CORAM

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PARTIES

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1. Etubom (Dr) Anthony Asuquo Ani2. Etinyin Okon Effiong Offiong3. Chief Offiong Eyo Offiong4. Chief Emmanuel Eniang Offiong5. Anthony Eniang Offiong [For themselves and on behalf of Ufot Ikot Nkpor Clan. Mbiabo Ikoneto, Odukpani Local Government Area) ? APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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None

 

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SUMMARY OF FACTS

The Applicant/Appellant at the High Court of Cross River State, in Calabar, challenged the nomination and selection of the 1st Respondent as the Obong of Calabar. The trial Court at the conclusion of the matter held in favour of the Applicants/Appellants. Dissatisfied with the decision of the trial Court, the 1st set of Respondents appealed to the Court of Appeal where the Court allowed the appeal and stated that the 1st Applicant/Appellant who the Applicants/Appellants claimed to have won the election was not traditionally qualified and eligible to vote and be voted for as the Obong of Calabar. The Applicant filed an application before the lower court for leave to appeal on grounds of mixed law and fact but the court could not hear the application until the time allowed to appeal expired and the motion was consequently struck out. The Applicants however on sensing time was running out filed a Notice and Ground of Appeal believing that Ground 1 in the said appeal is a ground of law not requiring leave of court. Upon the transmission of the Record of Appeal to this court, the Applicant brought an application for leave to appeal on grounds of mixed law and facts in relation to other grounds perceived to be grounds of mixed law and facts. This was opposed to by the 1st and 2nd set of Respondents who filed separate Notices of Preliminary Objection contending that this court lacks jurisdiction to hear this Appeal because the Applicants failed to first obtain leave before filing the Appeal contrary to Section 233(2) and (3) of the 1999 Constitution.

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HELD

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Application Granted

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ISSUES

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None

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RATIONES DECIDENDI

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JURISDICTION- MEANING OF JURISDICTION

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“Jurisdiction is the authority that the Court has to decide or take cognizance of matters presented for its decision – Mobil Prod. (Nig.) Unltd. V. LASEPA (2002) 18 NWLR (Pt. 798) 1.”

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NOTICE OF APPEAL- WHETHER AN APPELLANT WHO HAS FILED AN INCOMPETENT NOTICE OF APPEAL IS PRECLUDED FROM APPLYING TO AN APPELLATE COURT FOR EXTENSION OF TIME TO FILE A NOTICE OF APPEAL IN OTHER TO SALVAGE THE APPEAL

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“An appeal, which is the continuation of a case from a trial Court, is commenced by notice of appeal. So, the notice of appeal is the foundation of an appeal, and the Respondents are right – an incompetent notice of appeal deprives an appellate Court of jurisdiction to hear the appeal- see Aderibigbe V. Abidoye (2009) 10 NWLR (Pt. 1150) 592 SC, cited by the 1st set of Respondents, where Muhammad, JSC, explained as follows – A notice of appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective no proper appeal can stand. It will, certainly, collapse. A notice ‘of appeal can be competent and valid if it contains at least one valid ground of appeal – -A bare notice of appeal without any ground of grounds of appeal, is valueless and incompetent – – It is incurably bad. The defect cannot be cured by amendment. That is true; but there is room for the Appellant to maneuver. Order 2 rule 31 of the Rules of this Court, provides as follows – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice. (2) Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period… In other words, where an appeal requires leave of Court and the time within which to appeal has also expired, the Appellant may apply for extension of time to seek leave to appeal. To this end, it is crucial that an intending Appellant file a tripod application – a prayer for (a) extension of time to seek leave to appeal; (b) leave to appeal; (c) extension of time to appeal. For there to be a valid appeal, the three reliefs must be granted by the Court – see Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 at 375SC. In that case, Odofin V. Agu (supra), the Respondents filed an Application at the Court below without the said three prayers and it granted the Application, heard the appeal, and allowed it. But the Appellants’ appeal to this Court was allowed because – The Appellant made his application as prescribed by the Rules, but omitted a relevant prayer. That is the prayer extending time to give notice of appeal. This notice is crucial and decisive because. The Judgment appealed against was decided on 16/5/1985. Thus, on the 4th and21st October, 1985, when the application was made and the Court of Appeal gave the Ruling respectively, the Appellant was more than six weeks out of time. It was, therefore, necessary for the Court to enlarge the time for giving notice, to have a valid notice of appeal before the Court. The notice of appeal – is the real and constitutional signal of dissatisfaction against the Judgment. Whereas in this case, the application to appeal was made out of time; a notice of appeal made out of time will require a prayer for enlargement of time within which to file such notice of appeal. In the absence of a notice of appeal, namely, the foundation of the appeal, there is no appeal before the Court. [Karibi-Whyte, JSC] Piecing the above principles together, the fact that an Appellant had filed an incompetent notice of appeal does not preclude him from applying to an appellate Court for an extension of time within which to file the notice of appeal, and salvage the appeal – see Nalsa &Team Associates V. NNPC (supra).”

