ROBINSON ONYEMA v. CHIEF BASIL EZEIRUKA
(2018)LCN/11992(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/618/2017
RATIO
APPEAL: WHERE THERE IS AMBIGUITY IN CIVIL APPEAL
“There is no ambiguity that this civil appeal is against the final decision of the trial Court. 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 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.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
COURT AND PROCEDURE: THE VALIDITY OF ORIGINATING SUMMONS
“The validity of 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) Kente 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.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ROBINSON ONYEMA Appellant(s)
AND
CHIEF BASIL EZEIRUKA Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Anambra State holden at Onitsha (hereinafter called ‘the trial Court’) per M. N. Okonkwo, J., delivered on 19th of October, 2016 in Suit No. O/20/2013.
At the trial Court, the Respondent was the plaintiff and Appellant was the defendant. By his Writ of Summons dated 29th of January, 2013 and Further Amended Statement of Claim and Defence to the Appellant’s Counter-Claim filed on 23rd of May, 2014, the Respondent sued the Appellant and claimed as follows:
a. A DECLARATION that the plaintiff is the bonafide owner in possession of the said shop or stall No: C843 Situate at Electronic International Market, Enugu/Onitsha Express way, Onitsha.
b. N200,000 being general damages.
c. AN ORDER of perpetual injunction restraining the Defendant his agent, cohorts, servants, privies, assigns or by any person(s) whatsoever from disturbing, preventing and/or obstructing the plaintiff from peaceful use and occupation of the said shop No: C843 (supra) and/or doing anything inconsistent with the plaintiff’s right in the said shop.
The Appellant equally counter-claimed vide his Amended Statement of Defence in respect of the same property as follows:
From 2006, the rentage for each stall in the ground floor of the Electronic Dealers Market, Onitsha was N10,000.00 per month, which was increased to N15,000.00 per month in 2009, and N20,000.00 per month in 2012.
Since the plaintiff occupies the stall in 2009, 2010, 2011 and 2012 (4 years certain) he should pay mesne profit or damages for the 4 years.
The defendant’s counter claim is estimated as follows:-
(a) 2006 – 10,000 x 12 = 120,000
(b) 2007 – 10,000 x 12 = 120,000
(c) 2008 – 10,000 x 12 = 120,000
(d) 2009 – 15,000 x 12 = 180,000
(e) 2010 – 15,000 x 12 = 180,000
(f) 2011 – 15,000 x 12 = 180,000
(g) 2012 – 20,000 x 12 = 240,000
= N1,140,000
(a) N1,140,000.00 being mesne profit for the six years.
(b) Perpetual injunction restraining the plaintiff by himself or through his agents/privies from interfering with the defendant’s possession of the stall No.C843 or doing anything inconsistent with the right of the defendant as the rightful owner of the stall.
In support of their claims, the parties fielded witnesses and tendered some documents in evidence at trial. The learned counsel for the parties filed, exchanged and adopted written addresses to substantiate the varied positions of their clients. Thereafter, the learned trial Judge, in his considered judgment delivered on 19th of October, 2016, found in favor of the Respondent, granted his claims with the costs of Fifty Thousand Naira also awarded in his favour and against the Appellant. The counter-claim of the Appellant was consequentially dismissed.
The Appellant was obviously peeved about the said judgment of the trial Court and therefore filed this appeal against it, through his notice of appeal dated 26th of October, 2016, to this Court. The notice of appeal containing ten grounds of appeal can be located at pages 115 to 120 of the record of appeal.
The learned counsel for the parties in deference to the Rules of practice of this Court duly filed and exchanged briefs of argument to sustain the opposing positions of their respective clients.
At the oral hearing of the appeal, the learned counsel for the Appellant Mr. Chiedozie Ogbueli specifically stated that the Notice of Appeal of the Appellant was filed on 26th of January, 2017. He adopted the Appellant’s brief of argument filed on 20th of October, 2017 and Reply brief filed on 20th of December, 2017. He urged this Court to allow the appeal and set aside the judgment of the trial Court. The Respondent’s learned counsel Mr. Austin Enendy equally adopted the Respondent’s brief of argument dated 13th of November, 2017 filed on 17th of November, 2017 in urging this Court to dismiss the appeal and affirm the judgment of the trial Court.
