TAYE GARBA & ORS V. IYABO UMMUANI (2012)

TAYE GARBA & ORS V. IYABO UMMUANI

(2012)LCN/5634(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of October, 2012

CA/IL/50/2012

RATIO

PRELIMINARY OBJECTION: THE EFFECT OF A PRELIMINARY OBJECTION NOT BEING FILED SEPARATELY WHEN IT IS SUPPOSED TO

In the circumstance, since the alleged preliminary objection by the 4th and 6th respondents was not filed separately, it was not competent and was therefore not considered. (Esoho v. Asuquo (2007) All FWLR (Pt.359) 1355; Bayero v. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 referred to).”PER ITA GEORGE MBABA, J.C.A.

APPEAL: THE EFFECT OF NOT FILING A COURT PROCESS AND PAYING APPROPRIATE FEES

FILING FEES: IMPORTANCE OF FILING FEES IN A MATTER
In the case of Mr. Ibiwoye Anu Ayodeji and Anor. v. Senator Simoen Sule Ajibola and Ors. An unreported decision of this division in No.EPT/CA/IL/SEN/9/2011, delivered on 14/12/2011, pages 10 – 11, and this court held that:
‘Of course, by law, it is the filing fees that vests legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government … since the alleged preliminary objection was … not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration, by this court. Thus, the preliminary objection, raised by the 1st and 2nd respondents in their brief of argument, without evidence of prior filing of said notice, is incompetent and cannot be relied on to question the competence of the said grounds of appeal by the appellants’. See also PDP v. Senator Dahiru B. Gossol unreported decision of court of appeal in suit No. CA/YL/31/2011, deliverd on 13/9/2011, Edoho v. Asuquo (2007) ALL FWLR (pt.359) 1355, held 2 and 6, Bayero v. Mainasara & Sons Ltd. (2006) 36 WRN 136; (2006) 6 NWLR (pt.782) 391; (2007) ALL FWLR (Pt.359) 1285, held, 9 aand 10, Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252; (1996) 1 SCNJ 1; (1996) 34 LRCN 1; (1996) 1 MAC 1, NAA v. Kawgaji (unreported decision of court of appeal, in suit No. CA/J/166/2003), delivered on 30/3/2011, Yola Division.”PER ITA GEORGE MBABA, J.C.A.

FILING FEE: THE PAYMENT OF FILING FEES AFFECTS THE VALIDITY OF ANY PROCESS FILED IN THE COURT
The above holdings tally with the recent decision of the apex court on the effect of failure to pay filing fee on court process, in the case of ASTC vs. Quorum Consortiun Ltd (2009) 9 NWLR (pt. 1145) 1 at 33 – 34, where by majority decision the Supreme Court held:
“Payment of prescribed filing fee by all litigants, except the government, is a precondition to the validity of any process filed in the court. Unless the pre-condition is satisfied, the court will lack the jurisdiction to entertain a process the prescribed filing fee of which has not been paid. In the instant case, the High Court of Plateau State Registry upon the receipt of the Processes transmitted to it only affixed its official stamp on it indicating that same was received. Certainly, that official act did not amount to acknowledgment of payment of official fees. Indeed, Section 54 Rules 1 and 2 of the High Court of plateau State (Civil Procedure) Rules puts it beyond per adventure that prior payment of filing fees upon assessment confers validity on the said process and gives jurisdiction to the court to entertain same. The provisions of Order 54 Rule I of the rules makes it mandatory for parties to litigation in court to pay the fees set out in the first, second, third, fourth and fifth schedules. In the instant case, the processes filed by the appellants were not properly before the court for reason of non-payment of the prescribed requisite filing fees, (Onwugbufor vs. Okoye (1996) 1 NWLR (Pt.424) Okolo vs. UBN Ltd. (2004) 3 NWLR (pt. 859)87; Moore vs. Tayee (1994) 2 WACA 43 referred to.) (pp.33-34, paras. D-C). Per ADEREMI, J.S.C. at pages 33-34, paras. D-D:
“That the payment of the prescribed filing fee of process to be filed by litigants other than the government in (sic) a sine qua non to the entertainment of that process by a court of law was affirmed by this court in its decision in Onwugbufor & Ors v. Okoye & Ors. (1996) 1 NWLR (pt. 424) 258 at page 292 by Iguh, JSC said:
‘A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry of Non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have no been paid cannot be said to bee properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly. In the present case, no payment whatsoever was made by the appellants in respect of their new claim forfeiture payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and to be struck out …”PER ITA GEORGE MBABA, J.C.A.

