KEYSTONE BANK LIMITED v. GREENGATES SPECIALTIES LTD
April 11, 2025NAHEL BERNARD MONSOUR V. FEDERAL REPUBLIC OF NIGERIA
April 11, 2025Legalpedia Citation: (2018) Legalpedia (CA) 03814
In the Court of Appeal
HOLDEN AT SOKOTO
Wed May 23, 2018
Suit Number: CA/S/133/2016
CORAM
FREDERICK OZIAKPONO OHO
FREDERICK OZIAKPONO OHO
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
FREDERICK OZIAKPONO OHO
FREDERICK OZIAKPONO OHO
SAMUEL CHUKWUDUMEBI OSEJI
FREDERICK OZIAKPONO OHO
FREDERICK OZIAKPONO OHO
FREDERICK OZIAKPONO OHO
SAMUEL CHUKWUDUMEBI OSEJI
FREDERICK OZIAKPONO OHO
SAMUEL CHUKWUDUMEBI OSEJI
SAMUEL CHUKWUDUMEBI OSEJI
PARTIES
1. MUHAMMADU KAKALE2. MANI MAMMAN APPELLANTS
ABDULLAHI NOMA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal is against the Judgment of the High Court of Sokoto State which affirmed the concurrent decisions of the Upper Sharia Court, Binji, Sokoto and the Lower Sharia Court, Silame. The Appellants had at first appealed to the Sharia Court of Appeal (SCA) Sokoto, in which the concurrent findings of the trial Courts were set aside. This led to the Respondent as Appellant, appealing to this Court in Appeal No. CA/S/152S/2013, in which the judgment of the SCA Sokoto was set aside on ground of lack of jurisdiction and transferred on the orders of this Court to the Court below. The Court below heard and determined the appeal in favor of the Respondent hence this appeal.
HELD
Appeal Struck Out.
ISSUES
None
RATIONES DECIDENDI
ACTION
NOTICE OF PRELIMINARY OBJECTION – ESSENCE OF A NOTICE OF PRELIMINARY OBJECTION
“As it is expected, the Notice of Preliminary Objection has to be first dealt with before any further steps are taken in the direction of resolving the Appeal since by so doing and if found successful, it can determine the fate of this Appeal. See Ajide vs. Kelani (1985) 3 NWLR (PT. 12) 248 at 257; Ogidi vs. Egba (1999) 10 NWLR (PT. 621) 42 at 71. See in addition the case of Efet vs. INEC (2011) ALL FWLR (PT. 565) 203 at 216 where the apex Court on the issue held thus; The aim/essence of a Preliminary Objection is to terminate at infancy or to nip in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in Courts proceedings.”
ACTION
NOTICE OF PRELIMINARY OBJECTION – PURPOSE OF A NOTICE OF PRELIMINARY OBJECTION
“The purpose of a Notice of Preliminary Objection, it has been said for the umpteenth time is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of Yaro vs. Arewa Construction Ltd. & Ors (2007) 6 SCNJ 418.”
APPEAL, PRACTICE AND PROCEDURE
RIGHT OF APPEAL – HOW THE RIGHT OF APPEAL IS DERIVED
“To begin with as a background it will be proper to state that the Right of Appeal is usually conferred by statute either by the one by which the trial Court or the Appellate Court is created.”
APPEAL, CONSTITUTIONAL LAW, COURT
RIGHT OF APPEAL – CONSTITUTIONAL PROVISION ON THE RIGHT OF APPEAL TO THE COURT OF APPEAL FROM THE DECISIONS OF THE FEDERAL HIGH COURT OR STATE HIGH COURT
“The Right of Appeal to the Court of Appeal from the decisions of the Federal High Court or State High Court is provided for by Sections 241, 242 and 243 of the 1999 Constitution as Amended and as well Section 24 Part (v) of the Court of Appeal Act, CAP 36 LFN, 2004. For the avoidance of doubt Section 241(1) of the 1999 Constitution is reproduced thus;
An Appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of Right in the following cases;
Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
a. Where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings;
b. Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
c. Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be contravened in relation to any person;
d. Decisions in the criminal proceedings in which the Federal High Court or High Court has imposed a sentence of death;
e. Decisions made or given by the Federal High Court or High Court-
(i) Where the liberty of a person or the custody of an infant is concerned
(ii) Where an injunction or the appointment of a receiver is granted or refused
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other Officer under any enactment relating to the companies in respect of misfeasance or otherwise,
(iv) In the area of Decree nisi in a matrimonial cause or a decision in an admiralty action determining liability and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
2. Nothing in this Section shall confer any Right of Appeal;
a. From a decision of the Federal High Court or High Court granting unconditional leave to defend an action;
b. From an Order Absolute for the dissolution of nullity of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
c. Without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision the Federal High Court or High Court made with the consent of the parties or as to costs only.
