HILARY OPARA & ORS v. J. D. IHEANACHO (2014)

HILARY OPARA & ORS v. J. D. IHEANACHO

(2014)LCN/7366(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/OW/131M/2012

RATIO

PLEADINGS: ORIGINATING PLEADINGS; WHETHER AN ALLEGATION OF FRAUD SHOULD BE ALLEGED IN THE ORIGINATING PLEADINGS AND WHETHER AN AMENDMENT FOR THE PURPOSE OF ADDING A PLEA OF FRAUD WHERE FRAUD IS NOT PLEADED IN THE FIRST INSTANCE WOULD BE ALLOWED

It is the law that an allegation of fraud is a very grave one and is a very material element in the case of a party pleading. Such important matter should therefore be naturally expected to be alleged in the originating pleading. If it is sought to be introduced for the first time by amendment of the pleading the good faith of the application is called into question.
See CIVIL PROCEDURE IN NIGERIA, 2ND EDITION BY FIDELIS NWADIALO at PAGE 472.” It has long been the universal practice, except in the most exceptional circumstances, not to allow amendment for the purpose of adding a plea of fraud where fraud (or I may add particulars of fraud) is not pleaded in the first instance. See BENTLY V. BLACK (1893) 9 TLR 580; See also GEORGE & ORS. V. DOMIMIN FLOUR MILLS LTD. (1963) 1 ALL NLR 71. per. PETER OLABISI IGE, J.C.A.

APPEAL: PRELIMINARY OBJECTION IN AN APPEAL: THE AIM OF A PRELIMINARY OBJECTION AND WHETHER A NOTICE OF PRELIMINARY OBJECTION BORDERING ON INCOMPETENCE OF AN APPEAL SHOULD BE DETERMINED FIRST

The law is firmly settled that the design or aim of a Notice of Preliminary Objection is to terminate in limine an action or an appeal so that same could be brought to an abrupt end either due to obvious defect, incompetence or any jurisdictional impediment or intervening event militating against the hearing of a suit or appeal. See CHIEF U. M. EFET vs. INEC & ORS (2011) 3 SCM 63 at 76 (1) -77A per I. T. MUHAMMED, JSC and YARO v. AREWA CONSTRUCTION LTD & ORS 6 SCNJ 418. Thus when an Appellate court is faced with a Notice of Preliminary Objection Bordering on the incompetence of an appeal and consequently on its appellate jurisdiction it is always neater and better to determine the merit or demerit of the objection before delving into the merit of the appeal. See OWELLE ROCHAS OKOROCHA vs. PEOPLES DEMOCRATIC PARTY & ORS (2014) 1 SCM 153 at 785 per OGUNBIYI, JSC and B.A.S.F. NIGERIA LTD & ANOR vs. FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 52 D-E per COOMASSIE, JSC.” per. PETER OLABISI IGE, J.C.A.

APPEAL: LEAVE OF THE COURT; WHETHER THE FAILURE TO OBTAIN LEAVE WHERE LEAVE IS REQUIRED IS FATAL TO THE APPEAL

It is thus clear that where leave is required failure to obtain leave is fatal to the appeal. It is a condition precedent to exercise of jurisdiction by the Court of Appeal. See G. N. NWAOLISAH VS. PASCHAL NWABUFOR (2011) 14 NWLR (PART 1268) 600 AT 624 G – H 625A PER ADEKEYE, JSC who held: “Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. Nalsa Team Associates v. N.N.P.C (1991) 8 NWLR (PT. 212) pg. 652; S.P.D.C. (Nig.) Ltd. U. Katad (Nig.) Ltd. (2006) 1 NWLR (PT. 960) pg. 798; Nyambi v. Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v. Ogunleye (1997) 3 NWLR (Pt 485) pg. 12.”
See also CHIEF I. EMENIKE v. PDP & ORS (2012) 12 NWLR (PART 1315) 556 AT 595 E – F PER MOHAMMED JSC. per. PETER OLABISI IGE, J.C.A.

