RUFAI v. NIGERIAN ARMY (2020)

RUFAI v. NIGERIAN ARMY

(2020)LCN/15198(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 12, 2020

CA/L/831C/2018

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

PTE UMORU RUFAI APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

RATIO

A PRELIMINARY OBJECTION

To begin with, a preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. For this reason, the law commands the Court to deal with a preliminary objection, when raised in any proceedings, first, see Uwazurike v. A –G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Allanah Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Muhammed v. IGP (2019) 4 NWLR (Pt. 1663) 492; Lalapu v. C.O.P. (2019) 16 NWLR (Pt. 1699) 476. I will obey this legal commandment so as not to insult the law. The objector’s objection seeks to terminate the appellant’s appeal in limine on a single vitriolic ground of want of jurisdiction. PER OGBUNIYA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the authority of a Court to determine any dispute tabled before it by contending parties, see Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Mbah v. State(2014) 10 NWLR (Pt. 1415) 316. A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. 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 3. 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 v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J.; Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175; Mbah v. State (supra); Mohammed v. FRN (2018) 13 NWLR (Pt. 1636) 229; Amah v. FRN (supra); FRN v. Adeniyi (2019) 7 NWLR (Pt. 167) 238. The three ingredients must co-exist in order to infuse jurisdiction in a Court. Where a Court is derobed of the jurisdiction to handle a matter, the proceedings, no matter the quantum of industry, artistry, dexterity or transparency invested in it, will be marooned in the vortex of nullity, see Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175; Usman v. State (2014) 12 NWLR (Pt. 1421) 207; Olowu v. Nigerian Navy (2011) 18 NWLR (Pt. 1279) 659; Ado v. State (2017) 15 NWLR (Pt. 0587) 65; Saraki v. FRN (supra); Dariye v. FRN (supra), Nweke v. FRN (2019) 10 NWLR (Pt. 1679) 51. PER OGBUNIYA, J.C.A.

THE LITERAL RULE IN INTERPRETATION

To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. Aminu – Kano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25;Dahiru v. State (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Bababe v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamudu v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the beacon in the interpretation of the provision. PER OGBUNIYA, J.C.A.

WHETHER OR NOT THE PROCEDURE DECREED IN A PENAL LEGISLATION MUST BE STRICTLY ADHERED TO

CONSEQUENCE OF A PARTY’S FAILURE TO OBTAIN LEAVE OF COURT REQUIRED FOR FILING AN ACTION
The consequence of a party’s failure to obtain leave of Court is far-reaching in adjudication. Where leave of Court, trial or appellate, is required for filing an action and a party ignores seeking and obtaining the requisite leave before filing same, the action is rendered incompetent, see Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt. 1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258; Mohammed v. State (2018) 13 NWLR (Pt. 1635) 85; Dankofa v. FRN(2019) 9 NWLR (Pt. 1678) 468; Nweke v. FRN (supra). It flows from this inelastic position of the law, that the appellant’s failure to secure the permission of this Court before the initiation of the appeal infests it with an indelible incompetence. PER OGBUNIYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the General Court Martial, holden at Ikeja Military Cantonment, Lagos State (hereinafter addressed as “the lower Court”), coram judice: Col. A.U. Obiwulu (President), Col. B.U. Achodo, Lt. Col. O.O. Ejere, Lt. Col. H.M. Bukar, Lt. Col. E.N. Akpan. Lt. Col. K.A. Muhammed, and Lt. Col. I.N. Ijomanta (Members), convened by Maj. Gen. I.H. Edet, G.O.C. 81, Div, Lagos State, in Suit No. 81 Div/G1/300/52, delivered on 15th December, 2016. Before the lower Court, the appellant and the respondent were the accused and the complainant respectively.

The facts of the case, which metamorphosed into the appeal, are amenable to brevity and simplicity. In the wee hours of the night of 28th September, 2013, at the Lekki Beach, the appellant, Pte Umoru Rufai, 12NA/68/6946, who was in company of Pte Muktar Cyprian, was accosted by the deceased, Mr. Adebola Omowale. The appellant turned to challenge the fight initiated by the deceased who took to his heels. The appellant ran after him, kicked him from behind and he fell down on the beach.

