WORLU v. WELI & ORS
(2022)LCN/16621(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, May 10, 2022
CA/PH/310/2021
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
NNA WORLU APPELANT(S)
And
1. CHIEF GODSPOWER O. WELI 2. DR. NYEMA EMMANUEL WELI 3. MR. ADOLPHUS WELI 4. MR. MANYEHOR CLEARANCE WELL 5. MR. SUNDAY CHIMEZIE WELI (For Themselves And On Behalf Of The Entire Weli Amadi Oluozu Family Orowoluzu In Eliozu Town, Oroigwe In Obio/Akpor Local Government Area Of Rivers State) 6. MR. JOEL OKWUOWA WORLU 7. MR. ADOLPHUS WORLU 8. ANTHONY WORLU 9. MR. JOSEPH IKEADIM WORLU (For Themselves And On Behalf Of The Worlu Family Of Eliozu-Oroigwe In Obio/Akpor Local Government Area Of Rivers State) RESPONDENT(S)
RATIO
THE IMPORTANCE OF NOTICE OF APPEAL
The Notice of Appeal is the spinal cord of an appeal. It is the most important step in the initiation of an appeal, the foundation upon which an appeal is built. It must be competent to enable the appellate Court assume jurisdiction in entertaining the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of competence to adjudicate on the appeal – Mawo Vs. Tsintuwa (2020) 2 NWLR (pt. 1708) 306 at 312.
There is no doubt, that rules of the Court require that the notice of appeal shall be filed at the registry of the Court below or the Court from where the appeal emanated. The notice of appeal is certainly the most important step in initiating the appeal. It must be competent to enable the appellate Court assume jurisdiction to entertain the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of competence to adjudicate on the appeal. See Thor Vs. FCMB Ltd (2002) 4 NWLR (pt. 757) 427; Ebokam Vs. Ekwenibe & Sons Trading Co. Ltd (1999) 10 NWLR (pt. 622) 242 and Uwazurike Vs. A-G, Federation (2007) 8 NWLR (pt. 1035). PER HASSAN, J.C.A
THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE COMPETENT
A Court is competent when:
(a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
See Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; Korau Vs. Korau (1998) 4 NWLR pt. 545 212; and Magaji Vs. Matari (2000) 8 NWLR (pt. 670) 722 and B.O.I. Ltd Vs. Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (pt. 1615) 220.
There cannot be a valid appeal without a valid or proper notice of appeal. Rules of Court are made to be obeyed as they have the force of law.
The Supreme Court in Ogunpehin Vs. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533 at 539 held that rules of Court are not made for fun but to be obeyed by the parties. They are meant not only to be obeyed but to be strictly complied with. There will be chaos in the judicial process where the governing rules are disobeyed. PER HASSAN, J.C.A.
THE POSITION OF LAW IN FILING A NOTICE OF APPEAL AT THE REGISTRY OF THE COURT OF APPEAL
It is trite that each case is decided according to its peculiarity, when procedural irregularity may be waived. But the situation does not arise in this case where there is no urgency in the case. Counsel should be discouraged from filing Notice of Appeal at the registry of the Court of Appeal as desired, especially as it has become a practice for them to do so. The only option is to insist that the rules are complied with. See Abah Vs. Monday (2015) 14 NWLR (pt. 1480) 569; Iwunze Vs. F.R.N. (2014) 6 NWLR (pt. 1404) 580 and Oyegun Vs. Nzeribe (2010) 7 NWLR (pt. 1194) 577.
The use of the word “shall” in Order 7 Rule 2(1) and Order 6 Rule 12 is mandatory in this regard. The provision gives no room for conjecture or speculation. See Umah Vs. A.P.C. (2019) 5 NWLR (pt. 1666) 927; Sharing Cross E. S. Ltd Vs. Umaru Adamu Ent. Ltd (2020) 10 NWLR (PT. 1733) 56 and Bi-Courtney Ltd Vs. A-G, Federation (2019) 10 NWLR (pt. 1679) 112.
In Okpe Vs. Fan Milk Plc (2017) 2 NWLR (pt. 1549) 282 at 285, the Supreme Court per I. T. Muhammad JSC (now CJN) held that an appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See I.B.W.A. Vs. Pavex Int. Co. (Nig.) Ltd (2000) 7 NWLR (pt. 663) 105 and N.B.C. Plc. Vs. Suleman (2019) 18 NWLR (pt. 1703) 80.
Also the Supreme Court inSPDCN Ltd Vs. Agbara (2016) 2 NWLR (pt. 1496) 353 held that the Notice of appeal is filed in the registry of the Court below and not in that of the appellate Court. See Okotie Vs. Olughur (1995) and Harrman Vs. Harriman (1987) 3 NWLR (pt. 60) 224.
