OBASEKI IYAWERE & ANOR v. ANDREW OMOH & ANOR.
(2011)LCN/4309(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of February, 2011
CA/B/12/2008
RATIO
PRELIMINARY OBJECTION: DUTY OF THE COURT WHERE THERE IS A PRELIMINARY OBJECTION TO THE COMPETENCE OF THE APPELLATE COURT
In situations like this instant appeal, the proper approach is for this Court to first and foremost consider and determine the issues arising out of the preliminary objection, especially, since the objection touches on the competence of this appeal and the consequent jurisdiction of this Court to adjudicate thereupon. If the preliminary objection succeeds, that will terminate the appeal, but, if it fails, the issues distilled from the grounds of appeal will be taken accordingly. For, the competence of an action and the jurisdiction of court are threshold questions which once raised, must be taken first and decided before considering any other issue. This is because, any defect in competence is fatal, as it is extrinsic to adjudication and proceedings conducted without competence amount to a nullity however well conducted and decided. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341; (2) Onyenucheya v. Military Administrator of Imo State (1997) I NWLR (Pt. 482) p.429; (3) Sowemimo v. Awobayo (l999) 7 NWLR (Pt. 610) p. 335; (a) Ayorinde v. Oni (2000) 3 NWLR (Pt. 649)p. 348; (5) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p. 1 and (5) Satami v. Oseni (2002)14 NWLR (Pt. 788) p.623. PER OYEBISI F. OMOLEYE, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTIONS 241, 242 AND 243 OF THE 1999 CONSTITUTION, AS WELL AS SECTION 24, PART V OF THE COURT OF APPEAL ACT, 2004 AND ORDER 7 RULES 5 AND 10(1) OF THE COURT OF APPEAL RULES, 2007 AS IT RELATES CIRCUMSTANCES WHERE LEAVE OF COURT IS REQUIRED TO BE SOUGHT AND OBTAINED BEFORE FILING AN APPEAL
The right of appeal against final as well as interlocutory decisions, is conferred by statute, be it one which creates either the trial court or appellate court or the enactment which confers original or appellate powers. The right of appeal to this Court from either the Federal High court or the High court of a State is provided for by Sections 241, 242 and 243 of the 1999 Constitution, as well as Section 24, Part V of the Court of Appeal Act, 2004 and Order 7 Rules 5 and 10(1) of the Court of Appeal Rules, 2007. For easy reference, the above enactments are hereunder reproduced respectively, as follows: 1999 Constitution 241. – (1) 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 – (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings; (c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be, contravened in relation to any person; (e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; (f) decisions made or given by the Federal High court or High Court – (i) where the liberty of a person or the custody of an infant is concerned. (ii) where an injunction or the appointment of a receiver is granted or refused. (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and (v) in such other cases as may prescribed by any law in force Nigeria. (2) Nothing in this section shall confer any right of appeal (a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action; (b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi: and (c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only. 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. (2) The Court may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application. 243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be – (a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave -of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed; (b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. Court of Appeal Act: 24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case. (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision; (b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against. (3) where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal. (4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section. Court of Appeal Rules: Order 7 Rules: (5) If leave to appeal is granted by the Court or by the court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the Court of Appeal Act, 2004. 