HON. ABRAHAM ADEOLU ADELEKE (SPEAKER) & ANOR. V. OYO STATE HOUSE OF ASSEMBLY & ORS. (R2)
(2006)LCN/1904(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of March, 2006
CA/I/21M/2006
RATIO
PRACTICE: WHAT AN ABUSE OF COURT PROCESS CONSIST OF
It is an abuse of process of court to institute multiplicity of actions between the same parties over the same subject matter in different courts. The second action will, ordinarily, be vexatious and equate to an abuse of the process of court; prima facie. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6; Williams v. Hunt (1905) 1 K.B. 512. I need to remind the applicants herein that abuse of court’s process in this realm has nothing to do with filing of more than one notice of appeal by an appellant in the same appeal. PER FABIYI, J.C.A.
COURT PRACTICE : WHETHER AN APPELLANT CAN BE PUNISHED FOR ANY ERRORS OF OFFICIALS OF COURT REGISTRY
If there are gaps in the compilation of records, that is the business of the lower court’s Registry whose inactions or faults should not be counted against the appellants. There is a presumption of regularity by an official of that Registry however. Refer to S. 150(1) Evidence Act, Cap. 112, LFN, 1990. Appellants cannot be punished for any error of officials of the Registry. See Duke v. Akpabuyo Local Govt. (supra). PER FABIYI, J.C.A.
Failure to sign bond will not militate against the hearing of an appeal. See Admin. Gen. v. Ogogo (supra). PER FABIYI, J.C.A.
APPEAL: WHETHER FILING MORE THAN ONE NOTICE OF APPEAL MAKES THE APPEAL INCOMPETENT
The case of Tukur v. Govt. of Gongola State (supra) is clearly apposite. It is directly in point and on all fours. Nothing stops an appellant from filing more than one notice ex abundantia cautela. Where more than one notice of appeal is filed, the others may be superfluous but not invalid. An appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal based on the other remaining notice of appeal. It is erroneous to say that the Rules of this court did not permit the filing of more than one notice of appeal when the Rules did not prohibit the filing of more than one notice. An appeal is not incompetent because it is brought by more than one notice of appeal. See Akeredolu & Ors. v. Akinremi & Ors. (No.2) (1986) 2 NWLR (Pt.25) 710; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244; Iteshi Onwe v. The State (1975) 9-11 SC 23. It is clear beyond paradventure that filing of more than one notice of appeal in a matter does not render the appeal incompetent. And such a step can never equate to an abuse of court’s process. It has never been. PER FABIYI, J.C.A.
JUSTICES:
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
GERTRUDE IFUNANYA UDOM-AZOGU Justice of The Court of Appeal of Nigeria
Between
1. HON. ABRAHAM ADEOLU ADELEKE (SPEAKER)
2. HON. BARRISTER TITITLOLA ADEMOLA DAUDA (DEPUTY SPEAKER) – Appellant(s)
AND
1. OYO STATE HOUSE OF ASSEMBLY
2. HON. MUYIDEEN INAKOJU, IBADAN SOUTH EAST
3. HON. FAJIMI SAKIRULLAHI ADEKUNLE, IBADAN SOUTH EAST
4. HON. FASOLA EMMANUEL OLUBOWALE, IBADAN NORTH EAST
5. HON. SALAWU KEHINDE, IBADAN NORTH EAST
6. HON. AYILARA KAZEEM, IBADAN SOUTH WEST
7. HON. ABIOLA AYORINDE, IBADAN SOUTH WEST
8. HON. AKINRINADE OYEWALE, AKINYELE II
9. HON. JELILI ADELEKE, AKINYELE I
10. HON. ISIAKA ADEOLA, IDO
11. HON. LEKAN GANIYU, OLUYOLE
12. HON. OGUNREMI MUFUTAU, ONA-ARA
13. HON. LAWAL DAUDA ADEMOLA, LAGELU
14. HON. TAIWO OLUYEMI, IBARAPA
15. HON. OLU OYELEYE, OGBOMOSHO NORTH
16. HON. AJADI OLATEJU, OGBOMOSHO SOUTH
17. HON. EFESUOLA HAMED BABATUNDE, ATIBA
18. HON. ATILOLA MORUFU OLAWALE, OYO EAST/WEST
19. HON. AKANBI IDOWU, ORIRE – Respondent(s)
FABIYI, J.C.A. (Delivering the Lead Ruling): This Ruling is sequel to the arguments canvassed in respect of the motion on notice dated 8th February, 2006 and filed on 10th February, 2006 on behalf of the 2nd – 19th respondents/applicants. They prayed ‘for an order striking out the notice of appeal dated the 3rd day of February 2006 and filed on 6th February 2006’. The lone ground for the application is that it constitutes an abuse of the process of the court. In support of the application, one Isiaka Amodu deposed to an affidavit of 12 paragraphs. It is apt to reproduce paragraphs 4-11, both inclusive.