APPEAL: COMPETENT APPEAL: WHETHER THE COURT OF APPEAL WOULD LACK JURISDICTION TO HEAR AN APPEAL IF AN APPELLANT FAILS TO COMPLY WITH STATUTORY PROVISIONS OR THE RELEVANT RULES OF THE COURT

Section 14 of the Court of Appeal Act 2004 Cap C36 Laws of the Federation of Nigeria and ORDER 6 Rules 1 & 2 of the Court of Appeal Rules 2011 automatically come within the precincts of section 243 (b) of the 1999 that must be mandatorily complied with for an Appellant to have competent appeal against an interlocutory decision of the Federal High Court a High Court or tribunal acting in its original jurisdiction in civil matters. See (1) NONYE IWUNZE vs. THE FEDERAL REPUBLIC OF NIGERIA (2014) 6 NWLR (PART 1404) 500 AT 596 D – E where the apex Court in the land per RHODES – VIVOUR, JSC had this to say: –
“The constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of Court, the Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with statutory provisions or the relevant rules of the court.”
(2) HON. ZAKAWANU I. GARUBA & ORS V. HON. EHI BRIGHT OMOKHODION & ORS (2011) 15 NWLR (PART 1269) 145 AT 182 PER CHUKWUMA – ENEH, JSC who said: “Finally, it has been argued in this matter that this appeal has been struck out by the lower Court for failing to seek and obtain leave of Court before filing the appeal as prescribed by section 242 of the 1999 Constitution as amended having raised grounds of mixed law and facts therein. It is also common ground that the trial Court’s directive to deal first with the preliminary objections amounts to an interlocutory order based on the exercise of its discretion. It is trite law that an appeal against an interlocutory decision other than on grounds of law requires leave of court. The provisions of sections 241(1) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively of the Federal High Court or State High Court or the Court of Appeal as the case may be. And so it is settled law that right to appeal is statutory.” per. PETER OLABISI IGE, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. HILARY OPARA
2. EUGENE OPARA
3. NWANU NWOSU IHEME Appellant(s)

AND

J. D. IHEANACHO Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This an interlocutory appeal against the ruling/decision of the High Court of Imo State, contained in the ruling of Honourable Justice C. M. I. Egole delivered on 20th day of February, 2012.

The Appellants had on 8th day of October, 2007 instituted this action against the Respondent claiming the following reliefs:

“1. A Declaration that the 1st and 2nd Plaintiffs are entitled to the Statutory Right of Occupancy over the property known as and called Ogbouzor Umuopara Farmland being and lying along Ihugba/Chikwere Street Owerri in Owerri Municipal Council, Imo State.

2. A Declaration that the Irrevocable Power of Attorney donated by the 1st and 2nd Plaintiffs to the 3rd Plaintiff over the said property known as and called Ogbouzor Umuopara Farmland being and lying along Ihugba/Chikwere Street Owerri still extant and subsisting.

3. A Declaration that the Defendant has no legal or equitable title to the said property known as and called Ogbouzor Umuopara Farmland being and lying along Ihugba/Chikwere Street and any purported document of title issued by any person other than the 3rd Plaintiff is illegal, null and void and of no effect whatsoever.

4. N2m (Two Million Naira) being special and general damages for trespass quare clausum fregit committed by the Defendant on the aforesaid land bonafide property of the 3rd Plaintiff.

5. PERPETUAL INJUNCTION restraining the Defendant by himself, privies, servants, his agents, Assigns, Hirelings or any person whatsoever claiming for him or through him from further entry or trespass on the aforesaid Land.”