INTERLOCUTORY APPEAL: THERE IS A REQUIREMENT ON AN APPELLANT IN AN INTERLOCUTORY APPEAL THAT A NOTICE OF APPEAL OF INTENTION TO SEEK LEAVE TO APPEAL MUST BE FILE WITHIN 14 DAYS

The law requires an appellant in an interlocutory appeal to give notice of his appeal or notice of his intention to seek leave to appeal within 14 days of the Ruling. By Section 24 (2) (a) of the court of Appeal Act, 2004, Appellant has “in an appeal in a civil cause or matter, fourteen days, where the appeal is against an interlocutory decision…”PER ITA GEORGE MBABA, J.C.A.

APPEAL: INTERLOCUTORY APPEAL: HOW TO MAKE AN APPLICATION FOR LEAVE TO APPEAL UNDER INTERLOCUTORY APPEAL
Appellant is also required to make the application for leave to appeal, first to the court of first instance, and if that one refuses to grant the leave, then to the court of Appeal. See section 242 (1) of the constitution and section 14 (1) and (2) of the Court of Appeal Act 2004, which says.
“(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, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made exparte, or by consent of the parties, relating only to cost.
(2). Nothing in subsection (1) of this Section, shall be construed so as to authorize, an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”PER ITA GEORGE MBABA, J.C.A.

INTERLOCUTORY ORDER OR INTERLOCUTORY DECISION: DEFINITION

I do not think it is necessary to look for the meaning of the phrase:
“Interlocutory order or interlocutory decision”, as it should be obvious to every party who is represented by a Counsel, and to every lawyer, that a decision or order made by a court in an application, taken in the course of a substantive suit, which (decision or order) does not dispose of the main case in the court, is an interlocutory order or decision. The Black’s Law” Dictionary, Six Edition, simply defines ‘Interlocutory decision’ as “Any decision prior to a final decision” (See page 815).PER ITA GEORGE MBABA, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. TAYE GARBA
2. RASAKI GARBA
3. GANIYU GARBA
4. HAFSAT GARBA
5. AJIBOLA GARBA Appellant(s)

