ZENITH BANK V VIN CHINNY
March 23, 2025ABUBAKAR INJIDDA GAGARA V. DANIEL YADZIMAI
March 23, 2025Legalpedia Citation: (2022-07) Legalpedia 00233 (CA)
In the Court of Appeal
Holden at Yola
Fri Jul 22, 2022
Suit Number: CA/YL/45/21
CORAM
CHIDI NWAOMA UWA
MOHAMMED L. ABUBAKAR
JAMILU YAMMAMA TUKUR
PARTIES
AHMED AMINU MUJELI
APPELLANTS
AMINU ABAUBAKAR BOBBOI
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This appeal is against the Judgment of the Adamawa State High Court (lower court) in its appellate jurisdiction. The 1st Respondent filed a suit at the Upper Area Court No. 3 (trial court) against the Appellants and the 2nd Respondent seeking to void the purported sales of 39 plots of land, after evidence was adduced from both parties, judgment was given against the 1st Respondent who was dissatisfied with the decision of the trial court and has appealed against same at the lower court same day. The lower court set aside the judgment of the trial court and ordered the Appellants to pay the 1st Respondent the remaining balance of Thirty-nine (39) plots of land, allegedly with no value attached to it. It was made out that the 1st Respondents at the trial and lower court did not claim the balance of the proceeds of sale of the plots of land from the Appellants. Hence, the appellants have appealed to this instant court.
HELD
Appeal Struck Out
ISSUES
- “Whether the lower court Judge was right to order for the payment of the remaining balance of 39 plots of Land contrary to the claim and evidence of the 1st Respondent.
- Whether the evidence adduced (both oral and documentary) before the trial court, the lower court was right to find and hold that the dismissal of the 1st Respondent’s case at the trial court was a grave injustice.”
RATIONES DECIDENDI
PRELIMNARY OBJECTION – WHETHER OR NOT A PRELIMINARY OBJECTION SHOULD BE DETERMINED BEFORE THE SUBSTANTIVE APPEAL
It is settled law that where a preliminary objection has been raised by a party, it should first be determined before determining the substantive appeal if need be. I am therefore, duty bound to first determine the preliminary objection raised by the 1st Respondent challenging the competence of the appeal. Where successful, it would have the effect of terminating the appeal. I will therefore first examine the preliminary objection. The preliminary objection attacks the entire appeal. See, my earlier decisions in ADAMU & ORS BAJU II and ORS (2021) LPELR – 53934 (CA) PP. 8 – 9, PARA. C; OKOROCHA VS. UBA BANK & ORS (2018) LPELR – 45 122 (SC) P. 13, PARAS. E – F, UMANAH VS. NDIC (2016) LPELR – 42556 (SC) P. 5, PARAS. A – C, ALL STATES TRUST BANK LTD. VS. KING DAVIDSON ENTERPRISES (NIG) LTD (2000) LPELR – 10631 (CA) P. 5, PARAS. B – C and ELAM VS. ADAMAWA STATE JUDICIAL SERVICE COMMISSION (2021) LPELR – 55980 (CA) PP. 17 – 18, PARAS. D – B. I would therefore first determine the preliminary objection. Per – CHIDI NWAOMA UWA, JCA.
RIGHT OF APPEAL – LEAVE OF COURT IS A CONDITION PRECEDENT TO THE RIGHT OF APPEAL
There is nothing on record to show that the Appellants herein sought and obtained the leave of either the lower court or this court before filing their Notice of Appeal. The Appellants have not made out that they sought the required leave before filing their Notice of Appeal. By not doing so, the Appellants failed to effectively activate the adjudicative powers of this court to entertain or determine this appeal as rightly argued by the learned counsel to the 1st Respondent. It is the law that where an appeal cannot be filed as of right (as in this case where the lower court sat in its appellate jurisdiction), the leave of court is a condition precedent to the exercise of the right of appeal. Per – CHIDI NWAOMA UWA, JCA.
LEAVE OF COURT – EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT BEFORE APPEAL
The failure to obtain the required leave renders any appeal filed incompetent and no jurisdiction is conferred on the appellate court to entertain the appeal. The effect of failure to obtain the leave of court to appeal where same is required has been explained by the Apex Court, in BRIGADIER GENERAL DONATUS IDADA IKPONMWEN (RTD) VS. CAPT. JOHN AIREN ASEMOTA & ANOR (2022) LPELR – 56594 (SC) P. 22, PARAS. B-D, his lordship, Peter – Odili, JSC held thus:
“It needs to be reiterated that when the seeking and obtaining leave to appeal constitute a condition precedent for the exercise of the right to appeal, failure to seek leave and obtain the mandatory leave renders the appeal incompetent. The purported appeal being a nullity or an illegality is tantamount to there being no appeal. See, OLOWOSOKE VS. OKE (1972) 11 SCI; NALSA & TEAM ASSOCIATES VS. NNPC (1991) 8 NWLR (PT. 212) 652 at 666.”
Per – CHIDI NWAOMA UWA, JCA.
RIGHT OF APPEAL – THE PROVISIONS OF THE LAW ON RIGHT OF APPEAL TO THE COURT OF APPEAL FROM THE STATE HIGH COURT OR FEDERAL HIGH COURT AS OF RIGHT
The right of Appeal to the Court of Appeal from the decisions of the Federal High Court or State High Court is provided for by Sections 241, 242 and 243 of the 1999 Constitution (as amended) and Section 24 Part (v) of the Court of Appeal Act, CAP 36 LFN, 2004. Section 241(1) has clearly given situations where appeals from the Federal High Court or a High Court to the Court of Appeal as of Right. Whereas Section 242(1) has made provision subject to the Provision of Section 241 of the Constitution above for situations where the leave of the lower court or their court would be required before an appeal could be competently filed. Per – CHIDI NWAOMA UWA, JCA.
