appeal filed by the appellant is that while the Notice of Appeal contained only three grounds of appeal, five issues were formulated from the three grounds of appeal for determination. While a party is allowed an equal number of issues to the number of grounds of appeal or less number of issues than the number of grounds of appeal, more number of issues than the grounds of appeal is not allowed. Proliferation of issues is not allowed and the consequence of such an action is that the issues proliferated are all liable to be discountenanced. In the instant case, the appellant formulated five issues for determination from the three grounds of appeal contained in the notice of appeal.
The Supreme Court in Nweze V. State (2018) 6 NWLR (Pt.1615) 197 at 206 paragraph F held that the Court have constantly frowned at formulating more issues from fewer grounds of appeal. In other words, there should be no proliferation of issues over and above the grounds of appeal. In support of this principle is the case of Orji V. State (2008) 4 SCJN 85 at 203; (2008) 10 NWLR (Pt. 1094) 31. See also Amodu V. State FWLR (Pt.488) 195 at 196;Makon Engr. & Tech Services Ltd V. Nwokedinkor (2020) 5 NWLR (Pt. 1716) 165.
Issues for determination must be formulated in such a way that they do not present obvious proliferation. This is because proliferation of issues is not ideal as it tends to obscure the core issue to be determined. It creates the impression that the appellant is shipping for issues to aid his case, thus reducing the issues to trifle. Appeals are not won on the number of issues but on the quality of the content of the ground of appeal and issues decoded therefrom. See Ibrahim v. Ojomo (2004) 4 NWLR (Pt. 862) 89 and Duru V. FRN (2018) 12 NWLR (Pt.1632)20.
Proliferation of issue is not permitted by law. In the instant case, the appellant’s five issues formulated from the three grounds of appeal contained in the notice of appeal are incompetent and are therefore discountenanced.

The defects in this appeal are incurable which deprived the Court of jurisdiction to entertain the appeal. This appeal is grossly incompetent and it is accordingly struck out.

PAUL OBI ELECHI, J.C.A.: I read in draft the judgment just delivered by my learned brother Tani Yusuf Hassan, JCA.

I agree with her that the appeal is grossly incompetent and deserved to be struck-out and it is so struck-out by me for being incompetent.
Appeal struck-out.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (DISSENTING): In this appeal, the appellant filed his brief of argument on 21/06/2016, which was deemed properly filed and served on 18/05/2017, which Chuks Muoma Esq., settled. The respondents regularly filed their brief of argument on 15/06/2017, which Ukari O. Oduma Esq., settled. The Appellant filed a reply brief of argument on 21/09/2017, which was deemed properly filed and served on 21/09/2017. It was on the basis of the enumerated processes, including the notice of appeal filed, that parties contested the appeal before us. The appeal was argued on 19/01/2022, when learned counsel for the parties adopted their respective briefs of argument.

I had the privilege of reading in draft the judgment delivered by his Lordship, Tani Yusuf Hassan (J.C.A.), this morning, in this appeal. While I agree with the conclusion that the appeal should be struck out, I only agree with only one of the reasons given in the judgment and not with the two other reasons, since the judgment was predicated on three reasons. I will explain.

The first reason given for striking out the appeal is that the appellant failed to seek and obtain prior leave of Court before filing the notice of appeal to initiate the appeal, since the appeal is against an interlocutory decision of the lower Court. I agree with the conclusion in the lead judgment, only, because the appellant seemed to have conceded that the decision of the lower Court, challenged in this appeal is an interlocutory decision. At page 1 of the appellant’s brief of argument, learned counsel stated, thus:
“… The Appellant then brought this appeal against the 30th day of May, 2013 interlocutory ruling of the Bayelsa State High Court Yenagoa Judicial Division and presided over by Hon. Justice D. E. Adokeme.”

With the concession by the appellant, it follows that the appeal has to be ruled incompetent, due to the fact that prior leave was not obtained before the appeal was filed, on 11/06/2013, against an interlocutory ruling of the lower Court, dated 30/05/2013. See Urunne v. Agboro [2001] 11 NWLR (Pt. 723)206.

The second reason given (and holding) in the lead judgment, which I disagree with, is that the appellant filed his notice of appeal in the registry of this Court, instead of filing it at registry of the lower Court. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, provides thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names of and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.”