AND

IYABO UMMUANI Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):Appellants were the claimants in suit No. KWS/232/2011 at the High court of Kwara state, presided over by Mahmud Abdul Gafar J. The suit was brought by originating summons against the Respondent (defendant at the court below) but she raised a Preliminary objection against the action as follows:
“TAKE NOTICE that the (sic) DEFENDANT/OBJECTOR herein named intends, at the hearing of this action, to rely upon the Preliminary objection Notice where of is hereby given to you.
AND TAKE NOTTCE that the grounds of the said objection are as follows:
(1) This suit, (KWS232/2011) is not properly constituted therefore incompetent.
(2) By judgment of upper Area Court 1, delivered on April 8, 2005: (CVF/69/2002) MADAM IYABO IMAM v. MR AKANNI AKIBU, AJIBOLA BAYO, TAIYE GARUBA UMAR, GANIYU L. GARUBA AREMU, RASAKI GARUBA UMIAR AND AFUSAT GARUBA UMAR, the Subject matter of this suit has been resolved by the competent court of Justice.
(3) The Defendant/Objector is a daughter of late Umar Shaaba as held by the (CVF/69/2002) above, consequently by law the Defendant is entitled to possession of her late father.
(4) That by the authority of the suit CVFM/69/2012 paragraph 2 above, the Defendant has commenced action against the Claimants and another person in Upper Area Court 1, Ilorin and the claimants herein are stopped.
(5) That the Claimants in the Motions (CVF/69/2002) filed on 31/03/2011, 9/06/2011 and 21/06/2011 made the subject matter of this action an issue and the Court had resolved the motion filed on 31/03/201 in favour of the Defendant and the remaining two motions are still pending at Upper Area court 1, Ilorin.
(6) By virtue of the aforementioned Judgment, paragraph 2 above, the Claimants have no direct interest in the estate of their grand father but the heirs of the said grand father.
(7) The Defendant/Objector with Permission of her late Father, Umar Shaaba, occupies the estate of her Late Father and not the estate of Garuba Kaduna, the Objectors brother.”
After hearing the Preliminary Objection the High Court Judge held the objection in favour of the Defendant, saying that since the matter was of a contentions nature, it was not one that could be taken under originating summons. The learned Judge there upon directed the parties to file their pleadings and accompanying processes. The Ruling of the lower Court was delivered on 17/02/2012 and the main points were as follows:
“(2) In the resolution of this issue the first observation I want to make is that the action has been commenced by originating summons. I take it as trite that originating summons is only available for proceedings which are not hostile or contentious.
see OSSAI vs. WAKWAH (2006) 2 SCNJ 20. Where the facts are contentious, originating, summons is not appropriate.
(3) I have been saved the burden of deciphering whether the proceeding in this case are contentious or not, because part of the rules of court under which Order 53 can be found is clearly stated to be “probate (Non- Contentious) procedure.” The effect of this is that Mr. Jimoh is right in his contention that Order 53, pursuant to which this action has been filed, is not applicable to the case of this nature. I therefore uphold this leg of objection …… I therefore hold that since this matter if (sic) of a contentions nature, it is not one that can be taken under originating summons.”
That is the Ruling Appellants are appealing against in this appeal. Appellants’ Notice and grounds of Appeal is dated 10/5/2012, but there is no stamp of the Court to show evidence of filing. There is, however, some writing, in red ink, of what appears to be Revenue Receipt Number G002020859 and date – 10/5/2012, without endorsement by anybody. See page 17 of the Record of Appeal, compiled and transmitted by the Appellants’ Counsel Abdullahi Ibrahim Esq. to this Court on 6/8/2012.
There is nothing to show that the Registrar of the lower Court refused or failed to compile and transmit the Record.
Appellants filed their Brief of argument on 28/8/2012 and distilled 2 issues for determination as follows:
(1) Whether by the rules of the Court, the trial judge has validly upheld the preliminary objections of the Respondent (-Ground 1).
(2)Whether, by the approach of the respondent to the trial court, the notice of preliminary objection equals to the filing of defence to the case of this appeal as well as equals to a pleading within the meaning of Order 26 Rule 2 the Rules of trial Court (Ground 2).
Appellant also filed a Reply Brief on 27/9/12. The Respondent filed her Brief on 13/9/2012, and raised a preliminary objection in the Respondent’s Brief and argued it on pages 3 to 8 thereof. On the main Appeal, the Respondent raised a single issue for determination as follows:
“Whether the trial Court is competent to order the parties to file pleadings and other related process instead of summary that prayed for by the claimants/Appellants” (Grounds 1 & 2).
The Respondent’s preliminary objection, which is carried on pages 1 and 2 of the Respondent’s Brief and said to be pursuant to Orders 10 and 18, Rule 6 (b), stated as follows:
“TAKE NOTICE that the Respondent herein named intends to raise at the threshold of the hearing of this appeal a notice of preliminary objection to wit:
(a)That the Appellants’ Notice and Grounds of Appeal and the Appellants’ Brief, dated and filed on 28th day of August 2012 failed to meet the requirement of the 1999 constitution of Federal Republic of Nigeria, court of appeal act and court of appeal rules, 2011 respectively.

GROUNDS FOR THE OBJECTION:
(1) The Ruling appealed against is not final decision but an interlocutory order and the Appellants failed to seek and obtain leave to file same.
(2) The grounds of Appeal are or mixed law and fact and leave is required to file same
(3) The Appellant’s Brief dated and filed on 28/8/2012 failed to meet size requirement as provided by order 18 Rule 6(b) of the court of Appeal Rule, 2011”
Appellants’ Reply Brief has contested the issues raised by the Respondent in the said preliminary objection.
But before considering the merits of the issues raised in the said preliminary objection and the replies thereto by the Appellants, it is necessary to consider whether there is, by law, a competent preliminary objection by the Respondent before this Court, worth considering. Parties were called upon to address us on the competence of the preliminary objection, in the circumstance, and the Respondent’s Counsel, while addressing us on 30/10/2012 admitted that the preliminary objection was not filed and paid for, though incorporated into the Respondent’s Brief.
Ordinarily, for a preliminary objection to qualify as such for consideration, it has to comply with order 10 Rule 1 of the court of Appeal Rules, 2011, and the 2 specific features of that provision are that:
(i) The appellant must be given at least three (3) clear days notice of the objection before the hearing of the appeal, and
(ii) The objection has to be filed in court in 20 copies and served on the parties.
Recent interpretation of that provision by this court has made it eloquently clear that the two conditions must co-exist and the preliminary objection has to be filed separately, from the Respondent’s Brief. See the case of Moyosore vs. Governor Kwara state (2012) 5 NWLR (pt.1293) 242 at 269 – 270, where it was held as follows (ratios 23 and 24).
(23) “By virtue of order 10 Rules 1 and, 3 of the court of Appeal Rules, 2011, a respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time. If the respondent fails to comply with the rule, the court may refuse to entertain the objection or may adjourn the hearing at the cost of the respondent or may make such other order as it thinks fit.
(24) It is normal and usual for any respondent who intends to raise and rely on a preliminary objection against the hearing of an appeal or any part thereof, to file a separate notice of the objection, and thereafter include the argument thereof in his respondent’s brief. Where a respondent attempts to give notice of preliminary objection to an appeal by incorporating it in his brief of argument that will amount to an attempt to smuggle in an objection to the hearing of the appeal and would lead to dismissal of the objection for conflicting with order 10 rule 1 of the court of appeal rules. In the instant case, the respondents incorporated both their notice of preliminary objection and the argument thereof in the respondents’ brief. That was not proper as what was filed and paid for by the 4th and 6th respondents was not notice of preliminary objection, but their respondents’ brief of argument. The respondents could therefore not establish the filing of the preliminary objection pursuant to order 10 Rule 1, of the court of appeal Rules, 2011. In the circumstance, since the alleged preliminary objection by the 4th and 6th respondents was not filed separately, it was not competent and was therefore not considered. (Esoho v. Asuquo (2007) All FWLR (Pt.359) 1355; Bayero v. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt.982) 391 referred to).”

