MIKE EZECHUKWU & ORS. V. NZE EDWARD MADUKWE & ORS.
(2012)LCN/5818(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2012
CA/E/305A/2007
RATIO
APPEAL: WHEN SHOULD A PRELIMINARY OBJECTION BE TAKEN IN AN APPEAL
as the law is trite that where a preliminary objection is raised against the hearing of an appeal, same must be taken first. See Jaiyeolo v. Abioye (2003) 4 NWLR (Pt. 510) 397 at 414. PER ADAMU JAURO, J.C.A.
APPEAL: WHEN IS AN APPEAL DEEMED BROUGHT
The above mentioned provisions have been interpreted in a plethora of decisions from this court and the apex court to the effect that an appeal is deemed brought when the notice of appeal is filed in the Registry of the court below i.e. where the appeal emanated from.
See Muhammed v. Kayode (1997) 11 NWLR (Pt. 530) 584, Idris v. Audu (2005) 1 NWLR (Pt. 908) 612, Bayero v. Msinasaro & Sons Limited (2006) 8 NWLR (Pt. 982) 391, Kano Plastics v. Century Merchant Bank (1998) 3 NWLR (Pt 543) 567 at 572 – 573, Akinsipe v. Adetoroye (1999) 9 NWLR (Pt. 617) 162 and Korede v. Adedokun (2001) 15 NWLR (Pt 736) 483.
In Korede v. Adedokun (supra), Ejiwunmi JSC (of blessed memory) while interpreting Order 3 Rule 2(1) of the Court of Appeal Rules 1981 which is identical to Order 6 Rule 2(1) of the 2011 Rules of court had this to say on page 496 of the report:
“A careful perusal of the above rule would reveal that an appellant desirous of being heard by the Appeal Court must have filed a notice of appeal in the High Court that decided the case against which he is appealing. And for that purpose, he is required to incorporate in the said notice of appeal grounds of appeal which are in conformity with the rules of court set out in the Rules.”
In Kano Plastics Limited v. Century Merchant Bank (supra), the appeal originated from Kano State High Court, though the notice of appeal was filed in the Kano State High Court, the filing fees for the notice of appeal was paid in the Federal High Court and a receipt issued by the Federal High Court. A preliminary objection challenging the notice of appeal was upheld, on the ground that it was filed at the wrong registry. My lord, Ogebe JCA (as he then was) had this to say on page 572 of the report.
“From the affidavit of Kabiru Aliyu it would appear that the appeal was entered in the State High Court on the 18th of April 1996 before any fee was paid on the 19th of April 1996 at the Federal High Court. An appeal cannot be entered without the payment of the prescribed fees. In my respectful view by the rules of court the filing of the notice of appeal which includes the payment of the prescribed fees must be done in the court from which the appeal emanates. You cannot get a receipt of payment of fees from a different court and file the notice of appeal in the court from which the appeal emanates, as was allegedly done in this case. I therefore uphold the preliminary objection that no proper notice of appeal was filed in this present appeal. The appeal is therefore incompetent and I hereby strike it out with costs of N2,000.00 in favour of the respondent.” PER ADAMU JAURO, J.C.A.
APPEAL: NATURE OF A NOTICE OF APPEAL
A notice of appeal, animates, activates, kickstarts and sustains an appeal. It is therefore the foundation and the back bone of an appeal. In the instant case, the notice of appeal was filed in the registry of this court instead of filing it in the registry of the court below. The filing fees for the filing of the notice of appeal was paid in this court, instead of paying same in the registry of the court below. The question of whether a notice of appeal has been filed in the registry of the lower court is a matter which touches on the jurisdiction of this court, for if no proper notice has been filed, then there is no appeal to entertain. See Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Olanrewaju v. BON Limited (1994) 8 NWLR (Pt. 364) 622, Olowokere v. African Newspapers (1993) 5 NWLR (Pt.295) 583. PER ADAMU JAURO, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. MIKE EZECHUKWU
2. NDUBUISI OSELE
3. IKECHUKWU EMENIKE
4. CHIEF PIUS MONEME (For themselves and on behalf of Umueze Village, Isuofia, Aguata L.G.A., Anambra State) Appellant(s)
AND
1. NZE EDWARD MADUKWE
2. CHARLES IKE
3. PAULINUS OKAFOR
4. CHIEF MARCEL ANOSIKE
5. ABUCHI OKOLI
6. MIKE OKAFOR
7. CHIEF J.C. EZEOKONKWO
8. EUGENE UGHANWA
9. PETER AGHADINUNO
10. CHIEF NWANKPADOLU
11. JOHN NKWELLE
12. LIVINUS EZECHUKWU
13. PIUS ANAENOBI
14. MIKE ORAMULU
15. ANSELEM UZOEZIE
16. C. OBI
(For themselves and representatives Isiobao Uruagu Nnewi,
Isuanaoma, Ifite Aguleri, Umuachina, Ugwuawgbu,
Enuguadazi, Ifite Amanuke, Igboelu Aguleri, Isiachina,
Ikenga Nri, Osete, Ibughubu, Awuda, Nnobi, Achala Ugwu
And Akwaezekaenyi respectively all being Autonomous
Communities created by Autonomous Communities
(Recognition) Law, 2002).
