➥ CASE SUMMARY OF:
Nalsa And Team Associates v. N.N.P.C. (1991) – SC
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Motion for cure and to destroy;
Extension of time.
➥ CASE FACT/HISTORY
The plaintiff had, in a Port Harcourt High Court, claimed against the defendant the sum of N500,000.00 being special and general damages for breach for preparation of the designs for the defendant’s eight story office block at Port Harcourt, Rivers State, pursuant to a contract said to have been awarded to the plaintiff by the defendant in 1978. On the date fixed for trial the defendant was absent and not represented. So, a default judgment was entered against it, but the was later set aside by the Court of Appeal which remitted the case for trial before another judge. At that stage, pleadings had to be amended. The defendant, in its amended statement of defence, then raised for the first time the issue that the appellant’s claim was statute-barred. Based on the plaintiff’s amended statement of claim the learned trial Judge Okara, J., ruled that defendant had waived its right to rely upon a plea of limitation of the action. Without seeking the leave of court, the defendant appealed against the ruling, upon the following three grounds of appeal.
Plaintiff’s contention was that all the grounds were of mixed law and fact. Thereupon, he filed a motion on notice to rely upon a preliminary objection. Obviously conceding it that the grounds of appeal filed were all of fact or mixed law and fact, the defendant then filed a motion dated 7th January, 1988 seeking the following reliefs: “(i) Extension of time within which to apply for leave to appeal in this matter; (ii) Leave of Court to appeal against the Ruling of Okara J., delivered on 26th November, 1986: (iii) That the Notice and Grounds of Appeal and Additional Grounds of Appeal tiled be deemed to have been properly filed.”
Both motions came up for hearing on the 10th of May, 1988. The first argument of counsel was as to which of the two applications should be taken first. The learned Senior Advocate for plaintiff, Mr. Ikeotuonye, urged the court to take the one on the preliminary objection first, but the court ruled that the one praying the court for extension of time to apply for leave, for leave and deeming the notice of appeal already filed as duly filed would be taken first.
The Court of Appeal after some bitter words for both the learned trial judge and the learned counsel for the plaintiff, granted the application for extension of time to apply for leave, and deeming the notice of appeal already filed as duly filed.
➥ ISSUE(S)
I. Whether the rule as to the priority of hearing of opposing applications where one side seeks to strike out or dismiss a case on ground of an irregularity in procedure and the other seeks to extend time to regularize the irregularity is applicable in a case like this where the competence of the appeal is the issue?
II. Whether the Court of Appeal was competent to foist upon a Notice and grounds of appeal that was indisputably invalid and therefore void, an application for extension of time within which to obtain leave to appeal and leave to appeal and then to order that the said incompetent and void notice and grounds of appeal be deemed properly filed?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE APPLICATION OF THE RESPONDENT AT THE COURT BELOW WAS FUNDAMENTALLY DEFECTIVE
‘This may arise where there are before the court an incompetent appeal, a notice of preliminary objection to strike it out, and an application purporting to correct the error but which is incapable of doing so because it is itself defective. Such was the position in this case. From the of the appellant’s application set out above, it can be seen that he prayed the Court of Appeal for extension of time to apply for leave, for leave, and deeming the incompetent notice and grounds of appeal filed as duly filed. It contained no prayer for extension of time to appeal. In my opinion, the application itself was fundamentally defective. For, time within which to appeal to the Court of Appeal is fixed by section 25(2) of the Court of Appeal Act, 1976. Although sub-section (4) of that section gives to the court the power to extend time to appeal, the jurisdiction of the court to do so can only be invoked by a substantive prayer to that effect in a motion on notice. A prayer asking the court to deem the incompetent notice of appeal as duly and properly filed cannot be a substitute for that substantive prayer where time to appeal has expired. I shall show later on, the case of Ndukwe Erisi & Ors. v. Uzor ldika & Ors. (1987) 9-11 S.C. 170; (1987) 4 NWLR (Pt. 66) 503 which the court below relied upon was misconceived in this respect. In a situation, such as the one that arose in this case, where a notice of preliminary objection to strike out an appeal as incompetent and an application, which is itself ex facie defective, to validate the incompetent appeal come up before a court for hearing, it does not really matter which is taken first. For either way, the appeal will be struck out.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[RESPONDENT DID NOT INCLUDE A PRAYER FOR EXTENSION OF TIME
‘The facts of the instant case are different and distinguishable for a number of reasons. Most important, the “deeming order” in this case was made on 3rd June, 1988, deeming as duly filed a notice of appeal against a ruling delivered on the 26th of November, 1986, that is over one year six months after the expiration of the statutory period of 14 days within which the appellant could have validly appealed. The court below had, therefore, lost the power and jurisdiction to made the “deeming order” as a consequential order at the time it purported to make it. Ojora’s case (supra) is also distinguishable. Although the appellant had appealed without leave arguing that the order was final for which no leave was necessary, he also ex majore cautela filed an application for leave and extension of time to appeal. Considering the difficulty of deciding, sometimes when a decision was interlocutory, and hence, leave would be necessary and when it was final and hence no leave would be necessary, the Supreme Court extended time and granted leave, after coming to the conclusion that the decision was interlocutory. The difference in this case is that there is no application for extension of time to appeal at all. All that is included is a prayer deeming an invalid and incompetent appeal as having been duly filed. I would like to seize this opportunity to reiterate that such a prayer deeming an incompetent or invalid notice of appeal as having been duly filed a long time after the statutory period to appeal had expired cannot properly be a substitute for a substantive prayer for extension of time to appeal. Without a prayer asking the court to invoke its statutory power to extend time to appeal as contemplated by section 25(4) of the Court of Appeal Act, 1976, or section 31(4) of the Supreme Court Act, 1960, neither court has power to deem any invalid or incompetent notice of appeal as having been fully filed. The Court of Appeal was, therefore, in error to have thought that it had such a power. A leave of court to appeal obtained after the statutory period to appeal has expired or an appeal filed thereon is useless where there is no extension of time to appeal or a prayer therefore upon which the court could extend time. See Timothy Adeilo Adefulu & Ors. v. Bello Oyesile & Ors. (1989) 5 N.WLR. (Pt.122) 377, at pp. 417-418. The Court of Appeal was, therefore, in error when it proceeded to exercise its discretion in favour of the defendant upon a motion without a prayer for extension of time within which to appeal. It is, of course, settled that although the discretion in this case is that of the Court of Appeal, yet, when it turns out as it now appears, that that court exercised its discretion upon wrong principles, this Court has the right, indeed the duty, to intervene.’]