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COURT-WHETHER THE COURT HAS A RIGHT TO GRANT AN APPLICATION THAT TENDS TO REGULARIZE A DEFECTIVE PROCESS

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“In Nalsa &Team Associates V. NNPC (supra), this Court, per Nnaemeka-Agu, JSC, held that – Where the complaint in the preliminary objection is to the effect that the Court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the Court or that a threshold issue is involved, then a fundamental Issue which goes to the vires of the Court has been raised. When such is the case, one of two factual situations may arise. The Respondent’s motion may be one [that] is capable of breathing life into the incompetent process. In other words, the erring Appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. – – In the hey days of technicality, the practice was to take the motion, which sought to strike out the appeal as incompetent first, leaving the Appellant to seek to commence another appeal If he liked, I am of the view that that does not accord with the present Inclination of the Courts to do substantial justice, for, the days of technicality are gone. If, as a reflection of the present mood of Courts to do substantial rather than technical justice, a Court of justice and equity decides to first take a motion which seeks to bring about a competent appeal, where there is ex-facie a proper application for such, before taking the one which seeks to strike out the appeal is incompetent, I can see nothing wrong with the practice. To adopt that course will save both time and expenses. In saying so, I am not unaware that In Awote V. Owodunni &Anor – – my learned brother Oputa, JSC, expressed the opinion that this was not the proper course because as the appeal was incompetent, ex nihllo nihil fit (you can build nothing out of nothing). But with respect, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the Courts. Now, where there is before the Court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the Court taking such an application first.”

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RIGHT OF APPEAL- RIGHT OF APPEAL AS GUARANTEED BY THE 1999 CONSTITUTION (AS AMENDED)

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“But the fact remains that the Applicants have a right of appeal, guaranteed to them by the 1999 Constitution (as amended), which overrides any negative principles aimed at its foreclosing. See Anachebe V. Ijeoma (2014) 14 NWLR (Part 1426) 168, cited by the Appellants, where Ogunbiyi, JSC, aptly observed – It is well settled that a right of appeal is constitutional as is provided in the Constitution. The right being constitutional therefore, it stands to override most other negative principles aimed at its foreclosing. The rider also stands clear that the exercise of this right is only permissible within limit as provided by law. The right Is lost outside the prescribed statutory period allowed but will only be exercised by leave of Court; hence the reason for seeking an order for leave and extending the time within which to appeal. While the constitutional right cannot be extended if the Applicant fails to adduce good and substantial reason for obliging the Application, the Court will also not hesitate to exercise its discretion in favour thereof provided sufficient materials are contained in the affidavit to justify the exercise.”

