CORAM

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PARTIES

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CHIGOZIE ADAUGO OBIORA-OKONKWO APPELLANTS

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OBIORA FRANCIS OKONKWO RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant filed a Motion on Notice praying this Honourable Court to grant an order extending the time within which to the Appellant can comply with the Order of Court directing the Applicant to file her Notice of Appeal within 7 (seven) days from the said 21 February, 2018; an order deeming the Applicants Notice of Appeal as having been properly filed and served. The grounds upon which this application is premised are that by Order of this Court made on 21st February 2018, time was extended by 7 (seven) days within which the Appellant was to file her Notice of Appeal against the decision of the High Court of Justice of the Federal Capital Territory, Abuja. In compliance with said Order of this Court, the Appellant filed her Notice of Appeal but in a haste to comply with the said Order, the Litigation Clark inadvertently filed the Notice of Appeal on the 28th of February 2018, in the Registry of the Court of Appeal contrary to the practice of their chamber and Rules of this Court, that it was only when the appeal came up that they realized that the Notice of Appeal had been inadvertently filed at the Registry of the Court of Appeal among others. The Appellant also filed a written address in Support of the Motion on Notice, while the Respondent filed a Counter Affidavit in response that they are aware that this Court granted the Appellant leave to file her Notice of Appeal and that the said Notice of Appeal was filed in this Court and the initiating process gives life to an action and ought to be filed at the trial court. That the Appellant’s application is seeking to rectify an incurably bad and defective Notice of Appeal; and that the Court lacks the jurisdiction to hear and determine this application as there is no appeal before this Court, as it is only a valid Notice of Appeal that clothes this Court with requisite jurisdiction to hear and determine this matter.

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HELD

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Appeal Allowed

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ISSUES

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Whether having regards to the facts and circumstance of this application, the Applicant is entitled to the discretion of this Honourable Court being exercising in her favour.

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RATIONES DECIDENDI

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NOTICE OF APPEAL – FUNDAMENTAL NATURE OF A NOTICE OF APPEAL

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“The law is trite that a Notice of Appeal as an originating process is the foundation of the appellate process. The fundamental nature of the Notice of Appeal means that parties must be careful and ensure that it is not defective. This is because a faulty foundation is one that robs the Appellate Court of its jurisdiction. –

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NOTICE OF APPEAL – CONSEQUENCES OF A DEFECTIVE NOTICE OF APPEAL

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“A defective Notice of Appeal is therefore capable of rendering an appeal incompetent. In essence an Appellate Court derives the required jurisdiction to entertain an appeal on its merit or any interlocutory application from the Notice of Appeal. In the recent case of Umezinne Vs. FRN (2018) LPELR – 46334 (SC) the apex court per Augie, JSC held:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal.”
Augie, JSC in the same case referred to Nonye Iwunze Vs. FRN (2015) 6 NWLR (PT. 1404) 580, wherein Rhodes-Vivour, JSC, observed that:
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals…The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with 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.”
In FRN Vs. Dairo (2015) 6 NWLR (PT. 1454) 141 AT 166/177, C. C. Nweze, JSC held that:
” The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court…As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby rendering it incompetent… The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process… In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal… This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction. The importance of a notice of appeal in the process of an appeal is, therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent”
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NOTICE OF APPEAL – FEATURES AND PURPOSE OF A NOTICE OF APPEAL

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“Order 6 Rule 10 of the Court of Appeal Rules 2016 provides that:
“An Appeal shall be deemed to have been brought when the notice of Appeal has been filed in the registry of the court below”
While Order 7 Rule 2(1) of the Court of Appeal Rules provides that:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal…”
From the two rules above the following are trite:
a. An appeal is initiated by a Notice of Appeal
b. The Notice of Appeal shall be filed in the registry of the lower court.
These two features above must therefore be present in every given appeal. Given that the Notice of Appeal as I have mentioned above is the foundation and substratum of any appeal, any incurable defect therein renders the whole appeal incompetent and in turn the appellate court will lack the required jurisdiction to entertain said appeal. Let me state here the purpose of a Notice of Appeal, which is for, the:
a. Initiation of Appeal
b. Embodiment of the complaints against the decision of the lower Court
c. Indication of the parties on Appeal
d. Statement of the relief(s) sought from the Appellate Court
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VENUE TO FILE AN APPEAL –WHETHER THE NON-COMPLIANCE WITH ORDER 3 RULES 2(1) OF THE COURT OF APPEAL RULES CAN BE WAIVED