The appellant stabbed him, in his lower abdomen, with a locally-made jack knife which stab led to his death. The appellant was arrested. There was a joint investigation of the case by members of the Nigerian Police Force (NPF) from State Criminal Investigation Department (CID), Panti and SIB, Apapa. Thereafter, the appellant was arraigned before the lower Court, on a one count charge for the offence of murder contrary to Section 316 (2) of the Criminal Code and punishable under Section 319 of the Criminal Code, CAP C38, Laws of the Federation of Nigeria, 2004. The appellant pleaded not guilty to the one-count information.

Following the plea of not guilty, the lower Court had a full-scale determination of the case in consonance with its rules. In proof of the case, the respondent fielded two witnesses, PW1 and PW2, and tendered nine exhibits: (a)-(h). In defence of the case, the appellant testified in person, as DW1 and called no other witness. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court. The Judge Advocate, Capt. E.C. Ezeolu, did a sum up of the case. In a considered judgment delivered on 15th December, 2016, found at pages 323-328 of the record, the lower Court found him guilty of manslaughter, convicted him and sentenced him to ten years imprisonment with effect from 15th December, 2016 subject to confirmation by the confirming authority.

The appellant was dissatisfied with the decision. Hence, on 21st June, 2018, the appellant, through counsel, lodged a 9-ground notice of appeal wherein he prayed this Court as follows:
4.1. We urge the Honourable Court to hold that the General Court Martial lacks jurisdiction and does not have constitutional as well as judicial powers to hear the case of Murder and strike out same for want of jurisdiction.
4.2. That the judgment of the General Court Martial commuting the Appellant to 10 years jail term be set aside.

Thereafter, the parties filed and exchanged their respective briefs of argument in line with the rules governing the hearing of criminal appeals in this Court. The appeal was heard on 30th January, 2020.

Respondent’s preliminary objection.
The respondent greeted the appeal with a notice of preliminary objection, filed on 6th March, 2019, which prayed the Court for:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

AN ORDER of the Honourable Court striking out this appeal for lack of jurisdiction/non compliance with condition precedent.
2. AND for such further Order (s) as this Honourable Court may deem fit to make in the circumstances.

The preliminary objection, which was based on one ground, was supported by a 7- paragraph affidavit sworn to by Dozie Uwasomba, counsel to the respondent. A written address was filed alongside the preliminary objection. Learned counsel for the respondent, Dozie Uwasomba, Esq., argued the preliminary objection by adopting the written address in support of it.

In the respondent’s written address, learned counsel crafted a singular issue for determination to wit:
Whether the Court has jurisdiction upon an appeal that is premature and incompetent for non compliance with a condition precedent in view of Section 183, 184 (1) Armed Forces Act, Cap A 20 LFN 2004, and Order 18 (1) of the Court of Appeal Rules 2016.

In arguing the issue, learned counsel for the respondent submitted that the appellant was sentenced to ten (10) years imprisonment by the lower Court. He posited that the objection was based on Sections 183 and 184 (1) of the Armed Forces Act Cap A 20, LFN 2004 and Order 18 (1) of the Court of Appeal Rules, 2016 because the appellant failed to obtain leave before filing the appeal. He asserted that jurisdiction was the bedrock of adjudication and any exercise of Court outside jurisdiction amounted to a nullity. He relied on Musa Coni Ltd. V. Apinali (2014) All FWLR (Pt. 710) 1276; Anyanwu v. Ogunewe (2014) All FWLR (Pt. 738) 1012. He explained the meaning of condition-precedent as noted in Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536; NNPC v. Fawehinmi (1978) 7 NWLR (pt. 559) 598. He paraphrased the ingredients of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All WLR 581. He observed that the appellant failed to obtain the mandatory leave before filing the appeal and failed to invoke the jurisdiction of this Court. He maintained that the appellant failed to comply with the mandatory provisions of Section 183 and 184 (1) of the Armed Forces Act and Order 18 (1) of the Court of Appeal Rules, 2016 and, therefore, no appeal before the Court to adjudicate on.

On the other hand, the Appellant registered an opposition to the preliminary objection by filing an 11 -paragraph counter affidavit, filed on 10th April, 2019, sworn to by Anthony C. Nwokoye, counsel to the appellant. A written address was filed along with the counter-affidavit.

In argument, learned counsel for the appellant contended that by Section 241 (1) of the Constitution, as amended, appeal would lie as of right from the final decision of Court of first instance to the Court of Appeal without leave of Court. He claimed that the lower Court was a Court of first instance and bound by the said provision of the Constitution, as amended. He reasoned that if the provision of the Armed Forces Act was inconsistent with that of the Constitution, it would be declared null and under Section 1 (3) of the Constitution, as amended. He took the view that the respondent was bent on scuttling the cause of justice and misdirect the Court. He relied on paragraphs 5-10 of the counter-affidavit.

