NDUBUISI OKEKE & ORS v. ENGR. OBIUKWU OKEKE & ORS
(2013)LCN/6524(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of November, 2013
CA/E/216/2010
RATIO
WHETHER THE LEAVE OF COURT MUST BE SOUGHT BEFORE FILING AN APPEAL ?
It is trite that without leave of court having been first sought and obtained before filing the appeal, the appeal will be incompetent and liable to be struck out. See FBN Ltd. v. Abraham (2008) 18 NWLR (Pt.1118) 178 at 189 Paragraphs A – B and Nwabueze & Ors. vs. Nwora & Ors. (2005) 8 NWLR (Pt.926) 1. Leave is therefore a prerequisite to filing of appeal against interlocutory decision. See Ifeadoro vs. Ume (1988) (Pt.74) 95 and Owoniboys Tech. Services Ltd. Vs. UBN Ltd. (2003) 15 NWLR (Pt.844) 545. Per ADZIRA GANA MSHELIA, J.C.A.
WHETHER LEAVE OF COURT IA REQUIRED TO FILE AN APPEAL AGAINST AN INTERLOCUTORY DECISION?
It is trite law that an appeal against interlocutory decision other than on grounds of law requires leave of court. See Garuba v. Omokhodion & Ors. (2011) LPELR – 1309 (SC). Per ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. NDUBUISI OKEKE
2. AFAM OKEKE
3. CHUMA OKEKE
4. UGOCHUKWU OKEKE
5. IKECHUKWU OKEKE Appellant(s)
AND
1. ENGR. OBIUKWU OKEKE
2. MRS. VICTORIA ERONINI (NEE OKEKE)
3. EBELE OKEKE
4. MRS. NONYELUM EGBUNA (NEE OKEKE)
5. CHUKWUKA OKEKE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal by the plaintiff/appellants against the decision/Ruling of I. A. Umezulike, the Chief Judge of Enugu State on 10th day of May, 2010 granting an application for Amendment of the Joint Statement of Defence of the defendants/respondents.
The background facts leading to this appeal are that after parties concluded their evidence, the court ordered for written addresses and the matter was adjourned for adoption of written addresses. On the 1st day of March 2010, parties having filed and exchanged final written addresses adopted same whereupon the case was adjourned to the 26th day of April, 2010 for judgment. On the 4th day of March 2010, the Respondents filed and served on the appellants an application to amend their joint statement of defence by introducing a new paragraph 8(i) paragraph A – L. In reaction to the application, the Appellants filed a counter-affidavit with a supporting written address in opposition thereof dated 15th March, 2010. Arguments by parties on the said application was taken by court and on the 10th May, 2010 delivered its ruling allowing the application of the amendment of the Defendants/Respondents joint statement of Defence.
Being dissatisfied with the decision of the lower court, the appellants lodged an appeal to this court vide Notice of Appeal dated and filed 24/5/2010 containing two grounds of appeal.
In compliance with the rules of court, parties filed and exchanged briefs of argument. Appellants’ brief of
argument settled by Chris O. Ogbu Esq. was dated and filed 29/10/2010. The Respondents’ brief of argument settled by Vincent I. Asika Esq., was dated 26/11/2010 and filed on 29/11/2001. The Appellants’ reply brief was dated 22/02/2011 and filed on 23/02/2011. While the response to the Respondents’ preliminary objection was granted on 13/10/2011.
When the appeal came up for hearing, Respondents’ counsel intimated the court that he filed a notice of preliminary objection on 29/11/2010 and the arguments canvassed in respect of same are embedded in the brief of argument. Counsel then identified pages 2-3 of the Respondents’ brief and adopts the said argument. He urged the court to strike out the appeal. Learned counsel for the Appellants informed the court that the appellants’ response to the preliminary objection is contained in a separate reply brief. He adopts the response and urged the court to discountenance the objection and determine the appeal on merit.
As regards the substantive appeal, learned counsel for the appellants’ adopted the appellants’ brief of argument dated and filed on 29/10/2010 as well as the reply brief and urged the court to allow the appeal. Respondents’ counsel similarly adopted the respondents’ brief of argument as canvassed at pages 4 – 12 of the brief and urged the court to dismiss the appeal as lacking in merit.
Appellants raised a sole issue for determination as follows:-
“Whether it was a judicial and judicious exercise of discretion to have granted the amendment sought at the stage and in the circumstance in which the application was brought”.
The Respondents on their part also raised one issue for determination thus:-
“Whether the learned trial judge acted properly or judiciously and judicially in granting an amendment to the respondents’ joint statement of defence to be in line with the evidence already led at the trial by their witnesses which is on the record at the stage which he did so”.