10. (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. From the foregoing enactments, that is, Sections 241(1) & (2), of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a State High Court, to the Court of Appeal as of right in the following cases;: (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings; (c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution; (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person: (e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death; (f) decisions made or given by the Federal High Court or a High Court – (i) where the liberty of a person or the custody of an infant is concerned; (ii) where an injunction or the appointment of a receiver is granted or refused; (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise; (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and (v) in such other cases as .may be prescribed by any law in force in Nigeria. However, by virtue of Section 242(1) of the 1999 Constitution, an appeal will become operable only with the leave of either the Federal High Court/State High Court or the Court of Appeal in the following instances: (a) Against the interlocutory decisions of the Federal High Court or a High Court, except such interlocutory decisions which involve questions of law alone. It follows that the right of appeal against an interlocutory decision of any of the High Courts that involves pure questions of law is exercisable as f right and does not require the leave of either the High Court which decision is appealed against or the Court of Appeal; (b) Any appeal from a decision of any High Court consented to by parties or on the costs awarded against any of the parties only; (c)Any appeal against the decision of High Court exercising appellate jurisdiction in any civil or criminal proceedings; (d) Appeals by an interested party. The import of the provisions of Section 242(1) is that, the right of appeal enures to an appellant only with the permission of court. Leave is, the permission it takes to activate or infuse life into an appeal that is hitherto dormant. The Supreme Court as well as this Court has laid it down in several authorities that, the leave envisaged under the provisions of Section 242(1) of the Constitution is a condition precedent to the exercise of the right of appeal under the said Section. Therefore, the law is trite that, where the condition precedent is necessary but has not been fulfilled, the appeal filed is illegal and incompetent. See the cases of: (1) Ayansina v. Co-operative Bank Ltd. (1994) 5 NWLR (Pt.347) p.74) and (2) N.I.W.A v. S.P.D.C. (Nig) Ltd. (2007) 1 NWLR (P1.1015) p.305. It follows that, an appeal filed pursuant to the provisions of Section 242(1) without the requisite leave, in law, robs the Court of Appeal of the jurisdiction to entertain and determine the issue(s) raised in such appeal. See the case of: Ukpong v. Comm. for Finance (2006) 19 NWLR (pt. 1013) p.187. Upon the combined reading of the provisions of Sections 241(1) and 242(1), an appeal from the decision of a High Court given in its appellate jurisdiction requires the leave of either the High Court or the Court of Appeal. In this situation, it is immaterial that, the decision is an interlocutory or a final decision, or those, the issues involved are those of law or facts or mixed law and facts. In other words, leave of the court is required before a competent and valid appeal can be lodged. This requirement of leave as stated earlier on above is, mandatory. In the instant matter, there is no doubt that, the Appellants herein had the legally bounding duty to obtain the leave of either the lower court or this court as the lower court was sitting in its appellate jurisdiction in the suit under consideration. Since the Appellants did not seek and obtain the mandatory leave of either the lower Court or this Court, this appeal is incompetent and this Court is devoid of jurisdiction to entertain it. I rely on the cases of: (1) Mosuru v. Akinyele 13 WACA p.112; (2) Salami v. Oseni supra (3) Ekwulugo v. A.C.B. (Nig) Ltd (2006) 6 NWLR (pt. 975) p. 30 and (4) N.I.W.A. V. S.P.D.C. (Nig) Ltd. supra, at pgs 330 – 331, paras. H-B. PER OYEBISI F. OMOLEYE, J.C.A.
INCOMPETENT NOTICE OF APPEAL: EFFECT OF AN INCOMPETENT NOTICE OF APPEAL
…an incompetent notice of appeal is ab initio void, incurably bad and can not be regularized. See the case of: Macfoy v. U.AC. (1962) AC. P. 152. PER OYEBISI F. OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. OBASEKI IYAWERE
2. IDEHO IKHARO Appellant(s)
AND
1. ANDREW OMOH
2. GEOFREY IZEGAEGBE
(for themselves and on behalf of Ukpafis’ family) Respondent(s)
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Edo State High Court, Sabongidda-Ora Judicial Division, (hereinafter referred to as the lower Court), sitting in its appellate jurisdiction, delivered by G.O. Imadegbelo J., on 24th April, 2007 in Suit No. HAF/1A/2005.
The brief background facts of this matter are that, the Respondents herein were plaintiffs at the owan west Area customary court, Sabongidda Ora where they lost to the Appellants as defendants. The judgment of the said Area Customary Court was delivered on 17th June, 2004. The Respondents appealed to the lower court against that decisions vide a notice of appear dated 18th June, 2004. The Respondents after filing additional grounds of appeal fired an application supported by an affidavit, to correct the record of proceedings of the Area customary court already transmitted to the lower court. The Appellant opposed the application by filing a counter affidavit.