I have examined the notice of appeal and there is nothing written on the document to suggest that it was filed in the registry of this Court. The notice of appeal, deriving from the prescribed Form in the First Schedule to the Court of Appeal Rules, either of 2016 or 2021 (Forms 3 and 5, respectively), has the Court of Appeal as its heading, though expected to be filed in the lower Court. The notice of appeal is at pages 401-406 of the record of appeal. At page 406, there is stamp impression, which winks and announces that the notice of appeal was filed on 11/06/2013, at:
“THE JUDICIARY HIGH COURT
HIGH COURT REGISTRY
YENAGOA
DATE: 11/6/2013” 

See Order 8 Rule 9 of the Court of Appeal Rules, 2016. With respect and great humility, I hold that the notice of appeal was not filed in the registry of this Court. The notice of appeal was appropriately filed in the registry of the lower Court, as it should be.

I also need to point out that the parties to this appeal did not raise the issue and they did not make comments or submissions on it before us, in order to afford them opportunity to confirm where the notice of appeal was filed, if it is indeed an issue, which I do not consider it as having not raised the issue, which is a procedural issue, it is important to point out that Courts have over the years advised that such issue should be treated mildly. Even, if the notice of appeal, which is at pages 401-406 of the record of appeal, was filed in the registry of this Court, it would still not have affected the jurisdiction of this Court.
Even where an application is brought, which is not the case here, by any of the parties to strike out the notice of appeal, this Court would have been guided by Order 21 Rule 5(1) and (2) of the Court of Appeal Rules, 2016, which provides: “5.-(1) An application to strike out or set aside for non-compliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before any party applying has taken any step after becoming aware of the irregularity.
(2) An application under this Rule may be made by motion on notice and the grounds of objection must be stated therein.”
No one has complained in this appeal about the notice of appeal. Even if there was a complaint, it could not have succeeded where parties argued the appeal, based on the processes filed and went away from Court only to await judgment. Parties saw no evil in the notice of appeal. In keeping with the direction of the provision quoted above, the Courts have, over the years, insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts. In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law, while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd (2018) 9 NWLR (Pt. 1625) 420.
In the case of Odom v PDP [2015] 6 NWLR (Pt. 1456) 527, M. D. Mohammad, JSC stated, in respect of filing notice of appeal in a wrong registry:-
“In arguing their preliminary objection to the cross-appeal, learned appellants/cross-respondents counsel submits that the notice of cross-appeal filed on 25-04-2014 at the Supreme Court’s Registry instead of the Registry of the Court of Appeal, on the authority of Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483 at 496 is incompetent inspite of this Court’s order of 26-05-2014 deeming the notice as duly filed. The notice having been filed in contravention of Order 2 Rule 30 of the Supreme Court’s Rules remains incompetent. It follows also that the cross-appellant’s brief that is filed pursuit to the incompetent notice of appeal is also incompetent. Further relying on Ogbechie v. Onochie (No.2) (1988)1 NWLR (Pt. 70) 370 at 402, learned appellants/cross-respondents’ counsel submits that the cross-appeal be struck out.
Replying, learned cross-appellant’s counsel contends that the appellants/cross-respondents’ preliminary objection to the competence of the cross-appeal is misconceived. The objection, it is submitted, having failed to take account of Order 6 Rule  4, Order 8 rule 11 and Order 10 rule 1 Sub-rules (1) and (2) of the Supreme Court Rules cannot be taken seriously. Supporting his submission with the decision in Obi v. I.N.E.C. In Re: Dr Andy Uba (2008) 7NWLR (Pt. 1085) 68 at 78 learned counsel urges that the objection be overruled.
It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned appellants’/cross-respondents’ counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction the constitution or the statute vests in the Court. Unless it is expressly stated that non-compliance with the rules particularly renders a cause incompetent, the Court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve.
In the case at hand, appellants’/cross-respondents’ preliminary objection, given the fundamentality of the cross-appellant’s right of appeal as guaranteed by the Constitution, cannot be given the effect the appellants/cross-respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross-appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it. These rules should not provide the means of compromising the appellant’s right of appeal as conferred by the constitution. Seem Ogunremi v. Dada (1962) 1All NLR 663 at 671; (1962) 2 SCNLR 417.”
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348; Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; and F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non-compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See: U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt. 103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This clearly is not the reasons of the rules of Courts.”
See also Olufeagba & Ors v. Abdul-Raheem & Ors (2009) 18 NWLR (Pt. 1173) 384; (2009) 11-12 (Pt. 1) SCM 125; (2009) LPELR-2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam v. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-
“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”
In Odom & Ors v. PDP & Ors (2015) 2 SCN 209 at 226, (2015) 6 NWLR (Pt. 1456) 527 at 555, para. B-D this Court, per Dattijo Muhammad, JSC, in considering similar situation of non-compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:
“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”
However, Order 20 Rule 5 of the 2016 Court of Appeal Rules, formerly of 2011, provides that, an appeal will not be struck out for non-compliance with the rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non-compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.
