May 19, 2025
Legalpedia Citation: (2011) Legalpedia (CA) 11180 In the Court of Appeal HOLDEN AT ABUJA Fri Dec 16, 2011 Suit Number: SC.156/2011 CORAM PARTIES HONOURABLE AHMED SALAWU OGEMBE […]
CORAM
PARTIES
HONOURABLE AHMED SALAWU OGEMBE
APPELLANTS
NURUDEEN ABATEMI USMAN & ORS.
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Respondent herein as Plaintiff at the trial Federal High Court filed an action by way of originating summons, seeking for a number of reliefs including amongst others, a declaration that the Defendants are bound by the result of the National Assembly primary election of the PDP candidate for Kogi Central Senatorial District. The trial court held that in the absence of any decision for the National Working Committee of the 1st Defendant overturning the report of the Special Appeal Panel the only conclusion to be reached is that the Plaintiff won the primary election confirmed by the Appeal Panel. The Plaintiff is entitled to judgment as per his reliefs. The 3rd Respondent herein (PDP) was dissatisfied with the judgment and appealed. Meanwhile, the Appellant herein, Honourable Ahmed Salawu Ogembe, who was not a party at the Lower Court sought for and was granted leave to appeal as an interested party by the trial Court on 28/2/2011. This Notice of Appeal contains 2 grounds of Appeal. On record, therefore before the Court of Appeal, there were 3 Notices of Appeal. Because all the appeals arise from the same judgment, and the subject matter being the same, the two appeals under which the 3 Notices of Appeals have been filed, were considered by the Appeal Court and taken together, although treated in their separate identities. The Court below having adjudged the Notice of Appeal filed on 28/2/2011 as incompetent, the appeal was struck out. The Court also struck out the motion filed on 3/3/2011 seeking leave to adduce fresh evidence as it was no longer relevant. Dissatisfied with this decision, the Appellant further appealed to this Court
HELD
Appeal Dismissed
ISSUES
Whether the Court below was not in serious error to have upheld Notice of preliminary objection which had been abandoned? Grounds 1 and 2. Having regard to the facts and circumstance of this case, was the Court below right in concluding that Appellant’s notice of appeal filed within the statutory time limit to appeal is incompetent? Grounds 3, 4 and 5. Whether the Court below, being an intermediate Court, was right in not considering the merit of the Appeal before it and whether this court should invoke section 22 of the Supreme Court Act 2009 to determine the merit of the case.
RATIONES DECIDENDI
PRELIMINARY OBJECTION – OBJECT OF A PRELIMINARY OBJECTION
“I shall proceed to consider the preliminary issues in this appeal first for Order 2 Rule 28 (1) Supreme Court Rules 1999 (as amended) under which the 1st Respondent has set out his preliminary objection is made to serve a purpose. The object is to give an appellant before hearing of the appeal notice of any preliminary objection to the hearing of the appeal and the grounds thereof in order to enable him to be prepared to meet the objection at the hearing of the appeal. The Rule is to safeguard against embarrassing an appellant and taking him by surprise. See Excel Plastic Ind. Ltd V. FBN (2008) 11 NWLR (pt.935) 59”.
APPEAL – WHETHER AN APPEAL TO THE SUPREME COURT CAN EMANATE FROM THE DECISION OF THE HIGH COURT OR THE FEDERAL HIGH COURT OR THE STATE
“It is well settled law that an appeal to this Court must relate to the decision of the Court of Appeal and not that of the High Court or the Federal High Court or the State. See: Oduntan V. Akibu (2000) 7 SC (pt.11) 106 and Kwajaffa V. Bank Of The North (2000) 5 SC (pt.1) 103 at 118.”
JURISDICTION OF COURT – WHEN CAN A CHALLENGE TO THE JURISDICTION OF COURT BE RAISED?
“Challenging the jurisdiction of the court is a threshold issue. It is a warning signal to the court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance a point of jurisdiction can be raised at any time and even viva voice for the first time during argument. The Court can suomotu raise it: Leventis V. Petro Jessica (supra). While the court has a duty to give parties an opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of the decision. The Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice: see Olubode V. Salami (1985) 2 NWLR (pt.7) 282; IMAH v. OKOGBE (1930) 9 NWLR (pt.316) 159 and Effiom V. Crosiec (2010) 14 NWLR (pt.1213) 106 at 133.”
GROUNDS OF APPEAL – DUTY OF APPELLATE COURT IN CONSIDERATION OF GROUNDS OF APPEAL PROPOSED BY AN APPLICANT IN SUPPORT OF AN APPLICATION FOR LEAVE TO APPEAL
“The duty of the Appellate Court in the consideration of grounds of appeal proposed by an Applicant in support of an application for leave to appeal is to see whether the proposed grounds of appeal are substantial and reveal arguable grounds of appeal. Once the leave is granted, it is only a clean copy of the proposed grounds of appeal that should be filed, since those were the grounds that elicited the exercise of the Courts discretion in favour of the Applicant. Where after leave is granted to an interested party on the basis of the grounds of appeal filed by him, and there is the need to add additional grounds of appeal, leave of court is required for that party to do so. Where such leave is not sought and obtained, the new grounds of appeal are ipso facto incompetent and such incompetent grounds of appeal will robe the appeal of its competence.”
LEAVE TO APPEAL – REQUIREMENT WHERE A PARTY SEEKS FOR LEAVE TO APPEAL AS AN INTERESTED PARTY
“One of the important requirements, where a party seeks for leave to appeal as an interested party, is that he ought to annex to his application, a Proposed Notice of Appeal. This is to assist the appellate court in the consideration of grounds of appeal proposed by an Applicant in support of an application for leave to appeal, to find whether the proposed grounds of appeal are substantial and arguable. Once the leave is granted, except where deeming order has been made, it is the copy of the proposed grounds that should be filed, as those were the very grounds that elicited the exercise of the discretion of the lower court in favour of the Applicant. A situation may arise, where after leave has been granted to an interested party, and there is the need to file additional grounds of appeal, then leave of court is further sought to do so. Where such leave is not sought and obtained, the new grounds of appeal are incompetent, and such incompetent grounds of appeal will definitely rob the appeal of its competence.”
APPEAL AS AN INTERESTED PARTY – PROCEDURE FOR FILING AN APPEAL AS AN INTERESTED PARTY
“The provision of section 24(2) of the Court of Appeal Act, which provides for 14 days where the appeal is against interlocutory decision and 3 months where the appeal is against a final decision, is applicable to parties who appear in the initiation processes at the lower court, who under section 243(a) of the 1999 Constitution, can appeal as of right where the decision of the High Court is final. The law is clear on this point. A party seeking leave to appeal as an interested party not being a party initially on the record, is not at liberty to file several Notices of Appeal from the final decision of a High Court or Federal High Court within 3 months. He is required to obtain leave to appeal within 3 months of the said judgment.”
COMPETENCE OF THE COURT – EFFECT OF A DEFECT IN THE COMPETENCE OF COURT
“The appellant has decided to appeal to this court in respect of the action taken by the court below which was precipitated by the appellant’s own blunder, as it were. It hardly needs any gainsaying that the subsequent unauthorised Notice of Appeal filed by the appellant is incompetent The appeal of the appellant at the court below was not initiated by due process of law. The appellant failed to fulfil the needed condition precedent to enable the court below exercise its jurisdiction. Indeed, the appeal was a non-starter. See: Madukolu v. Nkemdilim (1962) 2 NSCC 375.Any defect in the competence of the court as occasioned by the appellant herein will render further proceedings by the court below a nullity.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999|Court of Appeal Act, 2004|Supreme Court Rules 1999 (as amended)|
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