242. (1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the Record of the Proceedings, if the Court of Appeal is of the opinion that the interest of Justice do not require an oral hearing of the application.
243. Any Right of Appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) Exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
A careful reading of the foregoing provisions shall reveal that 241(1) and (2) of the 1999 Constitution that an Appeal shall lie from the decisions of the Federal High Court or a State High Court to the Court of Appeal as of Right in the following circumstances;
a. Final decisions in any civil or criminal proceedings before the Federal High Court or High Court of a State sitting at first instance;
b. Where the ground of Appeal involves questions of law alone, decision in any civil or criminal proceedings;
c. Decisions in any civil or criminal proceedings on questions as to the interpretations or application of this Constitution;
d. Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be contravened in relation to any person;
e. Decisions in the criminal proceedings in which the Federal High Court or High Court has imposed a sentence of death;
f. Decisions made or given by the Federal High Court or High Court-
(i) Where the liberty of a person or the custody of an infant is concerned.
(ii) Where an injunction or the appointment of a receiver is granted or refused.
(iii) In the case of a decision determining the case of a creditor or the liability of a contributory or other Officer under any enactment relating to the companies in respect of misfeasance or otherwise,
(iv) In the area of Decree nisi in a matrimonial cause or a decision in an admiralty action determining liability and
(v) In such other cases as may be prescribed by any law in force in Nigeria.
APPEAL, CONSTITUTIONAL LAW, COURT, PRACTICE AND PROCEDURE
RIGHT OF APPEAL – IMPORT OF SECTION 242(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 ON THE RIGHT OF APPEAL
“The import of Section 242(1) of the 1999 Constitution is to the effect that an Appeal shall only lie with the leave of either the Federal High Court or State High Court to the Court of Appeal in the following cases;
1. Where the decision of the Court below is against an interlocutory decision of either the Federal High Court or the State High Court except where such interlocutory decisions involve questions of law alone;
2. Where an Appeal is from the decision of any High Court consented to by the parties or on the costs awarded against any of the parties only;
3. Where the Appeal is against the decision of the High Court exercising Appellate jurisdiction in any civil or criminal proceedings;
4. Where the Appeal is by an interested party.”
APPEAL, COURT, PRACTICE AND PROCEDURE
LEAVE OF COURT – WHETHER LEAVE OF COURT TO APPEAL FROM A DECISION OF THE HIGH COURT GIVEN IN ITS APPELLATE JURISDICTION IS REQUIRED BEFORE FILING APPEAL
“The settled position of the law on the subject is that an appeal from the decision of High Court given in its Appellate jurisdiction requires the leave of Court either of the High Court which handed down the decision or of the Court of Appeal. In the case of Prince Adeluyi Busuyi vs. Commissioner Of Police (2016) LPELR-40864, this was what this Court per AKINBAMI, JCA had to say on the subject;
‘An Appeal from the decision of a High Court given in its Appellate jurisdiction requires the leave of either the High Court or the Court of Appeal. In this situation, it is immaterial that the decision is an interlocutory or final decision, or those, the issues involved are those of law or facts or mixed law and facts. In other words, leave of the Court is required before a competent and valid appeal can be lodged.’
In the case of Danladi Deme & Ors vs. Alabi Rwang & Anor (Supra), this Court once again in the words of my noble Lord, RHODES VIVOUR, JCA (as he then was) stated on the subject as follows;
‘An Appeal from the decision of a High Court delivered in its Appellate jurisdiction requires the leave of the High Court or this Court and non-compliance renders the Appeal incompetent.’”
APPEAL, COURT, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE
LEAVE TO APPEAL – CONSEQUENCES OF FAILURE TO OBTAIN LEAVE TO APPEAL FROM A DECISION OF A HIGH COURT GIVEN IN ITS APPELLATE JURISDICTION
“It is however important to note that the absence of leave having been first sought and obtained in an Appeal arising from the decision of a High Court delivered in its Appellate jurisdiction renders the Appeal filed incompetent and automatically robs the Court of Appeal of its jurisdiction to entertain and determine the issue raised in such appeal. See the case of UKPONG vs. CFF (2006) 19 NWLR (PT. 1013) 187.”
WORDS AND PHRASES
CONDITION PRECEDENT – MEANING OF ‘CONDITION PRECEDENT’
“A condition precedent simply defined is one which delays the vesting of a right until the happening of an event. See the Osborns Concise Dictionary 8th Edition on the subject.”
APPEAL, COURT, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE
LEAVE TO APPEAL – CONSEQUENCES OF FAILURE TO OBTAIN LEAVE TO APPEAL AS PRESCRIBED BY SECTION 242(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
“The failure therefore of the Appellant to have obtained the requisite leave as prescribed by Section 242(1) of the Constitution of Nigeria, 1999 is therefore fatal to the Appellants Appeal as same is rendered incompetent by the Appellants failure to so do.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999|
Court of Appeal Act, CAP 36 LFN, 2004|