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NOTICE OF APPEAL – WHETHER AN APPLICANT CAN AMEND ANY ERROR INHERENT IN HIS APPLICATION BEFORE THE COURT AFTER AN OBJECTION CHALLENGING ITS COMPETENCE HAS BEEN RAISED

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“The fact that the Applicants filed this Application after they had filed a Preliminary Objection challenging the competency of the said Application of 23/5/2015, will not bar the Applicants from correcting any errors that will put them on the right footing – see Shanu V Afribank (supra), where Ayoola, JSC, clearly stated – “The contention that this application should not be granted because a preliminary objection has been raised showing the errors in the process of the Applicant’s appeal is without substance. The Applicant is not foreclosed by the preliminary objection from correcting those errors or starting the process afresh on a more appropriate footing.” See also Nalsa & Team Associates V. NNPC (supra), where this Court, per Karibi-Whyte, JSC, also explained as follows – If a preliminary objection to dismiss an appeal is taken during the pendency of an Application to correct the errors on which the preliminary objection is based, the preliminary objection will succeed and the action dismissed. This is because the error remains extant, the question whether the error can be corrected having not been investigated. This is clearly unjust and against our concept of administration of justice. Whenever a party detects an error which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors, the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it. It is important to appreciate the basic distinction between hearing an application and granting the prayers in it. Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can be argued.” – PER A. A. AUGIE, J.S.C

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EXERCISE OF DISCRETION -DUTY OF A PARTY SEEKING A DISCRETIONARY ORDER OF THE COURT

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“The Application pertains to leave of Court, and whenever leave of Court is a condition precedent for exercise of a right, the discretion of the Court is implied, and a party applying to the Court to exercise its discretionary power in his favour must put up a convincing argument showing that in fact and in law he is entitled to a decision which he has applied for – see Re: Alase (2002) 10 NWLR (Pt. 776) 553 SC.”

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APPLICATION FOR EXTENSION OF TIME -DUTY OF AN APPLICANT SEEKING FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL

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“The question now is whether the Applicants provided sufficient materials and reasons to grant this Application in their favour. To this end, the Applicants have to show that the delay in bringing this Application is neither willful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and their grounds of appeal must prima facie show good cause why the appeal should be heard. The two conditions are conjunctive and not disjunctive; they must co-exist. If one is missing, the Application must fail see Nwora V. Nwabueze (2011) 15NWLR (Pt 1271) 467 SC.”

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CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – WHETHER LEAVE OF COURT CAN BE OBTAINED WHERE AN APPEAL IS AGAINST THE CONCURRENT FINDINGS OF FACTS BY LOWER COURTS

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“Generally, it is difficult to obtain leave where an appeal is against a finding of fact made by a trial Court and concurred to, by the Court below because appeals from concurrent findings of facts by those Courts are granted in exceptional circumstances -Order 2rule 32 of the Supreme Court Rules (as amended).”

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“OVERREACH” -MEANING OF “OVERREACH”

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“The word “overreaches” simply means “to take advantage of”. See Webster’s Comprehensive Dictionary.”

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APPLICATION BEFORE A COURT – WHETHER A PARTY IS AT LIBERTY TO FILE A FRESH APPLICATION WHEN A SIMILAR APPLICATION IS PENDING BEFORE THE COURT

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“There is no rule of law or practice that stops a Party from filing a new application when a similar application is pending in the file. The practice in Court is that a previous application can be withdrawn before the fresh application is moved or thereafter. As to multiplicity of notices of appeal, this Court made it clear in Tukur V. Govt.of Gongola State (supra) that an Appellant can file two notices of appeal, and can validly withdraw any of them.”

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COURT – WHETHER THE APPELLATE COURT CAN GRANT EXTENSION OF TIME TO A LITIGANT FOR FAILURE TO DO AN ACT WHERE SUCH FAILURE WAS OCCASIONED BY THE NEGLIGENCE OF THE LITIGANT’S COUNSEL

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“It has long been the practice of the top court to grant an extension of time to a litigant to do an act if failure to do such act was occasioned by the negligence or carelessness of the litigant’s counsel. See Bowaje v Adedlwura (1976) 6 SC p.143.”