They read as follows:
“4. That I know that the appellants/respondents herein filed motion on notice at the lower court seeking the leave of that court to appeal against the same ruling of Ige, J. F delivered on 28th December, 2005. A copy of their application is attached as exhibit A.
5. That we have been served with the hearing notice of the said application which is coming up on 13th February, 2006. A copy of the hearing notice is attached as exhibit B.
6. Meanwhile, the records of proceedings remitted to this court refers to another notice of appeal filed by the same appellants herein over the same ruling on 31st January 2006.
7. That though the said notice of appeal has not been served on the respondents, a summons to parties to settle records on 17th February,2006 was served which shows that appeal is different from the one over which the record herein was compiled as the record herein has been compiled and served on us by the 7th of February, 2006. A copy of Civil Form 6 is attached as exhibit C.
8. Furthermore, the notice of appeal at pages 58-65 was filed on 6th February, 2006 while the conditions of appeal had been perfected since 3rd February, 2006.
9. If leave is granted, there will be two appeals by the appellants over the same ruling.
10. That the said application is still pending at the lower court.
11. That I verily believe that this present notice of appeal was filed to harass and embarrass the respondents herein.”
In opposing the application, Biodun Amole, a Legal Practitioner, deposed to a counter affidavit of 9 paragraphs. It is desirable to reproduce paragraphs 6 and 7 of same for ease of reference. They read as follows:
“6. That contrary to the depositions in paragraphs 4 and 5 of the said supporting affidavit the appellants/respondents herein had withdrawn the motion on notice referred to by the defendants/applicants herein and same had been struck out on 13th February, 2006 by the lower court. A copy of the Enrolment Order is attached herewith and marked exhibit APR 1.
7. The notice of appeal for which leave was sought in the motion referred to in paragraph 6 above was in respect of a different ruling, given on the same day, in the suit from which this appeal arose. Notice of appeal attached and marked exhibit APR2.
It is deducible from the tone of the affidavit in support that the applicants herein felt that if the lower court granted the application dated 28-12-05 for leave to appeal, there will be two appeals over the ruling of 28-12-05. The averment in paragraph 9 of the affidavit in support which starts with ‘if leave is granted’ is uncertain. As events turned out, the motion on notice attached as exhibit ‘A’ was withdrawn and struck out at the lower court on 13-2-06. This is manifest in exhibit APR1 attached to the counter-affidavit. And so, no leave was granted by the lower court to appeal. Applicants say that a notice of appeal filed on 31-1-2006 was designed to harass and embarrass them. From their own showing in their affidavit in support, the application which appears to be based on imagination headed for the rocks. The application should have been withdrawn since it rested on a shifting sand which was knocked off its bottom.
Arguing the application, Mr. Lana, the Attorney General of Oyo State, submitted that two processes filed by the same party against another party in the same proceedings will constitute an abuse of court process. He cited the cases of Nigeria Intercontinental Merchant Bank v. Union Bank of (Nig.) Ltd. (2004) All FWLR (Pt. 209) 1126 at 1145-6 G-A; (2004) 12 NWLR (Pt. 888) 599; Agwasim v. Ojichie (2004) All FWLR (Pt. 212) 1600 at 1609-1610 G-A, (2004) 10 NWLR (Pt. 882) 613; A.P.P v. Ogunsola (2004) All FWLR (Pt.207) 727 at 741, (2002) 5 NWLR (Pt. 761) 484.
Learned counsel pointed it out that there are two appeals initiated by notices of appeal filed on 31-1-06 and 6-2-06 respectively, by the same party. Shorn of all irrelevancies, it is the contention of the applicants that such a step was an abuse of the process of court. Learned counsel felt that the original notice of appeal should have been amended instead of filing a new one. He pointed out some gaps in the compilation of the record of appeal. Such relate to settlement of record and signing of bond.