AND
17. ANAMBRA STATE HOUSE OF ASSEMBLY
18. HON. MIKE BALONWU, SPEAKER, ANAMBRA
STATE HOUSE OF ASSEMBLY
19. THE CLERK, ANAMBRA STATE HOUSE OF ASSEMBLY Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Anambra State High Court, Awka Judicial Division holden at Awka delivered on 11th December, 2006 by Hon. Justice Umegbolu Nri-Ezedi in suit No. A/98/2004.
A brief synopsis of the facts is hereby made as follows: On 1st February, 2003, the Anambra State Government through the Anambra State House of Assembly enacted the Anambra State Autonomous Communities (Recognition) Law 2002. As a consequence of the aforesaid law, the communities of the 1st set of Respondents were recogntzed as autonomous communities and listed in the schedule of the said law. On the 23rd March , 2004, the Anambra State House of Assembly enacted another law, known as the Autonomous Communities (Recognition) Repeal Law 2004, which repealed the Autonomous Communities (Recognition) Law 2002 and abolished the autonomous status of the communities recognized by
The 1st set of Respondents were aggrieved by the Autonomous Communities (Recognition) Repeal Law 2004, which abolished the autonomous status of their communities. Consequently the 1st set of Respondents as representatives of the various communities recognized as autonomous communities by the Anambra State Autonomous Communities (Recognition) Law 2002, instituted an action against the Anambra State House of Assembly and four others claiming the following reliefs:
(i) “A Declaration that the Autonomous Communities (Recognition) Repeal Law 2004 is not a law of the Anambra State House of Assembly and is consequently unconstitutional, null and void.
(ii) A Declaration that the provision of Section 2(2) of the Autonomous communities (Recognition) Repeal Law 2004 purporting to abolish the plaintiffs’ Autonomous Communities is unconstitutional, null and void.
(iii) A Declaration that the provisions of the Autonomous Communities (Recognition) Repeal Law 2004 abolishing/proscribing plaintiffs’ Autonomous Communities is ultra vires the provisions of the 1999 Constitution of the Federal Republic of Nigeria guaranteeing to the citizens, Freedom of Association.
(iv) A Declaration that any repeal of the provisions of the Autonomous Communities (Recognition) Law 2002 cannot affect actions, act, duties and obligations done or created under or by virtue of that law before its repeal, as they affect the plaintiffs.
(v) An Order setting aside the Autonomous Communities (Recognition) Repeal Law 2004-
(vi) An order of perpetual injunction restraining the defendants by themselves, their agents, servants and privies or howsoever from carrying out or putting into effect any or all the provisions of the said Autonomous Communities (Recognition) Repeal Law 2004, as they affect the plaintiffs.”
At the close of pleadings, the case proceeded to hearing. The plaintiffs called a single witness, who testified as PW1 and through whom a host of numerous documentary exhibits were tendered. PW1 was cross examined by the two set of defendants. Upon the close of the plaintiff s case, the two set of defendants intimated the court that they were not calling witnesses as they have nothing to urge on facts. Hence, learned senior counsel representing the plaintiffs and the learned counsel representing each set of defendants agreed to settle issues of law and address the court on the said issues. Consequently, written addresses were filed, exchanged and adopted. In a reserved judgment, delivered on the 11th December, 2006 the learned trial judge, gave judgment in favour of the plaintiffs, granting all the reliefs except the first one wherein he refused to declare that the Autonomous Communities (Recognition) Repeal Law 2004 as not a law of the Anambra State House of Assembly.