LEAVE OF COURT – APPEALS FROM THE DECISION OF A HIGH COURT IN ITS APPELLATE JURISDICTION REQUIRES LEAVE OF COURT
The law is that an appeal from the decision of a High Court given in its Appellate jurisdiction requires the leave of court, either of the High Court or the Court of Appeal. See, PRINCE ADELUYI BUSUYI VS. COMMISSIONER OF POLICE (2016) LPELR – 40864. In such a situation, it is immaterial that the decision is a final one, where the issues involved are of law alone or facts or mixed law and facts. The leave of the court is required before a competent appeal could be filed. In DANLADI DEME & ORS VS. ALABI RWANG & 1 OR (2010) LPELR – 4032 in this court, his lordship Rhodes – Vivour, JCA (as he then was) held that:
“An appeal from the decision of a High Court delivered in its Appellate jurisdiction requires the leave of the High Court or this court and non-compliance renders the Appeal incompetent.”
Per – CHIDI NWAOMA UWA, JCA.
ABSENCE OF LEAVE OF COURT – EFFECT OF ABSENCE OF LEAVE ON THE JURISDICTION OF THE APPELLATE COURT
Therefore, the absence of leave having been sought and granted in the present appeal which arose from the decision of the High Court delivered in its appellate jurisdiction renders the Appeal incompetent and robs the court of the jurisdiction to hear and determine the appeal. See, also UKPONG VS. CFF (2006) 19 NWLR (PT. 1013) 187. Per – CHIDI NWAOMA UWA, JCA.
RIGHT OF APPEAL – LEAVE OF COURT IS A REQUISITE CONDITION PRECEDENT
The requisite leave is a condition precedent to the exercise of the Right of Appeal under Section 242(1) of the Constitution. Without fulfilling the required condition precedent, of obtaining the leave of court before the appeal was filed, no right of appeal would be vested on the Appellants. The failure in this case of the Appellants to have obtained the requisite leave as prescribed by Section 242(1) of the Constitution is fatal to the Appellants’ Appeal which is incompetent. See, AREMU & ORS VS. IMMAM (2016) LPELR – 41243 (CA) PP. 2 – 3 PARAS. F – C, AYANBOYE VS. BALOGUN (1990) 5 NWLR 392 at 410, MOSOBA VS. ABUBAKAR (2004) LPELR – 5252 (CA) PP. 7 – 9, PARA. A and IFEAJUNA VS. IFEAJUNA & ANOR (1998) LPELR – 6181 (CA) P. 16, PARAS. A – D, his lordship Akpabio, JCA in a similar condition that arose where the required leave to appeal against the decision of the High Court in its appellate jurisdiction held thus:
“………… since the appeal of the appellant was against a decision of the High Court sitting in its appellate jurisdiction, and not as a court of first instance, leave of the said High Court or of this court should have been obtained (see S. 221 (1) of the Constitution of the Federal Republic of Nigeria (1999). Since no such leave has been obtained, the appeal is incompetent for failure to comply with a condition precedent. It is accordingly also hereby struck out by me with N2,000.00 costs in favour of respondent.”
Per – CHIDI NWAOMA UWA, JCA.
APPEAL AS OF RIGHT – DECISION OF A HIGH COURT SITTING IN ITS APPELLATE CAPACITY CANNOT BE CHALLENGED ON APPEAL AS OF RIGHT
The principles of law canvassed by the learned counsel to the Appellants are correct but, not applicable in this appeal and the objection challenging the competence of the appeal, I therefore discountenance the submissions of the learned counsel to the Appellants in that respect. I hold that the decision by the lower court was in its appellate capacity and cannot be challenged on appeal as of right. Per – CHIDI NWAOMA UWA, JCA.
JURISDICTION – LEAVE IS A CONDITION PRECEDENT THAT ACTIVATES THE JURISDICTION OF AN APPELLATE COURT
The Appellants failed to fulfill the condition precedent to activate the jurisdiction of this court to entertain the appeal which is fatal to the Appellant’s appeal in which leave was not first sought and obtained. Per – CHIDI NWAOMA UWA, JCA.
PRELIMINARY OBJECTION – EFFECT OF A PRELIMINARY OBJECTION BEING SUCCESSFUL, UPHELD AND SUSTAINED
In sum, the 1st Respondent’s preliminary objection succeeds and it is hereby sustained. Having upheld the objection, there would be no need to look into the substantive purported incompetent appeal which would be of no benefit to any of the parties but, would be an academic exercise and a waste of precious judicial time. See, NASKO & ANOR VS. BELLO & ORS (2020) LPELR – 52530 (SC) PP. 12 – 13, PARAS. B and AKPAN, OYENEYE VS. ODUGBESAN (1972) 4 (SC) 244, my earlier decision in EL – YADI MOTORS LTD VS. FRN (2019) LPELR – 47151 (CA) PP. 28 – 29, PARAS. A – E and ECOBANK VS. HONEYWELL FLOUR MILL PLC (2018) LPELR – 45124 (SC) P. 47, PARAS. A – F, per Okoro, JSC. Per – CHIDI NWAOMA UWA, JCA.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria (1999) as amended
