NWOTI v. JUBRIL SHEHU MUSTAPHA PRIDE ENGINEERING (NIG) LTD
(2020)LCN/15317(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, June 25, 2020
CA/S/58/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
JUDE NWOTI APPELANT(S)
And
JUBRIL SHEHU MUSTAPHA PRIDE ENGINEERING (NIG) LTD RESPONDENT(S)
RATIO
THE ESSENCE OF A PRELIMINARY OBJECTION TO AN APPEAL
The essence of a preliminary objection to an appeal is to contend that the appeal is incompetent and fundamentally defective which, if it succeeds would put an end to the appeal. In other words, where a preliminary objection to an appeal is sustained or upheld, it will not be necessary to go further to consider arguments in support of the issues for determination distilled by the parties. Therefore, the Court must determine the preliminary objection first before hearing of the substantive appeal. PER TALBA, J.C.A.
WHETHER OR NOT A NOTICE OF APPEAL CAN BE FILED WITHOUT LEAVE OF COURT
It is settled law that where leave of Court is required to appeal, until such leave is obtained no valid notice of appeal could be filed.
See OWUDA VS LAWAL (1984) 4 SC 145, ADETUTU VS ADEROHUNMU (1981) 1 NCLR 208 AND AKIWIWU MOTORS LTD VS SONGONUGA (1984)5 SC 184.
The Court of Appeal has no jurisdiction to hear and determine an appeal filed without leave where leave is necessary. See APKASUBU VS UMWENI (1982)11 SC 132 AND AWHINAHWHI VS OTERI (1984)5 SC 38.
Section 242 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus;
242 (1) subject to the provision of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.
And Section 14 of the Court of Appeal Act 2004 provides;
14(1) where in the exercise by the High Court of a State or as the case may be, the Federal High Court of its original jurisdiction or interlocutory order or decision is made in the course of any suit or matter an appeal shall, with leave of that Court or of the Court of Appeal lie to the Court of Appeal.
Flowing from the above statutory provisions an appellant must seek leave to appeal against an interlocutory decision of the High Court. Thus, in an appeal against an interlocutory decision such as the instant one, the notice of application for leave must be filed within fourteen (14) days from the day the decision appealed against was delivered. See DOUGLAS VS FEDERAL REPUBLIC TRUSTEES (1959) 4 F.S.C 15.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of High Court of Justice Zamfara State delivered on the 8th day of March, 2018 vide motion No: ZMS/GS/M.328/2018, in Suit No: ZMS/GS/42/2017.
The Respondent filed a suit against the appellant seeking for reliefs as contained in the endorsement in the writ of summons. See pages 1-3 of the record. By a Motion No: ZMS/GS/M.328/2017 the respondent applied for an interlocutory injunction to restrain the Appellant from further dealing with the subject matter of the suit pending the determination of the substantive suit. In a considered ruling the trial Court granted the Application thus;
“Accordingly, therefore on order of interlocutory injunction is hereby issued order restraining the defendant/respondent either by himself or through his servant’s agents, officers and prives however called from further operating the electrical poles production sites, beside karma guest Inn Sokoto Bye-pass Road Gusau, pending the hearing and determination of Suit No: ZMS/GS/42/2017 which is now pending before the Honourable Court.
The order is also issue out directing maintenance of status quo pending the hearing and determination of the substantive suit.”
Being dissatisfied with the ruling, the appellant appealed to this Court vide a notice of appeal filed on the 12th March, 2013. The notice of appeal contains two grounds of appeal. See pages 293-295 of the records. Reliefs sought from the Court of Appeal.
1. An order allowing the appeal.
2. An order set aside the order of interlocutory injunction made on 08/03/2018 in motion Suit No: ZMS/GS/G.328/2017 restraining the appellant from further operating the electric poles Production site beside karma Guest Inn, Sokoto Bye-pass Road, Gusau for being perverse.
3. Dismiss the respondents application for interlocutory injunction in suit No: ZMS/GS/M.328/2017.
On the date fixed for the hearing of this appeal precisely on the 8th day of June, 2020 parties were absent and there was no appearance of counsels representing the parties. The Court registrar informed the Court that the appellant counsel Mr. M. Salaudeen, Esq was served with hearing Notice via Sms on phone No: 08024043977 at 3:14pm on 2nd June, 2020. The registrar also informed the Court that the respondent counsel Mr. B.T Aza, Esq was served with a hearing notice via Sms on phone No: 08039732408 on the 29th May, 2020.
Upon considering the fact that briefs have been filed by all the parties in the appeal including the respondent’s objection. The appeal was treated as having been duly argued, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
The appellants brief was filed on the 2nd November, 2018 and it was deemed properly filed and served on the 5th November, 2018. The respondent brief was filed on 19th November, 2018. The preliminary objection is argued in pages 5-6 of the respondent brief of argument.