The appellants in the instant appeal acting for themselves and on behalf of Umueze Village, Isuofia, Aguata Local Government Area of Anambra State, applied for leave to appeal against the aforementioned judgment as interested parties. The said leave was duly granted by this court on 24th June, 2011. As a consequence of the said leave, the appellant’s notice of appeal dated 7th July, 2011 was filed in the registry of this court on 8th July, 2011. The said notice of appeal is predicated on four grounds of appeal. In compliance with the Rules of Court, briefs of arguments were filed and exchanged. The appellant’s brief of argument is dated 23rd July, 2011 and filed on the 5th August, 2011. The appellant’s reply brief dated 10th April, 2012 and filed 19th April 2012 but deemed properly filed on 25th April, 2012. The 1st to 16th Respondent’s brief of argument dated 8th November, 2011 was filed on the l4th November, 2011. The 2nd set of Respondents, did not file any brief of argument.
Mr. Ben Osaka leading Mr. B.A. Nzegwu for the 1st set of Respondents, stated that they raised a preliminary objection in their brief of argument. Learned counsel adopted arguments in respect of the preliminary objection as contained on pages 9 to 11 of their brief of argument, in urging the court to strike out the notice and ground of appeal filed by the appellants on grounds of incompetence. Mr. S.U.S. Mbanaso for appellants adopted arguments in response to the preliminary objection as contained on pages 2 to 5 of the appellant’s reply brief. Learned counsel urged the court to hold that the irregularity is cured by order 19 of the Court of Appeal Rules 2011, because record of appeal had already been transmitted as of the time appellants were granted leave to appeal. Learned counsel urged the court to discountenance the preliminary objection, as it is hinged on technicality. As for the main appeal, Mr. S.U.S. Mbanaso for appellants adopted the appellant’s brief of argument and the reply brief, in urging the court to allow the appeal. Mr. Ben Osaka adopted the 1st to 16th Respondent’s brief in urging the court to dismiss the appeal. Miss Juliet Amasiatu for the 2nd set of Respondents, stated that they did not file any brief of argument.
The appellants submitted three issues for determination on page three of the Appellant’s brief. The said issues are hereby reproduced thus:
“(i) Whether the decision of the Court below, that the Autonomous Communities (Recognition) Repeal Law 2004 of Anambra State which repealed the Autonomous Communities (Recognition) Law 2002, is ultra vires Section 40 of the 1999 constitution and pro tanto, unconstitutional, is correct (Grounds One & Two).
(ii) Whether the Court below was right when it said that the Autonomous Communities (Recognition) Repeal Law 2004 of Anambra State did not expressly or by necessary implication envince an unequivocal intention of the Legislature to derogate from or abrogate vested or acquired rights under the Autonomous Communities (Recognition) Law 2002 (Ground Three).
(iii) whether the decision of the Court below setting aside the Autonomous Communities (Recognition) Repeal Law 2004 of Anambra State is correct (Ground Four).”
The 1st set of Respondents also nominated three issues for determination on page two of their brief, as follows:
“1. Whether upon an appreciation of the points on which issues were joined, the decision of the learned trial judge that the Autonomous Communities (Recognition) Repeal law, 2004 of Anambra State is ultra vires Section 40 of the 1999 Constitution of the Federal Republic of Nigeria is justified. Grounds 1 and 2.
2. Whether the learned trial judge was correct when he held that the Autonomous Communities (Recognition) Repeal law, 2004 did not mention vested or acquired rights and therefore did not expressly or by necessary implication abolish such right. Ground 3.
3. Whether based on the issues joined in the case, the restraining order against the application of the Autonomous Communities (Recognition) Repeal law, 2004 was justified.”
A consideration will first be made of the preliminary objection raised by the 1st set of Respondents, as the law is trite that where a preliminary objection is raised against the hearing of an appeal, same must be taken first. See Jaiyeolo v. Abioye (2003) 4 NWLR (Pt. 510) 397 at 414. The gist of the preliminary objection is to the effect that the appellants do not have a valid appeal as they failed to file the notice and grounds of appeal at the registry of the court below within 14 days from 24th June, 2011 when they were granted leave to appeal. The second ground is that the appellants did not pay the necessary fees for sustaining an appeal within the stipulated period.
