VICTOR AMAECHI EKWEREKWU & ORS v. ENGR. EMMANUEL EKWEREKWU & ORS
(2018)LCN/12486(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/89/2018
RATIO
APPEAL: FAILURE TO OBTAIN LEAVE OF COURT
“The law is well settled that failure to obtain leave to appeal where leave is required is fatal to the appeal because such required leave of Court is a condition precedent to the jurisdiction of the appellate Court to entertain the appeal. He referred on this legal position to the cases of: (1) C.A.S. Ltd. Vs. Fidelity Bank (2018) 5 NWLR (Pt.1611) p.166; (2) Ikweki Vs. Ebele (2005) 11 NWLR (Pt. 936) p. 397; (3) Metal Construction (W/A) Ltd. Vs. Migliore (1990) 1NWLR (Pt. 126) p.299 and (4) Oshatoba Vs. Olutijan (2000) 5 NWLR (Pt. 655) p.159. The requirement for leave to appeal against interlocutory decisions and the requirement of Section 242(1) of the 1999 Constitution as amended, for leave to appeal on grounds of mixed law and facts would indicate that a party seeking to appeal against an interlocutory decision on grounds other than law requires two main reliefs viz:
(a) Leave to appeal against the interlocutory decision; and
(b) Leave to appeal on grounds other than grounds of law.
He relied in this wise on the case of: Asogwa Vs. P.D.P. (2013) 7 NWLR (Pt. 1353) p. 217.” 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
1. VICTOR AMAECHI EKWEREKWU
2. EMMANUEL IBE OKOLONJI
(Alias Igba Jesus)
3. JAPOVIK COMPANY (NIG.) LIMITED Appellant(s)
AND
1. ENGR. EMMANUEL EKWEREKWU
2. MR. JOACHIM EKWEREKWU
(For themselves and as
representatives of other concerned and aggrieved Members of Okposieke family of Ogbolieke village Onitsha)
3. MR. EUSTACE ORJEKWE EKWEREKWU Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Anambra State holden at Onitsha (hereinafter called “the trial Court”) delivered on 23rd of November, 2017 in Suit No. O/303/2016.
At the trial Court, the 1st and 2nd Respondents as plaintiffs vide their Writ of Summons and Statement of Claim filed on 6th of September, 2016 sued the Appellants and 3rd Respondent as 1st, 3rd, 4th and 2nd defendants respectively and claimed as follows (unedited):
(a) AN ORDER invalidating and setting aside the purported Document(s) title Resolution of and Addendum to the Resolution of family meeting of Okposieke family dated the 9th day of May, 2010, authorizing the 1st Defendant to recover any Okposieke family land.
(b) A Declaration that any sale, gift and or distribution of the said surrendered or released family lands by the 1st Defendant both to members and non-members of Okposieke family by the 1st Defendant is null and void. (c) N100,000,000.00 (One Hundred Million Naira) damages for the Stalls along Enugu Road, Court Road and Ridge Road Opposite Stock Exchange G.R.A Onitsha, demolished by the 1st Defendant, which the family would have wished to retain.
(d) N12,000,000.00 (Twelve Million Naira) Special Damages being monies had and received on behalf of Okposieke family for the assignment of the Plots of Land presently occupied by the Police Area Command, Central Police Station and the Police Quarters opposite the said Stations.
(e) Perpetual Injunction restraining the Defendants by themselves, their Heirs, Agents, Privies and hireling, or whoever called from further meddling, trespassing on the said surrendered or released Okposieke family lands.
Based on the processes of the defendants in the said suit, the Appellants were the first set of defendants and filed a joint statement of defence. While the 3rd Respondent who was the 2nd defendant filed a separate statement of defence. At the close of the filing and exchange of pleadings in the substantive suit, the Appellants filed the application the subject of this appeal.
The said application of the Appellants is dated 12th of June, 2017 and was filed on the same date. It was commenced under Order 39 Rule 1 of the Rules and inherent jurisdiction of the trial Court. In the application, the Appellants sought the following reliefs (unedited):
1. AN ORDER dismissing the Plaintiffs’ suit No. O/303/2016 between Engr. Emmanuel Ekwerekwu & Anor. And Victor Amaechi Ekwerekwu & 3 Ors. for being an abuse of Court process.
2. AND for such Order or other Orders as the Honourable Court may deem fit to make in the circumstances of this case.
The grounds upon which the application was predicated are:
a. That there are already pending in Court two Suits over the same subject matter and same parties from the Ekwerekwu family in Suit Numbers O/69/2015 and O/20/2017.
b. That the said Suits Numbers O/69/2015 and O/20/2017 are still pending at the State High Court, Onitsha Judicial Division.
