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HERITAGE BANK LTD v. WOJIEWHOR & ANOR (2022)

HERITAGE BANK LTD v. WOJIEWHOR & ANOR

(2022)LCN/16797(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, May 30, 2022

CA/PH/610/2017

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

HERITAGE BANK LIMITED APPELANT(S)

And

1. TASIE WOJIEWHOR 2. THE CHIEF REGISTRAR COURT OF APPEAL RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON HOW TO BRING AN APPEAL BEFORE THE APPELLATE COURT

Order 7 Rule 2(1) reads:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal’) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all the parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on such parties.”
Order 6 Rule 12 Provides:
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the lower Court.”
Where the words of a statute or constitution are clear and unambiguous they call for no interpretation, the duty of the Court in such circumstance is to apply the words as used by the legislature. See Buhari Vs Yabo (2018) 9 NWLR (Pt. 1624) 197 at 202; Dangana Vs Usman (2013) 6 NWLR (Pt. 1349) 50 and Nigerian Army Vs Dodo (2012) 18 NWLR (Pt. 1331) 151.
PER HASSAN, J.C.A.

THE POSITION OF LAW ON WHERE THE NOTICE OF APPEAL IS FILED

The Supreme Court in Adeniran Vs Olusokun II (2019) 8 NWLR (Pt. 1673)98 at 102 held that the operative word “shall” in Order 8 Rule 2(1) of the Supreme Court Rules which is similar to Order 7 Rule 2(1) of the Court of Appeal Rules, it connotes an obligatory discharge of duty and when so used in the particular rule of Court, the requirement must be complied with and any contravention or non-compliance is fatal to the offending notice of appeal. Co-operative & Commerce Bank (Nig.) PLC Vs A-G Anambra State (1992)8 NWLR (Pt. 261) 528 and Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 413 referred to.
In Popoola Vs Babatunde (2012) 7 NWLR (Pt. 1299) 302 at 331 paragraph F–G, Okoro JCA (as he then was) held:
“Each Court has its own set of rules which regulate its affairs, parties who appear before our Courts must study our rules carefully and approach these Courts according to the laid down rules in order to avoid chaos in the judicial process. Where a Court insists that its rules must be obeyed, this should not be equated with technicality.”
The Supreme Court in Okpe Vs Fan Milk PLC (2017) 2 NWLR (Pt. 1549) 282 at 285 per I.T. Muhammad, JSC (now CJN) held that 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 also N.B.C. PLC Vs Suleiman (2019) 18 NWLR (Pt. 1703) 80 and I.B.W.A. Vs Pavex Intl Co. (Nig.) Ltd (2000) 7 NWLR (Pt. 663) 105.
The Supreme Court also in SPDCN Ltd Vs Agbara (2016) 2 NWLR (Pt. 1496) 353 held that a Notice of Appeal is filed in the Registry of the Court below and not in that of the appellate Court. Okotie Vs Harriman (1987) 3 NWLR (Pt. 60) 224 referred to. PER HASSAN, J.C.A.

THE POSITION OF LAW ON NOTICE OF APPEAL

An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. In the instant case where the notice of appeal is not proper before the Court, there can be no valid appeal pending before the appellate Court. The Notice of Appeal being incompetent, it remains so, and the Court no longer has jurisdiction to hear the appeal. The appeal will be struck out for being incompetent. See Onwuzulike Vs State (2020) 10 NWLR (Pt. 1721) 440 and Adeniran Vs Olusokun II (supra). 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 the matter. It follows therefore where a Court is devoid of jurisdiction to entertain the matter, such proceedings becomes a nullity ab initio no matter how well conducted and decided. Jurisdiction is the live wire of adjudication which should be determined at the earliest opportunity. See Madukolu, Gold Mark (Nig.) Ltd Vs Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291 and C.B.N. Vs Rahamaniyya G.R. Ltd (2020) 8 NWLR (Pt. 1726)314 at 326. PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The 1st Respondent, as claimant at the High Court of Rivers State, Port Harcourt Judicial Division, by an originating summons dated and filed on the 16th of June, 2016, brought pursuant to Order 3 Rule 8(1) of the High Court of Rivers State (Civil Procedure) Rules, 2010 claiming against the defendants (Appellant and 2nd Respondent) herein as follows:
1. A declaration that the claimant is entitled to be paid the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) with up-to-date accrued interest thereon.
2. An Order directing the Defendants to pay forthwith to the claimant the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) with up to date accrued interest therein representing the judgment sum which the 1st defendant guaranteed vide an agreement dated 6th day of October, 2005 when suit No. PHC/862/97 was on appeal at the Court of Appeal Port Harcourt on behalf of the Appellant’s “Wilbros (Nigeria) Limited.”
​3. A declaration that the claimant is entitled to be paid the accrued interest on the judgment sum from the time of the High Court Judgment at the average bank interest rate of 3.5 percent which amounts to N122,000.00 One Hundred and twenty Two Thousand Naira) per annum and when applied from the date of the High Court judgment till now will amount to N1,586,000.00 (One Million, Five Hundred and Eighty Six Thousand Naira).
4. Interest on the judgment sum at the rate of 10% per annum from 7/10/2009 until the judgment sum is fully liquidated.
5. The sum of Ten Million Naira (N10,000,000.00) being damages.

