PROPHET E.O. SONIBARE & ANOR v. SAKA IMOLOKUNOLA
(2019)LCN/13640(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
CA/AK/159/2016
RATIO
ORIGINATING PROCESS: THE IMPORTANCE OF ORIGINATING PROCESSES IN THE COMPETENCE OF A PROCEEDINGS
Now, the law is very well settled, as the Apex Court and this Court have consistently held that, the validity of an originating process in all actions including appeals, like an originating summons, a writ of summons, petition and notice of appeal, is a ?sine qua non? for the competence of the process and the proceedings that follow it. The validity of an originating process, a very germane ingredient of due process of law has become very crucial also to adjudication that, many actions and appeals have hit the rocks before they ever get started, once the originating process has been successfully impugned. See amongst an army of judicial authorities, the cases of: (1) Madukolu v. Nkemdilim (1964) 3 NSCC p. 374 at pgs. 379-380; (2) Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) p. 377; (3) Braithwaite v. Skye Bank Plc. (2012) LPELR-15532 (SC) and (4) Kenteri v. Ishaku & Ors. (2017) LPELR-42077 (SC).PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
AN INVALID ORIGINATING PROCESS AFFECT THE JURISDICTION OF THE COURT
What is more, failure to commence an action or appeal with a valid originating process clearly borders on the issue of jurisdiction, that is, the competence of both the action/appeal and Court to adjudicate upon the matter. This legal principle was again pointedly restated by the Apex Court recently, in the case of: Okpe v. Fan Milk Plc. Anor. (2016) LPELR-42562 at p. 36, paras. A-D, per Muhammed, J.S.C. (as he then was, now C.J.N. Ag.) as follows:
An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
IF AN ORIGINATING PROCESS IS INVALID, IT RENDERS THE MATTER A NULLITY
What is more, since the jurisdiction of this Court is wanting in the instant matter, the purported Amended Notice of Appeal having been built on an incurably defective Original Notice of Appeal, and the issues distilled therefrom are altogether incompetent and incapable of being used by this Court to resolve the facts that are being disputed by the parties herein. I am fortified in my opinion by the stance of the Apex Court in the case of: Dr. Okey Ikechukwu v. F.R.N. & 2 Ors. (2015) 7 NWLR (Pt. 1457) p. 1, where Nweze, JSC, at p. 21, paras. B-G, and p. 22, para. C, had the following to say:
As a general rule, an intermediate Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent?s Preliminary Objection to the competence of the Appellant?s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal.
See also the case of: Macfoy v. U.A.C. Ltd. (1962) A.C. p. 152. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
PROPHET E.O. SONIBARE & ANOR Appellant(s)
AND
SAKA IMOLOKUNOLA Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Osun State sitting at Osogbo per A. A. Aderibigbe, J., (hereinafter referred to as ?the trial Court?) in Suit No. HIK/3/2006 delivered on the 4th day of April, 2016.
The Appellants who were plaintiffs at the trial Court sued and claimed against the Respondent as defendant vide their Writ of Summons and Amended Statement of Claim the following unedited declaratory reliefs:
(a) A declaration that the plaintiffs are entitled to a statutory right of occupancy over the three pieces of land situate, laying and being at old Inisa road, Odoofin area, Ikirun measuring 1865.650 square metres altogether and bounded on the 1st side by Dr. Adeyemi?s land, on the 2nd side by Iya Taborah?s land, on the 3rd side by Madam Ramota?s land and on the 4th side by Oyeniregun family land.
(b) The sum of two hundred thousand naira (N200,000.00) being damages for trespass committed by the defendant and his agents on the land.
?(c) Perpetual injunction retraining the defendant, by
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himself, his servants, agents, workers and privies or any community he is claiming to be acting for or representing otherwise howsoever from further disturbing the plaintiffs? church service or committing further acts of trespass on the plaintiffs parcel of land measuring 1865.650 square metres but more specifically described in the duly cleared and certified in survey plan No. OS/0227/2005/37 to show physical features No. MSC/OS/322/2006/02 dated 16/5/2006 drawn by ADENIRAN BIOKU licensed surveyor and bounded on its various sides by
(1) Dr. Adeyemi?s land
(2) Iya Taborah?s land
(3) Madam Ramota?s land
(4) Oyeniregun family land
In the bid to establish their claims, the Appellants fielded six witnesses and tendered an array of documentary evidence. On the other part and in defence of the Appellants? case against him, the Respondent gave evidence and fielded an additional witness but did not tender any document in evidence. At the close of the parties? cases, their respective counsel filed and exchanged written addresses in substantiation of their opposing stances in the matter. In its considered
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judgment, the trial Court held that the Appellants failed to establish their root of title to the land in dispute. Hence, all the reliefs sought by the Appellants were refused and their action consequently dismissed.
?
