EMMANUEL EGHAREVBA V FEDERAL REPUBLIC OF NIGERIA & ORS
April 25, 2025AISHA JUMMAI ALAHASSAN & ANOR V MR DARIUS DICKSON ISHAKU & ORS
April 25, 2025Legalpedia Citation: (2016) Legalpedia (CA) 97151
In the Court of Appeal
HOLDEN AT YOLA
Wed Feb 24, 2016
Suit Number: CA/J/279/2014
CORAM
PARTIES
1. AMINU CHINDO ,2. BENJAMIN YUNUSA,3. TIMOTHY YINUSA
LAMALANG SANDA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Appellants instituted an action against the Defendant/Respondent at the Upper Area Court, claiming title to the land in dispute. The Defendant/Respondent on the other hand counter claimed, contending that the land was found and cleared by his grandfather many years ago. The Upper Area Court awarded title to the Defendant/Respondent. Dissatisfied, the Appellants appealed to the High Court of Gombe State clothed in its appellate jurisdiction, which Court after hearing the Appeal, dismissed same for lacking in merit. Still displeased with the Judgement, the Appellants further appealed to the Court of Appeal.
HELD
Appeal Struck out
ISSUES
Whether from the evidence on record, the learned trial Judge was right in dismissing the Appeal of the Appellants without analysing issues two and three to ascertain their propriety or otherwise. (Ground 2) Whether from the evidence on record, the learned trial Judge was right in dismissing the Appeal without making a proper finding, yet heavily relied on the findings of the Upper Area Court, Boh erroneously. (Ground 1)
RATIONES DECIDENDI
RIGHTS OF APPEAL- TYPES OF RIGHTS OF APPEAL
“Section 241 and Section 242 of the Constitution of the Federal Republic of Nigeria 1999, (as amended) create two different rights of appeal, namely:
(i)The right of appeal as of right (Section 241(1); and
(ii)The right of appeal with the leave of court (Section 242).
Whereas an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by statute, leave of either the lower Court or this Court is a condition precedent to his exercise of the right of appeal with leave. It is trite that where that condition precedent is necessary but has not been fulfilled, there is no appeal. See Nalsa & Team Associates V NNPC (1991) LPELR-1935 (SC); & Olowosoke V Oke (1972) 11 SC 1.”
RIGHTS OF APPEAL- CONSTITUTIONAL PROVISION OF THE RIGHTS OF APPEAL
“For an Appeal to be as of right from the High Court, it must fall under Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Where it does not, leave must be obtained in order to ignite the jurisdiction of this Court. The effect of not complying with this Constitutional provision for an Appeal where leave is required, is that it becomes fatal to the Appeal. The use of the word ‘shall’ in the above provision makes leave a mandatory requirement which an Appellant cannot escape where his Appeal is outside the scope of Section 241 of the 1999 Constitution. This is because the word ‘shall’ when used in a statute connotes a command or what is legally unavoidable or inescapable, and is mandatory. While ‘leave’ is defined as: ‘seeking permission to appeal’. See Sirika V Bello (2011) 2 NWLR (Pt. 1232) 452 at 466, paras E-F; & Ekwerekwu V Egboche (2010) 14 NWLR (Pt. 1213) 194 at 203, para F; Metal Construction (WA) Ltd V D.A. Migliore (1990) LPELR-1869 (SC).”
POWER OF COURT- BASIS FOR THE EXERCISE OF THE POWER OF COURT
“It is settled law that courts of law can only exercise their powers where they possess jurisdiction in the matter. The power of a court does not fall from heaven but can only be exercised if the court has jurisdiction to hear the matter. Under Section 241(1) (a) and (b) of the said Constitution, a person aggrieved by a decision of the High Court can appeal as of right in:
(1)“An appeal shall lie from the 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 in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d)Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, or is likely to be, contravened in relation to any person;
(e)Decisions in criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions 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) Where an injunction or the appointment of a receiver is granted or refused,
(iii)In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of malfeasance or otherwise,
(iv)In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) In such other cases as may be prescribed by any law in force in Nigeria.”
Section 242 of the same Constitution provides for other situations wherein Appeals from the Federal High Court and State High Courts to the Court of Appeal are allowed, but with leave. For ease of reference, it provides as follows:
(1)“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie form the 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.”
–
APPEAL WITH LEAVE OF COURT – FUNDAMENTAL REQUIREMENT IN APPEALS WITH LEAVE OF COURT
“Where an appeal can only be lodged with the leave of Court, it is the leave that confers jurisdiction on the Court. It is thus vital and fundamental that leave must be obtained before the Appeal is filed. See Ikweki V Ebele (2005) LPELR-1490(SC) 1 at 42.”