Whereas, serving notice of preliminary objection in the Respondent’s Brief may satisfy the requirement of giving the Appellant at least 3 days notice before the hearing of the Appeal, where the Respondent’s brief is filed and served on the Appellant more than 3 days to the hearing of the Appeal, the 2nd requirement of the law, that the Notice of Objection be filed in Court in 20 copies, certainly cannot be satisfied by incorporating the Notice of Objection in the Respondent’s Brief, except where the attention of the assessment authority has been drawn to the said Notice of objection for the same to be assessed, for filing and fee paid along with the filing fees for the Brief. Under normal circumstances, it is the Respondent’s brief that is before the Registry of Court for assessment and filing, and it the same that is filed and paid for at the filing of the Respondent’s Brief, not the Notice of Objection.

Of course, where a process of Court has not been duly filed and the appropriate fees paid the same ceases to be a valid process of Court.
After all, it is the filing fee that breathes life into a court process, except where the fee is waived or exempted, as in processes filed by government and government departments. See the case of Moyosore v. Governor Kwara State (supra) held 25:
“It is the filing fee that vests legitimacy or validity on a court process except where such fees are waived, as in the case of official process filed by government…” Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252; See also Alanamu v. Agbo (2012) 3 WRN 177 held 2:
“… In law, it is the filing fees that breathes life into the processes filed, except where filing fees is waived, as in the case of official process from government and government departments.
In the case of Mr. Ibiwoye Anu Ayodeji and Anor. v. Senator Simoen Sule Ajibola and Ors. An unreported decision of this division in No.EPT/CA/IL/SEN/9/2011, delivered on 14/12/2011, pages 10 – 11, and this court held that:
‘Of course, by law, it is the filing fees that vests legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government … since the alleged preliminary objection was … not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration, by this court. Thus, the preliminary objection, raised by the 1st and 2nd respondents in their brief of argument, without evidence of prior filing of said notice, is incompetent and cannot be relied on to question the competence of the said grounds of appeal by the appellants’. See also PDP v. Senator Dahiru B. Gossol unreported decision of court of appeal in suit No. CA/YL/31/2011, deliverd on 13/9/2011, Edoho v. Asuquo (2007) ALL FWLR (pt.359) 1355, held 2 and 6, Bayero v. Mainasara & Sons Ltd. (2006) 36 WRN 136; (2006) 6 NWLR (pt.782) 391; (2007) ALL FWLR (Pt.359) 1285, held, 9 aand 10, Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252; (1996) 1 SCNJ 1; (1996) 34 LRCN 1; (1996) 1 MAC 1, NAA v. Kawgaji (unreported decision of court of appeal, in suit No. CA/J/166/2003), delivered on 30/3/2011, Yola Division.”
The above holdings tally with the recent decision of the apex court on the effect of failure to pay filing fee on court process, in the case of ASTC vs. Quorum Consortiun Ltd (2009) 9 NWLR (pt. 1145) 1 at 33 – 34, where by majority decision the Supreme Court held:
“Payment of prescribed filing fee by all litigants, except the government, is a precondition to the validity of any process filed in the court. Unless the pre-condition is satisfied, the court will lack the jurisdiction to entertain a process the prescribed filing fee of which has not been paid. In the instant case, the High Court of Plateau State Registry upon the receipt of the Processes transmitted to it only affixed its official stamp on it indicating that same was received. Certainly, that official act did not amount to acknowledgment of payment of official fees. Indeed, Section 54 Rules 1 and 2 of the High Court of plateau State (Civil Procedure) Rules puts it beyond per adventure that prior payment of filing fees upon assessment confers validity on the said process and gives jurisdiction to the court to entertain same. The provisions of Order 54 Rule I of the rules makes it mandatory for parties to litigation in court to pay the fees set out in the first, second, third, fourth and fifth schedules. In the instant case, the processes filed by the appellants were not properly before the court for reason of non-payment of the prescribed requisite filing fees, (Onwugbufor vs. Okoye (1996) 1 NWLR (Pt.424) Okolo vs. UBN Ltd. (2004) 3 NWLR (pt. 859)87; Moore vs. Tayee (1994) 2 WACA 43 referred to.) (pp.33-34, paras. D-C). Per ADEREMI, J.S.C. at pages 33-34, paras. D-D:
“That the payment of the prescribed filing fee of process to be filed by litigants other than the government in (sic) a sine qua non to the entertainment of that process by a court of law was affirmed by this court in its decision in Onwugbufor & Ors v. Okoye & Ors. (1996) 1 NWLR (pt. 424) 258 at page 292 by Iguh, JSC said:
‘A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry of Non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have no been paid cannot be said to bee properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly. In the present case, no payment whatsoever was made by the appellants in respect of their new claim forfeiture payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and to be struck out …”

