BEDDING HOLDINGS LIMITED V. ANTHONIA OLUFUNKE CAREW
August 20, 2025BARTAL WEST AFRICA LIMITED V. OFIR BAR SHALOM
August 20, 2025Legalpedia Citation: (2025-07) Legalpedia 76707 (CA)
In the Court of Appeal
Holden at Lagos
Fri Jul 4, 2025
Suit Number: CA/L/859/2012
CORAM
Mohammed Mustapha Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Uwabunkeonye Onwosi Justice of the Court of Appeal
PARTIES
1. OBA OLUWASEGUN ADEYEMI AJASA
2. ALHAJI AYUBA BAALE
3. ALHAJI BUHARI YUSUF
4. RASAKI YINUSA
5. ALHAJI WAKILI SADIQ
6. CHIEF MIADIU AJOSE
7. ALHAJI LATEEF KADIRI
(For themselves and on behalf of the entire Kuyasi Awuse Family of Onigbongbo, Maryland Lagos)
APPELLANTS
1. THE NIGERIAN ARMY
2. THE ATTORNEY GENERAL OF THE FEDERATION
3. WOOBS RESOURCES LIMITED
RESPONDENTS
AREA(S) OF LAW
AREAS OF LAW: APPEAL, CIVIL PROCEDURE, COMPETENCE OF ORIGINATING PROCESS, CONSTITUTIONAL LAW, COURT OF APPEAL RULES, FAIR HEARING, JURISDICTION, NOTICE OF APPEAL, PRACTICE AND PROCEDURE, SUBSTANTIAL JUSTICE, TECHNICAL JUSTICE
SUMMARY OF FACTS
The Appellants sued the Respondents at the Federal High Court claiming that 17 acres of their family land compulsorily acquired by the Federal Government in 1960 for military cantonment construction was no longer being used for public purpose, as it had been developed into “The Nigerian Army Shopping Arena” for commercial purposes. They sought return of the land or alternatively N1.4 billion as current value plus interest.
The Federal Government had compulsorily acquired 342 acres from Onigbongbo Community via Government Notice No. 1547 of 25/7/60 and Gazette No. 46 of 11/8/60 for military cantonment construction. The 1st Respondent (Nigerian Army) initially used the land for military purposes including offices, accommodation, schools, churches, mosques, cemetery and hospital. However, in 2006, the 1st Respondent entered into a commercial agreement with the 3rd Respondent (Woobs Resources Limited) for construction of 3000 shops on 17 acres of remaining undeveloped land for commercial leasing.
At the trial court, the 1st and 2nd Respondents raised preliminary objections challenging the Appellants’ locus standi, which the court overruled. The 3rd Respondent raised preliminary objections on jurisdiction and limitation of action. The trial court held it had jurisdiction but dismissed the suit as statute-barred under the Public Officers Protection Act, finding that the suit should have been brought within three months of the cause of action accrual.
The Appellants appealed with an Amended Notice of Appeal filed on 14th June, 2023. The 3rd Respondent raised a preliminary objection that the Amended Notice of Appeal was incompetent because it stated “PART OF THE RULING” without specifying which part of the trial court’s decision was being appealed, contravening Order 7 Rule 2(1) of the Court of Appeal Rules, 2021.
HELD
1. The appeal was struck out for being incompetent.
2. The Court held that the Appellants’ Amended Notice of Appeal contravened Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 by failing to specify which part of the trial court’s ruling was being appealed against.
3. The Court held that merely stating “PART OF THE RULING” without specifying the particular part complained of rendered the Notice of Appeal inherently vague and speculative.
4. The Court held that the ambiguity in the Notice of Appeal defeats the essence of fair hearing, particularly audi alteram partem, as it fails to give respondents adequate notice of the complaint they must meet.
5. The Court held that the defect was not mere technicality but substantial non-compliance with court rules that ensures fair notice and fair hearing.
6. The Court held that substantial justice does not mean overlooking fundamental defects, and that form and substance are inseparable when it comes to originating processes.
7. The Court held that Notice of Appeal is the foundation and substratum of any appeal, and where it is incompetent, the court lacks jurisdiction to entertain the appeal.