The application was supported by an affidavit of ten paragraphs and two exhibits marked Exhibit ‘A’ and Exhibit ‘A1’ and a further affidavit of eight paragraphs and one exhibit marked Exhibit ‘B’. The two affidavits were deposed to by Oliver I. Ugwu, a legal practitioner in the law firm of Onyechi Ononye & Co. representing the Appellants in the suit. Exhibit ‘A’ is the certified true copy of the Writ of Summons and Statement of Claim in Suit No.O/69/2015. Exhibit ‘A1’ is the Certified True Copy of the Writ of Summons and Statement of Claim in Suit No. O/20/2017. Exhibit ‘B’ is the Survey Plan pleaded by the 1st Respondent in Suit No. O/69/2015.The Written Addresses in support of and against the application were duly filed and exchanged by the respective parties, including the Appellants’ Reply on points of law. At the oral hearing of the application on 16th of October, 2017, the learned counsel for the parties adopted and relied on all the processes filed by them for their clients in substantiation of their varied positions in the application.
In the considered decision of the trial Court on the application of the Appellants delivered on 23rd of November, 2017 although the learned trial Judge found that, the non-certification of Exhibits ‘A’, ‘A1’ and ‘B’, which are public documents, rendered them inadmissible, His Lordship determined the merits of the application and in dismissing same held as follows (unedited):
I have taken another look on the processes again. All the representatives in suit Nos: O/69/2015, O/20/17 and the present suit sued for themselves and on behalf of Okposieke family of Ogbolieke village Onitsha. Therefore the Plaintiffs of these three suits mentioned are the same. The Defendants are substantially the same as Victor Amechi Ekwerekwu and Eustace Orjekwe are also Defendants in the three suits though some of the suits have more and/or additional Defendants than others. The three suits also relates to the same subject matter which is Okposieke family land recovered from the lease. Both suit No: O/69/2015, suit No: O/20/17 and the present suit seeks an injunction against the 1st Defendant/Applicant and others. Thus all these three suits in respect of the same subject matter could definitely lead to a conflicting Judgment. However, this application seeks to strike out suit No: O/303/2016 and I observed that while Suit No: O/69/2015 was filed on 17/6/2015, the present suit which is being sought to be struck out was filed on 6/9/2016 and Suit No: O/20/2017 was filed on 26/1/2017.
Then this application is seeking to strike out suit which was filed in September, 2016. It is my humble opinion that the present suit No: O/303/2016 filed as far back as 6/9/2016 cannot be an abuse of Court process as a result of suit. No. O/20/2017 subsequently filed in 2017. If any abuse of Court process exists, it should be the other way round i.e. the latest suit filed in 2017 and I so hold. This application is accordingly refused for the above reasons.
Peeved about the above reproduced decision of the trial Court, the Appellants filed this appeal against it to this Court on 6th of December, 2017 through their notice of appeal. The Appellants are therefore seeking the orders of this Court setting aside the decision of the trial Court and striking out the suit the subject of this appeal for being an abuse of Court process in the light of the existence of Suit No. O/69/2015 which is equally pending before the trial Court.
The three grounds of appeal contained in the Appellants’ notice of appeal devoid of their particulars are, for easy referencing and good understanding, hereunder reproduced verbatim as follows:
GROUND ONE:
ERROR IN LAW
The learned trial Judge erred in law when he held that the present Suit No. O/303/2016 filed as far back as 6/9/2016 cannot be an abuse of Court process as a result of Suit No. O/20/2017 without considering Suit No. O/69/2015, which was Exhibit ‘A’ before arriving at such decision.
GROUND TWO:
ERROR IN LAW
The trial Judge erred in law when after holding that: ?Thus all these three suits in respect of the same subject matter could definitely lead to a conflicting judgment?, still went ahead to hold at the same time that suit No. 0/303/2016, which is latter in time to suit No. 0/69/2015, which is first in time, is not an abuse of Court process.
GROUND THREE
ERROR IN LAW
The learned trial Judge erred in law when he held that: “Thus on the above issue of admissibility of the three exhibits annexed by the Defendants? Counsel, I have taken a look at the said Exhibit ‘A’, ‘A1’ and ‘B’. They are all public documents that require certification and non-certification of same as in this instance renders it inadmissible.”