Learned counsel further referred to Order 3 rule 2, Court of Appeal Rules, 2002. He asserted that where notice of appeal does not contain the address of even one of the parties, it must be struck out. He referred to Olaniyan Waheed v. Oguntoke Hassan & 5 Ors. Suit CA/l/HR/EPTA/3/03 delivered on 23-7-03. He observed that respondents 3-18 have no specified addresses for them as dictated by the Rules and such rendered the notice of appeal incompetent and it should be struck out. He urged us to so hold.
Mr. S. A. Ajewole, learned counsel for the 1st respondent ‘aligned’ himself with the submissions of the Attorney General. On abuse of court process, he referred to Best Western Co. Ltd. & Ors. v. Udomisor (2002) FWLR (Pt. 97) 744 at 761-762 F-A; A.R.C. v. J.D.P Construction (Nig.) Ltd. (2003) FWLR (Pt. 153) 251 at 270 B-D, (2003) 13 NWLR (Pt. 838) 609. Learned counsel asserted that where court process is abused the proper order is one ‘dismissing the process’. He urged that notice of appeal be dismissed. He referred to Onyeabuchi v. I.N.E.C. (2002) FWLR (Pt. 103) 453 at 469, (2002) 8 NWLR (Pt. 769) 417.
Chief Wole Olanipekun, SAN, who appeared for the appellants/respondents submitted that justice is not interested in scoring debating points. He referred to Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at p. 251. Senior counsel contended that the applicants who filed notice of intention to contend that decision should be affirmed on grounds other than those relied upon by lower court on 10-2-06 cannot be heard to complain that there are two notices of appeal and they do not know which one to react to.
Senior counsel asserted that it is not illegal to file many notices of appeal in the same matter. He stressed that it has never been and cited the case of Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 at p. 42. He felt that an appellant can withdraw one notice of appeal and rely on the remaining notices of appeal. He opined that an application to withdraw one and rely on the other or others can be made as no rule prohibits the filing of more than one notice of appeal.
Senior counsel pointed it out that the notice of appeal dated 3-2-06 was filed at the Registry of the lower court on 6-2-06. The record was transmitted to this court by the lower court. He submitted that if there are gaps in the record, which the appellants/respondents do not concede, there is a presumption of regularity by virtue of S.150(1) Evidence Act. He felt that the appellants cannot be punished for any error that might have been committed by the lower court’s Registry in the compilation of record with regard to settlement of records, bonds and the like. He cited Duke v. Akpabuyo Local Govt. (2005) 19 NWLR (Pt. 959) 130 at 150-151. Senior counsel felt that complaints relating to settlement of record is non sequitor, and failure to sign bond will not vitiate the hearing of an appeal. He referred to Admin Gen. v. Ogogo (2006) 2 NWLR (Pt.964) 366 at 381. Senior counsel observed that no part of the record is said to be missed out. And any missing part can be compiled by any party who complains. He cited Soleye v. Sonibare(2002) 10 NWLR (Pt. 775) 380; Geco-Prakla (Nig.) Ltd. v. Ukiri (2004) 1 NWLR (Pt. 855) 519 at 535-6. He felt that signing of bond is the prerogative of the Registrar, lower court and that applicants have not shown what they have suffered.
Senior counsel observed that it should be ubi jus ibi remedium. Senior counsel observed that the address for service on the respondents in the appeal is there on page 65 of the record. He stressed that the motion is not based on the fact that there is no address for service. It is not a ground for the application and the Hon. Attorney General is in court representing the applicants. Senior counsel felt that the decision cited on the point is an election petition matter and even then, an obiter of Adekeye, JCA.
Senior counsel finally submitted that under the Rules of Court, conditions of appeal are not tied to any particular notice and grounds of appeal and ten records cannot be compiled for ten notices of appeal. He felt that vide Order 3 rule 19, germane documents should only be brought to this court. He felt that the application has been brought mala fide and urged that same be dismissed.
M. F. Lana Esq, Hon. Attorney General, in reply referred to Adegoroye vs. Ajayi (2003) FWLR (Pt. 171) 1591 at 1604 B-C. He observed that bundle of record must relate to the appeal before the court. He felt that the case of Tukur v. Govt of Gongola State is not apposite and that all the cases cited by the Senior counsel are not relevant. He submitted that issue of jurisdiction cannot be waived and urged us to dismiss the notice of appeal.