The writ of summons was accompanied with Statement of Claim.
The said statement of claim was later amended. The Amended Statement of Claim was filed on 15th day of October, 2009 wherein the Appellants claimed in paragraph 29 as follows:

WHEREFORE the Plaintiffs claim against the Defendant the following reliefs:

“a. A Declaration that the 3rd Claimant is entitled to the Statutory Right of Occupancy over the property known as and called Ogbouzor Umuopara farmland being, lying and situate along Ihugba/Chikwere Street in Owerri Municipal Council, Imo State.

b. A Declaration that the customary sale as well as the Irrevocable Power of Attorney donated by the 1st and 2nd plaintiffs to the 3rd plaintiff over the said property known as and called Ogbouzor Umuopara farmland being and lying along the Ihugba/Chikwere Street Owerri is still extant and subsisting.

c. A Declaration that the Defendant has no legal or equitable title to the said property known as and called OGBOUZOR UMUOPARA farmland being and lying along Ihugba/Chikwere Street and any purported document of title issued by persons other than the 3rd Plaintiff is illegal, null and void and of no effect whatsoever.

d. N2m (Two Million Naira) being special and general damages for trespass quare clausum fregit committed by the Defendant aforesaid land bonafide property of Plaintiff.

e. PERPETUAL INJUNCTION restraining the Defendant by himself, privies, servants, agents, hirelings or any person whatsoever claiming from him or through him from further entry or trespass over the aforesaid land.”

After pleadings have been duly exchanged by the parties the matter proceeded to hearing. The Appellants called three witnesses and closed their case. The Defendant opened his Defence on 7th February, 2011. The 2nd Defence witness was on the verge of beginning his testimony after being sworn when the Appellants Learned Counsel informed the court he was not served with DW2’s witness statement on oath and the matter was adjourned till the 18-4-2011. When the matter came up for continuation of Defence on 26th day of July, 2011, the Learned Counsel to the Appellants informed the court that he has an application to amend the Appellants Amended Statement of Claim. The said application for amendment which can be gleaned on pages 109 – 120 of the record prayed for the following Orders:-

“1. An Order granting leave to the claimants to further amend their statement of claim by pleading a new paragraph 20b to supply the particulars of misrepresentation of facts pleaded in paragraph 20 to read as in the manner below:

20b The particulars of misrepresentation of facts by the said Nwaobiara (Nnenna) herein before pleaded include:

i) The front page, the second page and the back page of the Power of Attorney paraded by the Defendant is not the front page, the 2nd and the back page of the Power of Attorney which the 1st and the 2nd Plaintiffs signed for the 3rd Plaintiff and handed over to the said Nwaobiara (Nnenna). The back page was blank and did not have the name of the Donee. The survey plan attached to the said Power of Attorney was not part of the said Power of Attorney signed by the 1st and 2nd Plaintiffs.

ii) The said Power of Attorney paraded by the Defendant was purportedly prepared by Barr. C. O. Ahumibe who was not a lawyer as at the 7th day of May 1976 when the Power of Attorney was made. Barr. C. O. Ahumibe was called to the Bar and became a lawyer eligible to prepare a Power of Attorney in the month of July, 1982. The 2008 Edition of the Nigeria Lawyers Directory is pleaded.

iii) The Power of Attorney signed by the 1st and the 2nd Claimant was not prepared by Barr. C. O. Ahumibe. It was Barr. Igboanugo who in the company of the said Nnenna (Nwaobiara) that brought the Power of Attorney which was signed by the 1st and the 2nd claimant for the 3rd claimant.

2. An order granting leave for the claimants to recall Eugene Opara PW2 in this case to tender a document adopt his further depositions and be cross examined.

3. An order deeming the further amended statement of claim as well as further depositions of Eugene opara as properly filed and served, necessary fees having been paid.

4. AND for any further Order or Orders as the Honourable Court may deemed fit to make in the circumstances.”

The said motion was eventually heard by the lower court and in a considered ruling delivered on 20th February, 2012, the application was refused. The lower court held thus:

“In paragraph 2 of their affidavit in support the Claimants averred as follows:

That we brought this suit against the Defendant to seek judicial redress on a fraud practiced against us by the Defendant in conspiracy with one Nwaobira (Nnenna) who is listed as one of the Defendant’s witnesses.”

It has long been the universal practice, except in the most exceptional circumstances, not to allow amendment for the purpose of adding a plea of fraud where fraud (or I may add particulars of fraud) is not pleaded in the first instance. See BENTLY V. BLACK (1893) 9 TLR 580; See also GEORGE & ORS. V. DOMIMIN FLOUR MILLS LTD. (1963) 1 ALL NLR 71.