Learned counsel for both parties addressed the lower court in support of and against the issue of amendment of the said record.
In his considered ruling of 24th April, 2007, the learned trial Judge refused the application to amend the record of proceedings, instead, he remitted back the suit to be retried de novo before another panel of the Area Customary Court. The ruling is contained in pages 44 to 45 of the record of appeal.
The Appellants were dissatisfied with the said ruling and appealed against it to this Court vide a notice of appeal dated 25th April, 2007, containing two grounds of appeal. The two grounds of appeal with their particulars are contained in pages 25 to 26 of the record of appeal.
In line with the rules of practice and procedure of this Court, parties filed and exchanged briefs of argument. The Appellants’ briefs were settled by learned A.K.M. Imiewarin. The Appellants’ brief of argument is dated 25th February, 2008 and was filed on 28th February, 2008.
The brief of argument of the Respondents was settled by learned K.O. Ojemeri. The Respondents’ brief of argument dated 9th February, 2010 was deemed to have been properly filed and served on 4th March, 2010.
Further to the Respondents’ brief of argument, the Appellants’ learned counsel filed an Appellants’ Reply brief of argument. It is dated and was filed on 12th March, 2010.
The Respondents had earlier on filed a notice of preliminary objection challenging the competence of this appeal. The said preliminary objection of the Respondents is dated 22nd October, 2009 but was filed on 26th October, 2009.
The preliminary objection is that, this Court lacks the jurisdiction to hear and determine this appeal. It is predicated on two grounds. The two grounds state thus:
1. This appeal is against the ruling of the High Court of Justice, Sabongidda Ora sitting as an appellate court.
2. The Appellants did not seek leave of the Court below to appeal against its ruling before filing this appeal by virtue of Section 242 of the Constitution of the Federal Republic of Nigeria, 1999.
The arguments in support of the preliminary objections are contained in paragraphs 3.0 to 3.10 at pages 2 to 4 of the Respondents’ brief of argument.
At the hearing of this appeal, learned counsel for the respective parties took their turns to identify, adopt and rely on the briefs of argument. In respect of the preliminary objection, the learned counsel for the Respondents urged this Court to uphold the objection and dismiss this appeal for being incompetent. On the other part, the argument of the Appellants in opposing the preliminary objection is contained in paragraph 1 of the Appellants’ reply brief. The learned counsel for the Appellant urged on this Court to dismiss the preliminary objection and proceed to decide this appeal on the merit. In respect of the substantive appeal, while the learned counsel for the Appellant urged on this Court to allow this appeal, the learned counsel for the Respondents urged upon this Court to dismiss this appeal.
In situations like this instant appeal, the proper approach is for this Court to first and foremost consider and determine the issues arising out of the preliminary objection, especially, since the objection touches on the competence of this appeal and the consequent jurisdiction of this Court to adjudicate thereupon. If the preliminary objection succeeds, that will terminate the appeal, but, if it fails, the issues distilled from the grounds of appeal will be taken accordingly. For, the competence of an action and the jurisdiction of court are threshold questions which once raised, must be taken first and decided before considering any other issue.
This is because, any defect in competence is fatal, as it is extrinsic to adjudication and proceedings conducted without competence amount to a nullity however well conducted and decided. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341; (2) Onyenucheya v. Military Administrator of Imo State (1997) I NWLR (Pt. 482) p.429; (3) Sowemimo v. Awobayo (l999) 7 NWLR (Pt. 610) p. 335; (a) Ayorinde v. Oni (2000) 3 NWLR (Pt. 649)p. 348; (5) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p. 1 and (5) Satami v. Oseni (2002)14 NWLR (Pt. 788) p.623.
Therefore, there is no doubt that the preliminary objection is a very crucial issue that requires prompt, immediate and priority attention.