Further still, it should be noted that this non-compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219; Ibeanu v. Ogbeide (1994) 7NWLR (Pt. 359) 697 at 716.
In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court below, instead of the trial Court valid.”
In the case of In Re: Uba [2008] 7 NWLR (Pt. 1085) 68 at 77-79, the Supreme Court had the following to say about filing a notice of appeal in a wrong registry:
“It needs be said however that these applications would appear to be one of no ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a notice of appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the Court of trial. It does further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further, Order 7 Rule 3 of the Court of Appeal Rules provides:
“The Court may in an exceptional circumstance, and where it considers in the interest of justice so to do, waive compliance by the parties with these rules or any part thereof.”
I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most Rules of Court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(1) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.
Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that Court. He never objected or raised issue about the irregularity. The Court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent Ifeanyi Okonkwo had raised the point. If the Court below had not at the time struck out the appeal or penalized the appellant/respondent, it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the Court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the Court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case SC.161/2001 – The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 relied upon in counsel’s address only related to an order made by this Court upon an application heard in chambers. The order made in chambers was overruled by this Court sitting in open Court. This is quite a regular situation unlike the situation on hand.
In the case of CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488 at 512-513, this Court stated thus:
The question of whether or not a proper notice of appeal has been filed in the Court below is a question which touches on the jurisdiction of this Court. If no proper notice of appeal has been filed then there is no appeal for this Court to entertain. See Kano Plastics Ltd v. Century Merchant Bank (1998) 3 NWLR (Pt. 543) 567 at 572-573, Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Olanrewaju v. B.O.N. Ltd (1994) 8 NWLR (Pt. 364) 622. From the wording of Order 3 Rule 2 (1) the notice of appeal shall be filed in the registry of the lower Court. However, I find the contention of the respondent in this appeal baseless in law. On examination of the records of proceedings it shows at pages 8-10 that 1st and 2nd appellants were 1st and 2nd defendants at the Court below, whereas the 3rd-7th appellants were 3rd-7th defendants respectively. The 1st and 2nd appellants were represented by counsel at the trial and filed their statement of defence. The 3rd-7th defendants were not represented and did not file any defence. All through the trial and proceedings at the Court below the 3rd-7th appellants did not participate. Written addresses were ordered. The respondent and 1st and 2nd appellants filed addresses and judgment was entered in favour of the respondent.
The 1st and 2nd appellants being dissatisfied with the said judgment appealed against it. In the appeal filed by the 1st and 2nd appellants, the present 3rd-7th appellants were 2nd-6th respondents. See page 81A of Volume 1 of the record of appeal and all the cover pages of Volumes 1 and 11 of the records. The 1st and 2nd appellants caused the appeal record to be compiled and thereafter transmitted by the Registrar of the Court below to the Registry of this Court in line with the rules of this Court. The 1st and 2nd appellants later filed their brief of argument. The 3rd-7th appellants later filed an application filed on 8/9/99 for extension of time within which to seek leave to appeal against the same judgment. The essence of that application was to allow the 3rd-7th appellants participate in the appeal and not as respondents. When time was extended to the 3rd-7th respondents to appeal was granted and the record of appeal had been transmitted from the Court below, and the appeal entered in the Court of Appeal list, in line with the provisions of Order 3 R. 13(1) and (2) of the Court of Appeal Rules, the appeal is said to be properly filed because, the Registrar of the Court below became “functus officio”. The notice of appeal filed by the 3rd-7th respondents was pursuant to leave granted by this Court. Besides, when this Court granted application of the 3rd-7th appellants, it ordered that fresh notice and grounds of appeal be comprehensively filed. All these were filed in this Court not in the Court below. I agree with the learned counsel for the 3rd-7th appellants that since the record of appeal had been properly transmitted and served on all the parties, and appeal entered, it will amount to duplicity of effort, resources and ultimately lead to delay of these appellants, pursuant to the leave granted, to file the notice and ground of appeal at the Registry of Court below. It is not the practice in this Court that where the record of appeal had been properly transmitted and served on all parties and appeal entered in the cause list with appeal number as contemplated by Order 3 Rule 5 of this Court, for the appellant to go to the lower Court to file the notice and grounds of appeal at the Court below. It would have been different if the record had not been transmitted and appeal not duly entered in the cause list.
It is on this basis I dismiss the respondent’s preliminary objection as unmeritorious and baseless.”
I therefore refuse to agree to strike out the notice of appeal and this appeal, solely, on the basis of where it was filed, apart from the fact that I have held that the notice of appeal was filed in the registry of the lower Court, where it was certified as a true copy. It is good that this Court should err (and it will not err) on the side of hearing the appeal on the merit.