In obedience to the Rules of practice of this Court, briefs of argument were filed and exchanged by the learned counsel for the two sets of parties in validating their opposing views on the appeal. The Appellants’ brief of argument dated and filed on 5th of March, 2018 was deemed properly filed and served on 24th of April, 2018. In it, the two issues crafted for the determination of the appeal from the three grounds of appeal read as follows:
1. Whether Suit No: O/303/2016 Between: Engr. Emmanuel Ekwerekwu & Anor. Vs. Victor Amaechi Ekwerekwu & Ors. is not an abuse of Court process in view of Suit No: O/69/2015 Between: Patrick Obiekwe Ekwerekwu & 6 Ors. vs. Victor Amaechi Ekwerekwu & 20 Ors., over the same subject matter and parties ?
2. If issue 1 above is answered in the affirmative, whether the trial Court was not wrong when it dismissed the application that the suit is not an abuse of Court process and also held that Exhibits A, A1 and B are inadmissible while dismissing the application?
In response to the Appellants’ brief, the Respondents’ brief of argument dated 13th of April, 2018, filed on 17th of April, 2018 was also deemed duly filed and served on 17th of April, 2018.
The Respondents equally crafted two issues from the three grounds of appeal for the resolution of the appeal. The two issues read as follows:
1. Whether the Appellants’ appeal which was based on grounds of facts, mixed law and facts and which was filed without prior leave of Court is competent?
2. Whether the learned trial Judge was not right to have refused the Respondents’ application at the lower Court, the subject matter of this appeal No. CA/E/89/2018?
More significantly, the Respondents in their brief of argument, raised a notice of preliminary objection. This is contained in paragraph 3.00 at pages 3 to 4 of the said brief. The arguments in proof of the preliminary objection are also contained in paragraph 4.01 at page 4 through to paragraph 4.14 at page 10 of the same brief of argument. For ease of reference and good understanding, the grounds upon which the objection is predicated are hereunder reproduced as follows:
1. That the Appellants notice and grounds of Appeal dated 6/12/2017 and filed on 6/12/2017 in this Court arose from an interlocutory decision/ruling of the trial Court delivered on 23/11/2017 and the grounds in the main are challenging the interlocutory decision of the trial Court predicated on exercise of discretion, that the trial Court did not properly evaluate the evidence before it, also complaint about the assessment of Affidavit evidence and also challenged as to the findings of facts, evaluation of facts and or call for investigation of the existence or otherwise of facts.
2. The Appellants did not comply with the provisions of Section 242(1) and(2) of the extant Constitution of the F. R. N. (As Amended) which makes it mandatory, compulsory and obligatory that the Appellants must/shall seek and obtain prior leave of either the trial Court or the Court of Appeal before filing their Notice and Grounds in Appeal No. CA/E/89/2018. See pages 168 – 172 of the Record of Appeal.
3. Section 242(1) of the said 1999 Constitution provides: 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.
In reaction to the preliminary objection and the main brief of argument of the Respondents, the Appellants filed their Appellants’ Reply brief of argument dated 20th of April, 2018 which was deemed properly filed on 24th of April, 2018.
Prior to the oral hearing of the appeal on 24th of April, 2018, the learned counsel for the Respondents Mr. J. O. Onwujekwe sought and was granted permission to argue the preliminary objection of the Respondents against the competency of the main appeal. He identified, adopted and relied on the said notice as well as the arguments proffered in respect thereof in urging upon this Court to terminate the appeal by striking it out for being incompetent having offended Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. According to learned counsel, the appeal is based on issues of both mixed law and facts thereby requiring the prior leave of either the trial Court or this Court sought and obtained before it could be filed. He noted that the Appellants herein failed to seek and obtain the said required leave, hence, the appeal is utterly incompetent. He urged this Court to uphold the objection and strike out the appeal for being incompetent.
Contrariwise, Mr. Nduka Ugwu holding the brief of Mr. Onyechi Ononye, the substantive learned counsel for the Appellants identified, adopted and relied on the submissions contained in paragraph 2.00 at page 2 through to paragraph 2.19 at page 12 of the Appellants’ reply brief in urging upon this Court to dismiss the objection of the Respondents which in his opinion is totally misconceived in law.
The learned counsel opined that all the grounds of appeal resonate purely around issues of law. Hence, the appeal is as of right thereby making unnecessary the obtainment of the prior leave of either the trial Court or this Court to file same.
On the substantive appeal, the learned counsel for the Appellants adopted both the Appellants? brief of argument and paragraphs 3.00 to 3.01 at page 12 of the Appellants’ Reply brief in urging upon this Court to allow the appeal, set aside the decision of the trial Court being appealed against and strike out the suit the subject of this appeal as it constitutes an abuse of processes of Court.
