➥ CASE SUMMARY OF:
Ubaka Ifeajuna v. Charles Nnaife Ifeajuna & Anor (1998) – CA
by Branham Chima (SAL).
Court of Appeal – CA/E/181/97
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 9th day of December, 1998
➥ AREA(S) OF LAW
Appeal from High Court;
Grounds of Appeal.
➥ PRINCIPLES OF LAW
⦿ COURT CANNOT REVIVE AN INCOMPETENT APPEAL
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. — Salami, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The action culminating in this appeal was taken out by the plaintiff, who incidentally is the appellant in the present appeal, 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 were dissatisfied with the decision of the Customary Court and appealed to the appellate jurisdiction of the High Court silting 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.
On the day fixed for hearing of the appeal, learned counsel for defendants, respondents herein, sought and obtained leave to take a preliminary objection to the appeal, the notice whereof he had given and served on the appellant, under the provisions of Order 3 rule 15 of the Court of Appeal Rules. Cap 62 of the Laws of the Federation of Nigeria, 1990. The notice by respondents of their intention to rely on preliminary objection reads as follows: “Take notice that respondents herein named intend at the hearing of this appeal to rely upon the following objection whereof is hereby given to you viz: That the appeal filed by the appellant is incompetent; And take notice that the grounds of the said objection are as follows – 1. That the decision in the civil proceedings before the High Court is not one the High Court sat at first instance, as envisaged by section 220(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 therefore leave to appeal against the High Court decision in this matter ought to have been sought and obtained. 2. Not having obtained leave to appeal, the appeal is incompetent.”
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: ALLOWED]
I. Whether the Appellant ought to seek leave before appealing from the High Court to the Court of Appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. THE GROUNDS OF APPEAL ARE NOT OF LAW ONLY AND HENCE LEAVE WAS REQUIRED
“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.”
“It can clearly be inferred from the provisions of section 221, particularly, subsection (2) thereof that leave is required in any appeal from the decision of a High Court not sitting at first instance. This much learned counsel for appellant conceded but he argued that the present appeal is taken out of the contemplation of section 221 of the Constitution because the ground or grounds of appeal are solely or purely of law. It therefore remains to be seen that the grounds of appeal in the matter resulting in the present controversy are of law simpliciter or that the appeal has any other redeeming factor. I have scanned all the grounds of appeal contained in the notice of appeal and I am of the clear and firm view that the grounds of appeal are not of law alone.”
“The appellant, in the circumstance, is required to seek leave to appeal to this court by virtue of the provisions of section 221 of the 1979 Constitution. The appellant failed to take step or steps to comply with the requirement of the Constitution by applying for leave to appeal from a final decision of a High Court not sitting at first instance. The reading of sections 220(1) and 221 of the constitution amply demonstrates that this appeal could not be competently brought from final decision of a High Court sitting on appeal as of right in any civil or criminal proceedings when it is not sitting at first instance; the grounds of appeal are not of law alone and are not related to the interpretation of the Constitution nor concerned with the breach of the provisions of Chapter IV of the 1979 Constitution.”
B. THE NOTICE OF APPEAL IS INCOMPETENT
“The appeal can only be brought as of right if the matter appealed from were a final decision of the High Court sitting at first instance, or the ground or grounds of appeal are purely of law or they raise question of the interpretation of the Constitution or an issue of violation of the provisions of Chapter IV of the Constitution. In any other circumstance of this appeal, leave must first be sought and obtained from either the High Court or the Court of Appeal before the appeal can be competent. The notice of appeal filed by the appellant, in the absence of requisite leave, is inchoate. It is invalid, null and void ab initio.”
“The notice of appeal dated 16th May. 1996 and filed without first seeking and obtaining leave to appeal against the decision of the High Court on appeal, from Onitsha Customary Court, is seriously defective. It is for that reason struck out with costs assessed at N2.000..00, costs in favour of the respondents.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)