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APPLICATION FOR EXTENSION OF TIME – DUTY OF A PARTY SEEKING EXTENSION OF TIME

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“The well stated position of the law is that in applications for extension of time the court will not grant any indulgence to a party who does not offer explanation to the court to justify the court exercising its discretion to extend time. That is to say adequate reasons must be given for the delay. See FHA v Kalaiaiye (2010) 10NWLR (Pt.1226) p.147.”

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RIGHT OF APPEAL- CONSTRAINT TO THE CONSTITUTIONAL RIGHT OF APPEAL

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“The Constitution is very well spelt out regarding a party’s right of appeal. In other words, it is available and should be exercised without any hindrance. See the case of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168. The constraint however comes in where the exercise is outside the time provided by the law”

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EXERCISE OF DISCRETION – REQUIREMENT FOR THE GRANT OF EXERCISE OF DISCRETION

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“The exercise of discretion is not made in a vacuum. It is also not granted as a matter of course. There must be cogent and convincing facts placed before the court and supporting the reason why the discretion should tilt in favour of the applicants despite their failure to come within the time provided by the law. See the case of E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt.1039) 216; Nuhu v. Ogele (2003) 18 NWLR (Pt. 852) 251, Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527.”

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EXERCISE OF DISCRETION – DUTY OF COURTS IN THE EXERCISE OF DISCRETION

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“For all intents and purposes, even in the face of all the facts and materials placed before the court, the exercise of discretion must be judicial and judicious. It is expected of the court to strike the balance of justice and convenience between the parties. The foregoing consideration and the rule of court serve a tremendous guiding principle. See the case of Williams v. Hope Rising voluntary Funds Society (1982) ANLR 1; Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132; U. B.A. v. G.M.B.H &Co. (1989) 3 NWLR (Pt. 110) 374.”

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NOTICE OF APPEAL – STATUS OF AN INCOMPETENT NOTICE OF APPEAL

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“What then is the position of an incompetent notice of appeal. In Odoemena Nwaigwe &Ors v Nze Edwin Okere (2008) 13 NWLR (Pt. 1105) 445 at 474 Paragraph C-F, which was cited and relied upon by learned counsel for the 2nd set of Respondent, this court per Onnoghen JSC (as he then was) held: “The issue of the filing of six additional grounds of appeal is a nonstarter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of valid ground of appeal raising question of customary law for determination. Since there was no valid motion and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to fry to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as a Notice of Appeal so as to infuse live into it. In other words, a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the law is non-existent or dead.”

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RIGHT OF APPEAL- – INSTANCE WHERE A RIGHT OF APPEAL CAN BE SUBJECT TO THE DISCRETION OF THE COURT

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“On whether appeal is a constitutional right, I wish to state that an appeal lodged within the prescribed period cannot be ignored by the court, as doing so will deprive the appellant of his constitutional right. However, when an aggrieved party fails to appeal within the time prescribed by Court of Appeal Act and the Act of this court, his right of appeal becomes subject to the discretion of this court.”

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NOTICE OF APPEAL- WHETHER A NOTICE OF APPEAL CAN BE DEEMED DULY FILED AND SERVED?

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“A notice of appeal cannot be deemed as having been duly filed and served because it is a document which by definition commences an appeal. The documents which a court can deem are those which parties exchange between themselves during the course of proceedings, such as statement of claim or defence and briefs of argument, and not those which require the signature of the registrar for their validity.”

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TRANSMISSION OF RECORD OF APPEAL- WHEN WILL THE TIME FOR TRANSMISSION OF RECORD OF APPEAL BEGIN TO RUN?

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“The time for transmission of the record of appeal and the filing of briefs of argument can only begin to run after the appeal is filed.”

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CASES CITED

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STATUTES REFERRED TO

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None

 

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