From the two grounds of appeal the appellant raised two issues for determination, thus,
1. Whether in all the circumstance of this case the Court below properly exercised its discretion in restraining the appellant from further operating his electric pole manufacturing site situate at Electric Poles Production site beside Karma Guest Inn, Sokoto Bye-pass Road Gusau. (Ground 1)
2. Whether the right of the appellant to fair hearing as guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended was violated by the Court below. (Grounds 2).
On the other hand the respondent formulated a sole issue for determination thus;
Whether by the substantive suit No: ZMS/GS/M.42/2017, Motion ZMS/GS/M.328/2017 with its accompanied affidavit evidence at the lower Court, the appellant had made out a case to warrant this appeal, against the ruling of the lower Court delivered on 8/3/2018.
As earlier mentioned the respondent filed a notice of preliminary objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2016. The argument is incorporated in the respondent’s brief.
The essence of a preliminary objection to an appeal is to contend that the appeal is incompetent and fundamentally defective which, if it succeeds would put an end to the appeal. In other words, where a preliminary objection to an appeal is sustained or upheld, it will not be necessary to go further to consider arguments in support of the issues for determination distilled by the parties. Therefore, the Court must determine the preliminary objection first before hearing of the substantive appeal.
The ground of objection are as follows: –
1. That the appellant notice of appeal dated 12/3/2018 is filed without leave of either the High Court or this Court.
2. That the appeal is against an interlocutory decision which by Section 14 of the Court of Appeal Act required leave to file same.
3. That appellant ground one is mix law and fact, which still require leave.
4. That the appellant`s ground two is completely facts which still required leave.
5. That as a result of the above, the appellant appeal is incompetent and liable to be struck out.
Learned respondent counsel argued that it is settled that appeals against interlocutory decisions of a High Court requires the leave of the High Court or the Court of Appeal, first sought and obtained before filing of the notice of appeal. In particular, where the grounds of appeal are not based on ground of law alone. See Section 14 of the Court of Appeal Act and G.W.V.S vs NIGERIA NLG LTD (2017) EJSC (VOL 63)33 @ 51.
This appeal against an interlocutory decision without leave obtained is incompetent and liable to be struck out.
Learned counsel argued that a careful consideration of ground one and two reveal that only ground one is mixed law and facts. But ground two clearly is facts, which require leave before filing this appeal and failure to do so is fatal. It is liable to be struck out.
The learned counsel urged the Court to uphold the preliminary objection and strike out the appeal for being incompetent. The appellants counsel did not file any reply brief in response to the preliminary objection.
It is settled law that where leave of Court is required to appeal, until such leave is obtained no valid notice of appeal could be filed.
See OWUDA VS LAWAL (1984) 4 SC 145, ADETUTU VS ADEROHUNMU (1981) 1 NCLR 208 AND AKIWIWU MOTORS LTD VS SONGONUGA (1984)5 SC 184.
The Court of Appeal has no jurisdiction to hear and determine an appeal filed without leave where leave is necessary. See APKASUBU VS UMWENI (1982)11 SC 132 AND AWHINAHWHI VS OTERI (1984)5 SC 38.
Section 242 (1) of 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus;
242 (1) subject to the provision of Section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.
And Section 14 of the Court of Appeal Act 2004 provides;
14(1) where in the exercise by the High Court of a State or as the case may be, the Federal High Court of its original jurisdiction or interlocutory order or decision is made in the course of any suit or matter an appeal shall, with leave of that Court or of the Court of Appeal lie to the Court of Appeal.
Flowing from the above statutory provisions an appellant must seek leave to appeal against an interlocutory decision of the High Court. Thus, in an appeal against an interlocutory decision such as the instant one, the notice of application for leave must be filed within fourteen (14) days from the day the decision appealed against was delivered. See DOUGLAS VS FEDERAL REPUBLIC TRUSTEES (1959) 4 F.S.C 15.
In this instant appeal there is no any indication that the appellant has sought for and obtained leave of the High Court before filing the notice of appeal.
On this score, the appeal is incompetent and the notice of appeal is liable to be struck out. This Court is without jurisdiction to hear and determine the appeal. Accordingly, the preliminary objection succeeds.
The notice of appeal filed on 12th March, 2018 is struck out. A cost of Fifty Thousand Naira (₦50,000:00) is awarded against the appellant in favour of the respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree
FREDERICK OZIAKPONO OHO J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ABUBAKAR M. TALBA, JCA and I am in agreement with the reasoning and conclusions reached in striking out the Appeal for being incompetent by reason of failure to obtain leave under Section 242 (1) of the 1999 Constitution of Nigeria as amended and under Section 14 (1) of the Court of Appeal Act, 2004. I abide by the consequential orders made thereto.
Appearances:
Musbahu Salauden, Esq. For Appellant(s)
T. Aza, Esq. For Respondent(s)