Dissatisfied with the said decision of the trial Court, the Appellants filed this appeal against it to this Court vide their Original Notice of Appeal of three grounds of appeal contained in pages 235 to 239 of the Record of Appeal. The Notice of Appeal is dated 7th of July, 2016 but was filed on 8th of July, 2016 with the Registry of the trial Court?s payment receipt No. CR. 0032322 as can be gleaned from page 239 of the Record of Appeal. Subsequent to the due compilation and transmission of the Record of Appeal to this Court on 29th of July, 2016, the Appellants, by a motion on notice dated and filed on 6th of March, 2017, sought the leave of this Court to amend the Original Notice of Appeal by adding new grounds of appeal. This Court granted the sought leave on 24th of October, 2017 and the Appellants were given fourteen days within which the Appellants? Amended Notice of Appeal was to be filed. Thence, the Amended Notice of
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Appeal dated 25th of October, 2017 was filed on 7th November, 2017.
In deference to the rules of this Court, the briefs of argument of the two sets of parties were duly settled by their respective counsel in validation of their opposing positions in the matter. At the oral hearing of the appeal on 15th of April, 2019, Mr. Olateju Kolawole, of His Grace Chambers the law firm representing the Appellants, identified and adopted the Appellants? Brief of Argument dated and filed on 28th of February, 2018 and Appellants? Reply Brief dated and filed on 11th of June, 2018; both briefs were deemed properly filed on 15th of April, 2019. While Mr. Adewale Afolabi of the law firm of Adewale Afolabi & Co., the Respondent?s Counsel also identified and adopted the Respondent?s Brief of Argument dated and filed on 12th of April, 2018 but deemed properly filed on 15th of April, 2019.
?
At this juncture, I consider it trite to consider the validity of the Original Notice of Appeal of the Appellants an originating process, albeit neither of the parties particularly, the Respondent has heeded to this and the legal consequences of same on the
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jurisdictional competence of this Court to adjudicate upon the appeal. For, the competence of a notice of appeal is fundamental to the due process of law in the commencement of an appeal and consequentially a condition precedent to the adjudicatory jurisdiction of the Court of Appeal over an Appellant?s appeal. I shall therefore tackle this point of law first, what is more, it is capable of terminating the entire appeal ?in-limine?, if of a fact, it is ruled that the notice of appeal is invalid. As I stated at the debut of this judgment, the Original Notice of Appeal in this matter purportedly filed on 8th of July, 2016 is against the final decision of the trial Court delivered on 4th of April, 2016 in Suit No. HIK/3/2006 vide its Writ of Summons issued on 9th of February, 2006 and Amended Statement of Claim dated and issued on 28th of February, 2012.
The procedure for the commencement of an appeal in this Court in civil causes like the instant appeal is as prescribed by Section 24 of the Court of Appeal Act, 2004. The said Section 24 provides as follows:
S.24 (1) Where a person desires to appeal to the Court of Appeal, he
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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 Sub-section (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.
(The underlining is supplied by me for emphasis)
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Therefore, clearly from the above set-out provisions, it is mandatory for the notice of appeal of an appellant in the place of the Appellant herein, which is against a final decision of the trial Court to be lodged within three months or ninety days of the delivery of the said decision. However, if an appellant was unable to file the notice of appeal within the prescribed period, this Court is empowered pursuant to Section 24 (4) set out above to extend the period upon an application of the appellant for the purpose. By simple mathematical computation, the notice of appeal under scrutiny filed on 8th of July, 2016, against the final decision delivered on 4th of April, 2016, was filed at best four days after the delivery of the said decision being sought to be appealed against. The Appellant herein was obviously out of time by four days in filing its said notice of appeal.
?I have perused the record of appeal in this matter and am unable to find any application therein at the instance of the Appellants to avail them of the grace for an extended period in tune with Section 24(4) of the Act, since they were already out of time,
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save of course, they were ignorant of this very fundamental provisions of the law, that is, the Court of Appeal Act, 2004.
Without any ado, the notice of appeal purportedly filed by the Appellants on 8th of July, 2016 having been filed four days out of the period of three months prescribed by law is patently defective. Now, the law is very well settled, as the Apex Court and this Court have consistently held that, the validity of an originating process in all actions including appeals, like an originating summons, a writ of summons, petition and notice of appeal, is a ?sine qua non? for the competence of the process and the proceedings that follow it. The validity of an originating process, a very germane ingredient of due process of law has become very crucial also to adjudication that, many actions and appeals have hit the rocks before they ever get started, once the originating process has been successfully impugned. See amongst an army of judicial authorities, the cases of: (1) Madukolu v. Nkemdilim (1964) 3 NSCC p. 374 at pgs. 379-380; (2) Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) p. 377; (3) Braithwaite v. Skye Bank Plc. (2012)
8
LPELR-15532 (SC) and (4) Kenteri v. Ishaku & Ors. (2017) LPELR-42077 (SC). What is more, failure to commence an action or appeal with a valid originating process clearly borders on the issue of jurisdiction, that is, the competence of both the action/appeal and Court to adjudicate upon the matter. This legal principle was again pointedly restated by the Apex Court recently, in the case of: Okpe v. Fan Milk Plc. Anor. (2016) LPELR-42562 at p. 36, paras. A-D, per Muhammed, J.S.C. (as he then was, now C.J.N. Ag.) as follows:
An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.