The third reason given, which I also disagree with, is that the appeal should be struck out, because the appellant’s counsel distilled more issues from the grounds of appeal filed. Indeed, the appellant filed three grounds of appeal, but, mysteriously, developed five issues for determination, without even relating the issues to the grounds of appeal, as required. However, striking out the entire appeal is not the recommended approach of the Court to such misconduct by a party presenting a vivid case of proliferation of issues, as it is described.
Despite the defect in the approach of the appellant to issues for determination, in the interest of justice, except for the fact that the appeal was commenced without requisite prior leave having been sought and obtained, I would have determined the appeal, on its merit. In the case of Ugo v. Ummuna [2018] 2 NWLR (Pt. 1602) 102 at 120, the Supreme Court stated as follows:
“Learned counsel for the appellants has formulated three issues from two grounds of appeal. Legal practitioners have been admonished time and again against proliferation of issues. While it is permissible to formulate one issue from several grounds of appeal, it is not proper to formulate more than one issue from a single ground of appeal. The preferable practice is to frame an issue from a combination of grounds of appeal. … Apart from proliferating the issues, learned counsel failed to tie the issues to any particular ground of appeal. I am of the view that the single issue formulated by the respondent is adequate to dispose of this appeal. In the circumstances, I adopt the resolution of the appeal.”
Despite the error in proliferation of issues formulated by the appellant’s counsel in the appeal cited, the Supreme Court did not strike out the appeal but determined the appeal based on issues formulated by the respondent.
In the case of Govt., Kano State v. E.F.C.C. [2018] 9 NWLR (Pt. 1625) 443 at 457, the Supreme Court stated on the power of an appellate Court, thus:
“The power of the appellate Court to formulate, modify and/or reframe issue or issues is well recognized in law. An appellate Court can and is entitled to reframe or modify an issue or issues formulated by a party or parties in order to give it precision and clarity if it appears that they are awkward or not well framed. The purpose of reframing issue or issues is to achieve a just and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues framed is/are anchored on the ground or grounds of appeal, the opposite party cannot complain.”
In the case of Olaiya v. State [2018] 10 NWLR (Pt. 1626) 1 at 14-15, the Supreme Court stated:
“The breakdown of the five issues shows that the appellant nominated two issues each from his grounds 1 and 3 of the grounds of appeal. Only one issue was raised from ground 2 of the grounds of appeal. And that is issue 3, which as formulated, is consequent upon a suggested positive affirmation of issues 1 and 2 proliferated ground 1 of the grounds of appeal. Issues 3 and 4 were erected from ground 3 of the grounds of appeal. In the practice and procedure of this Court proliferation of issues from a single ground of appeal is wrong and unacceptable. The permissible practice is that a party may formulate, from a ground of appeal or a number of grounds of appeal only one issue, and not several issues from one ground of appeal.
Proliferation of issues is not permitted by law …
The two issues formulated by the respondent, permitted by law, are more preferable to me than the 5 issues proliferated from three (3) grounds of appeal.
The respondent’s two issues shall be the benchmark issues for the determination of this appeal.”
As can be noticed, despite a proven case of proliferation of issues by the appellant in the case cited above, the Supreme Court proceeded to determine the appeal before it on its merit, based on issues formulated by the respondent.
In the case of Dung v. Gyang [1994] 8 NWLR (Pt. 362) 315 at 325, this Court stated: “Where there is a proliferation of issues, as in the case in the instant appeal, the Court of Appeal is free either to adopt the issues formulated for determination or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (supra).”
In the case of Labiyi v. Anretiola [1992] 8 NWLR (Pt. 258) 139 at 168, Nnaemeka-Agu, JSC. stated thus:
“Counsel will do well to remember that the question of issues and their relationship with the grounds of appeal are matters of practice and procedure. They go to irregularity and are no grounds for nullity. A party who has to take objection to such matters must do so timeously and before taking any fresh steps after becoming aware of the non-compliance.” (Bold font for emphasis).