I have perused the record of appeal in particular, the notice of appeal of the Appellant already identified above by me. I found that the date of the filing of the said notice of appeal is quite ambivalent. I refer in particular to both the first and last pages of the Notice of Appeal of the Appellant contained in pages 115 and 120 of the record of appeal. The two pages have embossed on them with stamps of the High Court of Onitsha bearing two different dates as the possible date the notice of appeal was filed.
One stamp bears 26th of January, 2017 and the other stamp bears 19th of January, 2017. It was as a result of the ambiguity that at the oral hearing of the appeal, the learned counsel for the Appellant was specifically asked when exactly the notice of appeal was filed. His response to the poser was that, the notice of appeal was filed on the 26th of January, 2017. The receipt issued to the Appellant at the point of filing the notice of appeal at the Registry of the trial Court was unfortunately not compiled with the record of appeal and the receipt number was also not entered on the process as is usual when processes are filed, to lend credence to the actual date the notice of appeal was filed in this case.
However, it is patent on the notice of appeal that same was filed by Mr. Chiedozie Ogbueli, the Appellant’s learned counsel. He is in the best position to know when the notice of appeal was filed. Therefore, having affirmed at the oral hearing of the appeal that the notice of appeal was filed on 26th of January, 2017, same is taken as the date of filing of the said notice of appeal and I hold so.
Now, as stated at the debut of this judgment, the decision of the trial Court being appealed against by the Appellant was delivered on 19th of October, 2016. See pages 102 to 114 of the record of appeal. What this means is that, the notice of appeal filed on 26th of January, 2017 was filed ninety-nine days after the delivery of the judgment being appealed against.
There is no ambiguity that this civil appeal is against the final decision of the trial Court. 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 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.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.
Therefore, clearly from the above set-out provisions of Section 24(2), it is mandatory for the notice of appeal 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, also by the provisions of Section 24(4), if an appellant was unable to file the notice of appeal within the prescribed period, this Court is empowered to extend the period upon the application of the Appellant for the purpose. By simple mathematical computation, as stated earlier on above, the notice of appeal under scrutiny was filed ninety-nine days after the delivery of the decision being appealed against. The Appellant was obviously out of time by nine days in filing his said notice of appeal.
I have perused the record of appeal and am unable to find any application therein at the instance of the Appellant to avail him of the grace for an extended period in tune with Section 24(4) of the Act, since he was already out of time, save of course, he was ignorant of this very fundamental provisions of the law.
Without any ado, the notice of appeal purportedly filed by the Appellant on 26th of January, 2017 having been filed nine days out of the period 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 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) Kente 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 Muhammad, J.S.C, 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 defective notice of appeal of the Appellant herein thus renders this appeal invalid and consequently robs this Court of the competence or jurisdiction to adjudicate upon the substantive appeal or any subject arising therefrom.
Hence, all the other issues identified for resolution in the substantive appeal by the parties become abated as this Court is 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. For 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 notice and grounds 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.
Consequent upon the foregoing analysis, this Appeal No. CA/E/618/2017 is accordingly struck out for being incompetent.
I make no order for costs.
JAMES SHEHU ABIRIYI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother OYEBISI FOLAYEMI OMOLEYE JCA.
As the notice of appeal is fundamentally defective, the appeal is incompetent and this Court lacks the jurisdiction to entertain it. Appeal No. CA/E/618/2017 is hereby struck out.
I abide by all other orders in the lead judgment including the order as to costs.
SAIDU TANKO HUSSAINI, J.C.A.: I have read in advance the lead Judgment just delivered by my noble Lord, Oyebisi Folayemi Omoleye, JCA, with whom I concur.
An appeal is commenced by the process known and commonly referred to as the ‘Notice of Appeal’ which must be regular and valid. An otherwise fundamentally defective Notice of Appeal conveys no appeal at all, upon which the rights of parties to it can be tested and or determined. The decisions in Madukolu Vs. Nkemdilim (1962) LPELR-24023(SC) and Mcfoy V. UAC (1961) 2 All ER 1169, 1172 portray the futility of actions commenced by fundamentally defective Originating Processes such as one covered by this case. Such a Process must be struck out as incompetent. I so Order.
Appearances:
Chiedozie Ogbuehi, Esq.For Appellant(s)
Austin Enendy, Esq.For Respondent(s)