On points of law, learned counsel for the respondent posited that the appeal was initiated without due process in the mandatory provisions of Sections 183 and 184 (1) of the Armed Forces Act and Order 18 (1) of the Court of Appeal Rules 2016. He relied on Yar’adua v. Yandoma S.C 4/2014; Bronwen Energy Trading Ltd. v. Crescent African (Ghana) Ltd. LPELR-43796 (CA). He persisted that the two sets of the law were not in conflict. He postulated that the decision of the lower Court was deemed incomplete until promulgated by an appropriate authority. He cited Section 151 of the Armed Forces Act.

Resolution of the Preliminary Objection
To begin with, a preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unilorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225; Amah v. FRN (2019) 6 NWLR (Pt. 1667) 160. For this reason, the law commands the Court to deal with a preliminary objection, when raised in any proceedings, first, see Uwazurike v. A –G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Allanah Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere (2007) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142; Muhammed v. IGP (2019) 4 NWLR (Pt. 1663) 492; Lalapu v. C.O.P. (2019) 16 NWLR (Pt. 1699) 476. I will obey this legal commandment so as not to insult the law. The objector’s objection seeks to terminate the appellant’s appeal in limine on a single vitriolic ground of want of jurisdiction.

The gravamen of the appellant’s chief grievance is simple, id est, that the appellant failed/neglected to obtain leave of this Court before filing the appeal. The appellant weaved/hedged his grouse on the provision of Section 183 of the Armed Forces Act. Being the cynosure of the objection, it is imperative to pluck it out, where it is domiciled or ingrained in the statute book, verbatim ac litteratim, thus: 183. Right of appeal
Subject to the following provisions of this Part, an appeal shall lie from decisions of a Court-martial to the Court of Appeal with the leave of the Court of Appeal.
Provided that, an appeal as aforesaid shall lie as a right without the leave of the Court of Appeal from any decision of a Court-martial involving a sentence of death.
This provision is submissive to easy appreciation. To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. Aminu – Kano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25;Dahiru v. State (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Bababe v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamudu v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the beacon in the interpretation of the provision.
The provision, Section 183 of Armed Forces Act, displayed above, in an unequivocal term, mandates an appellant, who is aggrieved/incensed by the decision of a Court-martial, the lower Court herein, to seek for and obtain the leave of this Court before filing his appeal save the decision involves a sentence of death. The draftsman of the provision employed the word “shall” which, in this context, implies compulsion/mandatoriness, see Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 407; Agbiti v. Nigeria Navy (2011) 4 NWLR (Pt. 1236) 175; Taiwo v. Adegboro (2011) 11 NWLR (Pt. 1259) 502. In the sight of the law, leave, in this context, signifies permission, see S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67 718/1987 2 NSCC, Vol. 18, 1219; Garba v. Omohkodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179.
In due obeisance to the expectation of the law, I have consulted the record, the touchstone of the appeal, especially at the residence of the decision of the lower Court on sentencing which monopolises pages 327 and 328 thereof. I have perused the pronouncement on sentencing, which is comprehension-friendly, with the finery of a tooth-comb. In the twilight of it, the lower Court proclaimed: “In view of the foregoing, this Honourable Court hereby sentences the convict…Pte Umoru Rufai {the Appellant}…to ten years imprisonment with effect from today being the 15th of December, 2016”. It is decipherable from this clear sentence declaration, that the punishment meted out to the appellant by the lower Court was totally, divorced from death sentence. It stems from the sentence, that the appellant’s case, on the footing of the terms of imprisonment, falls outside the slim perimeter of the proviso in the provision. In other words, since the sentence, allocated to the appellant by the lower Court, was not death sentence, he was bound, willy-nilly, to seek and procure the leave of this Court before filing his notice of appeal. The appellant starved this Court of any bubble of evidence of fulfillment of the requirement of this mandatory provision. The appellant, frontally, fractured the inviolable requirement of the provision. This constitutes a serious coup de grace in the life of his appeal.