The Respondent’s Brief filed on 13/9/2012, was duly assessed and filing fees paid as follows, as per Revenue Receipt No 2009688527:
(1) RESP/BRIEF – N2000.00
(2)FILING – N100.00
Signed
13/9/2012
There is nothing to show that the Respondent’s Notice of preliminary objection and argument thereof, on pages 1 to 8 of the Respondent’s Brief, was brought to the attention of the Registrar for assessment and filing as required by Order 10 Rule 1 of the Court of Appeal Rules 2011.
This debilitating factor on the Respondent’s purported Notice of preliminary objection was, however, not noticed and/or contested by the Appellant in their Reply Brief, as they went on to contest the points of objection on their merit. That failure by the Appellant cannot, however, cure the defect in the said purported Notice of preliminary objection.
But is the Appeal competent before this court, even though there is no effective objection by the Respondent? should an appellate court close its eyes against obvious defects in the appeal of the Appellant, even where the Respondent fails to challenge it, or does so, improperly, as in this appeal?
I think to do so would amount to abdication of judicial duties, because the appellate court can, suo moto, raise any issue that bothers on law or its jurisdiction, and, decide on it, even without hearing the parties. See the case, of Effiom v. Cross River State INEC (2010) 14 NWLR (Pt.1213) 106 at 133 – 134; TUKUR v. GOVT GONGOLA STATE (1984) 4 NWLR (Pt.117) 517