LEAVE OF COURT – EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT WHEN SAME IS REQUIRED
“Consequently, the failure to obtain the leave of Court, where such is necessary, to file a particular ground of appeal from which an issue is raised for the resolution of a case, renders both the ground of appeal and the issue so formulated there from, incompetent. Where the leave of Court is required to appeal, until such leave is granted, no valid Notice of Appeal would be deemed to have been filed. Thus, an appellate Court lacks the jurisdictional competence to hear and determine any Appeal filed without the leave thereof, where such leave is mandatory. See Ene V Asikpo (2010) 10 NWLR (Pt. 1203) 477 at 509, paras B-C; Gambomi V Bintumi (2010) 15 NWLR (Pt. 1217) 463 at 471, paras F-G; Nwachukwu V State (2007) LPELR-8075 (SC); Owuda V Lawal (1984)4 SC 145; & Adetutu V Aderohunmu (1981) 1 SCNLR 515.
NOTICE OF APPEAL – EFFECT OF A DEFECTIVE NOTICE OF APPEAL ON THE JURISDICTION OF COURT
“In FBN Plc V TSA Industries Ltd (2010) LPELR-1283 (SC) 1 at 49, Adekeye, JSC stated the law clearly thus:
“A Notice of Appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain. Anadi V Okoti (1972) 7 SC 57; CBN V Okojie (2004) 10 NWLR (Pt. 882) pg. 488; Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) pg. 622.”
Again in Imunze V FRN (2014) LPELR-SC.354/2011 1 at 13-14, Rhodes-Vivour, JSC had this to say on the subject:
“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with the statutory provisions or the relevant rules of court… The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form. See Olowokere V African Newspapers (1993) 5 NWLR (Pt. 295) 583.”
LEAVE TO APPEAL – EFFECT OF A FAILURE TO OBTAIN LEAVE TO APPEAL WHEN SAME IS REQUIRED
“Where an aggrieved person who requires leave to appeal fails to obtain such leave before bringing such Appeal, the Appeal is incompetent.”
NOTICE OF APPEAL- STATUS OF A NOTICE OF APPEAL
“A Notice of Appeal is the foundation of the proceeding before an appellate court. It is the initiation process of any appeal. Where a Notice of Appeal contains any error, or is defective or deficient, it becomes incompetent. Any appeal founded on an incompetent notice, is invalid and renders any proceeding founded on it also invalid, null and void. An appellate court has power to strike it out for being incompetent as it touches on the issue of jurisdiction. See Obidoa V Marchie (2010) LPELR-4668 (CA).”
LEAVE OF COURT- STATUS OF AN APPEAL WHERE THE LEAVE OF COURT THOUGH REQUIRED WAS NOT OBTAINED
“Where an appeal requires leave of Court to be obtained and such leave was not sought and obtained, such an Appeal is incompetent ab initio, cannot be entertained and so will be struck out. This is obviously because a court of competent jurisdiction has no jurisdiction to hear an incompetent Appeal. In the instant case, the Appeal being incompetent, this Court lacks the jurisdiction to hear and determine it on its merits. See Ekwerekwu V Egboche (supra) 206, paras D-F.”
LEAVE TO APPEAL – EFFECT OF FAILURE TO OBTAIN LEAVE TO APPEAL BEFORE FILING AN APPEAL
“Failure to seek and obtain leave before filing the Appeal therefore, makes the Appeal incompetent. Instead, the Appellants, by filing a Notice of Appeal from the decision of the trial High Court sitting in its appellate jurisdiction without leave, is equated to having not filed anything before this Court, and the jurisdiction of this Court is by virtue of that very reason, ousted. See: Kashadadi V Sarkin Noma (2007) LPELR-1673 (SC); The Nigeria Airforce V Shekete (2002) LPELR-3193 (SC); UBN Plc V Sogunro (2006) LPELR-3393 (SC); Akinwale V BON (2001) 4 NWLR (Pt. 704) 448; Nwosu V Offor (1997) 2 NWLR (Pt. 487) 274; (1997) 1 SCNJ 193; NNS Co. Ltd V Establissment Sima of Vaduz (1990) LPELR-2004 (SC); Nwadike V Ibekwe (1983) 1987) 4 NWLR (Pt. 67) 718; Oluwole V LSDPC (1983) 5SC 1; State V Omeh (1983) 5 SC 20; Ojemen V Momodu II (1983) 1 SCNLR 188.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria1999 (as amended)|