Whereupon the claimant seeks the determination of the following questions:
i. Whether taking into consideration the circumstances of this case the claimant is not entitled to reap the fruit of the judgment in suit No. PHC/862/97?
ii. Whether on a considered interpretation of the 1st Defendant’s bank guarantee agreement dated 6/10/2005 and the Orders of the Court of Appeal made on 3/10/2012 the claimant is not entitled to the payment to him forthwith by the Defendants of the judgment sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira)?
iii. Whether the claimant is not entitled to be paid forthwith the accrued interest of the judgment sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) at the average bank interest rate of 3.5 percent which amounts to N122,000.00 (One Hundred and Twenty Two Thousand Naira) per annum and when applied from the date of the High Court Judgment till now will amount to N1,586,000.00 (One Million Five Hundred and Eighty-Six Thousand Naira)?
iv. Whether the claimant is not entitled to be paid interest of the judgment sum at the rate of 10% per annum from 7/10/2009 until the judgment sum is fully liquidated.

The originating summons is supported by nineteen (19) paragraph affidavit and a written address.

In response, the 1st defendant (Appellant) herein filed a Memorandum of Appearance on the 5th of October, 2016 and dated the same day, and a Counter Affidavit to the Originating Summons also dated and filed on the 5th of October, 2016.

The learned trial Judge, in a considered judgment delivered on the 12th of April, 2017, determined in favour of the 1st respondent as claimant therein.

​Dissatisfied with the judgment, the appellant appealed to this Court. The Notice of Appeal was dated and filed on the 16th day of May, 2017 at the Appeal Registry of the Court of Appeal Port Harcourt. The Notice of Appeal is anchored on seven grounds of appeal with their particulars and reliefs sought.

The appellant’s brief dated and filed on the 16th of February, 2018 was deemed properly filed on the 2nd of June, 2020.

Learned counsel for the appellant Awa Ndubuisi Esq. distilled four issues for determination as follows:
1. “Whether the learned trial Judge had the jurisdiction to entertain the 1st respondent’s claim when the Court of Appeal had already in Exhibit H (Appeal No. CA/MA/546M/2011) decided to finality the payment of the judgment debt by the 2nd respondent.” (Ground 6).
2. “Whether the learned trial Judge did not err in law in declaring that the 1st Respondent is entitled to be paid by the Appellant the sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) with up to date interest when the Court below had already held that Exhibit D, the basis of the 1st Respondent’s Claim, as not being a guarantee and not creating any obligation from the Appellant in favour of the 1st respondent (Grounds 1 and 3).
3. “Whether the judgment of the Court below is justifiable regard being had to the affidavit evidence before the Court below”(Ground 4)
4. “Whether the learned trial Judge was right in striking out the Appellant’s processes for the mere fact that the stamp of the Appellant’s counsel affixed on them had expired.” (Ground 7).
Grounds 2 and 5 are struck out having no issues distilled therefrom.

The Appellant’s reply Brief dated 22nd day of June, 2020 was filed on the 23rd of June, 2020. Learned counsel for the Appellant adopted both the brief and the reply brief and urged the Court to allow the appeal.

The 1st Respondent’s Brief settled by L.A. Mitee Esq. was dated 2nd day of June, 2020 and filed on the 8th of June, 2020. In it three issues were formulated thus:
i. Whether the Court below had jurisdiction to entertain the 1st Respondent’s claim.
ii. Whether in view of the facts and circumstances of this case, the Court below was right and/or justified in giving judgment in favour of the 1st Respondent.
iii. “Whether the affixing of an expired Nigerian Bar Association (NBA) stamp and the absence of a seal by Appellant’s counsel are mere irregularities.”

Learned counsel for the 1st Respondent adopted the brief and urged the Court to dismiss the appeal.

