IKOLABA v. ODEKUNLE (2022)

IKOLABA v. ODEKUNLE

(2022)LCN/16898(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/IL/70/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

JIMOH BUSARI IKOLABA (For Himself And On Behalf Of Ikolaba Family, Ganmo) APPELANT(S)

And

MALLAM GARUBA ODEKUNLE Bale Kabba Kajola/Kabba Oriaje (For Himself And On Behalf Of Kabba Oriaje Family) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON SETTING OUT THE PROPER NAMES OF PARTIES ON A NOTICE OF APPEAL

WHETHER OR NOT ANY DEFECT IN A NOTICE OF APPEAL GOES TO THE ROOT OF THE APPEAL

In this appeal, the Appellant in his Notice of Appeal referred to the parties as Claimants and Defendants, nomenclature unknown in the Appellate Court. It is the Notice of Appeal that gives an Appellate Court the necessary vires or jurisdiction to hear an appeal. Therefore, any defect in the Notice of Appeal goes to the root of the appeal. See SHELL INT’L PETROLEUM, B VS. FBIR (2004) 3 NWLR PT 859 PG 46, S.BN LIMITED VS. M.P.I.E. (2004) 6 NWLR PT. 868 PG 146, ABIOLA VS. OLAWOYE (2006) 13 NWLR PT 996 PG1.
A notice of appeal is the originating process on which an appeal is based, therefore, an appeal would collapse if the notice of Appeal is defective. See THOR LIMITED VS. F.C.M.B (2002) 2 SC PT 1 PG 138, EBOKAM VS. EKUEMBE AND SONS TRADING COMPANY LIMITED (1999) 7 SC PT.1 PG 39.
As can be seen in the Notice of Appeal in this appeal, the parties therein are Claimant and Defendant, an unknown nomenclature in the Court of Appeal. Being unknown, the parties are therefore, non/parties and cannot be said to be parties.
In the Court below the nomenclature Claimant and Defendants are the parties expected or envisaged there. On appeal, the parties change the nomenclature. Having not changed in this appeal it can rightly be said that the correct parties are not before the Court. See DANIEL VS. INEC (2015) LPELR 24566. PER NDUKWE-ANYANWU, J.C.A.

THE POSITION OF LAW ON WHEN A COURT IS SAID TO HAVE JURISDICTION TO DETERMINE AN ISSUE

It is settled that a Court is competent when the Court is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other, 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 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 UMANAH VS. ATTAH (2006) PT 1009 PG 503, MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR PG 587, ARAKA VS EJEAGWU (2000) 12 SC PT 1 PG 99. PER NDUKWE-ANYANWU, J.C.A.

THE POSITION OF LAW ON WHEN TO RAISE AN OBJECTION TO THE JURISDICTION OF A COURT

An objection to the jurisdiction of the Court can be raised in any manner or form and at any time. See NNONYE VS ANYICHIE (2005) 2 NWLR PT 910 PG 623, NDIC VS. CENTRAL BANK OF NIGERIA (2002) 7 NWLR PT 272. PER NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Kwara State delivered on 5th July, 2021 Coram T. S. Umar J. sitting in Kabba Division of the Court. After the exchange of pleadings the Defendant herein the Appellant raised a Preliminary Objection challenging the jurisdiction of the lower Court on the grounds that the Court had no jurisdiction over Inter-Communal boundary disputes. The objection was dismissed hence this appeal.

The Defendant/Appellant being aggrieved filed a notice with three (3) grounds of appeal on 14th July, 2021. The Appellant thereafter, filed its Appellant’s brief on 22nd September, 2021.