In view of all I said above it is my view that the application was brought mala fide and I so hold.
I have read the affidavit in support of the application and the counter affidavit, the various exhibits and addresses of Counsel.
Each of the Counsel for the parties reproduced the Supreme Court’s definition of overreaching in the case of AKANIWO V. NSIRIM (2008) ALL FWLR (Pt. 410) 610 AT 657.

I am in agreement with Counsel for the Respondent that “the present amendment sought represents all the features of overreaching as described by the Apex Court.”
In sum and for the reasons given above, I hold that the application is not only intended to overreach but also brought male fide. It ought to be dismissed. I hereby dismiss it. The Claimants/Applicants shall pay N1,000 costs to the Defendant/Respondent.”

Aggrieved by the decision, the Appellants filed Notice of Appeal dated 2nd day of March, 2012 and filed same date against the said ruling. The said Notice of Appeal contained two grounds. The said Notice and grounds of Appeal were amended pursuant to the leave of this court granted on 4th day of December, 2012. The amended Notice of Appeal contained three grounds which are as follows: –

“GROUND ONE:
The learned trial court was in error when he held that “The present amendment sought represents all the features of overreaching as described by the Apex Court.”

PARTICULARS OF ERROR:

1. Both counsel relied on the Supreme Court authority of AKANIWO V. NSIRIM (2008) ALL FWLR (pt. 401) 610 at 659.

2. There is nowhere in the counter affidavit of the Defendant/Respondent in opposition to the application for amendment where the Defendant/Respondent showed how he will be overreached by the amendment.

3. In the said authority, the Supreme Court clearly defied overreach to include an amendment where the application unnecessarily anticipates the case of the Respondent and places a wedge to close any meaningful pleadings in joinder of issues.

4. The Defendant/Respondent has opportunity to respond and join issues which he already did in his counter affidavit and only awaits the court to grant the necessary leave to amend in order to effect a consequential amendment in his statement of defence.

5. The amendment sought is to supply the particulars of misrepresentation already pleaded in the statement of claim and not to plead misrepresentation for the first time.

GROUND TWO:
The learned trial court erred in law when he refused the Appellants application to amend their pleadings in order to comply with the rules of court and held that the application was brought malafide.

PARTICULARS OF ERROR
1. The Appellants as claimants relied on the fact of misrepresentation practiced on them by the Defendants but failed to supply the particulars as required by the rules of court. This fact misrepresentation was already pleaded by the claimants.
2. Order 15 Rule 3 of the Imo State High Court (civil Procedure) Rules, 2008 makes it mandatory for a party relying on the fact of misrepresentation to supply the particulars of the fact of misrepresentation.

3. The amendment sought to be made in the pleadings by the claimants was to free the pleadings of this obvious error by supplying the missing particulars to enable the claimants lead evidence in proof of the misrepresentation.

GROUND THREE:
The Learned Trial Court erred in law when the court gave a final judgment in an interlocutory proceedings in that the court held that the applicants did not substantiate the allegation of fraud in the proposed amendment.

PARTICULARS OF ERROR

1. Order 15 Rule 3(1) of the Imo State High Court (Civil Procedure) Rules 2008 states that:

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful, or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings.

2. The applicants pleaded misrepresentation in paragraph 20 of the statement of claim without supplying the particulars as provided in Order 15 Rules 3(1) of the Imo State High Court Rules (Civil procedure) Rules, 2008.

3. The applicants gave enough particulars in the proposed paragraph 20b of the proposed amended statement of claim as to the misrepresentation of facts already pleaded in paragraph 20 of the statement of claim.

4. The Learned Trial Judge in refusing the application for amendment held that the applicants did not substantiate the fact of misrepresentation.

5. That the evidence necessary to substantiate the fact of misrepresentation can only be given at the hearing after the amendments have been granted.”

The Appellants filed their Appellants Brief of Argument dated 20th day of November, 2012 on 21st day of November, 2012. The Respondent’s Brief of Argument dated the 15th day of February, 2013 was filed on 18th day of February, 2013. The Appellants filed Appellants’ Reply to the Respondent’s preliminary objection on 21st day of February, 2013. It was dated 20th February, 2013.

