NDUONOFIT v. EYIBRA & ANOR
(2021)LCN/15068(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/C/413/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
EDDY OFFIONG NDUONOFIT APPELANT(S)
And
1. EDET EYIBRA 2. THE DEPUTY CHIEF SHERIFF OF HIGH COURT, METRO ROAD, UYO, AKWA IBOM STATE RESPONDENT(S)
RATIO
LEGAL EFFECT OF THE FAILURE TO OBTAIN LEAVE OR PERMISSION OF THE COURT WHERE IT IS REQUIRED
Leave or permission of Court where it is required, is a condition precedent to the exercise of the right of appeal. Therefore, failure to obtain leave where leave is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. See Nalsa & Team Associates v. N.N.PC. (1991) 8 NWLR (pt. 212) 652. PER JAMES SHEHU ABIRIYI, J.C.A.
CIRCUMSTANCES WHERE LEAVE OF THE COURT IS REQUIRED
By virtue of Section 242(1) 1999 Constitution FRN (as amended) where an appeal is against an interlocutory decision of a Court or it raises a question of facts or mixed law and facts, leave of Court is required. Where the Court has to look at the surrounding circumstances or where a ground of appeal requires the evaluation of facts to determine whether the Court below exercised its discretion judicially or judiciously or arbitrarily such questions necessarily raise issues of mixed law and fact. See Metal Construction (West Africa) Ltd v. Migliore & Ors (1990) LPELR – 1869 SC, Fasuyi & Ors. v. Peoples Democratic Party & Ors. (2017) LPELR – 43462 SC and several decisions of this Court in Maduabuchukwu v. Maduabuchukwu (2006) 10 NWLR (pt. 989) 476, Alamieyeseigha v. CJN (2005)1 NWLR (pt.906) 60 and PDP v. K.S.I.E.C. (2006) 3 NWLR (pt. 970) 565. PER JAMES SHEHU ABIRIYI, J.C.A.
POSITION OF THE LAW AGAINST PROLIFERATION OF ISSUES
The Appellant formulated three issues from one ground of appeal. The law does not permit him to do so. Where more than one issue is formulated out of a ground of appeal, the issues are incompetent. See Okwuagbala & Ors. v. Ikwueme & Ors. (2010) LPELR – 2538 SC. PER JAMES SHEHU ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on the 25th June, 2018 in the High Court of Akwa Ibom State sitting at Uyo.
In the High Court (the Court below), the Appellant was the Applicant while the Respondents were the Respondents.
In order not to do violence to the Appellant’s application, his prayers before the Court below are reproduced immediately hereunder:
“(i) An Order of Court to enlarge time for the 1st Judgment Debtor/Applicant to apply for an order of Court to stay the Enforcement and/or Execution Order of His Lordship, Hon. Justice Bassey F. Etuk sitting at High Court 6 Uyo in Suit No.HU/MISC.172/2016 and delivered on Thursday the 8th day of December, 2016 for the Writ of attachment and sale of the immovable property of the Judgment Debtor/Applicant at No. 9 Atan Road, Uyo (opposite Mechanic Village) Uyo, pending the hearing and determination of this Suit.
(ii) An Order of Court staying or suspending further steps or process of enforcing or executing the afore-said Order/Judgment in respect of Suit No. HU/662/2011.
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(iii) An Order setting aside any purported execution of the judgment levied against the Applicant.
And for such further Order(s) as this Honourable Court may deem fit to make in the circumstance.”
The application was brought upon the following two grounds:
“(a) The Order of Court made on 8/2/2016 that the Writ of attachment and sale against the immovable property of the 1st Judgment Debtor/Respondent at No. 9 Atan Road, Uyo (opposite Mechanic village) was reached per incurian or without jurisdiction.
(b) The Order of Court made on 8/2/2016 that the Writ of attachment and sale against the immovable property of the 1st Judgment Debtor/Respondent at No. 9 Atan Road, Uyo (opposite Mechanic village) was null and void ab initio there was a fundamental defect in the proceedings which vitiates and render (sic) same incompetent and invalid same offence (sic) Section 414 of Companies and Allied Matters Act (CAMA) 2004.”
The application was supported by an affidavit and a further affidavit. Several documents were annexed to both the affidavit in support of the application and the further affidavit.
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In opposing the application, the Respondent filed a counter affidavit and a further counter affidavit. Annexed to the further counter affidavit were three exhibits.
The Court below considered the affidavit evidence and written addresses of Appellant and 1st Respondent and dismissed the application.
The appellant immediately proceeded to this Court by a notice of appeal dated 6th July, 2018 and filed the same day. The notice of appeal contains one ground of appeal from which the Appellant presented the following three issues for determination:
“(i) Whether the learned Trial Judge was right in law to have make (sic) a blacked (sic) statement that, the Affidavit of the Applicant in support of the Application are all arguments and conclusion based on Law in lines 14 and 15 at page 55 of the record.
(ii) Whether Affidavit Evidence is not an exception of hearsay evidence.
(iii) Whether it is not against the principle of fair hearing for the trial Court to abandon the further Affidavit of the Applicant in its ruling.”
The 1st Respondent adopted the issues submitted by the Appellant for determination.
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The Appellant filed an Appellant’s reply brief of argument on 9th April, 2019. It was deemed duly filed and served on 19th January, 2021.
On issue 1, learned counsel for the Appellant submitted that the Court below ought to have merely struck out the paragraphs of the affidavit it held were offensive to Section 115 (2) of the Evidence Act and still place reliance on the paragraphs that did not offend the Evidence Act.
The Court below, it was contended, did not pay attention to the Appellant’s further and better affidavit and the exhibits attached thereto.
