CORAM

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JIMI OLUKAYODE BADA JUSTICE OF THE COURT OF APPEAL

FREDERICK OZIAKPONO OHO JUSTICE OF THE COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE OF THE COURT OF APPEAL

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PARTIES

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MR. ONAJITE OKOLOKO APPELANT(S)

 

APPELLANTS 

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MS SALMA ALLI  RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

The Respondent/Applicant By an application filed on 9/3/2022, prayed this court to dismiss Appeal No: CA/LAG/CV/29/2022 having been abandoned by the Appellant/Respondent and also to dismiss/strike out the Appellant/Respondent’s Notice of Appeal dated and filed on 18th January, 2022 for being invalid being that it is not the originating process that gave life to this appeal and is therefore without a base since the originating process has been abandoned by the Appellant/Respondent.

 

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the prayer sought by the Applicant ought to be granted?

 

 

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RATIONES DECIDENDI

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NOTICE OF APPEAL – WHEN THERE IS A DEFECT IN THE NOTICE OF APPEAL

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The settled position of the law is that a Notice of Appeal is the foundation and substractum of every appeal as it is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal. Therefore any defect in the Notice of Appeal goes to the root of the appeal and it robs this Court of the jurisdiction to hear the appeal. See following cases: –

– RALPH UWAZURIKE & OTHERS VS. ATTORNEY GENERAL OF THE FEDERATION (2007) 8 NWLR PART 1035 PAGE 1.

– NONYE IWUNZE VS. THE FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR PART 1404 PAGE 580 AT 596 PARAGRAPHS D – E where it was held amongst others thus: –

“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 the 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.”

See also – ORJI & ANOTHER VS. INEC & 2 OTHERS (2020) LPELR – 49525 (CA). – Per J. O. Bada, JCA

 

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NOTICE OF APPEAL – WHEN A NOTICE OF APPEAL IS FILED AT THE COURT OF APPEAL REGISTRY

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The filing of the Notice of Appeal at the trial Court is for Administrative/Procedural convenience put in place in order to reduce congestion at the Court of Appeal.

Even when the Notice of Appeal is filed at the trial Court it is titled “In the Court of Appeal holding at Lagos”. It is in my view a process of this Court which ordinarily should be filed in the Registry of this Court.

The jurisdiction of this Court to hear appeals from the trial High Courts is donated by Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It cannot be taken away merely because the Appellant filed the 2nd Notice of Appeal dated 18/1/2022 at the Registry of this Court.

The filing of the 2nd Notice of Appeal at the Registry of this Court instead of the trial Court’s Registry cannot make this Court discard the Appellant’s right of appeal. This is because the Rules of Court have never been the source of the Court’s jurisdiction. This Court will not abandon its jurisdiction because of the Appellant’s non-compliance with the rule which requires that appeals be filed at the lower Court. The rules cannot compromise the Appellant’s right of appeal as conferred by the 1999 Constitution.

The position of the law is that filing of more than one Notices of Appeal does not affect the validity of an appeal as long as the Notices were filed within time.

See – FIRST BANK VS. T.S.A. INDUSTRIES LIMITED (supra).

Although the Appellant has filed two Notices of Appeal within the time provided by the statute and she has relied on the latter Notice of Appeal dated 18/1/2022 and has filed her brief of Argument in respect of that Notice of Appeal, therefore it could not be said that the appeal has been abandoned.

See –NWORA VS. NWABUEZE (2019) 7 NWLR PART 1670 PAGE 1 AT 26 – 27. – Per J. O. Bada, JCA

 

 

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NOTICE OF APPEAL – SERVICE OF NOTICE OF APPEAL

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“The provisions of the Court of Appeal Rules 2021 Order 2 Rule 1 provide as follows:-

(a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rule 8, be served on the Respondent personally or by electronic mail to the electronic mail address of the Respondent: provided that if the Court is satisfied that the Notice of Appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice of Appeal was not served in accordance with this Rule.

(b) Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summons, warrants or other processes of the Court to be served personally.