The throbbing issue of law which touches on the jurisdiction of this court: in this appeal is whether there is a competent Appeal before this court for this Court to consider.
To fulfill all sense of legal righteousness, the parties, particularly Appellants, were called upon to address us on the competence of the Appeal, with regards to filing of the Notice of Appeal, which carried no evidence of filing.
Appellants’ counsel told us on 30/10/12, that the Notice of Appeal had been filed and paid for, but that the amount paid was less than N5000.00. He said that they obtained the Revenue receipt, but had misplaced it and prayed for time – 24 hours to produce it! Even when he was allowed up to the end of the day (30/10/12) to produce the receipt, he failed to do so.
The Respondent’s Counsel had argued that she saw the Notice and grounds of appeal for the first time on the page 15 of the Record of appeal, and that the same had nothing to show that it had been filed as required by law; that assuming (without conceding) that the Notice and grounds of appeal had been duly filed and served, the two grounds were incompetent in law, as the Appellant did not obtain the leave of Court below (or of this Court) to file, being an interlocutory appeal (not final decision of the trial court). He relied on section 242 and 241(1) of the 1999 constitution; 24 (2) (a) of the Court of Appeal Act (2004) and the case of William Ude vs. Josiah Agu (1961) ALL NCR (pt.1) 65, Odunukwe vs. Ofomata (2010) 12 MJSC 1 at 17 – 18.
The Respondent’s Counsel had also argued that the notice and grounds of appeal was filed outside the ‘stipulated time and that the 2 grounds of appeal, which questioned the exercise of the discretion of the lower court, were grounds of mixed law and fact and so required the leave of lower Court (or of this Court) to be raised. He relied on the case of FBN LTD vs. ABRAHAM (2008) 18 NWLR (pt.118) 172 at 189; GARUBA vs. OMOKHODTON (2011) 6 MJSC ( pt.111) 123 at 158 – 160 OPUIYO & ORS vs. OMONIWARI & ANOR. (2007) 6 SC (pt.1) 95 at 60 (see pages 4 – 6 of the Respondent’s Brief).
Appellants’ reaction to these complaints, as per their Reply brief, was assertion of justification for their processes; that the same are competent and that the decision of the lower Court on the preliminary objection was a final judgment in the case, as it finally determined the rights of the parties in the preliminary objection; that the Notice of appeal (allegedly) filed on 10/5/2012 was within 3 months time limit for filing appeal against final decision, thus requiring no leave or extension of time to file. Appellants Counsel relied on the case of NUHU vs. OGELE (2004) 5 FWLR (pt.200) 444 at 457.
I have earlier reproduced the short Ruling of the lower Court in this Judgment, how he concluded thus;
“… Since this matter if (sic) of a contention nature, it is not one that can be taken under originating summons. I hereby direct the parties to file their pleadings and accompany processes.”
Of course, by that conclusion, the suit was still pending at the lower court as it was not struck out. It was saved, by the magnanimity of the trial judge, who rather directed the parties to file their pleadings (as required in filing a writ of summons).
Whereas, the preliminary objection, raised by the Respondent at the lower court, was finally determined, the case of the Appellants was not determined, finally, by the ruling, and so the Appellants, whose case is still pending (and who should have been grateful to the lower court for saving the suit, to be litigated by pleadings), cannot claim the ruling to have finally determined their interest in the case, to entitle them to appeal within 3 months (not 14 days, as required of interlocutory appeals). I think only the Respondent could have claimed that Ruling to be a final decision on her motion, if she had appealed against it, as it had disposed of her interest in the application, permanently.
The law requires an appellant in an interlocutory appeal to give notice of his appeal or notice of his intention to seek leave to appeal within 14 days of the Ruling. By Section 24 (2) (a) of the court of Appeal Act, 2004, Appellant has “in an appeal in a civil cause or matter, fourteen days, where the appeal is against an interlocutory decision…”
Appellant is also required to make the application for leave to appeal, first to the court of first instance, and if that one refuses to grant the leave, then to the court of Appeal. See section 242 (1) of the constitution and section 14 (1) and (2) of the Court of Appeal Act 2004, which says.
“(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, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made exparte, or by consent of the parties, relating only to cost.
(2). Nothing in subsection (1) of this Section, shall be construed so as to authorize, an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”