Before I delve into the merit of the appeal, I find it necessary to first consider the preliminary objection raised by the Respondents against the hearing of this appeal. It is trite law that an objection to the hearing of an appeal must be taken first. See Taiye v. Abioye (2003) 4 NWLR (Pt.810) 397 and Osun State Government vs. Olami (Nig) Ltd. (2003) 7 NWLR (Pt.818) 72.
Respondents raised the issue of incompetence of the appeal in their notice of preliminary objection. The arguments in respect of same have been embedded in the Respondents’ brief of argument at pages 2-3.
It was submitted that the combined provisions of section 241(1) and 242 of the 1999 Constitution of the Federal Republic of Nigeria as well as the clear provisions of Section 24(2)(a) of the Court of Appeal Act 2004 show that the Appellants must seek and obtain within 14 days the leave of the lower court prior to the filing of any appeal against the interlocutory decision/ruling of the court delivered on 10th May 2010. That the leave of court must be sought and obtained within 14 days from the date of the ruling appealed against. Reliance was placed on Bowale v. Adediwure (1976) 6 SC 14 and Owoniboys Technical Services Ltd. vs. John Holts Ltd. (1991) 6 NWLR (Pt.199) 550. It was further submitted that the provisions of Sections 241(1) and 242, of the 1999 constitution and sections 24(2)(a) of the Court of Appeal Act 2004 are mandatory provisions. That a calm perusal of the record will reveal that the Appellants did not at any point in time seek leave of the lower court before filing their notice of appeal. This is fatal and has completely rendered the notice of appeal null and void.
Learned counsel for the Respondents contended that by virtue of section 241(1)(a) of the 1999 Constitution an appeal lies from the decision of the State High Court to the Court of Appeal with the leave of the State High Court in appeals against the interlocutory decisions of the High Court involving facts or mixed law and facts. A look at the grounds of appeal makes it clear that what gave rise to this interlocutory appeal was the order of the trial court of 10/5/10 amending the Respondents’ pleadings to be in line with the evidence already on the record adduced by the Respondents’ witnesses following an application to that effect.
That the grounds of appeal together with their particulars show or reveal that they are grounds of mixed law and facts as such leave of court was required before the appeal could be completely filed. Counsel further argued that any ground of appeal questioning the exercise of discretion by a trial court is a ground of mixed law and fact, and leave of the court is required before the appeal could be validly filed. It was also argued that the grounds of appeal of the Appellants as contained in the Notice of Appeal questioned the exercise of the discretion by the learned trial judge as such leave of the lower court should have been sought and obtained before their appeal was filed. Reliance was placed on Amadasun vs. Ume (2007) 13 NWLR (Pt.1051) 219. Furthermore, any allegation that the trial Judge failed to exercise his discretion judiciously and judicially undoubtedly involves questions of law and fact and leave of the court must be obtained before an appeal in relation thereto is filed. See also Thor Ltd. v. F.C.M.B. Ltd. (2002) 4 NWLR (Pt.757) 427 and U.B.A. v. G.M.B.H. & COKG (1989) 3 NWLR (Pt.110) 374.
Counsel submitted that the effect of failure of the Appellants to obtain leave before filing their appeal is that their appeal is incompetent and must be struck out. Reliance was placed on the cases of Nigeria Airforce v. Shekete (2002) 18 NWLR (Pt.798) 129; Hassan v. Atanyi (2008) 8 NWLR (Pt.770) 581; Okon v. Ekanim (2002) 8 NWLR (Pt.789) 355 and Nasir v. Kindawa (2006) 1 NWLR (Pt.961) 355. Counsel urged the court to strike out the appeal as being incompetent.
The other aspect of the complaint of the respondents relates to the grounds of appeal and their particulars. The respondents’ contention is that the grounds are vague, argumentative and narrative in terms. That the particulars stated under ground one are academic and hypothetical. It was also submitted that ground two does not disclose reasonable ground of appeal. That the complaint as articulated in the ground two of the grounds of appeal does not flow from the ratio decidendi of the lower court’s decision. That ground 2 being vague offends the mandatory provisions of Order 6 Rule 3 of the Court of Appeal Rules, 2007.
Respondents also contended that the notice of appeal is incompetent and liable to be struck out by the court for inability of the appellants to fulfill a condition precedent i.e. non payment of filing fee of N5,000.00. That payment of N3,000.00 only cannot satisfy the mandatory provisions of order 1 Rule 5 and third (3rd) Schedule part II contained in the court of Appeal Rules, 2007. The condition precedent must be satisfied before the court will be competent to entertain the appeal. Reliance was placed on Madukolu v. Nkemdilim (1962) 1 ALL NLR 587.