The Respondent filed a notice of Preliminary Objection on 7th October, 2021 and stated that the appeal is incompetent. The particulars of objection are as set out in the Preliminary Objection.
1. This appeal is an interlocutory appeal against the ruling of Kwara State High Court of Justice delivered on 5th July, 2021.
2. The Grounds of Appeal herein are of mixed law and facts and by the community reading of Sections 241 (1) and 242 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 14(1) of Court of Appeal Act, 2010 (as amended), leave of either the trial Court of this Court must first be sought and obtained before filing the appeal failing which the appeal is incompetent.
3. The Appellant has failed to seek and obtain leave of Court to file this appeal and as such the appeal is incompetent and same should be dismissed.
4. The Notice of Appeal is defective and same is void ab initio as the name of the parties as constituted on the face of Notice of Appeal herein is, by Order 1 Rule 5 of Court of Appeal Rules, 2016, unknown to the Rules of this Honourable Court.
5. By Order 19 Rule 2 of Court of Appeal Rules, 2016, the Appellant is required to file Appellant’s Briefs of Argument within 45 days from the date of the receipt of Records of Appeal failing which the appeal is liable to a dismissal.
6. The Records of Appeal in this appeal was served on the Respondent on 26th July, 2021 but the Appellant did not file Appellant’s Brief of Argument until 22nd September, 2021, 57 days after the Records of Appeal was served on the Appellant.
7. This appeal is therefore incompetent and same is liable to a dismissal.
8. This Honourable Court is urged to dismiss same.
Dated this 6th day of October, 2021.

This Preliminary Objection was argued in his Respondent’s brief of 7th October, 2021 from pages 1–5. In Reply to this Preliminary Objection, the Appellant filed the Appellant’s Reply brief on 13th October, 2021 in answer to the Preliminary Objection.

The Respondent in its arguments raised so many issues bordering on the jurisdiction of the Court. However, I think the most important of these issues is the one directly against the notice of appeal and the parties set out therein.

Learned Counsel for the Respondent submitted that the notice of appeal is an originating process and must conform with the basic Rules of Court. Counsel argued that the notice of appeal is invalid as the parties were designated Claimants and Defendants. See page 331 of the Record of Appeal and cover page of the Record of Appeal.

Counsel argued that the Court of Appeal, not being a Court of first instance does not recognise the parties as constituted by the Appellant in this appeal. See OLORIODE VS OYEBI (1984) SCNLR PG 390, VERALAM HOLDINGS LIMITED VS. GALBA LIMITED (2014) LPELR CA/PH/381/2007 where Eko JCA as he then was held inter alia:
“When there are improper parties on an originating process, the proper order to make is an order striking out the said process, in this case: the notice of appeal. See OLORIODE V. OYEBI (1984) 1 5CNLR 390. This is what Order 6, Rule 6 of the Court of Appeal Rules, 2011 is all about. A Court of law has the power and duty to put an end to any proceedings if, at any stage and by any means, it becomes manifest that the proceedings are incompetent it can do this of its own initiative or at the behest of a party in the proceedings. See WESTMINISTER BANK LTD V. EDWARDS & ANOR (1942) A C 529 at page 536.” PER EKO, J.C.A. (P. 9, paras. C-F).

Counsel submitted further that the notice of appeal is incompetent as the parties are not described properly and adequately. The importance of an originating process cannot be overemphasised. A defective notice of appeal robs the Court of its jurisdiction and cannot be amended. See IWUNZE VS. FRN (2015) 6 NWLR PT.1404 PG 580 where Rhodes Vivour, JSC held:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals… 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 Court. The originating process in all appeals is the Notice of Appeals. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form.”
See also the case of THE NIGERIA ARMY V. SAMUEL & ORS. (2013) LPELR-SC.75/2008

Counsel finally urged the Court to hold that the notice of appeal is incompetent and strike out this appeal.

In response, the Appellant submitted that the parties’ names on the notice of appeal and the capacity in which they are fighting the case remain as they were before the trial Court and the reference to them as Claimant and Defendant has not misled the Respondent in any respect. Counsel urged the Court to dismiss the objection as it is misconceived. The defect complained of should be regarded as an irregularity and discountenanced. It’s a mere technicality which the Court must overlook and allow an amendment of the notice of appeal. See the case of SURAKATU VS. NIGERIA HOUSING DEVELOPMENT SOCIETY LIMITED (1981) PT 4 SC (Reprint) PG 18.

Finally, Counsel urged the Court to discountenance the Preliminary Objection and go to the merit of the appeal.

RESOLUTION
The Notice of Appeal is the foundation and substance of every appeal. Any defect therein will render the whole appeal incompetent, and the Appellate Court will lack the requisite jurisdiction to entertain it or any interlocutory application based on the appeal. See UWAZURIKE VS A.G.F. (2007) 8 NWLR PT 1035 PG 1.