Thus, where the lower Court decided and directed the parties in Suit No. KWS/232/11, to file their pleadings and accompany processes in the case, as the matter could not be heard, by originating summons, that, certainly, was an interlocutory decision or order, as the suit remained alive in the lower Court, to be tried on pleadings. For the Appellants to appeal against that order or decision, they, certainly, required the leave and authority of the lower court to do so, and the Notice of appeal thereof must be issued within 14 days of that decision.
Appellants’ Counsel had argued that: the decision/order appealed against was a final decision, and that they required no leave of the lower Court, being a final decision on the preliminary objection, filed by the Defendant; that they needed 3 months to file the appeal, not 14 days! that cannot be correct, with due respect to learned Counsel for the Appellants, in respect of this appeal brought by the Appellants whose rights in the case were not extinguished by the Ruling. That error is fatal to Appellants.
The interlocutory decision was given on 17/2/2012, while Appellants, prepared their Notice and Grounds of appeal on 10/5/2012 that is 83 days after the date of the interlocutory decision! Even then, there is nothing on the face of the Notice and grounds of Appeal to authenticate that it was filed in the lower Court, as there is no endorsement of the same by any officer of the lower Court, and no stamp of the Court is affixed to the document to adopt it as Court process. Even if the fees were paid, as the Appellants’ claimed (without substantiating), the fact of that should not be left to speculation.
In fact, the entire Record of Appeal, compiled and transmitted to this court by the Appellants, is wanting in particulars of legitimacy, to make it a valid legal process. It was transmitted to this court on 6/8/2012, that is, 88 days, after the date of preparing the purported Notice and grounds of Appeal. There is nothing to show that the Registrar of the lower court refused or failed to compile the Record of Appeal, to warrant/justify the compiling of the Record by the Appellants’ Counsel.
Page 18 of the Record carries the application of the Appellants’ Counsel (dated 25/5/2012) to the Deputy Chief Registrar (Litigation) for preparation of the Record of Appeal, on which the Appellants’ counsel also endorsed something to the effect that, he submitted the application “to a male staff of the office of the Deputy Registrar, High Court, Ilorin, whose name is unknown to me, who collected the copy from me but refused to endorse the acknowledgment copy on 25/05/2012..”
Page 19 of the Record of Appeal carries other endorsements by the Appellants’ Counsel, namely: Form 9 (NOTICE OF TRANSMISSION OF RECORD OF APPEAL TO THIS COURT), and Form 8 (CERTIFICATE OF SERVICE ON (SIC) NOTICE OF APPEAL) all signed by learned Counsel for the Appellants. Page 19 also carries the List of documents excluded from the Record of Appeal, signed by the Appellants Counsel.
The only certification on the Record of Appeal is at the bottom of Page 19, done by one W.A. Oyeyemi (DCR) on 3/8/2012, with stamp of the High Court, Ilorin affixed. The inscription CERTIFIED TRUE COPY, stamped on the cover page and the last page of the Record bear no signature of the stamping authority, to show the person who affixed same.
Of course, the law permits Appellant to compile and transmit the Records of Appeal, where, at the expiration of sixty days, after the filing of the Notice of Appeal, the Registrar of the lower Court fails or neglects to compile the Record and transmit same to the Appeal Court. And the Appellant has 30 days to do so. (See Order 8 Rule (1) (4) of the Court of Appeal Rules, 2011). Going by Order 8 Rule 1, the Registrar of the lower Court can only compile and transmit a Record of Appeal, upon the filing of Notice and Grounds of Appeal by the Appellant.

I have earlier observed in this judgment that there is nothing on the face of the Notice and grounds of Appeal, contained in the purported Record of Appeal, to show that it had been filed in the lower Court, as there is no stamp of the Court on it, nor endorsement by any officer of Court.
There is also no record of fees paid for filing of the alleged Notice and grounds of Appeal. I earlier held that filing fee breathes life on the process filed. (Moyosore vs. Governor Kwara state supra).
A competent Notice and Grounds of Appeal is the legal foundation on which a valid Record of Appeal can originate, and so, where there is no valid Notice and grounds of Appeal, duly filed and served, no Record of Appeal can be compiled and transmitted to the appellate Court.

The Respondent, as part of her defective notice of preliminary objection, had complained that she was never served with any Notice and grounds of Appeal; that she read the purported Notice and grounds of appeal for the 1st time on page 15 of the purported Record of Appeal! That complaint was not denied or controverted by the Appellants in their Reply Brief. It is obvious that no Notice of Appeal was filed, let alone served, on the Respondent, upon which a Record of Appeal can be transmitted.
In the case of Abdullahi Ibrahim vs. Ahmed Ibrahim, an unreported decision of this Court in Appeal No. CA/IL/57/2010, delivered on 17/11/2011 (incidentally the learned Counsel for the Appellant in that Appeal was the Appellant himself, who is also Counsel for Appellants in this Appeal), we considered a near similar situation and held as follows:
“Of course, the Record of Appeal filed by the Appellant falls far short of what is contemplated by Order 8 Rule 4 and 9. The document merely carries stamp “CERTIFIED TRUE COPY” on the top of the first and last pages without indicating who certified it, nor the signature of the Registrar of the Court below … By law therefore, there is no Record of Appeal before this court on which to predicate this appeal…” pages 5 and 7.
I do not see how the fate of this Appeal can be different from that of Ibrahim vs. Ibrahim (supra), despite the endorsement by the DCR (Mr. W.A.. Oyeyemi) of the lower Court on page 19 of the purported Record of Appeal, which only seemed to certify the recording on that page 19 of the document.
By order 8 Rules 9 of the Rules of this court.
“Every record or additional Record of Appeal complied by a party to an appeal must be certified by the Registrar of the lower Court, provided it shall not be necessary for copies of individual document to be separately certified but the registrar of the court below shall certify as correct each copy of the Record transmitted in accordance with these Rules.”
In practice, every page of or major document in the Record of Appeal, compiled by parties is certified by the Registrar to authenticate that the document represents what happened in the lower court.