8. All parties were ordered to bear their respective costs.
ISSUES
The Appellants formulated two substantive issues:
1. Whether the learned trial judge was right in holding that the Appellants’ suit was statute barred on the ground that the suit was not instituted within the three (3) months prescribed under the Public Officers Protection Act when such an issue was neither raised nor placed before the lower Court by any of the parties.
2. Whether the learned trial judge was right when his Lordship applied the provisions of Public Officers Protection Act and held that the Appellants’ suit was statute barred.
The 3rd Respondent raised a preliminary objection: “Whether the failure to quote the part of the ruling/decision of the trial Court the Appellants were appealing against in the Appellants’ Amended Notice of Appeal does not offend Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 and therefore renders the Appellants’ Amended Notice of Appeal incompetent, null and void and robs this Honourable Court of jurisdiction.”
RATIONES DECIDENDI
NOTICE OF APPEAL AS ORIGINATING PROCESS – FOUNDATIONAL NATURE AND EFFECT OF INCOMPETENCE
It is trite law that a Notice of Appeal is an originating process which evinces the Appellant’s intention to challenge the decision of a lower Court. It is filed and duly served on the Respondent(s) in accordance with the Rules of Court. Being the foundation upon which the appellate jurisdiction is invoked, the validity of the notice is critical. Where the Notice of Appeal is found to be incompetent, defective, or fundamentally flawed, it renders the appeal a nullity. In such a situation, there can be no valid appeal properly before the appellate Court, and any proceedings predicated upon such a defective notice are liable to be struck out for want of jurisdiction. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
COURT OF APPEAL RULES – MANDATORY REQUIREMENTS FOR NOTICE OF APPEAL CONTENTS
Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 provides thus: ‘All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the Notice of Appeal’) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for (sic: service?) on such parties.’– Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
STATUTORY INTERPRETATION – MANDATORY NATURE OF THE WORD “SHALL”
Now, the law is trite that generally, when the word ‘shall’ is used in a statute, it is interpreted to be mandatory. However, whether it is used in a mandatory or directory sense depends on the context in which it is used… In the above provision of the Rules of this Court, the word ‘shall’ was used repeatedly to connote a mandatory application of whatever rule followed suit. Thus, every single requirement stated in this provision of this Rule is intended to be mandatorily followed to the letter.– Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
SPECIFICITY IN NOTICE OF APPEAL – REQUIREMENT TO SPECIFY PART OF DECISION APPEALED
I have taken my time to carefully peruse the Appellants’ Amended Notice of Appeal, particularly at page 2 wherein Paragraph 2 is contained. I can see that under PART OF THE DECISION OF THE LOWER COURT appealed against’, the Appellants simply wrote: ‘PART OF THE RULING’, without specifying which part of the ruling they are appealing against. This Amended Notice of Appeal leaves one in confusion as to which part of the ruling of the lower Court the Appellants are appealing against, because upon reading the ruling of the lower Court as contained at pages 172-199 of the Record of Appeal, I found that the lower Court took several decisions. Thus, the phrase ‘part of the ruling’ as stated in paragraph 2 of the Amended Notice of Appeal, failed to specify which of the many decisions of the lower Court the Appellants are complaining about and therefore does not satisfy the requirement of Order 7 Rule 2(1) of the Court of Appeal Rules, 2021. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
MEANING OF “SPECIFY” – REQUIREMENT FOR EXPLICIT AND DETAILED STATEMENT
The said Rule which was very precise in adding in parenthesis ‘in the latter case specifying such part ‘. To ‘specify’ according to the Merriam Webster Dictionary 1828 means to ‘name or state explicitly or in detail’ , thus, the framers of this particular part of the Rule were very precise on the requirement of the contents of the Notice of Appeal. The Appellants’ Amended Notice of Appeal has failed to fulfil this requirement of the law, as it is inherently vague and speculative.– Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