(The underlining are supplied by me for emphasis)
Therefore, the defect in the Appellants? notice of appeal herein renders the appeal invalid and consequently robs this
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Court of the competence or jurisdiction to adjudicate upon the substantive appeal or any subject arising therefrom. Hence, all the issues identified for resolution in the substantive appeal by especially the Appellants become abated, as this Court is also devoid of the requisite jurisdiction to competently consider them at this juncture. For it is not in all cases that this Court is required to consider all issues arising in an appeal as an intermediate Court, as to engage in such a course will amount to an academic or a moot exercise and thereby occasion a waste of precious and sparse judicial time. What is more, since the jurisdiction of this Court is wanting in the instant matter, the purported Amended Notice of Appeal having been built on an incurably defective Original Notice of Appeal, and the issues distilled therefrom are altogether incompetent and incapable of being used by this Court to resolve the facts that are being disputed by the parties herein. I am fortified in my opinion by the stance of the Apex Court in the case of: Dr. Okey Ikechukwu v. F.R.N. & 2 Ors. (2015) 7 NWLR (Pt. 1457) p. 1, where Nweze, JSC, at p. 21, paras. B-G, and p. 22,
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para. C, had the following to say:
As a general rule, an intermediate Court of Appeal has a duty to pronounce on all the issues before it. However, there are exceptions to the foregoing rule. Thus, for example, where the Court of Appeal decides that it lacks jurisdiction in an appeal before it, it becomes unnecessary for the Court of Appeal to consider other issues. In this case, the Court of Appeal upheld the 1st Respondent?s Preliminary Objection to the competence of the Appellant?s appeal. In the circumstance, it was unnecessary for the Court of Appeal to consider the arguments in support of the issues for determination distilled by the parties to the appeal.
See also the case of: Macfoy v. U.A.C. Ltd. (1962) A.C. p. 152. Consequent upon the foregoing elucidations, this Appeal No. CA/AK/159/2016 is accordingly struck out for being incompetent.
The parties herein are hereby ordered to bear their respective costs in the bid to prosecute and defend the incompetent appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read the draft of the lead judgment just rendered by His Lordship, Oyebisi F.
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Omoleye, JCA, (PJ) and concur that the appeal be struck out for incompetence. This has to be, as the jurisdiction of this Court had not been activated.
The right of appeal is circumscribed within the catalyzed bound of the 1999 Constitution as Appeals shall be in accordance with the Act of the National Assembly and the Rules made pursuant thereto as in Section 24 of the Court of Appeal Act 2004 (as reproduced in the lead judgment). See this Court’s Ruling in CA/AK/261M/2016 between Seven – Up Bottling Company Plc and Mrs. Owoseni Florence per Danjuma JCA delivered on Thursday 14th June, 2018.
There being no competent appeal filed, as found, I concur that there is no jurisdiction in this Court to proceed, therefore, the purported Notice of Appeal is accordingly declared incompetent ordered as struck out as in the lead judgment.
This is, however, a sad commentary on the lethargy of legal practitioners against their client’s right to have effective and fruitful legal services; certainly, the counsel may not claim ignorance of the law in this regard. It is the intended appellant that delayed and hit himself below the belt?
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Whatever and whoever is responsible, the Courts are not the culprit in such instances. A claimant would have had a suit in Court for years or a long period and expended or caused his opponent who may have a good defence wasted his resources and time, only to have the suit struck out and undermined on its merit for incompetence and want of jurisdiction. His of counter claim or claim or cross action if any would have to so wasted, even if it had merit. Can such not be disposed of in limine and suo motu or on application (motion) rather than proceed to hearing after the filing briefs of argument?
It should not go that hog. Litigants should consider enforcing their rights against counsel. Appeal is struck out.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My perusal of the lead judgment just delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, PJCA resulted in an agreement with the reasoning and conclusion arrived at therein.
The Notice of Appeal that commenced this appeal is technically invalid and therefore incompetent as found in the lead judgment. The invalidity of the Notice of Appeal has adverse effect on the jurisdiction of this Court
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to entertain the appeal so called filed by the Appellants. Consequent upon which this appeal is hereby struck out for being incompetent.
Parties to bear their individual costs.
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Appearances:
Olateju Kolawole, with him, A.D. Agboola and O.A. AkanbiFor Appellant(s)
Adewale Afolabi with him, E.A. OkunolaFor Respondent(s)
Appearances
Olateju Kolawole, with him, A.D. Agboola and O.A. AkanbiFor Appellant
AND
Adewale Afolabi with him, E.A. OkunolaFor Respondent