.
.
.
✓ DECISION:
‘For the above reasons, the appeal succeeds and is allowed. I set aside the decision of the Court of Appeal extending time for the defendant to apply for leave to appeal against the decision of Okara, J., sitting in a Port Harcourt High Court. In its place, as it has not been disputed that the three grounds upon which the interlocutory appeal was based are of fact or mixed law and facts and that they have been filed without leave, I hold that the appeal was incompetent under section 220(1) (b) of the Constitution, 1979. I therefore strike it out. I set aside all the orders made by the Court of Appeal.’
➥ FURTHER DICTA:
⦿ LEAVE OF COURT VERSUS RIGHT OF APPEAL
Before I can properly consider the issues which have been canvassed in this appeal, it is useful to advert to the true nature of the right of appeal either to this Court or the Court of Appeal. Section 213(2) and (3) or section 220 and 221, as the case may be, create two different rights of appeal, namely: (i) right of appeal as of right (Sections 213(2) or 220( 1); and (ii) right of appeal with leave of court (Section 213(3) or 221 of the Constitution). Whereas an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by statute, leave of either Court is a condition precedent to his exercise of the right of appeal with leave. It is trite that where that condition precedent is necessary but has not been fulfilled, there is no appeal. Any notice of appeal filed upon only facts or mixed law and fact without leave where leave is necessary is null and void and of no effect. See on this Olowosoke v. Oke (1972) 11 S.C.1. — Nnaemeka-Agu JSC.
⦿ WHERE THERE ARE TWO APPLICATIONS BEFORE THE COURT: ONE TO CURE AND THE OTHER TO DESTROY
It appears to me that for a proper resolution of the real issue raised by this aspect of the appeal, it is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularize the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial, and not technical, justice. In such cases the aim of the court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice: See Fari Khawam v. Foud Michael Elias (1960) 5 F.S.C. 224; (1960) SCNLR 516. To do otherwise will amount to a wrongful exercise of the court’s discretion: see Wallersteiner v. Moir (1974) 3 ALL E.R. 217 Where, however, as in this case, the complaint in the preliminary objection is to the effect that the court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the court or that a threshold issue is involved, then a fundamental issue which goes to the vires of the court has been raised. When such is the case, it is necessary to note that one of two factual situations may arise. The respondent’s motion may be one which is capable of breathing life into the incompetent process. In other words, the erring appellant has realized his mistake and has filed a motion which, if granted will correct it and bring about a valid and competent appeal. When such is the case, although, in the hay days of technicality, the practice was to take the motion which sought to strike out the appeal as incompetent first, leaving the appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the courts to do substantial justice, For, the days of technicality are gone. If, as a reflection of the present mood of courts to do substantial rather technical justice, a court of justice and equity decides to first take a motion which seeks to bring about a competent appeal where there is ex facie a proper application for such, before taking the one which seeks to strike out the appeal as incompetent, I can see nothing wrong with the practice. For, to adopt that course will save both time and expenses. In saying so, l am not unaware that in Chief Ebenezer Awole v. Sumola Kadiri Owodunni & Anor. (1986) 5 N.W.L.R. (Pt.46) 941, at p.950, my learned brother, Oputa, J.S.C., expressed the opinion that this was not proper course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respects, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the courts. Now, where there is before the court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal, I see nothing wrong with the court taking such an application first. — Nnaemeka-Agu JSC.
⦿ ALL APPLICATIONS FILED BEFORE THE COURT MUST BE HEARD AND RULED UPON
It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where an application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merits. See Otapo v. Sunmonu (1987) 2 NWLR. (Pt. 58) 587 S.C. I agree entirely with the well settled proposition that where there are two motions before a Court requiring to be heard, the interest of justice demands that the motion the determination of which would save the substantive action should first be heard. This principle is founded on the reasoning that where the application succeeds, then the other application can be taken. If however, a preliminary objection to dismiss an action is taken during the pendency of an application to correct the errors on which the preliminary objection is based, the preliminary objection will succeed, and the action dismissed. This is because the error remains extant the question whether the error can be corrected having not been investigated. This is clearly unjust and against our concept of administration of justice. — Karibe-Whyte JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Nnaemeka-Agu, J.S.C
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