It was strenuously observed by the Attorney General that since two notices of appeal were filed by the appellants, such a step constitutes an abuse of court process. With due respect to the Hon. Attorney General, the cases cited by him relate to filing of suits by the same party against another party in two different courts; to his irritation, annoyance and expense. It is an abuse of process of court to institute multiplicity of actions between the same parties over the same subject matter in different courts. The second action will, ordinarily, be vexatious and equate to an abuse of the process of court; prima facie. See Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6; Williams v. Hunt (1905) 1 K.B. 512. I need to remind the applicants herein that abuse of court’s process in this realm has nothing to do with filing of more than one notice of appeal by an appellant in the same appeal.
The applicants agree that notice of appeal was filed on 31-1-06. Conditions of appeal were imposed and perfected on 3-2-06. So also, the bond dated and filed on 3-2-06. The notice of appeal dated 3-2-06 and filed on 6-2-06 is in the record transmitted to this court by the lower court in compliance with the Rules of court which mandate an appellant to file his notice of appeal at the Registry of the lower court. If there are gaps in the compilation of records, that is the business of the lower court’s Registry whose inactions or faults should not be counted against the appellants. There is a presumption of regularity by an official of that Registry however. Refer to S.150(1) Evidence Act, Cap. 112, LFN, 1990. Appellants cannot be punished for any error of officials of the Registry. See Duke v. Akpabuyo Local Govt. (supra).
Failure to sign bond will not militate against the hearing of an appeal. See Admin. Gen. v. Ogogo (supra).
It has not been shown that any part of the record-germane documents are not therein contained.
I now move to the salient issue for consideration. The issue is whether it is improper to file more than one notice of appeal in respect of the same matter. It is clear that it is not illegal to file many notices of appeal in the same matter. I agree with Senior counsel for the appellants/respondents that it has never been. The case of Tukur v. Govt. of Gongola State (supra) is clearly apposite. It is directly in point and on all fours. Nothing stops an appellant from filing more than one notice ex abundantia cautela. Where more than one notice of appeal is filed, the others may be superfluous but not invalid. An appellant can validly withdraw one of two notices of appeal and then proceed to argue his appeal based on the other remaining notice of appeal. It is erroneous to say that the Rules of this court did not permit the filing of more than one notice of appeal when the Rules did not prohibit the filing of more than one notice. An appeal is not incompetent because it is brought by more than one notice of appeal. See Akeredolu & Ors. v. Akinremi & Ors. (No.2) (1986) 2 NWLR (Pt.25) 710; Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244; Iteshi Onwe v. The State (1975) 9-11 SC 23.
It is clear beyond paradventure that filing of more than one notice of appeal in a matter does not render the appeal incompetent. And such a step can never equate to an abuse of court’s process. It has never been.
The applicants desired to cling to a straw by raking up the point touching on addresses not being stated in the notice of appeal. I say so because their application is not based on the fact that there is no address for service. The only ground for the application is that the notice of appeal is incompetent. Ground touching on address has come in from the blues. The other side should not be taken by surprise. The respondents’ address is on page 65 of the record and they are being represented by the Hon. Attorney General; not on protest. The fact of representation shows that they were duly served and mandated the Attorney General to appear for them. The essence of address is to enable the respondents to be served. This is not an election matter as in Waheed v. Hassan (supra) wherein proceedings are sui generis. Even in election matters in recent times, technicality is being closely watched. The trend now is directed at doing substantial justice.
In short, the appeal is competent and this court is imbued with requisite jurisdiction to deal with it. The application challenging competence of the appeal is hereby refused. It is accordingly dismissed.
I make no order on costs.
AUGIE, J.C.A.: I have read before now the lead Ruling just delivered by my learned brother, Fabiyi, JCA and I agree with his reasoning and conclusion. I however wish to add my own two bits. A notice of appeal is a document filed with a court and served on the other parties, stating an intention to appeal a trial court’s judgment or Order – see Black’s Law Dictionary: 7th Ed.
It is the notice of appeal that gives an appellate court the necessary jurisdiction to hear an appeal. Consequently, any defect in it goes to the root of the appeal- see Shell Int’l Petroleum Maatschappij BV v. Federal Board of Inland Revenue (2004) 3 NWLR (Pt. 859) 46. A valid notice of appeal is therefore a sine qua non to the competence of an appeal – see Sam Fam Financiers Ltd. v. Aina (2004) 2 NWLR (Pt. 857) 297; Bilam Dambam v. Ardo Lele (2000) 11 NWLR (Pt. 678) 413 at 535; and Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 at 275, where this court further observed as follows –
“The crucial position of this document (Notice of Appeal) in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It (i.e. Notice of Appeal) initiates appeal and where it suffers from any serious defect the appeal itself becomes defective and subject to be struck out as incompetent.”