The appeal came up for hearing on 10th day of June, 2014. The Learned Counsel to the Respondent U. V. Enwere Esq. drew attention of the court to the Notice of Preliminary objection filed by the Respondent and moved same. The contention of the Respondent is that the appeal is incompetent due to the failure of the Appellants to obtain the leave of lower court or this Court to file an appeal against an interlocutory ruling of the lower court. He urged this court to uphold the preliminary objection.
The Appellants relied on their Appellants Reply Brief to contend that pursuant to sections 241 and 242 of the 1999 constitution it was unnecessary for Appellants to seek and obtain leave of the lower court or this Court before they could appeal against the ruling of the lower court. That the three grounds of appeal constitute grounds of law and as such Appellants could appeal as of right. He urged the Court to discountenance all other grounds contained in the Notice of preliminary objection as unfounded.

On the main appeal J. I. Ogamba for the Appellants adopted the Appellants brief aforesaid and urged the court to allow the appeal. The Learned Counsel to the Respondent also adopted and relied on Respondent’s Brief of Argument in urging the court to dismiss the appeal.
This court must in line with the settled principles of law take the Notice of Preliminary Objection filed by the Respondents first. The law is firmly settled that the design or aim of a Notice of Preliminary Objection is to terminate in limine an action or an appeal so that same could be brought to an abrupt end either due to obvious defect, incompetence or any jurisdictional impediment or intervening event militating against the hearing of a suit or appeal. See CHIEF U. M. EFET vs. INEC & ORS (2011) 3 SCM 63 at 76 (1) -77A per I. T. MUHAMMED, JSC and YARO v. AREWA CONSTRUCTION LTD & ORS 6 SCNJ 418.

Thus when an Appellate court is faced with a Notice of Preliminary Objection Bordering on the incompetence of an appeal and consequently on its appellate jurisdiction it is always neater and better to determine the merit or demerit of the objection before delving into the merit of the appeal. See OWELLE ROCHAS OKOROCHA vs. PEOPLES DEMOCRATIC PARTY & ORS (2014) 1 SCM 153 at 785 per OGUNBIYI, JSC and B.A.S.F. NIGERIA LTD & ANOR vs. FAITH ENTERPRISES LTD (2010) 1 SCM 41 at 52 D-E per COOMASSIE, JSC.”

Now the Notice of Preliminary objection filed by the Respondent against the hearing of this appeal reads:

NOTICE OF PRELIMINARY OBJECTION

“TAKE NOTICE that the Respondent herein shall at the hearing of this Appeal contend by way of preliminary Objection that this Appeal be struck out for being incompetent.

TAKE FURTHER NOTICE that the grounds upon which the objection is based are as follows:

i. The Appellants did not obtain leave of the lower Court or Court of Appeal before filing their Notice of Appeal against the interlocutory and discretionary decision of the High Court.

ii. The Appellants did not file any brief of argument in respect of Appeal No. CA/OW/311/2012.

iii. The Appellants’ Brief of Argument was filed on 2/11/12 before the Appellants’ Amended their Notice of Appeal on 4/12/12 and there was no Amended Brief of Argument filed thereafter.”

The position of the Respondent is that the three grounds of appeal contained in the Amended Notice of Appeal are all questioning the lower court’s exercise of judicial discretion and therefore the said grounds of appeal are on mixed law and facts which require the leave of Court to be first sought and obtained before the Appellants could file any appeal against the ruling of the lower Court. The Learned Counsel to the Respondent relied on the case of (1) KHALIL V. YAR’ADUA 2004 ALL FWLR (PT. 225) 111 AT 148. (2) METAL CONSTRUCTION LTD VS. MIGLIORE (1990) 1 NWLR (PT. 126) 298 AND (3) OBINYI RIUKA vs. ALICHE (1991) 4 NWLR (PT. 183) 87 AT 95.