In the case of Society Bic S. A. v. Charzin Industries Limited [2014] 4 NWLR (Pt. 1398) 531, Ngwuta, JSC., stated that the Court should strike out proliferated issues. However, in that same case, the Supreme Court determined the appeal by relying on respondent’s issues for determination, as the Court stated, at page 532 of the Law Report:
“Having disposed of this side issue, I intend to determine the appeal on the issues raised by the respondent which are substantially the same as those of the appellant. Issue 1 is whether the Court below was right in deeming as abandoned prayer 2 in the appellants’ motion.”
See also the unreported decision of this Court, dated 11/10/2021, in appeal no. CA/PH/32CR/2020: Chika Eze Daniel v. State, Tani Yusuf Hassan, JCA.
The case of Waziri & Anor. v. Geidam & Ors [2016] LPELR – 40660(SC) and Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22 at 58, where Galadima, J.S.C. stated that:
“It is settled that this Court will always make the best that it can, out of a bad or inelegant ground or brief in the interest of justice. See Owners of M.V. Arabella v. Nig. Agricultural Ins. CORP. (2008) 4-5 SC. (Pt. 11) 189, (2008)11 NWLR (Pt. 1097) 182; Ekpemupolo & 4 Ors v. Edremoda & Ors (2009) 3-4 SC. 56, (2009) 8 NWLR (Pt. 1142) 166 and Lasisi Ogbe v. Sule Asade (2009) 12 SC (Pt. 111) 37, (2009) 18 NWLR (Pt. 1172) 106.”
In the case of Steyer (Nig.) Ltd. v. Gadzama [1995] 7 NWLR (Pt. 407) 305 at 330-331, per Orah, (J.C.A.): “On the foregoing blunders, this appeal would fail and stands dismissed. It is however, the duty of the Court to ensure, that matters are determined on the merits. While blunders though undesirable, must take place from time to time, it is unjust to hold, that because, a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined on the merits. See Shell Petroleum Development Co. Ltd. v Chief George Uzoaru & 3 Ors. (1994) 9 NWLR (Pt. 366) 51 at p.67.
I will nevertheless, go ahead, and consider, the issues for determination, not on the merit of the jumbled grounds of appeal filed by the appellant and/or on the appellants’ issues for determination argued without any reference to the grounds of appeal but only in pursuit of the proper and due administration of justice in the case. As I have already stated, the appellant filed 5 original grounds of appeal and 7 additional grounds of appeal, a total of 13 grounds in this appeal, some of the grounds are incompetent. Most of the grounds repeated themselves and on the same point in controversy. An incompetent ground is argued with some competent grounds. It is not possible when an incompetent ground of appeal as in the instant case, is argued with a competent ground of appeal to examine in the light of the grounds of appeal whether the judgment appealed from is wrong or right. See Chief T.G. Bereyin & 5 Ors. v. Brown Gboho (1989) 1 NWLR (Pt. 97) 372 at p. 380.
This Court, and indeed, the Supreme Court, takes a disfavourable view of the proliferation of issues for determination formulated from the grounds of appeal, and indeed, of the proliferation of grounds of appeal filed in the appeal and frown at both practices. It is neither the litany of grounds of appeal nor the myriad of issues for determination in the appeal, that effectually determines the appeal. Grounds of appeal are supposed to be succinct, precise and right to the point, avoiding verbosity and arguments.
The whole purpose of grounds of appeal is to give notice to the other side at the Appeal Court. They are supposed to be couched in such precise legal manner, that an advocate can, as soon as they are read, understand the purport and complaint in the ground without any strain whatsoever. Drafting or couching grounds of appeal like brief-writing, is an art and a craft which every advocate like a craftsman must endeavour to master. It is sine qua non to a successful practice at the appellate Courts. See Chief Uche Okoroji v. Mazi Nnan Ngwu (1992) 9 NWLR (Pt. 263) 113 at p. 118.
Where there is a jumble in the grounds of appeal and a proliferation of both the grounds of appeal and the issues for determination as in the instant case, the Court of Appeal is free to adopt the issues formulated for determination or not, or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (supra). In observance of this principle, in pursuit of the proper administration of justice in the instant case, I prefer, the 5 issues for determination identified by the respondents as more appropriate, consistent with the grounds of appeal and enough to determine the appeal, and the 7 issues formulated by the appellants.”

Having recorded my points of divorce from aspects of the lead judgment, I agree that this appeal should be struck out.

Appearances:

Chuks Mwoma Esq. For Appellant(s)

Ukari E. Oduma for the 1st Respondent.
Mercy Diriwari Goim Esq. for the 2nd and 3rd Respondents. For Respondent(s)