(Italics-mine)
In this case, the Hon. Attorney General of Oyo State, M. F. Lana, Esq., argued that two appeals were initiated by two notices of appeal filed on the 31/1/06 and 6/2/06 and that this constitutes an abuse of court process, therefore the appeal is incompetent and should be struck out. True enough, by virtue of Order 3 rule 2(7) of the Court of Appeal Rules, this court has the “power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason”. But is the filing of two notices of appeal sufficient reason to render the appeal incompetent? Certainly NOT! An appellant can file as many notices of appeal as he wishes to in one appeal provided that is done within the period allowed for appealing as of right. Where more than one notice is filed, the others may be superfluous but not invalid, and an appellant is free to withdraw any one of them at the hearing of the appeal – see Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39. In his reply on points of law, the Hon. Attorney General argued that Tukur case (supra) is not relevant to this case, but that is a laughable argument; there is no difference in the two cases on this issue. In Tukur case (supra), the Gongola State Government filed two notices of appeal against the same Rulings. The respondent filed a notice of preliminary objection contending that one of the notices of appeal is incompetent, and that the appeal is also incompetent. This court dismissed the preliminary objection, and on appeal to the Supreme Court, Obaseki JSC held as follows –
“I am unable to agree with learned counsel for the appellant that an error aw was committed because the Rules of the Court of Appeal did not provide for the filing of multiple notices. Learned counsel preferred to use the term “that the Rules of the Court of Appeal did not permit it”. It is erroneous to say that the Rules of the Court of Appeal did not permit the filing of more than one notice when the Rules did not prohibit the filing of more than one notice. It is a principle of interpretation that where by positive words a right of appeal is conferred it can only be taken away by positive words or by failure to comply with a condition precedent if such condition is imposed. The right of appeal cannot therefore be lost by the filing of more than one notice of appeal. The right of appeal exercised by the appellant was conferred by section 220(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended. The Court of Appeal Rules do not purport to take away the right from the appellant. (Italic mine)
In this case, the appellants filed a simple application to abridge time within which to file briefs of argument, and one day’s journey has taken us weeks to arrive at our destination because of this flimsy and nonsensical objection filed by the 2nd – 19th respondents, which has only succeeded in wasting the court’s time and resources and no more. The appellants have a constitutional right to appeal, and there is nothing sustainable in the respondents’ objection that can take away that right, and I so hold. In dismissing the application, I adopt the statement of Nnamani JSC in Erisi v. Idlika (1987) 4 NWLR (Pt.66) 503. “The courts are courts of law but may the day never come when they cease to be Courts of Justice. Substantial justice cannot be done unless Courts of Justice strain to ensure that appeals are heard on their merit”. The application is dismissed.
UDOM-AZOGU, J.C.A.: I have had the privilege of reading before now the Ruling just delivered by my learned brother Hon. Justice John Afolabi Fabiyi JCA.
I agree with the reasoning and conclusion. I shall add a few points of my own. The main grouse of the respondent/applicant is that having filed two notices of appeal based on one record, and not having applied to withdraw one before the motion was moved, the respondent is in abuse of the courts process, the resultant position being that his notice of appeal is incompetent and the court is deprived of jurisdiction to entertain same. There is no gain saying the fact that the issue of jurisdiction is fundamental and a condition precedent to adjudication – see Attorney General Osun State v. International Breweries Plc. (2001) 7 NWLR (Pt. 713) 647 at 665. It is the heart of the court’s competence to adjudicate. Any decision given therefore without jurisdiction is null and void. It is trite that the issue of jurisdiction can be raised at any stage of the proceedings even up to appellate level- see Madukolu v. Nkemdilim (2001) 45 WRN; (1962) No.4 NSCC 324; (1962) 2 SCNLR 341; (1962) 1 All NLR 587. Once raised, it must be determined first before any further steps are taken – see also Chief Flint Obiekwe v. Chief Ben Obi & 5 Ors. (2005) 10 NWLR (Pt. 932) 60 at 72.
The second main complaint of the respondent/applicant is that to file two notices of appeal based on the same record is an abuse of the court process. Order 3 rule 2(7) Court of Appeal Rules only empowers the court to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
The question is whether filing of two notices of appeal amount to an abuse of process.