For starters, the learned counsel for the Respondents applied to abandon issue one and the submissions proffered in respect thereof in paragraphs 5.00 to 6.03 at pages 11 to 16 of the Respondents’ brief of argument. Therefore, issue two was to be renumbered as the sole issue distilled from the three grounds of appeal. The unopposed application was accordingly granted. Thus, the learned counsel for the Respondents adopted the brief of the Respondents as amended. He noted that the Appellants have failed to join issues with the Respondents on their sole issue as no response was had thereto, hence, he urged this Court to dismiss the appeal for being lacking in merit, clarity and identity.
As already stated above in this judgment, the learned counsel for the Respondents filed a notice of preliminary objection to the competence of this appeal. Generally, the whole basis of a preliminary objection to an action including appeals is to short circuit the action/appeal by preliminary points of law to show that the action/appeal cannot be maintained and sustained. Therefore, the law is well settled that when the competence of an appeal is challenged as in the instant appeal, the Court is duty bound to first and foremost consider the charge of incompetence and rule on it. See the cases of: (1) Alabi vs. Amoo (2003) 12NWLR (Pt. 835) p. 537; (2) NEPA vs. Ango (2001) 15NWLR (Pt. 737) p. 627; (3) A.-G., Fed. vs. ANPP (2003) 12 SCNJ p. 67 and (4) Afribank (Nig.) Plc. Vs. Akwara (2006) 5 NWLR (Pt. 974) p.619.
It is on this note that I shall now go ahead to consider and determine the Respondents’ preliminary point of law that the instant appeal cannot be sustained. I have earlier on in this judgment set out the grounds upon which the Respondents’ objection is based.
The decision of the trial Court being appealed against is in respect of the application of the Appellants contending that the action of the 1st and 2nd Respondents is an abuse of court process by reason of the pendency of two earlier suits between the same parties and in respect of the same subject-matter. Upon exchange of the processes filed for and against the said application by the two fueding parties, the learned trial Judge in exercise of his discretion as required by law, considered the affidavit evidence including the annexures thereto and ruled against the Appellants, hence, the filing of this appeal against it to this Court.
RESPONDENTS’ COUNSEL’S SUBMISSIONS
It was reiterated by learned counsel that it is trite that a right of appeal is not absolute since its existence is predicated on observance and compliance with rules of Court. Hence, an appellant who fails to adhere to the necessary rules or conditions and does not apply for departure from the Rules but insists on prosecuting his appeal is clearly engaging in abuse of process. He relied in this wise on the cases of: (1) Nwora vs. Nwabueze (2013) 16 NWLR (Pt. 1379) p.30; (2) Anyaegbunam vs. A.-G., Anambra State (2001) 6 NWLR (Pt. 710) p. 532 and (3) Mohammed vs. Husseini (1998) 14NWLR (Pt. 584) p.108.
He restated the settled principle of law that, where a ground of appeal challenges an interlocutory decision of a Court predicated on exercise of discretion, then it is at best ground of mixed law and facts. On this legal position, he referred to the cases of: (1) Idris vs. Agumagu (2015) 13NWLR (Pt. 1477) p. 451; (2) F.B.N. Plc v. Abraham (2008) 18 NWLR (Pt. 1118) p. 172; (3) Garuba vs. Omokhodion (2011) 15NWLR (Pt.1269) p.145 and (4) Willams vs. Mokwe (2005) 14NWLR (Pt.945) p.249.
Also once grounds of appeal against an interlocutory decision are of facts or mixed law and facts, it can only be filed with the leave of either the lower Court or the appellate Court. He relied on the cases of: (1) Abubakar vs. Yar?adua (2008) 10 NWLR (Pt. 1078) p. 465; (2) Otti vs. Ogah (2017) 17NWLR (Pt. 1563) p.10 and (3) Abbas vs. Tera (2013) 3NWLR (Pt. 1338) p.284.