It is trite, that once a penal legislation has prescribed a mode of doing an act, that procedure, decreed therein, must be adhered stricto jure, devoid of judicial discretion, seeTanko v. State (2009) 4 NWLR (Pt. 1131) 430; Edibo v. State (2007) 13 NWLR (Pt. 1051) 306; Yusuf v. State (supra); Oguno v. State (2011) 7 NWLR (Pt. 1246) 314; Stephen v. State (2013) 8 NWLR (Pt. 1355) 153; Usman v. State (2014) 12 NWLR (Pt. 1421) 207; Saraki v. FRN (2018) 16 NWLR (pt. 1646) 405. Indisputably, the Armed Forces Act warehouse flood of penal provisions. In due fidelity to the law, the relevant penal provisions must be fulfilled before this Court will be clothed with jurisdiction to entertain the appeal.
The consequence of a party’s failure to obtain leave of Court is far-reaching in adjudication. Where leave of Court, trial or appellate, is required for filing an action and a party ignores seeking and obtaining the requisite leave before filing same, the action is rendered incompetent, see Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257; Obasi v Mikson Est. Ind. Ltd. (2016) NWLR (Pt. 1539) 335; Otti v Ogah (2017) 7 NWLR (Pt. 1563) 1; Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290; Mato v. Hember (2018) 5 NWLR (Pt. 1612) 258; Mohammed v. State (2018) 13 NWLR (Pt. 1635) 85; Dankofa v. FRN(2019) 9 NWLR (Pt. 1678) 468; Nweke v. FRN (supra). It flows from this inelastic position of the law, that the appellant’s failure to secure the permission of this Court before the initiation of the appeal infests it with an indelible incompetence.
In an avowed bid to castrate the objection, the appellant invented the defence of appeal as of right, as inuring to him, on final decision. The defence is erected on the provision of Section 241 (1) of the Constitution, as amended. It provides:
241-(1) An appeal shall lie from decisions 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.
It is settled law, beyond any peradventure of doubt, that the Constitution, the fons et erigo of our laws, creates two categories of rights of appeal to the Court of Appeal. Indeed, “While Section 241 consecrates appeals as of right from the Federal High Court or a High Court, Sections 242 ordains rights of appeal with the leave of the Federal High Court, High Court or the Court of Appeal.” See FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 168, per Nweze, JSC; Muhammed v. IGP (2019) 4 NWLR (Pt. 1663) 492; Dankofa v. FRN (supra). The learned appellant’s counsel, taking sanctuary/shelter under the provision of Section 241 (1) (a) (supra), insisted that the appellant’s right of appeal was as of right.
In the first place, the provision of Section 241 (1) (a) supra, upon which the learned appellant’s counsel staked the defence, is rebellious to any ambiguity. In this wise, I will accord to it its ordinary meaning without any interpolations in its construction. A clinical examination of the provision, amply, demonstrates that it does not showcase the lower Court, the General Court Marshall, as one of the Courts affected by it. Put differently, the lower Court is not mentioned as one of the Courts whose final decision will attract/bestow appeal as of right on the appellant. It is a recognised canon of interpretation of statutes, which encompass the grundnorm, the Constitution, that the express mention of a specific thing excludes the other things unmentioned. In the Latin days of the law, it was encapsulated thus: Expressio unius est exclusio alterius or Inclusio unius exclusio alterius or Enumeratio unius exclusio alterius. The case-law has since endorsed, in toto, this rule of interpretation, see Ehuwa v. O.S.I.E.C (2006) 18 NWLR (Pt.1012) 544; Mumuni v. FRN (2018) 13 NWLR (1637) 568; Ecobank (Nig.) Ltd. v. Honeywell Flour Mills PLC (2019) 2 NWLR (Pt. 1655) 55; Oni v. Gov., Ekiti State (2019) 5 NWLR (Pt. 1664)1.
It is a elementary law, that the primary duty/function of the Court/Judex is jus dicere, not jus dare, id est, to declare what the law is and not to formulate one, see Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44); Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Coca-cola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Dahiru v. State (supra). In Obusez v. Obusez (2007) 10 NWLR (Pt. 1043) 430 at 451, Tobi, JSC, incisively, declared:
The function of a Court of law is to interpret the provisions of the Constitution in the clear tenor of the words contained in it. A Court of law has no jurisdiction to import into the Constitution or impute into the Constitution words which are not used therein. That will not bring out the intention of the makers of the Constitution and it is the duty of the Court to interpret the Constitution in line with the words used and the intention of the makers of the Constitution.
See, also, Bello v. Yusuf (2019) 15 NWLR (Pt. 1695) 250.
This magisterial pronouncement, in these ex-cathedra authorities, consolidates my view point that this Court is derobed/divested of the jurisdiction to count in the lower Court in Section 241(1) of the Constitution, as amended. To accede to the learned appellant’s counsel’s scintillating and salivating submission will constitute a flagrant defilement of the law and judicial sacrilege. I, therefore, dishonour the appellant’s counsel’s enticing invitation to do underserved violence to the sacrosanct prescription of Section 241 (1) supra in order not to offend the law.
In the face of this brief legal anatomy, I am drained of the requisite jurisdiction to factor in the lower Court as one of the Courts enumerated in Section 241(1) (a) supra in order to accommodate the appellant. The law does not grant this Court the licence to indulge in such untoward and injudicious exercise which will smell of judicial legislation – a judgment wearing the garb or colouration or flavour of a statute. That will tantamount to an unjustifiable usurpation, trespass and invasion of the exclusive constitutional territory of the legislature. Such is not only antithetical to the raison d’etre for adjudication, but an amputation of the constitutional doctrine of separation of powers. The appellant cannot, under any guise harness/tap from the beneficent provision of Section 241 (1) (a) supra in the glaring absence of non-mention of it. The provision of Section 183 of the Armed Forces Act, which is an existing law enacted by the National Assembly, governs the appellant’s right of appeal from the decision of the lower Court to this Court. The law has so confirmed.
A notice of appeal, usually located in the twilight of most records of appeals, is an originating process that initiates an appeal. It is the appellate version of originating process through which actions are commenced in Courts of first instance. It has been described as the nucleus, substratum, bedrock, foundation and spinal cord of every appeal. It is sine qua non for the existence of an appeal in that it gives birth to the latter. Thus, it occupies a kingly position in the appellate adjudication. Given this olympian status, where a notice of appeal is defective, for whatever reason, it contaminates the competence of an appeal, which it ought to breathe life into, and, de jure, impinges on the jurisdiction of the Court, see FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 552.
Indubitably, the appellant’s failure to obtain the requisite leave, as ordained by Section 183 of the Armed Forces Act, erodes/disrobes this Court of the jurisdiction to entertain the appeal. The foregoing dissection not only punctures/disables the defence, but, with due reverence, exposes the poverty of the learned appellant’s counsel’s seemingly dazzling submission on the point. The argument cannot fly.