The learned counsel for the Respondents submitted that, by virtue of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, an appeal from the lower Court’s decision which was delivered in its appellate jurisdiction, shall lie to this Court with either the leave of the lower Court or this Court. That in the instant matter, the Appellants ought to have, but failed, to seek either the leave of the lower Court or this Court before filing this appeal against the decision of the lower Court to this Court.
He cited the cases of: (l) Nigerian Air Force v. Shekete (2002) 18 NWLR (Pt. 798) p.129 at pgs. 151 – 152, paras. H – B; (2) Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718; (3) Oshatoba v. Oluyitan (2000) s NWLR (Pt. 6s5) p. 159 and (4) .LUidoye v. Alawode (2001) 6 NWLR (Pt.709) p.463.
He submitted that, the legal effect of a party who did not seek leave to appeal against the decision of court where leave is required is that, the appeal from the decision of the court below to the Court of Appeal is incompetent.
Replying, the learned counsel for the Appellants submitted that Section 242(1) of the 1999 Constitution is not applicable to the instant matter, but rather, Section 241(1). That by the provisions of Section 241(1) (b) an appeal from the decisions of the Federal or State High Court shall lie as of right to the Court of Appeal, where the ground of appeal involves questions of law alone. According to him, since the Respondents have not challenged the competence of any of the grounds of appeal, the preliminary objection of the Respondents is baseless. He contended further that, the decision of the lower Court herein appealed not being an interlocutory decision, the leave of the lower Court or this Court, need not be sought and obtained.
I have carefully considered the arguments of the respective learned counsel along with the legal authorities cited by them. To my mind, there is no controversy regarding the status of the decision being appealed. There is equally no grouse with the competence of any or all of the grounds of the appeal. The complaint of the Respondent is that, the decision of the lower Court having been given in exercise of its appellate jurisdiction, leave of the lower Court or this Court as the case may be, is needed for that decision to be appealed to this Court. In my view, in order to resolve the preliminary objection, the relevant question to consider is, whether the Appellants properly exercised their right of appeal?
The right of appeal against final as well as interlocutory decisions, is conferred by statute, be it one which creates either the trial court or appellate court or the enactment which confers original or appellate powers. The right of appeal to this Court from either the Federal High court or the High court of a State is provided for by Sections 241, 242 and 243 of the 1999 Constitution, as well as Section 24, Part V of the Court of Appeal Act, 2004 and Order 7 Rules 5 and 10(1) of the Court of Appeal Rules, 2007. For easy reference, the above enactments are hereunder reproduced respectively, as follows:
1999 Constitution
241. – (1) 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 –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High court or High Court –
(i) where the liberty of a person or the custody of an infant is concerned.
(ii) where an injunction or the appointment of a receiver is granted or refused.
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may prescribed by any law in force Nigeria.
(2) Nothing in this section shall confer any right of appeal
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi: and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
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.
(2) The Court may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other court after consideration of the record of proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave -of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
Court of Appeal Act:
24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection
(2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.
Court of Appeal Rules:
Order 7 Rules:
(5) If leave to appeal is granted by the Court or by the court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the Court of Appeal Act, 2004.
10. (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
From the foregoing enactments, that is, Sections 241(1) & (2), of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a State High Court, to the Court of Appeal as of right in the following cases;:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person:
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned;
(ii) where an injunction or the appointment of a receiver is granted or refused;
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise;
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and
(v) in such other cases as .may be prescribed by any law in force in Nigeria.
However, by virtue of Section 242(1) of the 1999 Constitution, an appeal will become operable only with the leave of either the Federal High Court/State High Court or the Court of Appeal in the following instances:
(a) Against the interlocutory decisions of the Federal High Court or a High Court, except such interlocutory decisions which involve questions of law alone. It follows that the right of appeal against an interlocutory decision of any of the High Courts that involves pure questions of law is exercisable as f right and does not require the leave of either the High Court which decision is appealed against or the Court of Appeal;
(b) Any appeal from a decision of any High Court consented to by parties or on the costs awarded against any of the parties only;
(c)Any appeal against the decision of High Court exercising appellate jurisdiction in any civil or criminal proceedings;
(d) Appeals by an interested party.