In OJO VS. AKINYEMI (2013) LPELR 22139 GALINJE Justice Court of Appeal (as he then was) held:
“Both Counsel for the Appellant and the Respondents in formulating issues for determination of this appeal referred to the parties to this appeal as Plaintiffs and Defendants. Such parties are not known to the proceedings in Court of Appeal. The parties before this Court are either Appellant and Respondent or Applicant and Respondent. Counsel appealing before this Court must make it a duty to set out the parties correctly, or it will be taken that proper party are not before the Court.”
Plaintiffs and Defendants are strange parties before this Court. The parties on the Appellant’s notice of appeal are Claimant and Defendant. Any party that is different from the ones on the notice of appeal is a stranger to the appeal, as such any argument on his behalf will surely go to no issue. See DUZU VS. YUNUSA (2010) 10 NWLR PT 1201 PG 80, OJO VS. AKINYEMI (2013) LPLER 22139, ISAIAH VS ASSOR (2011) LPELR 4136. In OYEDELE VS. AJAYI (2014) LPELR 23101, DANIEL KALIO JCA held:
“It has to be said for the umpteenth times that on appeal, the nomenclature of the parties change. The parties who were before the lower Court as Claimant and Defendants for example, become Appellant and Respondents depending on who is appealing. It is improper to keep referring to parties on appeal by their designation at the lower Court.”
In this appeal, the Appellant in his Notice of Appeal referred to the parties as Claimants and Defendants, nomenclature unknown in the Appellate Court. It is the Notice of Appeal that gives an Appellate Court the necessary vires or jurisdiction to hear an appeal. Therefore, any defect in the Notice of Appeal goes to the root of the appeal. See SHELL INT’L PETROLEUM, B VS. FBIR (2004) 3 NWLR PT 859 PG 46, S.BN LIMITED VS. M.P.I.E. (2004) 6 NWLR PT. 868 PG 146, ABIOLA VS. OLAWOYE (2006) 13 NWLR PT 996 PG1.
A notice of appeal is the originating process on which an appeal is based, therefore, an appeal would collapse if the notice of Appeal is defective. See THOR LIMITED VS. F.C.M.B (2002) 2 SC PT 1 PG 138, EBOKAM VS. EKUEMBE AND SONS TRADING COMPANY LIMITED (1999) 7 SC PT.1 PG 39.
As can be seen in the Notice of Appeal in this appeal, the parties therein are Claimant and Defendant, an unknown nomenclature in the Court of Appeal. Being unknown, the parties are therefore, non/parties and cannot be said to be parties.
In the Court below the nomenclature Claimant and Defendants are the parties expected or envisaged there. On appeal, the parties change the nomenclature. Having not changed in this appeal it can rightly be said that the correct parties are not before the Court. See DANIEL VS. INEC (2015) LPELR 24566.

I have considered the issue of technicalities and the need for substantial justice to be done.

However, I have come to the conclusion that originating processes are very paramount in any adjudication in the law Courts. It is what accords the Court the jurisdiction to adjudicate.

It is also important that anyone or party who perceives that the Court lacks jurisdiction must raise it immediately. NNONYE VS ANYICHIE (Supra).

This issue borders on the jurisdiction to hear this appeal as it is presently constituted. There are no competent parties in this appeal. If the parties are not competent because of their wrong nomenclature, the Court would be robbed of the necessary vires.

The Notice of Appeal is an originating process and therefore, it must be competent to be able to allow other processes to hang on it successfully. For all the foregoing, the originating process in this appeal, the Notice of Appeal is incompetent. Nothing can hang on it. The Preliminary Objection raised by the Respondent is meritorious. The Preliminary Objection is sustained.

This appeal is therefore struck out. Cost to the Respondent is assessed at One Hundred Thousand Naira (N100,000.00).

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree with the reasoning and conclusion of my learned brother, UZO I. NDUKWE-ANYANWU, JCA, consequently, I strikeout the appeal and abide by the consequential order.

KENNETH IKECHUKWU AMADI, J.C.A.: I have read in advance, the draft of the lead judgment of my learned brother UZO I. NDUKWE-ANYANWU, JCA. I agree with his lordship that this appeal has no merit. It is hereby struck out, I abide by the consequential orders made therein including the order as to cost.

Appearances:

M. A. BELLO, with him, J. O. ALABI, and O. F. AKANBI For Appellant(s)

J. S. MOHAMMAD, with him, U. K. BELGORE For Respondent(s)