FAIR HEARING PRINCIPLE – REQUIREMENT FOR ADEQUATE NOTICE TO RESPONDENTS
‘This ambiguity defeats the very essence of fair hearing, particularly audi alteram partem, requiring the respondent to have particulars and notice of the complaint in the case he is going to meet in order that he must adequately prepare for and against it.’ Therefore, the differentiation by the Appellants of the above-cited appeal with the present appeal does not hold any weight. I tend to lean more towards the interpretation given by the 3rd Respondent of the decision of the Supreme Court. I will then go a step further to state that since the Appellants’ Amended Notice of Appeal is ambiguous in the way it is structured and thereby defeats the very essence of fair hearing, particularly audi alteram partem, it will be in the interest of justice to strike out this appeal. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
FAIR HEARING AS CONSTITUTIONAL IMPERATIVE – PRIORITY OVER TECHNICAL ARGUMENTS
I would have tilted towards the Appellants’ argument that the Courts have moved away from the era of technicalities with a positive attitude towards substantial justice, however, justice in itself is subjective. That aside, the nature of the document in question begs that substantial justice would be that the doctrine of fair hearing as entrenched in the Constitution of the Federal Republic of Nigeria (1999) is followed to a fault, especially since the right of the Respondents is at stake. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
FAIR HEARING IMPERATIVE – GRAVITY OF BREACH OVERRIDES PRESENCE OF GROUNDS
The Supreme Court in Ayi Emokpae vs. Stanbic IBTC Pension Managers Ltd (supra) was not blind to the presence of the grounds of appeal, as at the time it proceeded to pronounce that the absence of the precise particulars in the Notice of Appeal offends the essence of fair hearing. The issue of the breach of fair hearing is too grave to be sacrificed on the altar of the presence of the grounds of appeal. There is indeed a reason why the framers of this rule framed it the way they did. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
SUBSTANTIAL JUSTICE VS TECHNICAL JUSTICE – COMPLIANCE WITH COURT RULES AS SUBSTANTIVE REQUIREMENT
Also, I would like to clarify the notion of the Appellant that this defect is a mere technicality, and hold that it is more about the substantive compliance with the Rules of this Court, which ensures fair notice and fair hearing, than it is an issue of technicality as canvassed by the Appellants. Substantial justice does not mean overlooking fundamental defects; form and substance are inseparable when it comes to originating processes. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
FORM AND SUBSTANCE IN ORIGINATING PROCESSES – INSEPARABILITY AND FOUNDATIONAL IMPORTANCE
Substantial justice does not mean overlooking fundamental defects; form and substance are inseparable when it comes to originating processes. You cannot run a race with a broken starting block. No matter how meritorious your grounds of appeal may seem, if the vehicle of appeal is flawed, the journey ends before it begins. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
NOTICE OF APPEAL AS JURISDICTIONAL FOUNDATION – EFFECT OF INCOMPETENCE ON COURT’S JURISDICTION
Notice of Appeal is the foundation and substratum of any appeal, where it is incompetent the Court lacks the jurisdiction to entertain the appeal. – Per UWABUNKEONYE ONWOSI, J.C.A.
INCOMPETENT AMENDED NOTICE OF APPEAL – EFFECT ON ENTIRE APPEAL
Therefore, I am constrained to hold that the Appellants’ Amended Notice of Appeal is incompetent, thereby rendering this appeal incompetent. Accordingly, I strike out the instant appeal. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
FOUNDATIONAL NATURE OF NOTICE OF APPEAL – IMPORTANCE OF PRECISE COMPLIANCE
The foundational nature of the Notice of Appeal and its might in the institution of an appeal is another factor to heavily consider in making a decision. – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999
2. Section 233(1), (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999
3. Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria 1999
4. Court of Appeal Rules, 2021
5. Order 7 Rule 2(1) of the Court of Appeal Rules, 2021
6. Public Officers Protection Act Cap P 41 LFN, 2004
7. Limitation Law Cap L 67, Laws of Lagos State 2003
8. Sections 12, 16, 17, 19 and 21 of the Limitation Law Cap L 67, Laws of Lagos State 2003
9. Government Notice No. 1547 of 25/7/60
10. Gazette No. 46 of 11/8/60
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