An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. In the instant case where the Notice of Appeal is not proper before the Court, having not been initiated under due process of law, there can be no valid appeal pending before the appellate Court, the Notice of Appeal being incompetent, the appeal will be struck out for being incompetent. See Onwuzulike Vs. State (2020) 10 NWLR (pt.1731) 179 and Adeleke Vs. Oyetola (2020) 6 NWLR (pt. 172) 440. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the ruling of the Rivers State High Court, Port Harcourt delivered on the 30th day of July, 2021 in Suit No. PHC/192/2019 by Honourable Justice O. Ben-Whyte.
The 1st-5th respondents as claimants/applicants by a Motion on Notice dated 30th day of March, 2021 brought pursuant to Order 38 Rules 4 and 8, Order 39 Rule 1 and Order 45 Rules 13 and 14 of the High Court of Rivers State (Civil Procedure) Rules 2010 and under the inherent jurisdiction of the Honourable Court prayed the Court below for the followings:
a. An order of Interlocutory Injunction restraining Chief Samuel Emenike Worlu and the 6th-9th respondents in this appeal and the entire members of Worlu family either by themselves, agents, servants, privies and any other person(s) acting under their authority from burying the corpse of the 1st defendant on record, Chief Samuel Emenike Worlu or any other person on the land in dispute, or in any way or manner whatsoever interfere with the land in dispute pending the hearing and determination of the suit.
In response to the motion, the 1st defendant/respondent filed a counter affidavit sworn to by Nna Worlu (Appellant herein) while the 6th-9th respondents (therein) filed their counter affidavit as 2nd-5th defendants (herein).
The applicant filed two separate further affidavit and replies on point of law.
After considering the submissions of Counsel to the parties on the processes filed, the trial Court granted the order of Interlocutory Injunction restraining the defendants from burying the deceased 1st defendant on the land in dispute pending the determination of the suit.
The appellant who is aggrieved with the said ruling appealed to this Court, on six grounds of appeal with their particulars. The Notice of Appeal dated the 2nd day of August, 2021 was filed on the 9th of August, 2021 at the Court of Appeal Registry, Port Harcourt.
The appellant’s brief was dated and filed on the 13th of September, 2021 and deemed properly filed and served on the 18th of January, 2022. The brief settled by Isah Seidu Esq. has two issues distilled for determination thus:
1. “Whether the Court below had the requisite jurisdiction to entertain and determine, the 1st-6th respondents’ Motion on Notice for Interlocutory injunction dated and filed on the 30th of March, 2021?”
2. “Whether the decision of the Court Below which granted the 1st-6th respondents’ Motion on Notice dated and filed on 30th March, 2021 is not perverse and liable to the sole fate of being set aside without further ado?”
Learned Counsel for the appellant adopted the brief and the reply brief and urged the Court to allow the appeal.
The 1st-5th Respondents’ Brief dated 19th day of January, 2022 was filed on the 24th of January, 2022. Learned Counsel for the 1st-5th Respondents Mrs. O. I. Onumbu identified two issues for determination as follows:
i. “Whether having regards to the entire facts and circumstance of this case, the trial Judge was right and had the jurisdiction to hear, determine and grant the 1st-5th respondents’ Motion on Notice for Interlocutory Injunction dated 30/3/2021?” (Grounds 1 and 2).
ii. “Whether in the light of the facts and circumstance of this appeal, the lower Court was right to have granted the application for interlocutory injunction in this case?” (Grounds 3, 4, 5 and 6).
Learned Counsel adopted the brief and urged the Court to dismiss the appeal.
However it is pertinent to point out that the Notice of Appeal filed on the 9th of August, 2021 was filed at the Registry of the Court of Appeal instead of the High Court of Rivers State, Port Harcourt as provided by the Court of Appeal Rules Order 7 Rule 2(1) which reads:
“All Appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal and shall be accompanied by sufficient number of copies for service on such parties.”
Order 6 Rule 12 reads:
“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the lower Court.”
The Notice of Appeal is the spinal cord of an appeal. It is the most important step in the initiation of an appeal, the foundation upon which an appeal is built. It must be competent to enable the appellate Court assume jurisdiction in entertaining the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of competence to adjudicate on the appeal – Mawo Vs. Tsintuwa (2020) 2 NWLR (pt. 1708) 306 at 312.
There is no doubt, that rules of the Court require that the notice of appeal shall be filed at the registry of the Court below or the Court from where the appeal emanated. The notice of appeal is certainly the most important step in initiating the appeal. It must be competent to enable the appellate Court assume jurisdiction to entertain the appeal. Where it turns out to be defective and invalid, it renders the appeal incompetent and robs the appellate Court of competence to adjudicate on the appeal. See Thor Vs. FCMB Ltd (2002) 4 NWLR (pt. 757) 427; Ebokam Vs. Ekwenibe & Sons Trading Co. Ltd (1999) 10 NWLR (pt. 622) 242 and Uwazurike Vs. A-G, Federation (2007) 8 NWLR (pt. 1035).
A Court is competent when:
(a) It is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another;
(b) The subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction.
See Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; Korau Vs. Korau (1998) 4 NWLR pt. 545 212; and Magaji Vs. Matari (2000) 8 NWLR (pt. 670) 722 and B.O.I. Ltd Vs. Awojugbagbe Light Ind. Ltd (2018) 6 NWLR (pt. 1615) 220.
There cannot be a valid appeal without a valid or proper notice of appeal. Rules of Court are made to be obeyed as they have the force of law.
The Supreme Court in Ogunpehin Vs. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533 at 539 held that rules of Court are not made for fun but to be obeyed by the parties. They are meant not only to be obeyed but to be strictly complied with. There will be chaos in the judicial process where the governing rules are disobeyed.
In the instant case, the Notice of Appeal was filed at the Registry of the Court of Appeal instead of the lower Court as provided by Order 7 Rule 2(1) and Order 6 Rule 12 of the Court of Appeal Rules, 2021.
It is noted with serious concern that it has become a practice for counsel or legal Practitioners to file Notice of Appeal at registry of the Court of Appeal as desired, instead of the Court below as provided by the Rules. This practice has to be prevented or discouraged. Such a situation without order will render the rules impotent. As a Court of law, we should jealously guard our rules against abuse and insist on strict compliance.
It is trite that each case is decided according to its peculiarity, when procedural irregularity may be waived. But the situation does not arise in this case where there is no urgency in the case. Counsel should be discouraged from filing Notice of Appeal at the registry of the Court of Appeal as desired, especially as it has become a practice for them to do so. The only option is to insist that the rules are complied with. See Abah Vs. Monday (2015) 14 NWLR (pt. 1480) 569; Iwunze Vs. F.R.N. (2014) 6 NWLR (pt. 1404) 580 and Oyegun Vs. Nzeribe (2010) 7 NWLR (pt. 1194) 577.
The use of the word “shall” in Order 7 Rule 2(1) and Order 6 Rule 12 is mandatory in this regard. The provision gives no room for conjecture or speculation. See Umah Vs. A.P.C. (2019) 5 NWLR (pt. 1666) 927; Sharing Cross E. S. Ltd Vs. Umaru Adamu Ent. Ltd (2020) 10 NWLR (PT. 1733) 56 and Bi-Courtney Ltd Vs. A-G, Federation (2019) 10 NWLR (pt. 1679) 112.
In Okpe Vs. Fan Milk Plc (2017) 2 NWLR (pt. 1549) 282 at 285, the Supreme Court per I. T. Muhammad JSC (now CJN) held that an appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the lower Court or the Court from which the appeal emanated. See I.B.W.A. Vs. Pavex Int. Co. (Nig.) Ltd (2000) 7 NWLR (pt. 663) 105 and N.B.C. Plc. Vs. Suleman (2019) 18 NWLR (pt. 1703) 80.
Also the Supreme Court inSPDCN Ltd Vs. Agbara (2016) 2 NWLR (pt. 1496) 353 held that the Notice of appeal is filed in the registry of the Court below and not in that of the appellate Court. See Okotie Vs. Olughur (1995) and Harrman Vs. Harriman (1987) 3 NWLR (pt. 60) 224.
An appeal in our adversarial system is initiated by filing a notice of appeal. The Notice of Appeal is the foundation of a proper and valid appeal. In the instant case where the Notice of Appeal is not proper before the Court, having not been initiated under due process of law, there can be no valid appeal pending before the appellate Court, the Notice of Appeal being incompetent, the appeal will be struck out for being incompetent. See Onwuzulike Vs. State (2020) 10 NWLR (pt.1731) 179 and Adeleke Vs. Oyetola (2020) 6 NWLR (pt. 172) 440.
A Court can only be competent to exercise jurisdiction in respect of any matter if the case comes before it by due process of law and upon a condition precedent to the exercise of jurisdiction. As such defect in competence is fatal to the proceedings. See Madukolu Vs. Nkemdilim (supra) and Owonta Vs. INEC (2020) 4 NWLR (pt. 1713) 46.
The appeal is struck out for being incompetent. Parties are to bear their respective costs.
PAUL OBI ELECHI, J.C.A.: I had the advantage of reading in draft, lead judgment just delivered by my learned brother Tani Yusuf Hassan, JCA.
My learned brother has considered all the issues involved in the interlocutory appeal on their merit before arriving at the conclusion that the appeal is incompetent.
The consequence is that this appeal is incompetent and is hereby struck out.
I abide by the order as to no costs.
Appeal struck out.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (DISSENTING JUDGMENT): I had the privilege of reading, in the draft, the leading judgment delivered by my very learned brother, Tani Yusuf Hassan, J.C.A. I am unable to agree with the leading judgment that the appeal should be struck out because the notice of appeal was filed at the registry of this Court, instead of the registry of the lower Court.
Where to file a Notice of Appeal
Order 7 Rule 2(1) of the Court of Appeal Rules, 2016, provides thus:
“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names of and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on such parties.”