Both failures by the Court below, it was submitted, led to a miscarriage of justice to the Appellant.
On issue 2, learned counsel for the Appellant submitted that the finding of the Court below that paragraph 5 of the affidavit was unreliable hearsay evidence also resulted in injustice on the Appellant.
The Appellant, it was contended, stated in paragraph 5 of the affidavit in support of the application his source of information and the name of the informant. The information given by Mr. Enang to the Appellant in law is not hearsay, it was argued. The Court was referred to Section 115 (4) of the Evidence Act
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and Ibiyeye v. Gold (2013) 9 WRN 70-71.
On issue 3, learned counsel for the Appellant contended that the Court below did not refer to the further affidavit of the Appellant which was crucial to the application. This it was submitted amounted to lack of fair hearing contrary to Section 36(1) of the 1999 Constitution FRN (as amended).
On issue 1, learned counsel for the 1st Respondent submitted that the Court below considered the affidavit in support of the application as well as the further affidavit. The Court was referred to pages 54 and 56 of the record of appeal.
On issue 2, learned counsel for the 1st Respondent referred the Court to paragraph 5 of the affidavit in support of the application and submitted that although it is a deposition in an affidavit it was inadmissible. The Court was referred to Section 115(1) – (4) of the Evidence Act.
Learned counsel for the 1st Respondent pointed out that one Mr. Enang described as a tenant attached to the property was the person who saw the bailiff of the Court. It is not shown under what circumstances, he related the information to the very sick Mr. Imo Etukudo and it is one
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Dr. Eddy Offiong Nduonofit who deposed to this fact. This averment, it was submitted, does not meet the standard set by the Evidence Act as regards admissibility of affidavit evidence.
On issue 3, learned counsel for the 1st Respondent as it were adopted his arguments on issues 1 and 2 for this issue.
Learned counsel of the 1st Respondent at this staged raised the issue of the competence of the notice of appeal and the Appellant’s brief of argument.
It was the submission of learned counsel for the 1st Respondent that the only ground of appeal which is on mixed law and fact cannot be sustained as it was filed without leave been sought and granted by the Court. The Court was referred to Njemanze v. Njemanze (2013) 2-3 M.J.S.C. (pt.11) 30.
It was further submitted that where more than one issue is formulated from the same ground of appeal, both the issues so formulated and the ground from which they are formulated shall be struck out. The Court was referred to Yisi Nig. Ltd. v. Trade Bank Plc (2013) 2-3 M.J.S.C. (pt. IV) 32.
In his reply brief of argument, the learned counsel for the Appellant suggested that the Court can formulate issues for the parties.
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I think a proper starting point in this judgment is a consideration of the issue of the competence or otherwise of the appeal even though the procedure of raising it is rather clumsy.
Leave or permission of Court where it is required, is a condition precedent to the exercise of the right of appeal. Therefore, failure to obtain leave where leave is required will render any appeal filed incompetent as no jurisdiction can be conferred on the appellate Court. See Nalsa & Team Associates v. N.N.PC. (1991) 8 NWLR (pt. 212) 652.
By virtue of Section 242(1) 1999 Constitution FRN (as amended) where an appeal is against an interlocutory decision of a Court or it raises a question of facts or mixed law and facts, leave of Court is required. Where the Court has to look at the surrounding circumstances or where a ground of appeal requires the evaluation of facts to determine whether the Court below exercised its discretion judicially or judiciously or arbitrarily such questions necessarily raise issues of mixed law and fact. See Metal Construction (West Africa) Ltd v. Migliore & Ors (1990) LPELR – 1869 SC, Fasuyi & Ors. v. Peoples Democratic Party & Ors.
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(2017) LPELR – 43462 SC and several decisions of this Court in Maduabuchukwu v. Maduabuchukwu (2006) 10 NWLR (pt. 989) 476, Alamieyeseigha v. CJN (2005)1 NWLR (pt.906) 60 and PDP v. K.S.I.E.C. (2006) 3 NWLR (pt. 970) 565. This appeal is against an interlocutory decision of the Court below which fiercely questions the exercise of the discretion by the Court below. The appeal was not filed with the leave of either the Court below or this Court. The appeal is therefore incompetent and this Court lacks the jurisdiction to entertain it.
Even if the Appellant had sought the leave of Court to appeal, the appeal would still have been affected by another fundamental vice. The Appellant formulated three issues from one ground of appeal. The law does not permit him to do so. Where more than one issue is formulated out of a ground of appeal, the issues are incompetent. See Okwuagbala & Ors. v. Ikwueme & Ors. (2010) LPELR – 2538 SC. The three issues formulated by the Appellant from the lone ground of appeal and the ground of appeal are incompetent and are hereby struck out.
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The appeal having been shown to be incompetent leave of either the Court below or this Court having not been sought before the filing of the appeal, same is hereby struck out.
Both parties shall bear their respective costs of the appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA.
I agree with the reasoning and the conclusion reached in the judgment.
I also agree that the appeal is incompetent and ought to be struck out
I also strike out the appeal. I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the judgment of my learned brother, James S. Abiriyi, JCA, and I agree with the reasoning and conclusion reached thereof.
In particular, I agree with the lead judgment that where an appeal is against an interlocutory decision of a Court or it raises a question of facts or mixed law and facts, leave of Court is required. Thus, failure to obtain the required leave will invariably render the appeal incompetent. The leave of Court not being sought and obtained rendered
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the instant appeal incompetent and robed the lower Court of the requisite jurisdiction.
I too dismiss the appeal and struck out the appeal .
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Appearances:
Christian Tom, Esq For Appellant(s)
Nkoyo Ekong, Esq. Assistant Director Ministry of Justice, Akwa Ibom state For Respondent(s)
