ISOKEN AIKPITANYI v. MR. KINGSLEY UKPEDOR

Legalpedia Citation: (2023-06) Legalpedia 25834 (CA)

In the Court of Appeal

BENIN JUDICIAL DIVISION

Wed Mar 29, 2023

Suit Number: CA/B/200/2020

CORAM

Sybil Onyeji Nwaka Gbagi JCA

Theresa Ngolika Orji-Abadua JCA

PARTIES

ISOKEN AIKPITANYI

APPELLANTS

KINGSLEY UKPEDOR

RESPONDENTS

AREA(S) OF LAW

APPEAL, LAND LAW, PRACTICE AND PROCEDURE, CONSTITUTIONAL LAW

SUMMARY OF FACTS

The trial court (Edo state High Court) granted the Appellant’s application to carry out Litigation Survey of the land in dispute but refused to grant an adjournment to carry out this order, ordering the suit to continue on the application of the Respondent whose witness was to give evidence. The Appellant was aggrieved by this interlocutory ruling hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Preliminary Objection

Ø Whether having regard to the entire circumstances of the case, the right to fair hearing of the Appellant as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was not breached?

RATIONES DECIDENDI

NOTICE OF APPEAL – PERIOD FOR THE GIVING OF NOTICE OF APPEAL

Section 24 (1) of the Court of Appeal Act, 2004 provides:

“Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:

(a) in an appeal in a civil course or matter, fourteen days where the appeal is against an interlocutory decision and three months when the appeal is against a final decision”.

This present interlocutory appeal which ought to have been filed within 14 days from the date of the ruling, was filed out of time. Ruling was delivered on 18/12/2019 whilst the Notice of Appeal dated 24th February 2020 was filed on 24/3/2020.

See TUKUR V. GOVERNMENT GONGOLA STATE (1996) 5 NWLR (PT 447) pg 186 where it has held that a party aggrieved by an interlocutory decision of a Court may bring an appeal against it within 14 days of giving the decision.

The decision of the trial Court in focus is an interlocutory decision in a civil cause hence, by the provision of Section 24 (2) (a) of the Court of Appeal Act 2004 (as amended) the period for the giving of the Notice of Appeal or Notice of Application for leave to appeal against it is fourteen (14) days. – Per S. N. Gbagi, JCA

JURISDICTION – REQUIREMENTS TO EXERCISE JURISDICTION

It is settled principle of law and procedure that rules of Court are made for the attainment of justice with ease, certainty, and dispatch. Court Rules are directions for the doing of some acts and therefore binding. Failure to file an appeal within the statutory period of time prescribed without obtaining an extension of time within which to appeal in accordance with the provisions of the Rules constitute an incurable defect that must deprive the appellate Court of jurisdiction to entertain the appeal. The use of the word “shall” shows that the giving of notice of appeal or notice of application for leave to appeal within the time limit is a condition precedent for the competence and validity of the appeal.

The term condition is defined as a right dependent on the happening of an event. See Osborn’s Concise law Dictionary 7th Edition. See also Prince J. S. Atolagbe & Anor. V. Alhaji Ahmadu Awuni & Ors. (1997) LPELR-593 (SC) Per Uwais JSC.

It is settled law that a Court must have the jurisdiction to entertain a cause or matter, or make any binding order in such a cause or matter.

For a Court to be competent to exercise jurisdiction in respect of any matter the following requirements must be fulfilled:

(1) The number of its members is properly constituted and no member is disqualified for any reason or the other.

(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.

(3) The case comes by the due process of law.

(4) Any condition precedent to the exercise of its jurisdiction must be fulfilled or met.

See Madukolu V. Nkemdilim (1962) 2 S.C.N.L.R p. 341; Kotoye V. Saraki (1994) 7 NWLR (Pt. 357) p. 414; Dangana Anr V. Usman & 4 Ors. (2012) 12 SC (Pt. 111); NURTW & Anor. V. RTEAN & Ors. (2012) 1 SC (Pt. 1) 119. – Per S. N. Gbagi, JCA

PRELIMINARY OBJECTION – A SUCCESSFUL PRELIMINARY OBJECTION TERMINATES THE HEARING OF THE APPEAL

The purpose of a preliminary objection is to contend that the appeal is defective or incompetent.

A successful preliminary objection terminates the hearing of the appeal. See Nepa V. Ango 2001 15 NWLR 1; Tetrazzini Foods Limited V. Abbacon Investment Limited & Anor. (2015) LPELR-25007 (CA).

By the clear provision of Order 10 Rule 1 of the Court of Appeal Rules 2021, a preliminary objection may be raised at the hearing of an appeal, with a purpose of moving the Court to put an end to the suit without going into trial and the Court has a duty to consider the objection at the earliest possible time before considering the substantive action. See Onyemeh & Ors V. Egbuchulam & Ors. (1996) 4 SCNJ 235.

From the foregoing, failure to comply with the provisions of the said Rules of this Court would amount to a fundamental error in the proceedings. Where there is non-compliance, such non-compliance invalidates processes and may result into any step taken by the Court to be a nullity. Rules of Court are therefore not to be taken with levity but meant to be obeyed.

An appeal could be dismissed for failure of the Appellant to comply with the conditions of appeal. It would be in the interest of parties and their counsel to endeavour always to comply with the prescribed rules of Court for the doing of any act or taking any step. See Nwankwo V. Yar’adua (2010) 12 NWLR (Pt. 1209) p.518; Owners of the MV Arabella V. NAIC (2008) 11 NWLR (Pt. 1097) pg 182. – Per S. N. Gbagi, JCA