Learned counsel submitted that the leave granted to the appellants was not for joinder but to initiate an appeal , that is independent of an existing appeal. Learned counsel relying on Order 7 Rule 11 of the Court of Appeal Rules 2007 (then applicable), contended that an appeal is deemed brought when the notice of appeal has been filed in the court below. Learned counsel stated that the notice of appeal in this case was not filed in the court below but in this court, and the filing fees paid thereof was in this court. Learned counsel argued that having not filed the notice of appeal in the court below and paid the necessary filing fees in the said court, there is no pending appeal on which a valid hearing may be entertained. Learned counsel urged that the appeal be struck out. In support, reference was made to Idris v. Audu (2005) 1 NWLR (Pt 905) 612 at 634, Muhammed v. Kayode (1997) 11 NWLR (Pt. 530) 584 at 595.
In response to the preliminary objection, learned counsel for the appellants conceded that the notice of appeal was filed in the registry of this court and not in the court below. Learned counsel further conceded that the filing fees were paid in this court and not in the court below. Learned counsel however urged the court to invoke order 19 Rules 2 and 3 of the Court of Appeal Rules 2007 (now Order 20 Rules 2 and 3 of the 2011 Rules) and hold that the non-compliance with Order 7 Rule 11 is not enough to prevent the hearing of the appeal of the appellants on the merit. Learned counsel submitted that the Supreme Court had stated several times that non compliance with the Rules of Court is generally curable if not intended to overreach. In support, reference was made to the following cases: BBN Limited v. Olayiwola & Sons Limited (2005) 3 NWLR (Pt.912) 434 at 458, Duke v. Akpabuyo Local Government (2005) 19 NWLR (Pt. 959) 130 at 144. Learned counsel submitted that it wilt be a travesty of justice to strike out the appellants appeal merely because the notice of appeal was filed in this court and not in the court below. In support, reference was made to Famfa Oil Limited v. A.G.F. & Anor (2003) 9 – 10 SC 31 at 41.
Learned counsel argued that the cases of Idris v. Audu (supra) and Mohammed v. Kayode (supra) can be distinguished from the instant appeal on two grounds, namely: That no provision identical to Order 19 Rules 2 and 3 of the Court of Appeal Rules 2007 was cited to the court in either case and the court did not advert to any such identical provision. In support, reference was made to Fagoji v. Kano N.A. (1957) NRNLR 57 at 71, Surakatu v. NADS Limited (1951) 4 SC 26 at 36. Secondly, in both cases, objection was taken based upon notice of appeal filed at a stage of proceedings when appeal had not been entered. In the instant case, learned counsel argued that the appeal had been entered and briefs of argument filed. Learned counsel queried as to what miscarriage of justice the objection was meant to cure. Further reference was made to BBN Limited v. Olayiwola & Sons Limited (supra). Learned counsel urged the court to discountenance the objection and proceed to hear the appeal notwithstanding the non compliance or direct the appellants to remedy the non compliance.
The preliminary objection herein seems to be rooted in Order 7 Rule 11 of the Court of Appeal Rules 2011. I will however by way of prologue and preamble start a consideration of the objection by making reference to Order 6 Rule 2(1 of the Court of Appeal Rules 2011, which provided thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all parties; and it shall also have endorsed on it an address for service.
Order 7 Rule 11 of the Court of Appeal Rules 2011 provided thus:
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below.”
Order 1 Rule 5 of the same Court of Appeal Rules 2011 defined court below as follows:
“Court below” or “lower court” means any court or tribunal from which appeal is brought.
A combined and community reading and interpretation and of the aforementioned provisions of the Court of Appeal Rules 2011, is to the effect that an appeal is deemed brought when the notice of appeal is filed in the registry of the court below. The registry of filing in contemplation of the Rules and by the definition in Order 1 Rule 5 of the Rules is the registry of the court or tribunal from which the appeal emanated. In this case therefore, it means the registry of the Anambra State High Court, Awka. The above mentioned provisions have been interpreted in a plethora of decisions from this court and the apex court to the effect that an appeal is deemed brought when the notice of appeal is filed in the Registry of the court below i.e. where the appeal emanated from.
