BODE THOMAS V FEDERAL JUDICIAL SERVICE COMMISSION
March 21, 2018THE CHARTERED INSTITUTE OF ARBITRATORS Vs THE CHARTERED INSTITUTE OF ARBITRATORS (NIG) LTD/GTE
March 27, 2018LEGALPEDIA CITATION: LER[2018]SC.457/2016
Areas Of Law:
Appeal, Court, Practice And Procedure
Appeal, Court, Practice And Procedure
Summary Of Facts
The Appellants were charged before the Federal High Court with various offences contrary to Sections 15(2)(d), 15(2)(b), 17(b) and 1 of the Money Laundering (Prohibition)Act 2011 as amended in 2012.At the close of the Prosecution’s case, they jointly made a no case submission which was overruled and the Appellants separately filed their appeals at the Court of Appeal, Abuja Division.
The Respondent filed a preliminary objection against the competence of the appeals and urged the lower court to determine same on the basis of its lone issue. The lower court upheld the Respondent’s preliminary objection and resolved the lone issue in favour of the Respondent.
It consequently dismissed the appeals. Aggrieved by the lower court’s ruling, the Appellants have further appealed to this Court. In appeal SC.457/2016, the Appellant’s contention was that the lower court’s finding that the entire grounds of the appeal before it are at best grounds of mixed law and facts is manifestly wrong, that the appeal pursuance to Sections 241(1) and 242(1) of the 1999 Constitution as amended, being founded on ascertained facts and/or ground of law alone, requires no leave of either the trial court or the lower court for its competence, whilst the Respondent contended that the Appellant’s appeal being interlocutory, he has a duty of obtaining the leave of either the trial or lower court before filing the appeal. Having failed to acquire the leave and all the grounds of appeal being grounds of fact or mixed law and facts, the lower court is right to have adjudged the appeal incompetent.
The Respondent filed a preliminary objection against the competence of the appeals and urged the lower court to determine same on the basis of its lone issue. The lower court upheld the Respondent’s preliminary objection and resolved the lone issue in favour of the Respondent.
It consequently dismissed the appeals. Aggrieved by the lower court’s ruling, the Appellants have further appealed to this Court. In appeal SC.457/2016, the Appellant’s contention was that the lower court’s finding that the entire grounds of the appeal before it are at best grounds of mixed law and facts is manifestly wrong, that the appeal pursuance to Sections 241(1) and 242(1) of the 1999 Constitution as amended, being founded on ascertained facts and/or ground of law alone, requires no leave of either the trial court or the lower court for its competence, whilst the Respondent contended that the Appellant’s appeal being interlocutory, he has a duty of obtaining the leave of either the trial or lower court before filing the appeal. Having failed to acquire the leave and all the grounds of appeal being grounds of fact or mixed law and facts, the lower court is right to have adjudged the appeal incompetent.
Held
Appeals Struck Out
Issues For Determination
Ø Whether the learned Justices of the Court of Appeal were wrong when they struck out the appeal on the ground that all the Grounds of Appeal filed by the Appellant were grounds of mixed law and fact for which prior leave of Court was required by virtue of Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Rationes:
RIGHTS OF APPEAL – CATEGORIES OF RIGHTS OF APPEAL
“My lords, learned counsel are one, and correctly so, that Sections 241 (1) and 242 (1) of the 1999 Constitution as amended having created two rights of appeal, an appeal against the decision of the trial court to the lower court may be either as of right or with leave of either of the two courts below. See Nafiu Rabiu V. State (1981) 2 NCLR 392 and Harriman V. Harriman (1987) 3 NWLR (Pt 60) 244“. PER M.D. MUHAMMAD, J.S.C
LEAVE TO APPEAL – STATUS OF AN APPEAL WHERE LEAVE TO APPEAL IS A CONDITION PRECEDENT AND A PARTY FAILS TO OBTAIN SAME
“Counsel are also right in their submissions that where a party requires leave to appeal and leave is not sought and obtained, the appeal being incompetent cannot be proceeded upon by the Court of Appeal. See Nigeria National Supply Co. Ltd V. Establishment Sima of Vaduz (1990) LPELR-2004 (SC) and Ikweki & ors V. Ebele & anor (2005) LPELR-1490 (SC)”. PER M.D. MUHAMMAD, J.S.C
RIGHT OF APPEAL – REQUIREMENT FOR COMPETENTLY EXERCISING A RIGHT OF APPEAL