I have examined the notice of appeal and there is nothing written on the document to suggest that it was filed in the registry of this Court. The notice of appeal is at pages 260-264 of the record of appeal. At page 260 of the record of appeal, there are two stamp impressions, which winks and announces that the notice of appeal was filed on 09/08/2021, at:
“THE JUDICIARY
APPEAL REGISTRY
PORT HARCOURT
CASH OFFICE
DATE: 9/6/2013”
See Order 8 Rule 9 of the Court of Appeal Rules, 2016. With respect and great humility, I hold that the notice of appeal was not filed in the registry of this Court. The notice of appeal was appropriately filed in the registry of the lower Court, as it should be. Parties did not own the stamp with which the impression was made on the notice of appeal and have no control over what is stamped on the processes. The notice of appeal was properly addressed to this Court, as it should be.
I also need to point out that the parties to this appeal did not raise the issue. Parties did not make comments or submissions on the issue before us. Parties did not have the opportunity to confirm where the notice of appeal was filed, if it is indeed an issue. I do not consider it as one. Having not raised the issue, which is a procedural issue, it is important to point out that Courts have over the years advised that such issue should be treated mildly. Even, if the notice of appeal, which is at pages 260-264 of the record of appeal, was filed in the registry of this Court, it would still not have affected the jurisdiction of this Court.
Even where an application is brought, which is not the case here, by any of the parties to strike out the notice of appeal, this Court would have been guided by Order 21 Rule 5(1) and (2) of the Court of Appeal Rules, 2016, which provides:
“5.-(1) An application to strike out or set aside for noncompliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this Court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before any party applying has taken any step after becoming aware of the irregularity.
(2) An application under this Rule may be made by motion on notice and the grounds of objection must be stated therein.”
No one has complained in this appeal about the notice of appeal. Even if there was a complaint, it could not have succeeded where parties argued the appeal, based on the processes filed and went away from Court only to await judgment. Parties saw no evil in the notice of appeal.
In keeping with the direction of the provision quoted above, the Courts have over the years insisted that procedural jurisdiction should not be allowed to foreshadow the exercise of the appellate rights of parties in our Courts. In the case of Ajibode v. Gbadamosi [2021] 7 NWLR (Pt. 1776) 475, the Supreme Court stated that there are two types of jurisdiction – procedural and substantive. The latter is a matter of substantive law; while the former is a matter of procedural law regulating the practice and procedure guiding the manner suits are initiated, tried, etc. The distinction between the two is that substantive jurisdiction is vested in the Court by the enabling statute or the Constitution. It is not conferred by any litigant and cannot be waived by any litigant. On the other hand, a litigant may submit to the procedural jurisdiction of the Court or waive any defect in the procedural jurisdiction of Court by acquiescing in the defect. In the case cited, the Court held that it was too late in the day for the appellants to complain about any defect in the writ of summons to which they unconditionally entered appearance, filed pleadings, and called evidence, and in respect of which the trial Court gave them judgment. See A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 and Heritage Bank Ltd v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420.
In the case of Odom v. PDP [2015] 6 NWLR (Pt. 1456) 527 at …. M. D. Mohammad, JSC. stated, in respect of filing notice of appeal in a wrong registry:-
“In arguing their preliminary objection to the cross-appeal, learned appellants/cross-respondents counsel submits that the notice of cross-appeal filed on 25-04-2014 at the Supreme Court’s Registry instead of the Registry of the Court of Appeal, on the authority of Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483at 496 is incompetent inspite of this Court’s order of 26-05-2014 deeming the notice as duly filed. The notice having been filed in contravention of Order 2 Rule 30 of the Supreme Court’s Rules remains incompetent. It follows also that the cross-appellant’s brief that is filed pursuit to the incompetent notice of appeal is also incompetent. Further relying on Ogbechie v. Onochie (No.2) (1988)1 NWLR (Pt. 70) 370 at 402, learned appellants/cross-respondents’ counsel submits that the cross-appeal be struck out.
Replying, learned cross-appellant’s counsel contends that the appellants/cross-respondents’ preliminary objection to the competence of the cross-appeal is misconceived. The objection, it is submitted, having failed to take account of Order 6 Rule 4, Order 8 Rule 11 and Order 10 Rule 1 Sub-rules (1) and (2) of the Supreme Court Rules cannot be taken seriously. Supporting his submission with the decision in Obi v. I.N.E.C. In Re: Dr Andy Uba (2008) 7NWLR (Pt. 1085) 68 at 78 learned counsel urges that the objection be overruled.
It must outrightly be stressed that a party’s right of appeal is constitutionally guaranteed. Learned appellants’/cross-respondents’ counsel must be reminded that though it is of utmost importance to comply with rules of Court, the fact remains that being Rules of Procedure, they do not themselves and of themselves alone confer jurisdiction on a Court. They merely regulate the exercise of the jurisdiction the constitution or the statute vests in the Court. Unless it is expressly stated that non-compliance with the rules particularly renders a cause incompetent, the Court’s pre-occupation must be the doing of substantial justice between the parties in respect of the dispute the Court is asked to resolve.