By the provisions of Section 242(1) of the 1999 Constitution, a notice of appeal must be submitted to scrutiny in order to determine whether or not it has strictly complied with the relevant enabling provisions of the law. A finding is a result of deliberations of a jury or a Court. It is a decision upon a question of fact reached as a result of judicial examination or investigation by a Court. They are conclusions drawn by the Court from the facts without the application of law or exercise of legal judgment. Findings of facts fall within the peculiar preserve of the lower Court. Conclusions or inferences from those facts can be drawn by any Court, including appellate Courts. On these points of law, he relied on the cases of: (1) Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) p.1; (2) Fointrades Ltd. V. Universal Association Co. Ltd. (2002) 8 NWLR (Pt.770) p. 699 and (3) Edosa v. Ogiemwanre (2011) 15 NWLR (Pt. 1270) p.284. While a ground of appeal challenging findings of facts, evaluation of facts or calling for investigation of the existence or otherwise of facts are grounds of mixed law and facts. To buttress this principle of law, he referred to the case of:Matilda Dairo vs. U.B.N. Plc. & Anor. (2007) 12 S.C.M. (Pt.2) p.276. Whereas, a ground of appeal that complains about the assessment of affidavit evidence placed before the Court is a ground of facts.
The law is well settled that failure to obtain leave to appeal where leave is required is fatal to the appeal because such required leave of Court is a condition precedent to the jurisdiction of the appellate Court to entertain the appeal. He referred on this legal position to the cases of: (1) C.A.S. Ltd. Vs. Fidelity Bank (2018) 5 NWLR (Pt.1611) p.166; (2) Ikweki Vs. Ebele (2005) 11 NWLR (Pt. 936) p. 397; (3) Metal Construction (W/A) Ltd. Vs. Migliore (1990) 1NWLR (Pt. 126) p.299 and (4) Oshatoba Vs. Olutijan (2000) 5 NWLR (Pt. 655) p.159.
The requirement for leave to appeal against interlocutory decisions and the requirement of Section 242(1) of the 1999 Constitution as amended, for leave to appeal on grounds of mixed law and facts would indicate that a party seeking to appeal against an interlocutory decision on grounds other than law requires two main reliefs viz:
(a) Leave to appeal against the interlocutory decision; and
(b) Leave to appeal on grounds other than grounds of law.
He relied in this wise on the case of: Asogwa Vs. P.D.P. (2013) 7 NWLR (Pt. 1353) p. 217.
Hence, this Court cannot and will surely not entertain an appeal on grounds of mixed law and facts unless the leave of the lower Court or that of this Court has been obtained before filing the notice of appeal. He referred on this legal position to the cases of: (1) Oluwole vs. L.S.D.P.C. (1983) 5 S.C p.1 and (2) Adejumo vs. The State (1983) 5 S.C p.24. Therefore, this Court lacks jurisdiction to entertain an appeal on a ground of facts or mixed law and facts unless prior leave was sought and obtained from the trial Court or this Court to file the appeal. According to counsel, the instant appeal is in respect of the exercise of the discretion of the trial Court in an interlocutory application. Hence, since the leave of the trial Court or this Court was not sought and obtained by the Appellants as required by law, that is, Section 242(1) of the Constitution, before their notice of appeal was filed, this appeal has been rendered incompetent and incurably defective. The appeal along with the Appellants? brief of argument are thus both liable to be struck out. Consequently, the learned counsel urged upon this Court to strike out the appeal of the Appellants herein for being incompetent.
APPELLANTS’ COUNSEL’S SUBMISSIONS
The learned counsel for the Appellants contended that the preliminary objection raised by the Respondents is unfounded in the circumstances of this matter. He agree that, the issue of jurisdiction is very fundamental in our legal jurisprudence. For it is indeed the threshold which gives life to a suit before the Courts. Hence, an issue that borders on jurisdiction does not fall within the discretionary powers of the Court as it is a question of law. Thus, it is trite law that if a Court lacks the jurisdiction to entertain a suit pending before it, the proceedings thereon no matter how elegantly conducted will amount to a nullity. It is also trite law that parties cannot on agreement confer jurisdiction on a Court that is restrained due to lack of jurisdiction to entertain or proceed with the hearing and determination of a suit, such would be an exercise in futility.
He referred to the provisions of Section 242(1) of the Constitution which is subject to the provisions of Section 241(1)(a)-(f)(i)-(v). That is, Section 242(1) of the Constitution can only be invoked and applied in circumstances where Section 241 does not apply. The highlighting feature of Section 241(1)(b) is that, where the ground of appeal involves questions of law alone, in any civil or criminal proceedings, appeal shall be as of right. This means that no leave of either the High Court or Court of Appeal is to be sought or procured before filing an appeal. Issues bordering on jurisdiction are purely issues of law and law alone. He referred to grounds one, two and three of the Notice of Appeal and the particulars in support of each ground in the instant appeal and opined that, they are all grounds of pure law, thereby requiring no leave of Court as they are as of right.