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“In FBN Plc VS. T. S. A. Industries Ltd (2010) LPELR – 1283 (SC) per Muhammad, J.S.C it was held:
“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 jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.”
This same reasoning was arrived at in CBN Vs. Ikojie (2004) 10 NWLR (PT. 882) 488 ,where it was held that the question relating to whether or not a proper Notice of Appeal is filed at the trial court is a question which touches on the jurisdiction of the Court of Appeal, this is because if a proper Notice of Appeal is not filed at the trial Court, there is in effect no Appeal before the Court of Appeal. See also Kano Plastics Ltd Vs. Century Merchant Bank (1998) 3 NWLR (PT. 543) 567; Oyebade Vs. Ajayi (1993) 1 NWLR (PT.269) 313; Glanrewaju Vs. B. O. N. LTD (1994) 8 NWLR (PT. 364) 622. However, in the same CBN VS. Ikojie (supra) the Supreme Court in answering whether a Notice of Appeal can be filed at the Registry of the Court of Appeal held:
“Although by virtue of Order 3 rule 2(1) of the Court of Appeal Rules, a notice of appeal should be filed in the registry of the trial court, a notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all parties; and the appeal has been entered, is properly filed because It would amount to duplicity of effort, resources and ultimately a waste of time if such notice of appeal is filed at the registry of the trial court. In the instant case, the notice of appeal filed at the registry of the Court of Appeal was properly filed,”
Similarly, the Supreme Court in a ruling per Katsina-Alu, JSC of blessed memory in the case of Peter Obi Vs. Independent National Electoral Commission & Ors (2008) LPELR – 2167 (SC) held that:
“The simple question for resolution is simply whether a Notice of Appeal filed in the Court of Appeal instead of the Federal High Court is void or voidable. Order 3 Rule 2(1) of Rules of the Court of Appeal provides that a notice of appeal shall be deemed filed when filed at the registry of the court of trial. It does not further prescribe that a notice of appeal shall be void if filed in the Court of Appeal rather than the High Court. Further Order 7 Rule 3 of the Court of Appeal Rules provides: The court may in an exceptional circumstance and where it considers in the interest of justice so to do waive compliance by the parties with these Rules or any part thereof. I have no doubt that Order 7 Rule 3 above is a saving provision for non-compliance with the provisions of the Court of Appeal Rules. Most rules of court in Nigeria have similar provisions. These proceedings were commenced in the Federal High Court. The rules of the High Court have similar provision in Order 3 Rule 1. In my view, the non-compliance with Order 3 Rule 2(1) as to the venue to file an appeal would at the highest only confer on the adversary the right to ask the Court of Appeal to pronounce the notice of appeal in question void. It is not by itself self-executing.”
In the same Peter Obi Vs. Independent National Electoral Commission & Ors (supra), F. F. Tabai JSC held:
“There is nothing so sacrosanct or immutable about the provisions of Order 3 Rule 2(1) or 5 as to render the rights or benefits derivable thereat from being waived. Rules of court remain rules of court and cannot be accorded a status as Immutable as statutory provisions. In Francis Adesegun Katto V. Central Bank Of Nigeria (1991) 11 – 12 S.C. 176; (1991) 9 NWLR (PT. 214) 126 at147, this court stated the status of rules of court as follows:
As mandatory rules of court are not as sacrosanct as mandatory statutory provisions, courts of justice are more inclined to regard as directory or permissive any provision. In rules of court which appears mandatory, if it is implicit in the provision in question or if combination of other provision with the provision in question so dictated or if the ends of justice demands that it be so construed and in Oloba V. Akereja (1988) 7 S.C. (PT. I) 1; (1988) 3 NWLR (PT. 84) 508 at 528, this court per OPUTA JSC, said:
All rules of court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rule compliance with which will lead to outright injustice. It is clear from the above authorities that rules of court including Order 3 Rules 2(1) or 5 of the Court of Appeal Rules can be waived.”
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NOTICE OF APPEAL – VALIDITY OR INVALIDITY OF A NOTICE OF APPEAL FILED AT THE REGISTRY OF THE COURT CONTRARY TO THE REQUIREMENT OF ORDER 7 RULE 1 OF THE COURT OF APPEAL RULES

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“This issue has been settled by the Supreme Court in CBN V. Okojie (2004) 10 NWLR (Pt 882) 488 and Obi V INEC & Ors (2008) LPELR – 2167 (SC). The restatements of the Law Lords in Obi V. INEC illuminate the subject comprehensively and conclusively. The apex court held that the filing of the notice of an appeal to this court in the registry of this court instead of the registry of the lower court does not render it void, that the compliance with Order 7 Rule 1 of the Court of Appeal Rules can be waived by this court and the notice of appeal saved, condoned and deemed as valid”. –

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RULES OF COURT – WHETHER COURTS MAY DIRECT A DEPARTURE FROM ITS RULES

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“Order 21 Rule 2 and Rule 3(1) and (2) of the Court of Appeal Rules 2016 provides thusly-
“2. The Court may direct a departure from these Rules where this is required in the interest of justice.
3.-(l) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.”
Provisions exactly similar to the provisions of Order 21 Rule 3 of the 2016 Court of Appeal Rules were held by the Supreme Court in Obi v. INEC to be saving provisions for non-compliance with the Court of Appeal Rules”.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016|

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