Having regard to this brief judicial survey, conducted in due consultation with the espoused law, the appellant’s appeal, as initiated and encapsulated in the notice of appeal, filed on 21st June, 2018, without the imprimatur of this Court, is tainted with incompetence. In effect, the preliminary objection, which the respondent set up in order to snuff life out of the appellant’s appeal, at its infancy stage, is sustainable in law. In the result, I have no choice than to resolve the solitary issue in favour of the respondent and against the appellant.
Having found that this Court is divested of the jurisdiction to hear the appeal, the law makes it idle to consider the other issues canvassed by the feuding parties. In Ikechukwu v. FRN (2015) NWLR (pt. 1457) 1 at 21, Nweze, JSC, incisively, declared:
It cannot be gainsaid that, as a general rule, an intermediate Court, like the lower Court, (Court of Appeal) has a duty to pronounce on all the issues before it… However, there are some exception to the above rule that applies to the lower Court, as an intermediate Court. Thus, for example, where the said Court, as an intermediate Court, decided that it lacks jurisdiction in an before it, it, then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction…
See, also, Umezinne v. FRN (2019) 3 NWLR (Pt. 1660) 532; Lalapu v. C.O.P (2019) 16 NWLR (Pt. 1699) 476.
Where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain. It is one of striking it out, see Ikechukwu v. FRN (supra); Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481.

On the whole, having upheld the respondent’s preliminary objection, the destiny of the appeal is plain. It is rendered incompetent and deserves the penalty of striking out. Consequently, the appellant’s appeal, filed on 21st June, 2018, is hereby struck out for being incompetent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in entire agreement with the judgment prepared by my learned brother, Obande Festus Ogbuinya, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead ruling of my learned brother, FESTUS OBANDE OGBUINYA, JCA and I agree with the reasoning and conclusion.
I also find the appeal incompetent and it’s hereby struck out. I abide by all consequential orders in the lead judgment.

Appearances:

A.C. Nwokoye, Esq. For Appellant(s)

Dosie Uwasomba, Esq., with him, Basil Ogoke, Esq. For Respondent(s)