CORAM

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M.L. UWAIS

U. MOHAMMED

A. I. IGUH

A. I. KATSINA-ALU

D. MUSDAPHER

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PARTIES

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TIJANI AMOOKARIMU AGOROADEDOKUN ADEDEJIASIRU ADEMOLAALIMI ASIRU (ALIAS AKANJI ABA) APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The respondent obtained an order from the Court of Appeal striking out the two Notices of Appeal filed by the appellant respectively at the registry of the Court of Appeal and the High Court Registry, Saki Oyo State, as being incompetent as same were filed outside the time prescribed by section 25(2) of the Court of Appeal Act, Cap 75 Laws of the Federation of Nigeria 1990, despite the objection of the appellant to its jurisdiction to hear the matter.

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HELD

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The Supreme Court held that the Courts have a duty where their jurisdiction is challenged to take such application first. Failure of the Court to hear the preliminary objection was a breach of the fair hearing principles, thus all actions taken thereafter are nullities. Appeal Allowed?

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ISSUES

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1. Whether there was breach of the appellants’ constitutional right to be heard and an infringement of the principle of natural justice against the appellants (sic).2. Whether the Court of Appeal had jurisdiction to entertain the application of the applicants/respondents even though the record of appeal had not been compiled by the Registrar of the High Court and therefore nothing had yet reach the Court of Appeal for the purpose of the appeal being “entered’ by the Court of Appeal on its cause list.?

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RATIONES DECIDENDI

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WHERE AN ORDER OF COURT CAN AMOUNT TO A NULLITY

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Once the competency of a procedural step is challenged, it means that the jurisdiction of the Court to determine the procedural step is put in issue. It is thus fundamental to consider the issue of jurisdiction first because where a court takes upon itself to exercise jurisdiction which it does not possess, its decision amounts to a nullity. Per Dahiru Musdapher, JSC

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AN ORDER REFUSING AN EXTENSION OF TIME, NOT A DECISION ON THE MERIT

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An Order refusing an extension of time within which to appeal is not a decision on the merit. As such it does not constitute, in law, a bar to a further application. It is regarded as a matter of procedure which does not affect the constitutional right to seek to appeal. Per Dahiru Musdapher, JSC

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CASES CITED

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1.    Peenok Investments Ltd. V. Hotel Presidential Ltd. [1983] 4 NCLR 122. 2.    Ike V. Nzekwe [1975] 2 SC 1 3.    Onyemeh V. Egbuchulam [1996] 5 NWLR (Pt. 448) 225 AT 268 – 269 4.    Adigun Vs, A.G. Oyo State [1987] 1 NWLR (Pt. 53) 687. 5.    Obodo Vs. Olomu [1987] 3 NWLR (Pt.59) 111 6.    Ogigie V. Obiyan [1997] 10 NWLR (Pt. 524) 179 7.    Saraki V. Kotoye [1992] 9 NWLR (Pt. 264) 156?

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STATUTES REFERRED TO

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1.    Court of Appeal Act Cap. 75, 19762.    Court of Appeal Rules 1981 as amended

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