In the case at hand, appellants’/cross-respondents’ preliminary objection, given the fundamentality of the cross-appellant’s right of appeal as guaranteed by the Constitution; cannot be given the effect the appellants/cross-respondents urge on us. The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross-appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross-appellant’s non-compliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the constitution confers on it. These rules should not provide the means of compromising the appellant’s right of appeal as conferred by the constitution. See Ogunremi v. Dada (1962) 1All NLR 663 at 671; (1962) 2 SCNLR 417.”
In the case of Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503, the Supreme Court insisted that there is a distinction between two types of jurisdiction viz – jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. Whilst a litigant can waive the former, no litigant can confer jurisdiction in the Court where the Constitution or statute or any provision of the common law states a Court shall have no jurisdiction. A litigant may submit to the procedural jurisdiction of the Court, such as where a writ has been served outside jurisdiction without leave. See also Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187.
In the case of Bakari v. Ogundipe [2021] 5 NWLR (Pt. 1768) 1 decided that waiver is the intentional and voluntary abandonment of a right. It is either express or implied from conduct. Where a party has waived his right to insist that the correct procedure must be followed, he cannot later on appeal, resile, and complain of what he has waived. In other words, a right that has been waived is lost. The reasoning being that once the other party acts upon the waiver, the party waiving the right can no longer go back on the waiver and act as if it was never waived. It is only when objection is made at the earliest opportunity can it be said that the right was not waived. See also Ariori v. Elemo (1983) 1 SCNLR 1; Eze v. Okechukwu (2002) 18 NWLR (Pt. 799) 348; Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444.
Returning to the issue of venue of filing a notice of appeal, in the case of Poroye v. Makarfi [2018] 1 NWLR (Pt. 1599) 91 at 146-147, the Supreme Court stated:
“Furthermore, on the issue of filing of the notice of appeal at the Court below instead of the trial Court, which meant non-compliance with the rules of the Court, I am of the firm view that, that should not prevent this Court from ensuring that justice is seen to be manifestly done. The rules of Court are no doubt, meant to be obeyed by all parties concerned and at all times, including the Courts. See: U.T.C (Nig.) Ltd. v. Chief Pamotei (1989) 2 NWLR (Pt.103) 244 at 296 paras. F-G where this Court, per Belgore, JSC (as he then was, later the CJN) opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court… For Court to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This clearly is not the reason of the rules of Courts.”
See also, Olufeagba & Ors v. Abdul-Raheem & Ors (2009) 18NWLR (Pt. 1173) 384; (2009) 11-12 (Pt. 1) SCM 125; (2009) LPELR-2613 (SC). Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance. In Obadiam v. Grae Uyigule & Anor (1986) 3 SC 39 at 40 this Court per Irikefe, CJN opined as follows:-
“However, in the interest of justice and in order to save such time as would have been wasted by striking this appeal out hereby, we have decided to deem this as an application for leave to file the notice and grounds again out of time and this time before us so that this appeal may be properly pending before us. We have accordingly waived the requirement that the notice be filed in the Court below, that is, at the Court of Appeal. By doing this, we now have a situation where this appeal is now before us.”
In Odom & Ors v. PDP & Ors (2015) 2 SCN 209 at 226, (2015) 6 NWLR (Pt. 1456) 527 at 555, para. B-D this Court, per Dattijo Muhammad, JSC, in considering similar situation of non-compliance with the rules in filing the notice of appeal in the Court from where appeal lies, opined thus:
“The filing of this appeal at this Court’s registry instead of the lower Court’s registry should not, by itself alone, make us jettison the cross appellants’ right of appeal. After all, Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the cross appellant’s noncompliance with the rules which require that appeals be filed at the lower Court. The rules are in place to regulate practice of the Court in the exercise of the jurisdiction the Constitution confers on it.”
However, Order 20 Rule 5 of the 2016 Court of Appeal rules, formerly of 2011, provides that, an appeal will not be struck out for non-compliance with the rules or for any other irregularity unless the objection to the procedure is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. In the instant case, I agree with the respondents that both parties had taken fresh steps, in particular, the appellants, after becoming aware of the non-compliance with the filing of the notice of appeal at the trial Court. The objection is not being raised promptly and timeously as required.
Furtherstill, it should be noted that this non-compliance with the rules did not affect the substantive law in relation to the jurisdiction of the Court. At best, it concerns the procedural law on jurisdiction, hence it can be waived. See: Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 219; Ibeanu v. Ogbeide (1994) 7NWLR (Pt. 359) 697 at 716.
In the circumstance, this issue is resolved against the appellants but in favour of the respondents. The deeming order of the Court below on the notice of appeal was properly made and renders the notice of appeal which was filed at the Court below, instead of the trial Court valid.”
