(2021) Legalpedia (CA) 20616
In the Court of Appeal
HOLDEN AT GOMBE
Sunday, May 30, 2021
Suite Number: CA/G/286/2019
JUMMAI HANNATU SANKEY
TUNDE O. AWOTOYE
AHMADU ZUBARU || HYELDUWA KANO
AREA(S) OF LAW
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Plaintiff commenced a suit against the Defendant over a land dispute at the Uba Sharia Court, wherein he claimed ownership of the farmland, which his father inherited from his grandfather. The trial court entered judgment in favour of the Plaintiff but the Defendant appealed to the Upper Sharia Court. The Respondent successfully appealed to the High Court of Justice, Borno State, it affirmed the judgment of the Uba Sharia Court. Dissatisfied with the lower court’s decision, the Appellant filed a Notice of Appeal to this Court, contending that the grounds of appeal before the lower were grounds of facts, mixed law and facts which by virtue of section 241 (1) & (2) of the 1999 constitution (as amended) required that leave must be first sought and obtained. He submitted that the failure of the respondent to seek the leave, robbed the lower court of its jurisdiction to hear and determine the appeal.
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Appeal Struck Out
ISSUES FOR DETERMINATION
Whether or not the lower court was not robbed of its jurisdiction to hear and determine the appeal filed by the respondent before it having regards to the grounds of appeal and the issues for determination raised by the Respondent.
RIGHT OF APPEAL – PURPORT OF THE PROVISIONS OF SECTION 241 AND 242 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) ON THE RIGHT OF APPEAL FROM THE HIGH COURT OR FEDERAL HIGH COURT TO THE COURT OF APPEAL
“My lords, the provisions of section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) govern the right of appeal from the High Court or Federal High Court to this court. I hereunder reproduce the two sections for ease of reference in this judgment. “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: b.Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. c.Decisions any civil or criminal proceedings on question as to the interpretation or application of this Constitution: d.Decision in any civil 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. Decision in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence or death. f.Decision 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.There an injunction or the appointment of a receiver is granted or refused. iii.In the case of a decision determining the ease of a creditor or the liability of a contributory of order officer under any enactment relating to companies in respect of misfeasance of otherwise, iv.In the case of a decree nisi in matrimonial cause or a decision in an admiralty action determining liability and v.In such other case as may be prescribed by an Act of the National Assembly 2. Nothing in this section shall confer any right of appeal— a. from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action. b. from an order absolute, or the dissolution or nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded had not appealed from that decree nisi; and c. without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court or High Court or the court of appeal 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. Section 241 of the 1999 Constitution (as amended) provides for appeals as of right from the High Court or Federal High Court to the Court of Appeal. Under the section there is no provision for further appeal. In which case where an appeal is from a decision of the High Court or Federal High Court not sitting as a court of first instance it is not covered by section 241 of the constitution (as amended ) such a decision not delivered by the said court in exercise of its original jurisdiction is not provided for under Section 241 of the Constitution but under Section 242 of the Constitution (as amended). But, such a decision of the High Court or Federal High Court is covered by Section 242 (1) of the Constitution (as amended). Appeals from such decision shall lie to this court with leave of court. See Kiren Vs Pascal & Honey Well Flour Mills Plc (2018) LPELR – 451244(SC); Global West Vessel Specialist (Nig) Ltd Vs Nigeria Nlg Ltd & Anor (2017) 8NWLR (PT 1568)381. This appeal, being a further appeal, requires leave of court before it is filed. See Odofin & Anor Vs Agu & Anor (1992) 3NWLR PART 229 P. 350. See also Ijor Vs Igbagiri (2014) LPELR – 23371 (CD).
LEAVE OF COURT – EFFECT OF FAILURE TO SEEK THE LEAVE OF COURT WHEN SAME IS A CONDITION PRECEDENT IN FILING A NOTICE OF APPEAL
“Leave of court should have first been sought and obtained before the notice of appeal was filed. The failure to do so has rendered the notice of appeal in this appeal incompetent and liable to be struck out. According to Dattijo Muhammad J.S.C in Ekemezie Vs Ifeanacho & Ors (2019) LPELR – 46518(SC). “……..Where the appellant failed to acquire the necessary leave this court is completely handicapped. The appeal not having been commenced by the due process the law must be discountenanced. See Madukolu Vs Nkemdilim (1962) 2 SC NLR 34, AND Ukwu Vs Bunge (1992) 8 NWLR (PT 678) 572.”
APPEAL – WHETHER THE COURT OF APPEAL CAN EXERCISE ITS JURISDICTION IN AN APPEAL AGAINST A DECISION OF THE HIGH COURT WHERE LEAVE OF COURT HAS NOT BEEN SOUGHT AND GRANTED
“I am in agreement with his lordship’s reasoning and conclusion that by virtue of Section 242(1) of the 199 Constitution, leave is required to approach this Court on appeal against the decision of the High Court sitting in its appellate jurisdiction. Where such leave has not been sought and granted, this Court lacks jurisdiction to proceed. Any further step taken by it would be in vain and futile, the Appeal being incompetent – Ekemezie V Ifeanacho (2019) LPELR-46518(SC) per Dattijo Muhammad, JSC”.
JURISDICTION OF COURT – EFFECT OF WHEN A COURT IS ROBBED OF JURISDICTION
“I wish to also chip in a few words of my own in respect of the issue relating to jurisdiction. It is common knowledge that a person cannot build a house on nothing or a faulty foundation. Hence, you cannot put something on nothing and expect it to stand see. APP v. Obiano & Ors(2018) LPELR-44646(CA). Also, when a court is robbed of jurisdiction, the hands of the Court becomes tied by the law and nothing can untie it unless it has jurisdiction see PDP & Ors v. Ezeonwuka & Anor(2017) LPELR-42563(SC)”.
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)|
-M. S. UMAR ESQ. M. UMARA ESQ. M. B. ASKIRA ESQ. A. H. MUSA ESQ. Y. A. ADAMU ESQ. FOR THE APPELLANT|-A. R. ABUDULSALAM ESQ. A. I. BELLO ESQ. G. M. GHAJI ESQ. A. Z. IBRAHIM ESQ. FOR THE RESPONDENT.|
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