2. …

Where in any proceeding in the lower Court, a party has given a physical address for service, notice of any application preparatory or incidental to any appeal may be served in like manner as a Notice of Appeal under Rule 1(a) of this Order.”

The provisions of the Court of Appeal Rules 2021 reproduced above have a proviso that dispenses with personal service where it is shown to the satisfaction of the Court that the Notice of Appeal has been communicated to the Respondent to the appeal. Service can be effected on any address for service made available by the Respondent at the proceeding before the lower Court.

In this application under consideration, it was shown in the Counter Affidavit that the Notice of Appeal dated 18/1/2022 was served on the Applicant through his Counsel at the lower Court – BABALAKIN & CO. – at the address of service provided by the Applicant before the lower Court. Exhibit 3 showed service and receipt by the Law firm of BABALAKIN & CO. This mode of service is in consonance with Order 2 Rule 3 of the Court of Appeal Rules 2021.

This Court affirmed this mode of service in the case of – ALL PROGRESSIVES CONGRESS (APC) & ANOTHER VS. INEC & OTHERS – APPEAL NO: – CA/LAG/CV/906/2022 (Unreported) in which judgment was delivered on 21/11/2022. See also – AKANDE VS. JEGEDE (2022) 1 NWLR PART 1849 PAGE 162 PARAGRAPHS C – H.

Also in AMAECHI VS. GOV. RIVERS STATE (2022) 17 NWLR PART 1858 PAGE 1 AT PAGES 44 – 45 where the Court held amongst others thus:-

“It is not in dispute that the notice of this appeal was served on the Respondents through the law office address of their respective lawyers at the Court of Appeal, which address was endorsed on the Notice of Appeal as the address for service on each of them. So the Notice was not served on them personally. It is note-worthy that the same lawyers that represented them at the Court of Appeal and whose address were endorsed in the Notice of Appeal as address for service on the respective Respondents, still represents the respective Respondents in this appeal. None of them filed any notice stating that the Respondent he represented in the Court of Appeal and is representing in this appeal has ceased to instruct him for the purpose of this appeal. Each Respondent has filed a brief of argument raising issues for determination distilled from the Grounds of Appeal in the notice of appeal and arguing the merits of the appeal, while raising and arguing therein the preliminary objection to the appeal.

In the light of the foregoing, I am satisfied that the notice of this appeal, though not served on the Respondents personally, has been communicated to them by serving it on their respective Counsel at the address for service endorsed in the Notice of Appeal. Even though Order 2 Rule 3(1)(b) of the Supreme Court Rules 2014 requires that a notice of appeal be served on the Respondent personally, the proviso to that Rule provides that if the Court is satisfied that a notice served at the law office address of the Respondent’s Legal Practitioner indicated in the notice of appeal as the address for service on the Respondent, has been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground only that the Notice of Appeal was not served personally. It is implicit in this proviso that the service of the Notice of Appeal at the law office address of the Respondent’s Counsel at the lower Court indicated in the Notice of Appeal as the Respondent’s address for service, would be deemed sufficient service on the Respondent if the Court is satisfied that the Notice has been communicated to the Respondent.” – Per J. O. Bada, JCA”

 

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NOTICE OF APPEAL –WHEN A NOTICE OF APPEAL HAS A WRONG HEADING

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“It was also contended that the Respondent’s Notice of Appeal dated 18/1/2022 is incompetent by virtue of heading same “the Court of Appeal of Nigeria.”

It is my view that this is a mere irregularity which does not constitute a vitiating factor to render the entire appeal incompetent. In SURAKATU VS. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD & ANOTHER (1981) 4 S.C. PAGE 26 AT 32, the Supreme Court held per Fatai Williams CJN, that the wrong heading of a Notice of Appeal can be treated as an irregularity that ought to be condoned. Objection on this basis of the wrong heading was totally rejected as a misconception.

See also the case of – H.T.B SYNERGY LTD & ANOTHER VS. ISOKO COMMUNITY BANK LTD (2015) LPELR – 25685 (CA). – Per J. O. Bada, JCA”

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

Court of Appeal Rules 2021

 

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