In the case of In Re: Uba [2008] 7 NWLR (Pt. 1085) 68 at 77-79, the Supreme Court had the following to say about filing a notice of appeal in a wrong registry:
“It needs be said however that these applications would appear to be one of no ado about nothing. The presentation before us and the array of counsel involved notwithstanding, the simple question for resolution is simply whether a notice of appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the Court of trial. It does further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further, Order 7 Rule 3 of the Court of Appeal Rules provides:
“The Court may in an exceptional circumstance, and where it considers in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.”
I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most Rules of Court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(1) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing. Remarkably, the 5th respondent/applicant had known of the irregularity in the filing of the notice of appeal whilst proceedings were pending in that Court. He never objected or raised issue about the irregularity. The Court below was led into giving the judgment in favour of the 5th respondent/applicant with the knowledge that the notice of appeal was filed not at the High Court but in the Court of Appeal. The 8th respondent Ifeanyi Okonkwo had raised the point. If the Court below had not at the time struck out the appeal or penalized the appellant/respondent it would be because it thought little of the non-compliance. The 5th respondent who had not then complained cannot now be allowed to complain of an occurrence he had previously thought little of. It would amount to allowing him to approbate and reprobate at the same time. The mistake of applicant’s counsel is to have assumed that the mere filing of the appeal at the registry of the Court below renders the appeal void without more. He believes he has a joker he can raise at any stage. This is a wrong assumption. Litigation premised on such approach would amount to or lead to injustice. I am also to state that at the time the alleged notice of appeal was filed in the Court of Appeal on 18/4/07, the records of appeal were all before the Court of Appeal, which situation completely removed the possibility of the Court below asking the appellant/respondent to go back to file his appeal at the trial High Court. See Order 1 Rule 22 of the Court of Appeal Rules. The case SC.161/2001 – The Honda Place Ltd. v. Globe Motors Holding Nig. Ltd. (2005) 14 NWLR (Pt. 945) 273 relied upon in counsel’s address only related to an order made by this Court upon an application heard in chambers. The order made in chambers was overruled by this Court sitting in open Court. This is quite a regular situation unlike the situation on hand.
In the case of CBN v. Okojie [2004] 10 NWLR (Pt. 882) 488 at 512-513, this Court stated thus:
“The question of whether or not a proper notice of appeal has been filed in the Court below is a question which touches on the jurisdiction of this Court. If no proper notice of appeal has been filed then there is no appeal for this Court to entertain. See Kano Plastics Ltd. v. Century Merchant Bank (1998) 3 NWLR (Pt. 543) 567 at 572-573; Oyebade v. Ajayi (1993) 1 NWLR (Pt. 269) 313; Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622. From the wording of Order 3 Rule 2 (1) the notice of appeal shall be filed in the registry of the lower Court. However, I find the contention of the respondent in this appeal baseless in law. On examination of the records of proceedings it shows at pages 8-10 that 1st and 2nd appellants were 1st and 2nd defendants at the Court below, whereas the 3rd-7th appellants were 3rd-7th defendants respectively. The 1st and 2nd appellants were represented by counsel at the trial and filed their statement of defence. The 3rd-7th defendants were not represented and did not file any defence. All through the trial and proceedings at the Court below the 3rd-7th appellants did not participate. Written addresses were ordered. The respondent and 1st and 2nd appellants filed addresses and judgment was entered in favour of the respondent.
The 1st and 2nd appellants being dissatisfied with the said judgment appealed against it. In the appeal filed by the 1st and 2nd appellants, the present 3rd-7th appellants were 2nd-6th respondents. See page 81A of Volume 1 of the record of appeal and all the cover pages of Volumes 1 and 11 of the records. The 1st and 2nd appellants caused the appeal record to be compiled and thereafter transmitted by the Registrar of the Court below to the Registry of this Court in line with the rules of this Court. The 1st and 2nd appellants later filed their brief of argument. The 3rd-7th appellants later filed an application filed on 8/9/99 for extension of time within which to seek leave to appeal against the same judgment. The essence of that application was to allow the 3rd-7th appellants participate in the appeal and not as respondents. When time was extended to the 3rd-7th respondents to appeal was granted and the record of appeal had been transmitted from the Court below, and the appeal entered in the Court of Appeal list, in line with the provisions of Order 3 Rule 13(1) and (2) of the Court of Appeal Rules, the appeal is said to be properly filed because, the Registrar of the Court below became “functus officio”. The notice of appeal filed by the 3rd-7th respondents was pursuant to leave granted by this Court. Besides, when this Court granted application of the 3rd-7th appellants, it ordered that fresh notice and grounds of appeal be comprehensively filed. All these were filed in this Court not in the Court below. I agree with the learned counsel for the 3rd-7th appellants that since the record of appeal had been properly transmitted and served on all the parties, and appeal entered, it will amount to duplicity of effort, resources and ultimately lead to delay of these appellants, pursuant to the leave granted, to file the notice and ground of appeal at the Registry of Court below. It is not the practice in this Court that where the record of appeal had been properly transmitted and served on all parties and appeal entered in the cause list with appeal number as contemplated by Order 3 Rule 5 of this Court, for the appellant to go to the lower Court to file the notice and grounds of appeal at the Court below. It would have been different if the record had not been transmitted and appeal not duly entered in the cause list.
