CORAM

---

JUSTIN THOMPSON AKPABIO, JUSTICE COURT APPEAL

ISA AYO SALAMI, JUSTICE COURT APPEAL

EUGENE CHUKWUEMEKA UBAEZONU, JUSTICE COURT APPEAL

---

PARTIES

---

APPELLANTS

---

1. CHARLES NNAIFE IFEAJUNA

2. OGUGUA IFEAJUNA

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, COURT, JURISDICTION, PRACTICE AND PROCEDURE,

 

---

SUMMARY OF FACTS

The Plaintiff/Appellant filed an action in the Customary Court, Onitsha, claiming a number of declaratory reliefs. The bench of the Customary Court by a split decision of two to one granted the reliefs sought before it. The Defendants now Respondents were dissatisfied with the decision of the Customary Court and appealed to the appellate jurisdiction of the High Court sitting at Onitsha, which allowed their appeal by declaring the entire proceedings, before the Customary Court, a nullity for lack of jurisdiction on the part of the Customary Court. The Plaintiff was unhappy with the decision of the High Court and thereby felt aggrieved and has now appealed to this court. The Respondents filed a preliminary objection contending that the judgment sought to be appealed against is not a decision of the High Court sitting at first instance hence the appeal could not be brought as of right under section 220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria.

 

---

HELD

---

Preliminary Objection Upheld, Appeal Struck Out

 

---

ISSUES

---

Not Available.

 

---

RATIONES DECIDENDI

---

JURISDICTION OF COURT – SOURCES OF THE JURISDICTION OF COURT

---

“The appellate jurisdiction or a court is conferred by either the statute creating the court or any other enactment conferring it with such power. See the Queen v. Resident Ijebu Province (1959) WRNLR 87; Ugwu v. Attorney-General of East Central State (1975) 6 S.C. 13; Moses v. Ogunlabi (1975) 4 S.C. 81; Akintola v. Commissioner of Police (1992) 7 NWLR (Pt.256)675; Adeigbe v. Kusimo (1965) NMLR 284; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 and Bronik Motors Limited v. Wema Bank Limited (1983) 1 SCNLR 296.

This court is a creation of the Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria, 1990 and  section 217 of the Constitution of the Federal Republic of Nigeria, 1979.” Per I.A. SALAMI, J.C.A.

 

---

APPEAL – WHETHER LEAVE IS REQUIRED IN ANY APPEAL FROM THE DECISION OF A HIGH COURT NOT SITTING AT FIRST INSTANCE

---

“There are two sections in the Constitution providing for appeal from a High Court to the Court of Appeal. The two sections of the Constitution providing for appeal are sections 220 and 221 which provide for appeal either as of right or with the leave of the High Court or this court. The appellant did not obtain leave before filing his notice and grounds of appeal in respect of a further appeal from the High Court’s appellate division to this court, contrary to express provisions of sections 220 and 221 of the Constitution. The relevant subsections of the two sections of the Constitution read as follows-

“220(1) An appeal shall be from decisions of a High Court to the Court of Appeal as of right in the following cases –

(a) Final decision in any civil or criminal proceedings before the 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 provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;

221(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal.

(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of a High Coup in respect of any civil or criminal proceedings in which an appeal has been brought to the 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 interests of justice do not require an oral hearing of the application.”

(Italics mine)

It can clearly be inferred from the provisions of section 121, particularly, subsection (2) thereof that leave is required in any appeal from the decision of a High Court not sitting at first instance.” Per I.A. SALAMI, J.C.A.

 

---

JURISDICTION OF COURT – WHETHER THE COURT OF APPEAL HAS JURISDICTION TO ENTERTAIN AN INCOMPETENT APPEAL.

---

“Most importantly, the jurisdiction of this court is statutory. It is conferred by the Constitution, the Court of Appeal Act. Cap 75 of the Laws of Federation of Nigeria, 1990 and Court of Appeal Rules, Cap 62 of the Laws of Federation 1990.

The inherent jurisdiction to regulate proceedings in this court does not arise until there is a lis extant upon which the inherent jurisdiction operates. There is no provision either in the Constitution, the Court of Appeal Act or Court of Appeal Rules vesting this court with jurisdiction to validate by rectifying defects in appeals which are otherwise incompetent. There is no power in this court to entertain any application for or grant any relief in respect of a putative or incompetent appeal.

S.6(6)(a) of the Constitution cannot be craved in aid until there is a competent appeal. In short this court has no inherent jurisdiction and cannot exercise one until the appeal is competent. See Chief Iro Ogbu & Others v. Chief Ogbaru Urum & Anors. (1981) 4 S.C. 1, 12.” Per I.A. SALAMI, J.C.A.

 

---

COMPETENCE OF AN APPEAL – EFFECT OF A DEFECT IN THE COMPETENCE OF AN APPEAL

---

“The proceedings would be a nullity, however well conducted, in view of the defect in the competence of the appeal: A. G. Federation v. Sode (1990) 1 NWLR (Pt.128)500; Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 and Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130. Jurisdiction is a threshold question which permits the court to enter into the hearing of the cause or matter at all; without competence it cannot make a binding order, not even after tinkering with the appeal as postulated in the submission of learned counsel for appellant.” Per I.A. SALAMI, J.C.A.

 

---

CASES CITED

---

Not Available

 

---

STATUTES REFERRED TO

---

Constitution of the Federal Republic of Nigeria, 1979

Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria, 1990

 

---

CLICK HERE TO READ FULL JUDGMENT