The learned counsel restated the settled principles guiding the Court in its determination of whether a ground of appeal is one of law or of fact or of mixed law and facts as follows:
a. Where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and facts.
b. A ground which challenges the findings of facts or issue of law and mixed facts considered by a trial Court is one of law and facts.
c. A question arising out of the evaluation of the evidence tendered at the trial is a ground of facts.
d. A ground of appeal which arises out of misunderstanding of the law by a trial or appellate Court is a ground of law.
e. A complaint about wrongful admission of evidence is also a question of law.
On this position of the law, he referred to the cases of: (1) Kennedy v. I.N.E.C. (2009) 1 NWLR, (Pt. 1123) p. 645, paras. E-G. and (2) Damboyi v. Sa?adu (2011) 15 NWLR, (Pt.1269) p.1 at pgs.14-15, paras. C-A.
In counsel’s opinion, an interpretation of the grounds of appeal as contained in the notice of appeal in the instant appeal reveals that the singular issue involved is, whether Suit No.O/303/2016 the subject of this appeal is not an abuse of Court process in view of the existence of Suit No. O/69/2015 thereby making it a ground of pure law. For the Courts have enjoined that grounds of appeal should be given liberal interpretation. He urged upon this Court to so hold. What is more, it is settled law that where an appellate Court in the exercise of its appellate jurisdiction discovers that the Notice of Appeal contains both grounds of mixed law and fact, the whole Notice of Appeal would not be said to be incompetent but the Court is at liberty to strike out the grounds which are incompetent, if any, and proceed with the grounds that are competent. It is imminent to distinguish the case of: Abdul v. C.P.C. (supra) cited by the Respondents’ counsel, from the instant case. The case of Abdul v. C.P.C. (supra) relates purely to an issue of facts, it was through the facts deposed to in the affidavits therein that the Court could arrive at the just conclusion of the case.
This is not the case with the present appeal which is hinged strictly on the question of law, which is whether Suit No. O/303/2016 is not an abuse of Court process regarding the fact of the pendency of Suit No. O/69/2015.
The learned counsel urged this Court to dismiss the preliminary objection of the Respondents and proceed to determine the substantive appeal on its merit.
RESOLUTION
It is pertinent for good understanding to reproduce the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, touching on appeals as of right and appeals with leave. They are Sections 241 (1) and 242 (1) which provide as follows:
241.(1) An appeal shall lie from decision 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 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 an Act of the National Assembly.
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.
Sections 241 (1) and 242 (1) create two different rights of appeal, namely:-
(i) Right of appeal as of right and
(ii) Right of appeal with leave of Court.
What this means is that an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by statute. Whereas leave of the Court below or the appellate Court is a condition precedent to his exercise of the right of appeal with leave. It is settled law that where the condition precedent is necessary but has not been fulfilled, there is no valid appeal. Any notice of appeal of Court of first instance in final decisions and all decisions, that is both final and interlocutory filed upon questions of law alone are as of right- Section 241 (1) (a) and (b).
However, in any notice of appeal filed upon only facts or mixed law and facts, leave of Court is a requirement Section 242 (1). Hence, in the latter scenario where leave is necessary, the notice of appeal filed without leave is rendered null and void and of no effect. See the cases of: (1) Nalsa & Team Asso. v. N.N.P.C. (1991) 8 N.W.L.R (Pt. 212) p. 652; (2) Irhabor v. Ogaimien (1999) 8 N.W.L.R (Pt. 616) p. 517; (3) Abubakar v. Waziri (2008) All F.W.L.R (Pt. 436) p. 2025 at p. 2037; (4) Abdul v. C.P.C. (2013) LPELR ? 20597 (SC) and (5) F.R.N. v. Dairo (2015) LPELR ? 24303 (SC).
The law distinguishes a final decision from interlocutory decision. A judicial decision is deemed to be final when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution and it is absolute, complete, certain and when it is not lawfully subject to subsequent decision, review or modification by the Court or Tribunal which pronounced it. On the other hand, an interlocutory decision is an order that relates to some intermediate matter in the case, any order than a final order. See Black’s Law Dictionary, 7th Edition at page 819. The definition of interlocutory decision was aptly stated in the case of: Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) p. 924 per Nnamani, J.S.C. (of blessed memory), in the following words:
‘What is an interlocutory decision? In the Dictionary of English Law by Earl Jowitt, it is defined thus: a proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. Thus interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with the subject matter of the action before the rights of the parties are finally determined. (The underlining is mine for emphasis).
Therefore, where the decision does not ultimately determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decision is rendered, it is interlocutory. See the cases of: (1) Alor v. Ngene (2007) 17 N.W.L.R. (Pt. 1062) p. 163 and (2) Gomez v. Cherubim and Seraphim Society (2009) 10 N.W.L.R. (Pt. 1149) p. 223.’