It is on this basis I dismiss the respondent’s preliminary objection as unmeritorious and baseless.”
I therefore refuse, to agree, to strike out the notice of appeal and this appeal, solely based on where it was filed. This is apart from the fact that I have held that the notice of appeal was filed in the registry of the lower Court, where it was certified as a true copy. It is good that this Court should err on the side of hearing the appeal on the merit.
The Vexing Order of the lower Court
On the merit of the appeal, the lower Court (Coram – Justice O. Ben-Whyte of the Port Harcourt Division of the Rivers State High Court) delivered a ruling on 30/07/2021. In the ruling (pages 247-257), the lower Court held and ordered:
“In the final analysis, I hold that the applicants are entitled to an order of interlocutory injunction restraining the defendants from burying the deceased 1st defendant on the land in dispute pending the determination of the substantive suit. In view of the order of injunction that has been granted, I shall proceed to grant an accelerated hearing of this suit.”
The ruling, quoted above, is a product of argument of a motion for interlocutory injunction, filed by the 1st-5th respondents (as claimants), in their suit against the 6th-9th respondents (as defendants). The substantive suit before the lower Court concerned declaration of title to land (known as Weli Amadi family land), damages for trespass and order of injunction. (See pages 1-3 of the record of appeal).
The Notice of Appeal and Argument of the Appeal
The appellant – Nna Worlu – filed a notice of appeal on 09/08/2021, which contains six grounds of appeal. The appellant, subsequently, filed appellant’s brief of argument on 13/09/2021 but deemed properly filed and served on 18/01/2022. The appellant also filed a reply brief of argument on 31/01/2022. Isah Seidu Esq. adopted appellant’s brief of argument and reply brief of argument, as argument of the appeal, at the hearing of the appeal, on 23/03/2022. He urged the Court to allow the appeal.
The 1st-5th respondents filed their brief of argument on 24/01/2022, which D. I. Onumbu Esq. adopted, as argument against the appeal. He urged the Court to dismiss the appeal.
The 6th-9th respondents did not file any process or brief of argument, though they were represented at hearing of the appeal, by learned counsel, F. N. Ewenwa Esq. (who appeared with Eric Adiele Esq.)
In the appellant’s brief of argument, the two issues raised are:
a. Whether the lower Court had requisite jurisdiction to entertain and determine the 1st-6th respondents’ motion on notice for interlocutory injunction dated and filed on 30/03/2021.
b. Whether the decision of the lower Court, which granted the 1st-6th respondents’ motion on notice dated and filed on 30/03/2021 is not perverse and liable to be set aside.
On the part of the 1st-5th respondents, the two issues for determination are:
a. Whether having regards to the entire facts and circumstances of this case, the trial Judge was right and had the jurisdiction to hear and determine and grant the 1st-5th respondents’ motion on notice for interlocutory injunction dated 30/03/2021 (distilled from grounds 1 and 2 of the appellant’s grounds of appeal).
b. Whether in the light of the facts and circumstances of this appeal, the lower Court was right to have granted the application for interlocutory injunction (distilled from grounds 3, 45 and 6 of the grounds of appeal).
Incompetence of the Appeal and Lack of Jurisdiction of this Court
I have read and considered the respective presentations of learned counsel for the parties. However, it is very apparent to me that parties did not pay due attention to the fact that this Court may not have jurisdiction to determine this appeal, which is an issue this Court may not ignore. As it may have been observed, the order of interlocutory injunction made by the lower Court, against which the appeal was filed, was issued against “the defendants”. It is, somewhat, intriguing that there is only one appellant in this appeal.
Perusing the record of appeal, I observed that the appellant – Nna Worlu – is not listed as a party in the ruling of the lower Court, against which the appeal was filed. (See page 247 of the record of appeal). The appellant did not present any explanation for his name not being on the ruling as a party to the suit before the lower Court. All that the appellant argued, with respect to the first issue for determination, as set by the appellant, is that the original 1st defendant before the lower Court died and that the deceased’s name ought not to have been on the motion argued before the lower Court. The name of the deceased 1st defendant is on the ruling of the lower Court appealed against. However, the appellant’s name was not on the processes filed before the lower Court and the ruling of the lower Court, also.
Secondly, the appellant appealed in his own name and apparently, in personal capacity. The claimants, in suit no. PHC/192/2019 (filed in representative capacity) sued for themselves and on behalf of the entire Weli Anadi Oluozu family, Orowoluozu in Eliozu Town, Oroigwe in Obio/Akpor Local Government Area of Rivers State. The claimants in the lower Court are now described in this appeal as the 1st-5th respondents. The suit before the lower Court was filed against the defendants (in representative capacity) for themselves and on behalf of the Worlu Family of Eliozu-Oroigwe in Obio/Akpor Local Government Area of Rivers State. The defendants in the lower Court are now described before us as the 6th-9th respondents in this appeal.