It is important to point out at this stage that the Notice of Appeal dated and filed on the 16th day of May, 2017 was filed at the Court of Appeal Registry Port Harcourt instead of the Rivers State High Court, Port Harcourt as provided by Order 7 Rule 2(1) of the Court of Appeal Rules 2016 which is the same as the Court of Appeal Rules Order 7 Rule 2(1) of 2021. Order 7 Rule 2(1) reads:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal’) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all the parties directly affected by the appeal and shall be accompanied by a sufficient number of copies for service on such parties.”
Order 6 Rule 12 Provides:
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the lower Court.”
Where the words of a statute or constitution are clear and unambiguous they call for no interpretation, the duty of the Court in such circumstance is to apply the words as used by the legislature. See Buhari Vs Yabo (2018) 9 NWLR (Pt. 1624) 197 at 202; Dangana Vs Usman (2013) 6 NWLR (Pt. 1349) 50 and Nigerian Army Vs Dodo (2012) 18 NWLR (Pt. 1331) 151.
In the instant case, the wordings of Order 7 Rule 2(1) and Order 6 Rule 12 of the Court of Appeal Rules were very clear and left no room for any conjecture or speculation. The Court gives the ordinary meaning and it is restrained from reading into the said provisions, words which are not found in them. This is so as the words are given their plain, ordinary grammatical meaning without qualification or embellishment. See Sanwo-Olu Vs Awamaridi (2020) 11 NWLR (Pt. 1736) 458; Amadi Vs NNPC (2000)10 NWLR (Pt. 674) 76 and Gana Vs SDP (2019) 11 NWLR (Pt. 674) 76. Therefore the word “Shall” in Order 7 Rule 2(1) and Order 6 Rule 12 of the Court of Appeal Rules simply mean what they plainly stated and does not need any special construction or interpretation.
The Supreme Court in Adeniran Vs Olusokun II (2019) 8 NWLR (Pt. 1673)98 at 102 held that the operative word “shall” in Order 8 Rule 2(1) of the Supreme Court Rules which is similar to Order 7 Rule 2(1) of the Court of Appeal Rules, it connotes an obligatory discharge of duty and when so used in the particular rule of Court, the requirement must be complied with and any contravention or non-compliance is fatal to the offending notice of appeal. Co-operative & Commerce Bank (Nig.) PLC Vs A-G Anambra State (1992)8 NWLR (Pt. 261) 528 and Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 413 referred to.
In Popoola Vs Babatunde (2012) 7 NWLR (Pt. 1299) 302 at 331 paragraph F–G, Okoro JCA (as he then was) held:
“Each Court has its own set of rules which regulate its affairs, parties who appear before our Courts must study our rules carefully and approach these Courts according to the laid down rules in order to avoid chaos in the judicial process. Where a Court insists that its rules must be obeyed, this should not be equated with technicality.”
The Supreme Court in Okpe Vs Fan Milk PLC (2017) 2 NWLR (Pt. 1549) 282 at 285 per I.T. Muhammad, JSC (now CJN) held that 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 also N.B.C. PLC Vs Suleiman (2019) 18 NWLR (Pt. 1703) 80 and I.B.W.A. Vs Pavex Intl Co. (Nig.) Ltd (2000) 7 NWLR (Pt. 663) 105.
The Supreme Court also in SPDCN Ltd Vs Agbara (2016) 2 NWLR (Pt. 1496) 353 held that a Notice of Appeal is filed in the Registry of the Court below and not in that of the appellate Court. Okotie Vs Harriman (1987) 3 NWLR (Pt. 60) 224 referred to.

​An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. In the instant case where the notice of appeal is not proper before the Court, there can be no valid appeal pending before the appellate Court. The Notice of Appeal being incompetent, it remains so, and the Court no longer has jurisdiction to hear the appeal. The appeal will be struck out for being incompetent. See Onwuzulike Vs State (2020) 10 NWLR (Pt. 1721) 440 and Adeniran Vs Olusokun II (supra).

Jurisdiction is fundamental in any proceedings and consequently raises the question of competence of the Court to adjudicate the matter. It follows therefore where a Court is devoid of jurisdiction to entertain the matter, such proceedings becomes a nullity ab initio no matter how well conducted and decided. Jurisdiction is the live wire of adjudication which should be determined at the earliest opportunity. See Madukolu, Gold Mark (Nig.) Ltd Vs Ibafon Co. Ltd (2012) 10 NWLR (Pt. 1308) 291 and C.B.N. Vs Rahamaniyya G.R. Ltd (2020) 8 NWLR (Pt. 1726)314 at 326.

It follows therefore 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. 

Rules of Court are not made for fun but to be strictly obeyed.

​In the instant case, there was no due process of law in filing the Notice of Appeal which deprived the Court of jurisdiction to entertain same. The appeal is accordingly struck out. Parties to bear their respective costs.
APPEAL NO: CA/PH/610/2027

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege to read before now, the judgment just delivered by my learned brother, YUSSUF HASSAN, JCA in this appeal, which I adopt as mine. I have nothing useful to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in advance, the lead judgment just delivered by learned by my learned brother, T. Y. Hassan, JCA in which the instant appeal was adjudged as incompetent and was consequentially struck out.

I really do not have any useful additions to make to the well reasoned judgment which in reasonable details, dealt with the proper steps and/or the procedure an Appellant is required to follow in order to properly invoke the appellate jurisdiction of the Court of Appeal to have a competent and valid appeal. Once the procedure or steps are not followed, it robs the notice of appeal filed its competency as an originating process, hence the jurisdiction of this Court.

​I agree with the decision that the appeal be struck out.

I also abide by the consequential orders made that parties are to bear their respective costs.
Appeal struck out.

Appearances:

Sir A. Ndubuisi Esq. with him C.W. Bakonawo Esq. For Appellant(s)

G. Major Esq. for the 1st Respondent. For Respondent(s)