That since no leave was obtained from the lower court or this court to appeal on mixed law and fact, the Notice of Appeal together with all the grounds are incompetent and liable to be struck out. He relied on the case of OKAFOR VS. U.B.N (2007) ALL FWLR (PT. 347) 743 AT 753 – 754. He also urged the court to hold that the Brief of Argument filed is grossly incompetent.
As stated earlier the Appellants through the Learned Counsel (Nze) J. I. Ogamba argued the contrary. He opined that since the grounds of appeal are only complaining of the failure of the lower court to apply the decision in AKANIWO vs. NSIRIM (2008) ALL FWLR 610 AT 659 to grant the amendments sought by the Appellants, this court is only being asked to interpret whether the principle of overreaching enunciated in the case of AKANIWO V. NSIRIM supra operates in Appellants’ case in such a manner making it inexpedient for the lower court to grant the amendment sought. That if the grounds of appeal are considered along with their particulars they are all grounds of law. He relied on the case of NWADIKE v. IBEKWE (2004) 24 WRN 32. That section 242(1) of the 1999 constitution is made subject to Section 241 of the said constitution. He also in the course of argument before us on 10/6/14 cited additional authority which is LOVLEEN JOYS INDUSTRY V. FEMI ADEWALE KOMOLAFE (2013) MRSCJ VOL. 10 28 on when it is necessary to seek leave to appeal under Sections 241 and 242 of the 1999 constitution as amended. He urged this court to hear the appeal on the merit.
Pursuant to Sections 241, 242(2) and 243(1) of the constitution of Nigeria, 1999 as amended, any appeal initiated without compliance with the provisions of the said constitution will be incompetent and this court will lack the jurisdiction to entertain it.

The said provisions of Sections 241 and 242 of the 1999 constitution are as follows:-

“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High court sitting at first instance;

(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;

(c) Decisions in any civil or criminal proceedings on question as to the interpretation or application of this Constitution;

(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;

(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;

(f) Decisions made or given by the Federal High Court or a High Court;

(i) Where the liberty of a person or the custody of an infant is concerned,

(ii) Where an injunction or the appointment of a receiver is granted or refused,

(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,

(iv) In the case of a decree nisi in a matrimonial cause or a decision in any admiralty action determining liability, and

(v) In such other cases as may be prescribed by any law in force in Nigeria.

(2) Nothing in this section shall confer any right of appeal-

(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;

(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi, and

(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.

242 – (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”

“Leave of Court where it is required is a condition precedent to the exercise of the right to appeal. This failure to obtain leave where it is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate court. Hence an appeal from the Court of Appeal to the Supreme Court on grounds other than of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. Nalsa Team Associates v. N.N.P.C (1991) 8 NWLR (PT. 212) pg. 652; S.P.D.C. (Nig.) Ltd. U. Katad (Nig.) Ltd. (2006) 1 NWLR (PT. 960) pg. 798; Nyambi v. Osadim (1997) 2 NWLR (Pt. 485) pg. 1; Olanrewaju v. Ogunleye (1997) 3 NWLR (Pt 485) pg. 12.”
See also CHIEF I. EMENIKE v. PDP & ORS (2012) 12 NWLR (PART 1315) 556 AT 595 E – F PER MOHAMMED JSC.

I have already reproduced the three grounds of appeal contained in the Notice of Appeal filed by the Appellants. I have critically and solemnly examined the said Notice and grounds of appeal and I am of the firm view that they run foul of the provisions of section 14(1) of the Court of Appeal Act 2004 Cap. C36 which provides:-

“14(1) where, in the exercise by the High Court of a state or, as the as may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie to the Court of Appeal, but no appeal shall lie from any order made exparte, or by consent of the parties, or relating only to costs.”