In paragraphs 4(i) and 5(ii) of the statement of defence, filed by the defendants before the lower Court, they described the subject of dispute as family property and the capacity in which they sought to defend the suit, as follows:
“4. In answer to paragraphs 3 and 4 of the Claimants’ Statement of Claim, the Defendants aver as follows:
(i) That the land in dispute has been from time immemorial the bonafide property of the Worlu Family inherited from his father Amuonwonike, the Defendants’ ancestor and have been occupied by them uptill date. The said land shall be particularly described in survey plan to be filed in this suit.
…
5. In answer to paragraphs 5, 6, and 7 of the Claimants’ Statement of Claim, the Defendants aver as follows;
(i) That the 1st, 3rd and 5th Claimants are descendants of Weli Ogele which Weli Ogele us the son of Ogele Worlu-Oji of Rumunduru, Oroigwe and which Ogele Worlu Oji family still exist in Rumunduru till date.”
(Bold font for emphasis).
The defendants also filed a counter-claim, whose first prayer is narrated at page 45 of the record of appeal, as follows:
“1. A declaration that the Defendants Counter Claimer are and have been the owner in possession and occupation of and have or are entitled to the statutory right of occupancy over all that property known as and called Worlu family land which has been and has been and is still in possession, occupation, management and control of the Defendants and which land is shown on the survey plan to be filed in this Suit.
…”
(Bold font for emphasis).
The defendants, against whom the order of injunction was issued did not file the appeal before us. If a litigant is not satisfied with a ruling of a Court from which it can appeal, the best option is to file an appeal against such a ruling. See OMPADEC v. ICER (Nig.) Ltd. [2001] 7 NWLR (Pt. 712) 327 at 335.
The Court is bound by the record before it. See Bashir v. Audu [1999] 5 NWLR (Pt. 603) 433. Where no party has raised the issue of the incorrectness of the record of Court, a Court will be bound to assume its correctness. See Mang v. Ibe [2000] 14 NWLR (Pt. 688) 591.
In the circumstances, there is no explanation given for the appellant to stand alone in this appeal, where the claimants and defendants in the suit before the lower Court are listed as joint respondents in this appeal. It is my view that the appellant has not shown any legal standing to file the notice of appeal before us.
In the case of Uwazurike & Ors. v. Attorney-General of the Federation (2007) 8 NWLR (Pt. 1035) 1, the Court stated thus:-
“It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal.”
In the case of Omokuwajo v. F.R.N. (2013) 9 NWLR (Pt. 1359) 300 at 327, the Supreme Court stated that, generally, a Court would be wrong to decide on issues not raised by the parties without giving the parties the opportunity to be heard. However, it would not be necessary to afford the parties a hearing when:
(a) the Court raises an issue suo motu or on its own motion if the issue relates to the Court’s own jurisdiction;
(b) if both parties are or were not aware of or ignored an enactment or subsidiary legislation the Court can take judicial notice of under the Evidence Act; or
(c) if on the face of the record, serious questions of the fairness of the proceedings is evident.
See also S. C. C. Ltd. v. Kingston [2016] 4 NWLR (Pt. 1501) 172 at 189 (per Joseph Shagbaor Ikyegh, JCA.) and Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511.
A Court has and can only exercise jurisdiction when:
(a) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another; and
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the Court’s jurisdiction.
See Madukolu v. Nkemdilim [1962] 2 SCNLR 341.
The appellant has not been shown to be a party to the proceedings before the lower Court. The appellant did not claim personal or individual ownership of the land in dispute, with consequent capacity to file an appeal, as appellant or a person interested. See the cases of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor. (1972) 5 S. C. 156 at 174-175 and Dokubo v. Bob-Manuel (1967) 1 All NLR 113 at 121-122). See also Section 243(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999.
It is wrong for a party, on appeal, to unilaterally re-arrange the names of parties in the lower Court in processes filed in the appellate Court, without seeking prior leave or permission of the appellate Court. See Skye Bank Plc v. Rivers State Internal Revenue Service & Ors. [2021] LPELR–56323 (CA) (per Olabode A. Adegbehingbe, J. C. A.). The appellant, unlawfully and outside due process, filed or initiated this appeal in his own right, without seeking and obtaining prior leave of this Court to do so, as a person interested. This appeal is incompetent. This Court lacks jurisdiction to hear and determine this appeal. This appeal is hereby struck out for incompetence.
Appearances:
Isah Seidu, Esq. For Appellant(s)
D.I. Onumbu – for 1st – 5th Respondents
F.N. Enuwanwa, Esq., with him, Eric Adele – for 6th – 9th Respondents. For Respondent(s)