In response to the Preliminary Objection, appellants submitted that the objection so raised, in so far as it is predicated on the fact that this appeal involves mixed law and facts and ought to have been filed after obtaining the leave of the lower court is unfounded and tantamount to putting the cart before the horse as the primary issue at this stage is whether this appeal is essayed to be on law or not. That the provisions of S. 241 (1)(b) and S.242 all respecting interlocutory appeals are clear and unambiguous. That the proper construction of the said section read together means that any interlocutory appeal which complaint is on law alone does not fall within the category of appeals envisaged by S.242 and as such leave of the lower court is usually dispensed with. Appellants contended that the instant appeal fall within the purview of S.241(1)(b) of the 1999 constitution as the ground thereto is on law alone. Appellants ab initio do not need to obtain the leave of the lower court to file the notice of appeal as canvassed by the Respondents in their preliminary objection. It was further submitted that appellants’ ground of appeal being on law alone have not breached Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria.
On grounds which involves question of law alone, see Nwadike v. Ibekwe (2004) 24 WRN 45 ration 18(iii) and Ehinlinwo v. Oke (2008) vol. 36 NSCQR 7 ratio 5(2).
As regards respondents’ complaint about the grounds and the particulars, appellants submitted that they did not breach nor offend any rules as contained in Order 6 Rule 3 of the Court of Appeal Rules, 2007 as the grounds as couched are precise not vague. Reliance was placed on State vs. Ambijuwon II & Ors. (2009) 1 NWLR (Pt.1123) 597 and Osasona v. Ajayi (2004) 14 NWLR (Pt.894) 527.
That the essence of ground of appeal is to avail the opposite party of the nature of complaint by the appellant in words that are not vague. That even where a ground of appeal is defective in form which is not the case in the instant one, provided there is a complaint, it would not be struck out in the interest of justice. See Abiodun v. FRN (2009) 7 NWLR (Pt.1141) 489.
Appellants urged the court to hold that their grounds of appeal are competent and the sole issue for determination distilled from same is competent. Appellants urged the court to discountenance the objection and consider the appellants’ grounds of appeal and the particulars thereof as competent.
On the issue of payment of filing fees, appellants referred to order 10 Rule 2 of the Court of Appeal Rules and contended that the objection raised cannot be sustained. Order 10 Rule 2 clearly shows that no objection shall be taken to the hearing of an appeal on the ground that the amount fixed by the Registrar of the court below under Order 8 Rules 2(b) of these Rules were incorrectly assessed. The court is urged to dismiss the preliminary objection as it lacks merit and hear and consider the appellants’ appeal on its merit.
The first point raised in the preliminary objection to be resolved is whether the appellants sought and obtained leave of either the lower court or this court before filing their notice of appeal as required by section 242 of the 1999 Constitution.
The provisions of Section 241(1) and 242 of the 1999 Constitution have clearly set out when appeals will be presented as of right or with leave respectively of Federal High Court or State High Court or Court of Appeal as the case may be. For clarity, I will reproduce sections 241(1) and 242 hereunder as follows:-
“S.241(1)(b) 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:-
(b) Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
S.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.”
It is trite law that an appeal against interlocutory decision other than on grounds of law requires leave of court. See Garuba v. Omokhodion & Ors. (2011) LPELR – 1309 (SC).
Appellants lodged this appeal against the ruling of the court below delivered on 10th day of May, 2010 granting an application for amendment of joint statement of defence of the Defendants/Respondents. Appellants’ contention is that their complaint is on law alone as such same does not fall within the category envisaged by section 242 of the 1999 Constitution.
I have carefully examined ground one of the notice of appeal. The ground as couched is questioning the exercise of discretion by the lower court. For clarity ground one is set out without particulars as follows:-
“The learned trial Chief Judge erred in law when he failed to exercise his discretion judicially and judiciously by granting the amendment sought at the stage and in the circumstance in which the application was brought.”
The manner in which a judge ought to exercise a court’s discretion in a particular case is a question of fact, depending on the facts and circumstances of each case. Whether or not he exercised it rightly in any particular case is at least a question of mixed law and fact.
