Legalpedia Citation: (2011) Legalpedia (CA) 18419
In the Court of Appeal
HOLDEN AT BENIN
Mon Feb 21, 2011
Suit Number: CA/B/12/2008
CORAM
PARTIES
1. OBASEKI IYAWERE2. IDEHO IKHARO APPELLANTS
1. ANDREW OMOH 2. GEOFREY IZEGAEGBE (for themselves and on behalf of Ukpafis’ family) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents at the Owan West Area customary court, Sabongidda Ora lost to the Defendants/Appellants. The Respondents appealed to the Edo State High Court against that decisions vide a notice of appeal. The Respondents after filing additional grounds of appeal filed an application supported by an affidavit, to correct the record of proceedings of the Area customary court already transmitted to the lower court. The Appellant opposed the application by filing a counter affidavit. Learned counsel for both parties addressed the lower court in support of and against the issue of amendment of the said record. In his considered ruling, the learned trial Judge refused the application to amend the record of proceedings, instead, he remitted the suit to be retried de novo before another panel of the Area Customary Court. The Appellants were dissatisfied with the said ruling and appealed against it to this Court vide a notice of appeal. The Respondent filed a Preliminary Objection challenging the competence of this appeal, on grounds that the appeal is against the ruling of the High Court of Justice, sitting as an appellate court and that the Appellants did not seek leave of court below to appeal against its ruling before filing this appeal by virtue of Section 242 of the Constitution of the Federal Republic of Nigeria.
HELD
Appeal Dismissed
ISSUES
Not Available
RATIONES DECIDENDI
ACTION, PRACTICE AND PROCEDURE, COURT
PRELIMINARY OBJECTION – PROPER APPROACH BY A COURT WHERE A PRELIMINARY OBJECTION IS RAISED
“In situations like this instant appeal, the proper approach is for this Court to first and foremost consider and determine the issues arising out of the preliminary objection, especially, since the objection touches on the competence of this appeal and the consequent jurisdiction of this Court to adjudicate thereupon. If the preliminary objection succeeds, that will terminate the appeal, but, if it fails, the issues distilled from the grounds of appeal will be taken accordingly.”
COURT, JURISDICTION, PRACTICE AND PROCEDURE
COMPETENCE OF COURT- EFFECT OF A DEFECT IN THE COMPETENCE OF COURT
“For, the competence of an action and the jurisdiction of court are threshold questions which once raised, must be taken first and decided before considering any other issue. This is because, any defect in competence is fatal, as it is extrinsic to adjudication and proceedings conducted without competence amount to a nullity however well conducted and decided. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341; (2) Onyenucheya v. Military Administrator of Imo State (1997) I NWLR (Pt. 482) p.429; (3) Sowemimo v. Awobayo (l999) 7 NWLR (Pt. 610) p. 335; (a) Ayorinde v. Oni (2000) 3 NWLR (Pt. 649)p. 348; (5) Galadima v. Tambai (2000) 11 NWLR (Pt. 677) p. 1 and (5) Satami v. Oseni (2002)14 NWLR (Pt. 788) p.623.”
APPEAL, CONSTITUTIONAL LAW
RIGHT OF APPEAL- STATUTORY PROVISIONS ON THE EXERCISE OF A RIGHT OF APPEAL
“The right of appeal against final as well as interlocutory decisions, is conferred by statute, be it one which creates either the trial court or appellate court or the enactment which confers original or appellate powers. The right of appeal to this Court from either the Federal High court or the High court of a State is provided for by Sections 241, 242 and 243 of the 1999 Constitution, as well as Section 24, Part V of the Court of Appeal Act, 2004 and Order 7 Rules 5 and 10(1) of the Court of Appeal Rules, 2007. For easy reference, the above enactments are hereunder reproduced respectively, as follows:
1999 Constitution
241. – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation 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 any criminal proceedings in which the Federal High Court or a 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 companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) In such other cases as may prescribed by any law in force Nigeria.
(2) Nothing in this section shall confer any right of appeal
(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or 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 of 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 of Appeal.
(2) The Court 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 proceedings, if the Court of Appeal is of the opinion that the interests 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 the 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.
Court of Appeal Act:
24. (1) 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 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 cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.
Court of Appeal Rules:
Order 7 Rules:
(5) If leave to appeal is granted by the Court or by the court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the Court of Appeal Act, 2004.
10. (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
From the foregoing enactments, that is, Sections 241(1) & (2), of the 1999 Constitution, 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 cases:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court 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 interpretation 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 the Constitution has been, is being or is likely to be contravened in relation to any person:
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a 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 companies in respect of misfeasance or otherwise;
(iv) in the case of a 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.
However, by virtue of Section 242(1) of the 1999 Constitution, an appeal will become operable only with the leave of either the Federal High Court/State High Court or the Court of Appeal in the following instances:
(a) Against the interlocutory decisions of the Federal High Court or a High Court, except such interlocutory decisions which involve questions of law alone. It follows that the right of appeal against an interlocutory decision of any of the High Courts that involves pure questions of law is exercisable as f right and does not require the leave of either the High Court which decision is appealed against or the Court of Appeal;
(b) Any appeal from a decision of any High Court consented to by parties or on the costs awarded against any of the parties only;
(c)Any appeal against the decision of High Court exercising appellate jurisdiction in any civil or criminal proceedings;
(d) Appeals by an interested party.”
The import of the provisions of Section 242(1) is that, the right of appeal enures to an appellant only with the permission of court.
COURT, PRACTICE AND PROCEDURE
LEAVE OF COURT – STATUS OF AN APPEAL FILED WITHOUT THE REQUISITE LEAVE OF COURT
“Leave is, the permission it takes to activate or infuse life into an appeal that is hitherto dormant. The Supreme Court as well as this Court has laid it down in several authorities that, the leave envisaged under the provisions of Section 242(1) of the Constitution is a condition precedent to the exercise of the right of appeal under the said Section. Therefore, the law is trite that, where the condition precedent is necessary but has not been fulfilled, the appeal filed is illegal and incompetent. See the cases of: (1) Ayansina v. Co-operative Bank Ltd. (1994) 5 NWLR (Pt.347) p.74) and (2) N.I.W.A v. S.P.D.C. (Nig) Ltd. (2007) 1 NWLR (P1.1015) p.305. It follows that, an appeal filed pursuant to the provisions of Section 242(1) without the requisite leave, in law, robs the Court of Appeal of the jurisdiction to entertain and determine the issue(s) raised in such appeal. See the case of: Ukpong v. Comm. for Finance (2006) 19 NWLR (pt. 1013) p.187.
Upon the combined reading of the provisions of Sections 241(1) and 242(1), 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 a 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. This requirement of leave as stated earlier on above is, mandatory.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999|Court of Appeal Act, 2004|Court of Appeal Rules, 2007|