What then is abuse of process? This concept has been defined by several jurists in several authorities. I shall reproduce them here.
In Isreal Amaefule & Ors. v. The State (1988) 2 NWLR (Pt. 75) 156 at 177 Oputa JSC described inter alia as “a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive.” It means abuse of legal procedure or improper use of legal process.”
In Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt. 258) at 229 Tobi JCA (as he then was) defined it as “an action which could be one or more too many … The process of court is used male fides to over reach the adverse party to the direct annoyance of the court.”
In David Ogbu Onuoha v. National Bank of Nigeria Ltd. & Anor. (1999) 13 NWLR (Pt. 636) 621 at 627, Sanusi JCA defined as “thus this can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues.”
In Bibejiok & Allied Products Ltd. v. Alm. M. Mahdi Abubakar & 2 Ors. (2001) 19 WRN 119 at 121 Obadina JCA described abuse of process as an improper use of the process and procedure of court by a litigant.”
In their submission, the respondent/applicants submitted that when 2 separate notices of appeal were filed by the same party seeking the same relief, and there is no application for leave to amend the records, it is vexatious and an abuse of the process of court.
The appellant/respondent submits that the application is premature having regard to the fact that it is not illegal to file many notices of appeal since some may be withdrawn or consolidated at the hearing of the substantive matter. Also, it was made clear that the application referred to was struck out at the lower court exhibit PPR 1 to counter affidavit paragraph 9.
It is therefore obvious that the scenario here does not fall into the definition of abuse of process as defined supra. The next but not the least issue raised is that of jurisdiction of the Court of Appeal to entertain an appeal from the High Court. It is mind-bogging to think that anybody can challenge the jurisdiction of the Court of Appeal to entertain appeal from the High Court.
The Court of Appeal is created under section 237(1) of the Constitution of the Federal Republic of Nigeria. Section 240 provides for the appellate jurisdiction for the purposes of clarity. That section is reproduced in part hereunder –
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State etc”
Section 241 provides for appeals as of right from the various courts while section 242 provides for appeals with leave. Order 3 rule 2(1) of the Court of Appeal Rules 2002 provides:
“All appeals shall be by way of rehearing and shall be brought by notice hereafter called “the Notice of Appeal” to be filed in the Registry of the court below …etc.”
It is therefore beyond question that the Constitution of the Federal Republic of Nigeria 1999 provides for constitutional right of appeal and appeal with leave.
To challenge this constitutional right is therefore borne out of misapprehension or sheer mischief aimed at delaying the court’s process.
The case of Tukur v. Government of Gongola State (1988) 1 NSCC 30, (1988) 1 NWLR (Pt. 68) 39; Oputa JSC in the lead judgment addressed the issue in a preliminary objection based on Order 3 rule 15 of the Court of Appeal Rules which sought to declare one of the notices of appeal filed in that case incompetent; held that the appellant call validly withdraw one of the Notices of appeal and proceed with one notice of appeal. He also held that if the remaining notice of appeal is competent, the appeal which initiated it is also competent.
The application in Tukur’s case appears to be on all fours with the present case under consideration. The court is seised of jurisdiction to entertain the application.
For the above reason and the fuller reasons contained in the lead judgment, I also hold that the appeal is competent and this court is imbued with requisite jurisdiction to deal with it.
The application challenging competence of the appeal is hereby refused. It is accordingly dismissed. I make no order as to costs.
Application dismissed.
Appearances
Chief Wole Olanipekun, SAN (with him, O. Akeredolu, SAN, Kola Awodehin, SAN, A. Akintola, SAN, J. O. Adeniran, Dele Adesina, S. S. Akinyele, Dr. D. Odebowale, B. Ayorinde, Bose Taiwo, F. A. Aofolaju, A. Ojo, Femi Edema, S. Aborisade, Ike David) For Appellant
AND
S. A. Ajewole (with him, W. A. Olajide,) – for the 1st Respondent
M. F. Lana, A.-G., Oyo State (with him, O. O. Oyesina [Mrs.] Solicitor-General, O. A. Oguniran SSC, O. I. Orobode, Legal Officer) for the 2nd – 19th Respondents/Applicants
Y. O. Alli, SAN (with him, A. Fashanu, SAN, T. Okusokan, K. K. Eleja, Y. Dauda) – for Party interested/Applicant For Respondent