The ground has therefore raised a question of mixed law and facts, which require leave of court before same is filed. An appeal against an interlocutory decision must be one with leave of the court where the grounds of appeal are based on mixed law and facts or facts alone. It is trite that without leave of court having been first sought and obtained before filing the appeal, the appeal will be incompetent and liable to be struck out. See FBN Ltd. v. Abraham (2008) 18 NWLR (Pt.1118) 178 at 189 Paragraphs A – B and Nwabueze & Ors. vs. Nwora & Ors. (2005) 8 NWLR (Pt.926) 1. Leave is therefore a prerequisite to filing of appeal against interlocutory decision. See Ifeadoro vs. Ume (1988) (Pt.74) 95 and Owoniboys Tech. Services Ltd. Vs. UBN Ltd. (2003) 15 NWLR (Pt.844) 545.
There is no evidence to show that appellants sought and obtained leave as required by S.242 of the 1999 Constitution before filing this appeal. The absence of leave renders the appeal incompetent. I will sustain the objection as regards the first point raised by the respondents. The complaint of the respondents relating to the grounds of appeal is unfounded. I have carefully examined the two grounds of appeal and their particulars. I do not agree with the respondents that the grounds breached the rules as contained in order 6 Rule 7 of the Court of Appeal Rules, 2007. The two grounds of appeal are neither vague nor argumentative as contended by the respondents. The essence of a ground of appeal and its particulars is to acquaint the respondent with the issue involved in the appeal and once the purpose is served, a ground of appeal cannot be defective and thereby liable to be struck out. Even if the particulars are defective, if the main ground conveyed the oral complaint to the respondent the said ground of appeal cannot be struck out as being defective.
See Oloruntoba Oju v. Abdul Raheem (2009) ALL FWLR 1 and Chief Rufus Omotosho and Ors. vs Ife North Local Government Area (2010) ALL FWLR (Pt.544) 22. In the circumstance I will discountenance the second point raised by the respondent in their notice of preliminary objection.
On the issue of payment of requisite filing fees, I find it necessary to examine the provisions of Order 10 Rule 2 of the Court of Appeal Rules, 2007 relied upon by the appellants. For clarity Order 10 Rule 2 read as follows:-
“10(2). No objection shall be taken to the hearing of an appeal on the ground that the amount fixed by the
registrar of the Court below under Order 8 Rules 2(b) of these Rules were incorrectly assessed.”
Order 8 Rules 2(b) provides:
“2(b) Fix the amount to be deposited by the appellants to cover the estimated cost of making up and forwarding the record of appeal.
A combined reading of Order 10 Rule (2) and Order 8 Rules 2(b) clearly showed that the issue of fees relates to compilation of record of appeal and not filing fees relating to other processes filed before the court. Contrary to the submission of appellants’ counsel the provisions are inapplicable to the case at hand.
I have carefully perused the Notice of Appeal appearing on pages 45 – 48 of the record of appeal. I agree with respondents’ counsel that the filing fees paid by the appellants was N300.00 instead of N5,000.00. The requisite fee for filing notice of appeal against an interlocutory decision is provided under Order 1 Rules 5 and third schedule part II contained in the Court of Appeal Rules, 2007.
There is no dispute as to the fact that appellant did not pay the requisite filing fee for the notice of appeal. The requirement to pay a requisite filing fee is not only mandatory but also fundamental to proceedings. In Seven-up Bottling Co. Ltd. v. Yahaya (2001) 4 NWLR (Pt.702) 47 at 55 this court had this to say:-
“Where there is requirement for payment of filing fees to set a process in motion and the payment was not made, the process will be improper or incompetent and the court will be equally incompetent to deal with it. See Provisional Council Ogun State University & Others v. Iyabode Alani Makinde (1991) 2 NWLR (Pt.175) 572 and Aja v. John Okoro (1991) 7 NWLR (Pt.203) 260.
The requirement to pay a filing fee is not only mandatory but also fundamental to the proceedings. The non-compliance or failure goes to the root of the matter. It renders the appeal null and void ab initio.”
See also Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 262, Fada v. Naomi (2002) 4 NWLR (PT.757) 318 at 252 and A.S.T.C. v. Quorum Consortium Ltd. (2004) 1 NWLR (Pt.855) 601.
The notice of appeal herein is incompetent, the appropriate filing fees having not been paid. The appeal cannot be said to be properly brought when the appropriate filing fees have not been paid. I wish to note that a valid notice of appeal is what animates and sustains an appeal and thus, a condition precedent to the Court of Appeal’s exercise of Jurisdiction. In other words, the notice of appeal touches on the jurisdiction of the Court of Appeal and for an appeal to be properly commenced, a proper notice of appeal has to be filed. This court is entitled to decline to adjudicate on an appeal, which is not properly before it. I will accordingly sustain the preliminary objection on this ground.