“In order to competently exercise a right of appeal, the appellant must come within the provisions of the statute creating that right. See: Moses & Anor. Vs Ogunlabi (1975) LPELR-1914 (SC) @ 5D: Ekunola Vs C.B.N. & Anor. (2013) 15 NWLR (Pt.1377) 224; Bukoye & Ors. Vs Adeyemo & Ors. (2016) LPELR-40852 (SC) (8) 10-11 B-A“. PER K.M.O KEKERE-EKUN,J.S.C
RIGHT OF APPEAL – DISTINCTION BETWEEN APPEAL AS OF RIGHT AND APPEAL WITH LEAVE OF COURT
“By virtue of Sections 241(1) and 242(2) of the 1999 Constitution, a right of appeal to the Court of Appeal from decisions of the Federal High Court or a High Court to the Court of Appeal may be exercised as of right or with leave of the Federal High Court, a High Court or the Court of Appeal. Section 241(1) (a)-(f) provides for appeals as of right while Sections 241(2) and 242(1) provide for appeals with leave. Section 241(1) (a) & (b) provides for appeals as of right from final decisions in any civil or criminal proceeding before the Federal High Court or a High Court sitting at first instance and from any civil or criminal proceeding where the ground of appeal involves questions of law alone”. PER K.M.O KEKERE-EKUN,J.S.C
LEAVE OF COURT TO APPEAL – EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT TO APPEAL WHERE SAME IS A CONDITION PRECEDENT
“Leave to appeal, where required, is a condition precedent to the exercise of jurisdiction by the appellate court. Failure to obtain such leave is fatal. It renders the appeal incompetent and robs the court of jurisdiction to hear it. See: Abdul Vs C.P.C. & Ors. (2014) 1 NWLR (Pt. 1388) 299; U.B.N. Plc Vs Sogunro & Ors. (2006) LPELR-3393 (SC)@ 12-13 D-A; (2006)16 NWLR (Pt.1006) 504; Metal Construction (West Africa) Ltd. Vs Migliore (1990)1 NWLR (Pt.126) 299″.PER K.M.O KEKERE-EKUN,J.S.C
GROUNDS OF APPEAL – REQUIREMENT FOR THE COMPETENCE OF GROUNDS OF MIXED LAW AND FACTS
“A glance at the grounds of appeal show clearly that they are all grounds of mixed law and facts which as I said needed the leave of court to make them competent. Failure to obtain leave rendered the grounds and the entire appeals incompetent.See j. B. Ogbechie v Gabriel Onochie & ors (1986) 1 SC 54; (1986) NWLR (pt 23) 484, Global West Vessel Specialist Nig. Ltd. v Nigeria LNG Ltd. (2017 LPELR -41987 (SC)“.PER J.I. OKORO,J.S.C
LEAVE OF COURT – WHETHER JURISDICTION CAN BE CONFERRED ON AN APPELLATE COURT WHERE THE LEAVE OF COURT WHICH IS A CONDITION PRECEDENT TO THE EXERCISE OF THE RIGHT OF APPEAL IS NOT OBTAINED
“It has long been settled that leave of court, where it is required, is a condition precedent to the exercise of the right of appeal. Accordingly, failure to obtain leave, where it is required, renders any appeal filed incompetent as no jurisdiction can- be conferred on the appellate court, Nalsa and Team Associates V N.N.P.C. [1991] 8 NWLR (pt. 212) 652; Nyambi v. Osadim [1977] 2 NWLR (pt. 485) 1; Olanrewaju v. Ogunleye [1997] 2 NWLR (pt 485) 12; Organs and Ors v NLNG Ltd (2013) LPELR – 20942 (SC) 26; E -G“. PER C.C. NWEZE,J.S.C
LEAVE OF COURT- EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT WHERE SAME IS NECESSARY
“In effect, failure to obtain leave of court, where necessary to file a particular ground of appeal, upon which an issue is raised for resolution of the case, could render both such grounds of appeal, and the issue so formulated therefrom, incompetent, Ajibade v. Pedro [1992] 5 NWLR (pt. 241) 257, 262; Arowolos Adimula [1991] 8 NWLR (pt. 212) 753; Metal Construction Co. v Migliore(1990)1 NWLR (pt. 126) 299“. PER C.C. NWEZE,J.S.C
LEAVE OF COURT – IMPORTANCE OF LEAVE OF COURT ON THE JURISDICTION OF A COURT
“This must be so for where an appeal can only be lodged with the leave of the court; it is the leave that confers jurisdiction on the court. It is, thus, very vital and fundamental that leave must be obtained before an appeal is filed. Thus, any appeal filed without leave is incompetent as no jurisdiction can be conferred on the court, Shaka v. Salisu [1996]. 2 NWLR (pt. 428) 28; Mosuro and Anor v. Akinyele 13 WACA 112-113; Yakubu v. The Governor of Kogi State and Ors [1995] 3 NWLR (pt. 383) 367; Russel v. Russel [1987] 2 NWLR (pt. 57) 437“.PER C.C. NWEZE,J.S.C
INCOMPETENT APPEAL – WHETHER A COMPETENT COURT CAN DETERMINE AN INCOMPETENT APPEAL
“The explanation is simply: a court of competent jurisdiction has no jurisdiction to hear an incompetent appeal, Kashadadi v Noma (2007) LPELR – 1673 (SC) 9; E-F; Garuba and Ors v Omokhodion and Ors (2011) LPELR -1309 (SC). 47; D-E“. PER C.C. NWEZE,J.S.C
Statutes Referred To:
Constitution of the Federal Republic of Nigeria, 1999, as amended
Court of Appeal Act, 2004
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