Even if the Registrar of the court below were to have signed each page of the purported Record of Appeal in this case, as being correct, that would still not cure the fundamental defect of non-filing of the Notice and grounds of Appeal, upon which the Record of Appeal was predicated. And the fact that the Appellant did not seek the leave of Court below or, of this Court, to bring the appeal, being interlocutory, nor extension of time to do so, is fatal to the Appellants.
By order 8 Rule 18 of this Court’s Rules, where there is failure to compile and transmit competent Record of Appeal, the appeal may be dismissed. Also, by order 6 Rules 2 (1) and Rule 6 of the court of Appeal Rules, 2011:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice… to be filed in the registry of the court below…”
“(6) The Court (of Appeal) shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”

In the light of the foregoing, and having already stated the various defeats in the Notice of Appeal, purportedly filed by the Appellants and about the Record of Appeal, it is clear that the appeal is doomed, being incompetent, therefore, not worth considering. It is accordingly struck out, for incompetence.
Parties shall bear their respective costs.

PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother, Mbaba JCA and I agree with the conclusion reached that both the appeal and the preliminary objection incorporated in the Respondent’s brief of argument are incompetent because there is no evidence that they were properly filed and the appropriate fees paid.
For the reason that they were not properly filed, I join my brother in striking out the notice of appeal and the notice of preliminary objection and endorse the order on cost made in the lead judgment.

OBANDE OGBUINYA, J.C.A.: I have had the privilege to read, in draft, the lucid judgment delivered by my learned brother, Ita G. Mbaba, JCA. I endorse his reasons and conclusions.
For ages, it has been a thorny exercise for the courts to determine when a decision of a court is final or interlocutory. In this wise, two tests, invented in the English cases, had competed for the attention and adoption by the Nigerian courts. The one is the nature of the proceedings test as propounded by Fry, L.J. in the case of Salaman v. Warner (1891) 1 QB 734 at 736. The other is the nature of the order test evolved by Lord Alverstone, C.J. in the case of Bozson v. Altrincham Urban District Council (1963) 1 KB 547 at 548-549. In the latter, the law Lord stated:
“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order.”
The Nigerian courts have accepted and followed the later test, id est, that where an order made by a court finally determines the rights of the parties to an action, then it is final and where it does not, then it is interlocutory, see Igunbor v. Afolabi (2001) 11 NWLR (pt. 723) 148; Ogolo v. Ogolo (2006) 5 NWLR (Pt. 972) 163; Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113; Gomez v. C & S. S. (2009) 10 NWLR (Pt. 1149) 223; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596.

In the case in hand, the lower court ruled that the appellants’ action was contentious to warrant its determination by way of originating summons and directed parties to file their pleadings therein. It seems clear to me that by the nature of the lower court’s order, the rights of the parties in controversy or contention in the appellants’ action are still intact, earnestly, waiting to be disposed of. On this score, the order made, on the strength of the test in Boszon’s case (supra), amply, qualifies as an interlocutory decision.
Since the order made by the lower court evinces an interlocutory decision, the law compels the appellants to seek and obtain the leave of court before appealing against it. In the eyes of the law, leave simply connotes permission. The law insists that where the leave of court is required before doing an act and it is not obtained, the act is rendered null and void, see Otu v. ACB Int’l Bank Ltd (2008) 3 NWLR (pt. 1073) 179; BBN Ltd v. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt. 912) 434; Agip (Nig) Ltd v. Agip Petroli Int’l (2010) 5 NWLR (pt. 1187) 348; Nwaolisah v. Nwabufoh (2011) 14 NWLR (pt. 1268) 600.

The appellants, either inadvertently or intentionally, neglected to solicit and procure the leave of court before proceeding to file their appeal against the interlocutory decision of the lower court. That omissions is not only a costly failure, but a total desecration of the law. The appellants, having done exactly what the law forbids them from doing, their appeal is drained of competence and deserves to be jettisoned out of this court. For these reasons, added to detailed ones encapsulated in the leading judgment, I, too, strike out the appeal for want of competence and abide by the consequential orders made therein.

Appearances

Appellant: Abdullahi Ibrahim Esq.For Appellant

AND

Respondent: A. B. Jimoh Esq.For Respondent