GOVERNING COUNCIL INDUSTRIAL TRAINING FUND V. DR L.N. CHIJIOKE & ANOR.
(1997)LCN/0258(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of November, 1997
CA/J/97m/97
RATIO
APPEAL: THE DIFFERENCE BETWEEN FILING OF AB APPEAL AND ENTERING OF AN APPEAL
The Supreme Court held that the notice to withdraw even if filed in the High Court was valid. The Supreme Court however made the point that filing of an appeal is different from entering of an appeal. An appeal is only entered in the Court of Appeal when the record of appeal has been received at the Court of Appeal from the High Court. See Abina v. Tika Tore Press (1968) 1 All NLR 210. PER OGUNTADE, J.C.A.
JUSTICES:
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
DENNIS ONYEJIFE EDOZIE Justice of The Court of Appeal of Nigeria
OKWUCHUKWU OPENE Justice of The Court of Appeal of Nigeria
Between
GOVERNING COUNCIL INDUSTRIAL TRAINING FUND Appellant(s)
AND
- DR L.N. CHIJIOKE
(Carrying on business jointly under the name and style “CHILAS SPECIALIST HOSPITAL”)
2. INTERNATIONAL STANDARDS INSURERS LIMITED Respondent(s)
OGUNTADE, J.C.A. (Delivering the Leading Judgment): The applicant is the appellant in an appeal arising from Suit No. PLD/J628/96. The application which is for leave of this court to “file and argue further grounds of appeal” had seemed a simple and straightforward one.
But respondents counsel Mr. Ibrahim Hamman took objection to the application on the ground that this court lacked the jurisdiction to entertain it.
He submitted that until an appeal had been entered before this court, we were without the jurisdiction to entertain an application based on the said appeal. Counsel relied on Ezomo v. Attorney-General, Bendel State (1986) 4 NWLR (Pt.36) 448 at 460 and Order 1 rule 22 of the Court of Appeal Rules.
Mr. O. B. A. Maduabuchi for the applicant in reply argued that Order 1 rule 22 had no application until and appeal had been entered.
Order 1 rule 22 of the Court of Appeal Rules provides:
“(22)”After an appeal has been entered and until it has been finally disposed of, the court shall be seised of the whole of the proceedings as between the parties thereto and except as may be otherwise provided in these Rules, every application therein shall be made to the court and not to the court below but any application may be filed in the court below for transmission to the court.”
The case of Ezomo v. A. G. Bendel State (Supra) is not relevant to the issue for consideration. The Supreme Court in that case had to decide whether or not a notice of withdrawal of an appeal pending in the Court of Appeal filed in the High Court was valid. The Supreme Court held that the notice to withdraw even if filed in the High Court was valid. The Supreme Court however made the point that filing of an appeal is different from entering of an appeal. An appeal is only entered in the Court of Appeal when the record of appeal has been received at the Court of Appeal from the High Court. See Abina v. Tika Tore Press (1968) 1 All NLR 210.
In the instant case, there is no doubt that the appeal in question has not been entered in the Court of Appeal since the record of appeal has not been transferred to this court. The question is, can we hear an application for leave to file additional ground or appeal without ourselves sighting the record of appeal incorporating the original grounds of appeal? On principle, I think not.
This court in deciding whether or not to grant leave to appeal is exercising discretion. Invariably, leave is always granted. But undoubtedly the court must relate the grounds sought to be filed as additional to the original grounds of appeal before deciding to exercise its discretion one way or the other. An application which asks this court to exercise our discretion to grant leave to file additional grounds when we have not seen the original grounds is akin to asking us to act while under a blindfold. I must decline to so act.
This application for leave to file additional grounds must be and is stayed until the record of appeal incorporating the original grounds has been transmitted to this court.
EDOZIE, J.C.A.: I was privileged to have read before now the lead ruling just delivered by my learned brother Oguntade J.C.A. I agree with him that the application for leave to file additional grounds be stayed until the record of appeal incorporating the original grounds of appeal has been transmitted to this court.
OPENE, J.C.A.: I have had a preview of the Ruling jut delivered by my learned brother Oguntade J.C.A., I agree with the reasoning and the conclusion reached therein. I also agree with him that the application should be stayed until the records of appeal incorporating the original grounds of appeal have been transmitted to this court.
Application stayed
Appearances
O.B.A Maduabuchi, Esq. For Appellant
AND
Ibrahim Hamman, Esq. For Respondent