See Muhammed v. Kayode (1997) 11 NWLR (Pt. 530) 584, Idris v. Audu (2005) 1 NWLR (Pt. 908) 612, Bayero v. Msinasaro & Sons Limited (2006) 8 NWLR (Pt. 982) 391, Kano Plastics v. Century Merchant Bank (1998) 3 NWLR (Pt 543) 567 at 572 – 573, Akinsipe v. Adetoroye (1999) 9 NWLR (Pt. 617) 162 and Korede v. Adedokun (2001) 15 NWLR (Pt 736) 483.
In Korede v. Adedokun (supra), Ejiwunmi JSC (of blessed memory) while interpreting Order 3 Rule 2(1) of the Court of Appeal Rules 1981 which is identical to Order 6 Rule 2(1) of the 2011 Rules of court had this to say on page 496 of the report:
“A careful perusal of the above rule would reveal that an appellant desirous of being heard by the Appeal Court must have filed a notice of appeal in the High Court that decided the case against which he is appealing. And for that purpose, he is required to incorporate in the said notice of appeal grounds of appeal which are in conformity with the rules of court set out in the Rules.”
In Kano Plastics Limited v. Century Merchant Bank (supra), the appeal originated from Kano State High Court, though the notice of appeal was filed in the Kano State High Court, the filing fees for the notice of appeal was paid in the Federal High Court and a receipt issued by the Federal High Court. A preliminary objection challenging the notice of appeal was upheld, on the ground that it was filed at the wrong registry. My lord, Ogebe JCA (as he then was) had this to say on page 572 of the report.
“From the affidavit of Kabiru Aliyu it would appear that the appeal was entered in the State High Court on the 18th of April 1996 before any fee was paid on the 19th of April 1996 at the Federal High Court. An appeal cannot be entered without the payment of the prescribed fees. In my respectful view by the rules of court the filing of the notice of appeal which includes the payment of the prescribed fees must be done in the court from which the appeal emanates. You cannot get a receipt of payment of fees from a different court and file the notice of appeal in the court from which the appeal emanates, as was allegedly done in this case. I therefore uphold the preliminary objection that no proper notice of appeal was filed in this present appeal. The appeal is therefore incompetent and I hereby strike it out with costs of N2,000.00 in favour of the respondent.”
The respondents contended that the appeal is incompetent and should be struck out. The appellants on the other hand, contended that non compliance is minor and should not be allowed to defeat the hearing of the appeal. In the course of writing this judgment, I stumbled on the case of CBN v. Okoiie (2004) 10 NWLR (Pt.882) 488, though not cited by any of the parties. I am of the respectful view that the case of CBN v. Okojie (supra) cannot apply to this case in view of the plethora of authorities from this court and the apex court to the effect that notice of appeal is to be filed in the registry of the court below. Secondly, the appellants in the instant appeal were not parties in the lower court, hence record of appeal cannot be said to have been served on them as parties in the lower court.
A notice of appeal, animates, activates, kickstarts and sustains an appeal. It is therefore the foundation and the back bone of an appeal. In the instant case, the notice of appeal was filed in the registry of this court instead of filing it in the registry of the court below. The filing fees for the filing of the notice of appeal was paid in this court, instead of paying same in the registry of the court below. The question of whether a notice of appeal has been filed in the registry of the lower court is a matter which touches on the jurisdiction of this court, for if no proper notice has been filed, then there is no appeal to entertain. See Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313, Olanrewaju v. BON Limited (1994) 8 NWLR (Pt. 364) 622, Olowokere v. African Newspapers (1993) 5 NWLR (Pt.295) 583. The contention of the appellants that the non compliance is minor and can be remedied by Order 20 Rules 2 and 3 of the Court of Appeal Rules 2011, is of no moment. I therefore uphold the preliminary objection that no proper notice of appeal was filed in this appeal. The appeal is therefore incompetent and it is hereby struck out.
I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now the judgment of my learned brother Jauro, JCA. I am in entire agreement with his reasoning and conclusion reached in the judgment. I also uphold the preliminary objection that no notice of appeal was filed in this appeal. The appeal is therefore incompetent and is hereby struck out.
I abide by the order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity to read in draft the judgment just delivered by my learned brother ADAMU JAURO JCA. I am in total agreement with his reasoning and conclusion. I also up hold the preliminary objection that no proper Notice of Appeal was filed. The said Appeal is hereby struck out for being incompetent.
I make no order as to costs.
Appearances
S.U.S. Mbanaso Esq.For Appellant
AND
Ben Osaka Esq.
B.A. Nzegwu Esq.
Juliet Amasiatu MissFor Respondent