The import of the provisions of Section 242(1) is that, the right of appeal enures to an appellant only with the permission of court.
Leave is, the permission it takes to activate or infuse life into an appeal that is hitherto dormant.
The Supreme Court as well as this Court has laid it down in several authorities that, the leave envisaged under the provisions of Section 242(1) of the Constitution is a condition precedent to the exercise of the right of appeal under the said Section. Therefore, the law is trite that, where the condition precedent is necessary but has not been fulfilled, the appeal filed is illegal and incompetent.
See the cases of: (1) Ayansina v. Co-operative Bank Ltd. (1994) 5 NWLR (Pt.347) p.74) and (2) N.I.W.A v. S.P.D.C. (Nig) Ltd. (2007) 1 NWLR (P1.1015) p.305. It follows that, an appeal filed pursuant to the provisions of Section 242(1) without the requisite leave, in law, robs the Court of Appeal of the jurisdiction to entertain and determine the issue(s) raised in such appeal. See the case of:
Ukpong v. Comm. for Finance (2006) 19 NWLR (pt. 1013) p.187.
Upon the combined reading of the provisions of Sections 241(1) and 242(1), an appeal from the decision of a High Court given in its appellate jurisdiction requires the leave of either the High Court or the Court of Appeal. In this situation, it is immaterial that, the decision is an interlocutory or a final decision, or those, the issues involved are those of law or facts or mixed law and facts. In other words, leave of the court is required before a competent and valid appeal can be lodged. This requirement of leave as stated earlier on above is, mandatory.
In the instant matter, there is no doubt that, the Appellants herein had the legally bounding duty to obtain the leave of either the lower court or this court as the lower court was sitting in its appellate jurisdiction in the suit under consideration. Since the Appellants did not seek and obtain the mandatory leave of either the lower Court or this Court, this appeal is incompetent and this Court is devoid of jurisdiction to entertain it. I rely on the cases of:
(1) Mosuru v. Akinyele 13 WACA p.112; (2) Salami v. Oseni supra
(3) Ekwulugo v. A.C.B. (Nig) Ltd (2006) 6 NWLR (pt. 975) p. 30 and
(4) N.I.W.A. V. S.P.D.C. (Nig) Ltd. supra, at pgs 330 – 331, paras. H-B.
In consequence of my above enunciations, I hold that, the notice of appeal dated 25th April, 2007 and all other attendant processes, including the briefs of argument purportedly filed thereto are incompetent. This is because an incompetent notice of appeal is ab initio void, incurably bad and can not be regularized.
See the case of: Macfoy v. U.AC. (1962) AC. P. 152.
In the final analysis, I uphold the preliminary objection and hold that this appeal having been declared incompetent, its merits or demerits can not be delve into. Therefore, Appeal No CA\b\12\2008 is hereby struck out accordingly.
The sum of Twenty Thousand Naira only is hereby awarded in favour of the Respondents and against the Appellants.
ALI ABUBAKAR BABANDI GUMEL. J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, OMOLEYE, JCA. I agree that upon the preliminary objection filed on behalf of the Respondents ought to be upheld and I accordingly uphold same. Leave was needed to bring this appeal and no leave was sought and obtained. Appeal is incompetent and is struck out.
N20,000.00 (Twenty Thousand Naira) is costs for the Respondents.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A: I had the privilege of reading in draft the Judgment prepared and just read by my learned brother, O.F. OMOLEYE, JCA. His Lordship has dealt with the preliminary objection beautifully and I am therefore in agreement with the reasoning and conclusions.
Consequent upon the provisions of Sections 241(i) and, 242(i) of the 1999 constitution, the preliminary objection is meritorious and therefore I see no reason or justification going into the merits or demerits of the appeal. The preliminary objection is upheld and the appeal is struck out. I also award N20, 000 as costs against the Appellants.
Appearances
A. K. M. Imiewarin Esq.For Appellant
AND
K.O. Ojemeri Esq.For Respondent