The above provisions of the Court of Appeal Act is fully backed by sections 242(1) and 243(1) (b) of the 1999 Constitution. See the decision of this court Kaduna Division delivered recently by Hon. Justice I. G. Mbaba JCA who held thus:

“By Section 14(1) of the Court of Appeal Act 2004, where:
“…an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie in the Court of Appeal…”

This provisions has a constitutional backing in Sections 242(1) and 243(1) (b) of the 1999 Constitution, and is binding on Appellant seeking to appeal against interlocutory decision of the trial court, especially where the grounds of appeal thereof are not of law alone. See the case of Garba Vs. Ummuani (2013) 12 WRN 76, where this court held;

“Since the order made by the Lower Court evinces an interlocutory decision, the law compels the Appellants to seek and obtain the leave of the court before appealing against it… The law insists that where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void. See Otu vs. ACB Int’l Bank Ltd (2008) 3 NWLR (Pt. 1073) 179; BBN Ltd vs. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434; Agip Nig. Ltd. V. Agip Petroleum Int’l (2010) NWLR (PT.1187) 348; Nwaolisah vs. Nwabujoh (2011) 14 NWLR (PT. 1268) 600.”
The preliminary objection is hereby upheld, in respect of ground 1 and issue 1 and the same are hereby struck out, for being incompetent.”

Apart from the fact that the said grounds of appeal contained mixed law and facts which do not give the Appellants the right to appeal without leave of court as stipulated under sections 241 and 242 (1) of the 1999 constitution aforesaid, it is also made more imperative that leave must be first had and obtained from the High court of Imo State or from this court since the appeal is against and interlocutory decision or ruling of the High Court of Imo State. At the risk of repeating myself see Section 243(b) of the 1999 constitution as amended which provides:

“243 Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this constitution shall be –
(a)…
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

“Finally, it has been argued in this matter that this appeal has been struck out by the lower Court for failing to seek and obtain leave of Court before filing the appeal as prescribed by section 242 of the 1999 Constitution as amended having raised grounds of mixed law and facts therein. It is also common ground that the trial Court’s directive to deal first with the preliminary objections amounts to an interlocutory order based on the exercise of its discretion. It is trite law that an appeal against an interlocutory decision other than on grounds of law requires leave of court. The provisions of sections 241(1) and 242 (supra) have clearly set out when appeals will be presented as of right or with leave respectively of the Federal High Court or State High Court or the Court of Appeal as the case may be. And so it is settled law that right to appeal is statutory.”

The inevitable conclusion I have reached is that the appeal of the Appellants is grossly incompetent having been filed without the leave of the lower court or leave of this Court. In the result the Notice of preliminary objection filed against the Appellants appeal by the Respondent succeeds and same is hereby sustained.

Consequently this appeal which is founded on the Amended Notice and Grounds of Appeal dated 20th November, 2012 and filed on 21st day of November, 2012 which have been adjudged incompetent is hereby struck out. Appellants shall pay costs assessed at N30,000.00 to the Respondent.

ITA G. MBABA, J.C.A: I had the privilage of reading the draft of the lead Judgment, just delivered by my learned brother, P. O. Ige JCA, and I agree with his reasoning and conclusions, completely, that the Appellants jumped the gun, when they failed to seek the leave of the trial court, nor of this court, before bringing the appeal, which is against an interlocutory decision of the trial court.
Whatever the merits in that appeal, which is against the application to further amend Appellants’ statement of claim, that merit cannot be considered, because the Appellants breached the mandatory rules for originating interlocutory appeal, as clearly stated in section 14(1) of the Court of Appeal Act 2004, which derived strength from section 243(b) of the 1999 Constitution, as amended. That provision of the Constitution empowered the National Assembly to make laws to regulate how the right of appeal, against decisions of the High Court to the Court of Appeal, could be exercised, and both the Court of Appeal Act and the Court of Appeal Rules are hybrids of the said Constitutional Provision, and must be respected.

I think my lord, IGE JCA, has succinctly discussed and settled all the pressing issues that were thrown up for resolution in the preliminary objection, and I agree with him.
I too uphold the preliminary objection and strike out the appeal. I abide by the consequential orders in the lead Judgment.

FREDERICK O. OHO, J.C.A: I have had the opportunity of reading in draft the judgment just read by my learned Brother, Peter Olabisi Ige, JCA. I agree both with the reasoning and conclusions and I do not wish to add anything to the opinion therein expressed.

Appearances

J.I. Ogumba Esq.For Appellant

AND

U.V. Enwere Esq.For Respondent