Having upheld the preliminary objection on the grounds stated, I do not find it necessary to determine the issues raised in the interlocutory appeal on merit as doing so would amount to academic exercise.
In the final analysis, I will sustain the Preliminary Objection as it relates to the failure of the appellants to obtain leave of court before filing the interlocutory appeal as well as appellants failure to pay appropriate filing fees in respect of the notice of appeal. The non compliance in my humble view has rendered the appeal incompetent and liable to be struck out.
In the result, I hold that the appeal is incompetent and same is accordingly struck out.
Parties to bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have been availed of the judgment of my noble and learned brother A.G. MSHELIA, J.C.A. and I have carefully read and digested the contents with admiration in view of the lucid and erudite manner he has resolved the issues for determination. I agree completely with his reasons and conclusion that this Appeal is fraught with a lot of loopholes which has rendered it incompetent.
Apart from not seeking the leave required by Sections 241(1) (b) and 242 (1) of the Constitution and the Rules of Court, to file a Ground of appeal on mixed law and facts, the Appellant failed, refused and/or neglected to pay the prescribed filing fees for the Appeal. Accordingly, I am in total agreement with my Lord and upon all the authorities cited that the Appeal is incompetent and should be struck out.
I also hold that parties shall bear their respective costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the very erudite judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA JCA, I am in complete agreement with the reasoning and conclusions therein.
A ground of appeal complaining that the exercise of discretion by a Court in granting an application to amend a statement of defence is not judicious and judicial and so is improper, is a ground of mixed law and fact. The appellant by such a complain, is contending that the exercise of discretion is contrary to the facts and circumstances of the case and the law. This same question fell for determination by this Court in CHINENYE NWABUEZEE v. INEC & ORS (unreported judgment of this court at Enugu in CA/E/116/2011 delivered on 20-5-2013). This Court held that “It is settled law that a ground of appeal challenging the exercise of discretion by a court, is viewed generally as a ground of fact or mixed law and fact. This court held in EMEAKAYI v. COP (2004) 4 NWLR (pt 862) 159 per Mohammed JCA, that as the principles and manner in which a judge ought to exercise his discretion in a particular case is a question of fact, depending on the facts and circumstances of each case, whether or not the discretion is exercised rightly in any particular case, is at least a question of mixed law and fact.
However in some situation, the challenge to the exercise of discretion by a court can be regarded as one of law. This court in EMEAKAYI V. COP (supra) has listed examples of such situations to include, where the issue is one of application of law to the undisputed facts or when the exercise of discretion is based on what is incontestably an illegality. I must however caution that even in such examples issues of facts have from experience arisen on the route to determine the overall issue of the application of law or illegality. The position that is however clear and settled is that generally, appellate courts treat appeals against judicial exercise of discretion as an appeal on fact. In our present case it is clearly one of fact for the reasons I have stated above.”
The decision appealed against is not a final decision of the trial High Court. All parties agree that it is an interlocutory decision.
In view of the foregoing, it is glaring that this appeal does not fall within the group of cases listed in S.241(1) of the 1999 Constitution of Nigeria which prescribes that decisions in those cases are appealable as of right to this Court. S.242(1) provide that generally, an appeal shall lie from the decisions of the Federal High Court or High Court with leave of that court or this court. S.242(1) subordinates itself to the provisions of S.241 of the Constitution and thereby excluded the group of cases listed in S.241 from its application. The result is that no leave of the lower court or this court is required to appeal against a decision in the cases listed in S.241 of the Constitution. Since this appeal is one against an interlocutory decision on a ground of mixed law and fact, the leave of the trial court or of this court ought to have been first sought for and obtained to bring this appeal before commencing the appeal as required by S.242(1) of the 1999 Constitution. S.14(1) of the court of Appeal Act 2004 also requires that leave to appeal against an interlocutory decision like this one must be obtained before the appeal can be commenced.
It is agreed by all that no leave to bring this appeal was obtained from the trial court or this court before the notice of appeal was filed commencing this appeal. I agree with the Lead Judgment herein that where leave to appeal is required before an appeal, failure to obtain such leave, renders the appeal incompetent and the court will not have jurisdiction to entertain the appeal. For this and the other reasons stated in the Lead Judgment, I also uphold the preliminary objection as successful. I also hold that this appeal is incompetent and is accordingly struck out. I abide by all the orders contained in the Lead Judgment.
Appearances
C. O. OgbuFor Appellant
AND
V. I. Asika with C. G. Onyeacho Esq.For Respondent