On the contentiousness of parties as to whether the appeal touches on the issue of law alone or facts alone or mixed law and facts, the manner an appellant has labeled a ground of appeal does not bring out the class of ground it belongs, that is, law or facts or mixed law and facts. To decipher whether a ground of appeal is of law or facts or mixed law and facts, a Court has the legally bounden duty to critically examine the ground with its accompanying particulars. The Supreme Court followed by this Court has laid down certain principles that would assist the Court in this regard. A question of law has been held to connote one of three meanings, to wit: (a) A question that a Court is bound to answer in accordance with a rule of law. (b) A question which explains what the law is. (c) A question which normally answers questions on law only and invariably falls within the judicial power of a Judge to answer.
Contrariwise, a question of facts also denotes one of three meanings, viz: (a) A question which is not determined by a rule of law. (b) Any question except one as to what the law is. (c) Any question which is to be answered by the Jury and not Judge. These tripartite meanings of question of law and facts have been given a stamp of approval by the Apex Court in a long line of cases. To mention a few, see the cases of: (1) C.C.T.C.S. v. Ekpo (2008) 6 N.W.L.R. (Pt.1083) p. 362; (2) General Electric Co. v. Akande (2011) 8 N.W.L.R (Pt.1225) p. 596 and (3) Ehinlanwo v. Oke (2008) 16 N.W.L.R (Pt. 1113) p. 357.
One of the principles laid down by the Supreme Court in discovering the nature of a ground of appeal is that, where a ground of appeal challenges an interlocutory decision of a Court predicated on exercise of discretion of the Court, it is a ground of mixed law and facts. See the cases of: (1) F.B.N. PLC V. Ibrahim (2008) 18 N.W.L.R (Pt.1118) p. 172; (2) Garuba V. KIC (2005) 5 N.W.L.R (Pt. 917) p. 160 and (3) Williams v. Mokwe (2005) 15 N.W.L.R. (Pt. 945) p. 249.
In the case of: Garuba v. Omokhodion (supra), the Supreme Court per Chukwuma-Eneh, JSC. (Rtd.), at page 183 held as follows:
The trial Court’s opted to hear the preliminary objections first in exercise of its discretionary power. It is beyond argument that the appellants have questioned the trial Court’s discretion in making the interlocutory order, in other words, thus questioning the evaluation of facts. See State v. Bassey (1994) 9 N. W.L.R. (Pt. 367) p. 130. I find that by examining the said 3 grounds of appeal will lead to further examining of the facts and circumstances on which the trial Court’s exercise of its discretion in the matter of the directive it has given is premised.
I have earlier on above in this judgment reproduced the three grounds of appeal filed by the Appellants herein, albeit, without their particulars. The entirety of the notice and grounds of appeal are contained in pages 168 to 172 of the record of appeal. A cursory examination of the particulars of grounds one and two shows that although the two grounds are tagged as errors of law, the findings of facts from the affidavits by the parties by the learned trial Judge culminated in his decision which in the opinion of the Appellants’ counsel are erroneous in law. It is beyond argument that the Appellants herein are questioning the trial Court’s discretion in making the interlocutory decision, in other words, they are thereby questioning the evaluation of the facts revealed in the affidavit of the parties.
There is no question in my mind that the interlocutory decision of the trial Court in the instant matter is rooted in the exercise of discretion and well grounded in mixed law and facts. For the call upon this Court to examine the two grounds of appeal of the Appellants and give a proper directive in the matter will definitely lead to further examination of the facts and circumstances contained in the affidavit in support of the application of the Respondent on which the trial Court?s exercise of its discretion in the orders it made were premised. In my very firm view, the argument of the Appellants that the decision of the trial Court touches on issue of pure law alone is totally misconceived. On the definition and nature of judicial discretion, the Supreme Court succinctly stated in the case of: Ajuwa v. S.P.D.C. Nig. Ltd. (2011) LPELR-8243 as follows:
I have searched for the meaning of the words ‘Judicial Discretion’ in Black’s Law Dictionary 8th Edition, edited by Bryan Garner at page 409, the words or phrase have been defined as follows:- ‘The exercise of judgment by a Judge or Court based on what is fair under the circumstances and guided by the rules and principles of law, a Court’s power to act or not to act when a litigant is not entitled to demand the act as a matter of right.’
Then in the New International Comprehensive Dictionary of the English Language-Encyclopedia Edition at page 365, the word ‘discretion’ was defined as- ‘the act or the liberty of deciding according to justice and propriety, and one’s idea of what is right or proper under the circumstances without willfulness or favour.’ Both dictionaries referred to the word- ‘Circumstances’ which means the facts or peculiar nature of the case which a Judge exercising his discretion would consider. Thus whichever way the appellants may put it, an appeal against the exercise of discretion by the lower Court must involve the consideration of the ‘circumstances’ in order to determine whether discretion, was judiciously exercised. Thus this appeal cannot therefore be said to involve the question of law alone, it must of necessity involve the consideration of the facts placed before the lower Court. It is in this regard that I agree with my lord Karibe-Whyte in Metal Construction (W.A.) Ltd. v. Migliore (1990) 1 N. W. L.R. (Pt. 126) p. 299 at p. 314, when he held as follows: – ‘It is never the less a question of fact with the exercise of discretion’.
In Grifths v. J. P. Harrison Watford Ltd. (1963) A.C.1, Lord Denning expressed it succinctly thus – ‘reasonable people on the same facts may reasonably come to different conclusion and often do Juries. So do Judges. And are they not reasonable men?. It has therefore been recognized that these more or less discretion questions of impression or opinion in respect of which reasonable men may arrive at discrepant conclusions on the same evidence are questions of facts. (The underlining is mine for emphasis).
Since the Notice of Appeal, the originating process of this appeal was filed without the leave of either the trial Court or this Court first sought and obtained by the Appellants, the appeal was not initiated in accordance with due process of law. The appeal without doubt is incompetent and this Court is robbed of the requisite jurisdiction, ?ab initio? to entertain it.
In the final analysis, the preliminary objection taken by the Respondents to the competence of the instant appeal is accordingly sustained. This being the case, this Court has the legally bounden duty at this juncture to terminate the proceedings in the appeal and strike out the appeal. See the cases of: (1) Adah v. N.Y.S.C (2004) 13 N.W.L.R. (Pt. 891) p. 639; (2) Braithwaite v. Skye Bank PLC (supra); (3) Nwanwata v. Esumei (1998)8 N. W. L.R. (Pt. 565) p. 650 and (4) Anadi v. Okoli (1977) 7 S.C. p.57. For where a process intended to commence an action, suit or an appeal is fundamentally bad, it is bad for all purposes as nothing useful can come out of it as held in the case of: Mcfoy vs. U.A.C (1961) 2 All ER 1169, 1172. It is trite that a competent notice of appeal is the bedrock or foundation of any appeal before the Court. Where a notice of appeal is incompetent, as in the instant matter, it is liable to be struck out. See also the cases of: (1) Uwazuruike v. A.-G., Federation (2007) 8 NWLR (Pt. 1035) p. 1 and (2) NIWA vs. SPDC (2007) 1 NWLR (Pt.1015) p.305.
With the devastation of the Notice of Appeal, it follows that the entire appeal in the main has become spent as this Court equally lacks the platform by way of jurisdiction to mount on and determine same. See the cases of: (1) Dr. Okey Ikechukwu v. F.R.N. (2015) 7 N.W.L.R. (Pt. 1457) p.1; (2) Uwazuruike v. A. G., Federation (2007) 2 SCNJ p. 369; (3) N.E.P.A. v. Ango (2001) 15 N.W.L.R. (Pt. 737) p. 627 and (4) Onyemeh v. Egbuchulam (1996) 5 N.W.L.R. (Pt. 448) p. 255. In the case of: Dr. Okey Ikechukwu v. F.R.N., Nweze, J.S.C., at page 21, paragraphs B- G and page 22, paragraph C, stated as follows:
As a general rule, an intermediate Court, like the 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 in the appeal. (The underlining is mine for emphasis).
Consequent upon my foregoing analytic thinking, this Appeal No. CA/E/89/2018 is struck out for being incompetent.
It is further ordered that the parties in the appeal shall bear the costs expended by them in the course of prosecuting and defending the doomed appeal respectively.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother OYEBISI FOLAYEMI OMOLEYE JCA.
Since the appeal was filed without leave of either the Court below or this Court first sought and obtained, the appeal was not initiated in accordance with due process of law and is therefore incompetent.
This Court therefore lacks the jurisdiction to entertain it.
Consequently, Appeal No. CA/E/89/2018 is hereby struck out for being incompetent.
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:
Nduka Ugwu, Esq. holding the brief of Onyechi Ononye Esq.For Appellant(s)
J. O. Onwujekwe Esq.For Respondent(s)
