Owners Of The Mt “marigold” V. Nnpc & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED LAWAL GARBA, J.S.C.
By the Motion on Notice dated and filed on the 19th April, 2006, before the Lagos Division of the Court of Appeal, (Court below), the Appellant prayed for:-
“a) An order granting the Appellant herein extension of time within which to apply for leave to appeal against the ruling of the Federal High Court, Lagos per Honourable Justice E. O. Sanyaolu dated 7/4/2003 Suit No: FHC/L/CS/293/98.
b) An order granting leave to the Applicant herein to appeal against the said ruling dated 7/4/03 in the said suits and for leave to appeal on grounds of facts and/or mixed law and facts.
c) An order for extension of time within which to appeal against the ruling aforesaid and for such order or further orders as this Honourable Court may deem fit to make in the circumstances.
Dated this 19th day of April, 2006.”
The motion was supported by a 19 paragraphs Affidavit deposed to by a Legal Practitioner in the Chamber or Appellant’s Counsel to which were annexed, copies of documents marked as exhibits.
On the 20th November, 2009, the motion was moved by learned Counsel for the Appellant; Mr. Ferdinand Egede, who also deposed to the Affidavit in support thereof and urged the Court below to grant same while Mrs. Hope Nwambe, counsel for the Respondent did not file a Court-Affidavit in reaction to the affidavit in support of the motion but only opposed the request for an adjournment. The Court below rendered the following ruling, thereafter:-
“The application dated 19th April, 2006 and filed on the same day seeks the trinity prayers for extension of time, for leave to appeal and extension of time within which to appeal against the ruling of the Federal High Court, Lagos State delivered on the 7th April, 2003 in suit no. FHC/L/SC/293/98. Same is supported by an affidavit of nineteen paragraphs deposed to by Egede Fedinard, the learned counsel for the applicant who relied on all. For the application of this nature to earn the favour of the Court, the applicant must satisfy two conditions as restated in Order 3 Rule 4(2) of the Rule of this Court. In other words, it is incumbent on the applicant to satisfactorily explain good and substantial reasons why he failed to appeal within time. Secondly that the grounds ofappeal must be substantial and arguable and same requirement which must co-exist conjunctively with relevance to the affidavit in support, the applicant counsel relied on paragraphs 8 – 15 of same and urged specifically that the error to come within time is that of counsel. Specifically, paragraph 13 accuses the former counsel Mr. Ubong – Abasi Iyang who was said to have left chamber in June last year and was therefore responsible for the failure to have filed the notice within time. It is interesting to note that by the use of the phrase June last year, is not enough and specific a time when the said counsel left the chambers. The learned counsel, Mr. Egede has also admitted before us that the accusation lodged against Mr. Ubong – Abasi Iyang was not brought to his notice.
Casting aspersions on a counsel’s integrity is very serious matter which needed to have been drawn to his attention. The failure to do so is a serious defect on the application. Furthermore and even in the absence of any counter-affidavit, the requirement placed upon the applicant is a burden which he ought to discharge. He cannot rely on the weakness of the respondent to prove his case. At any rate, the facts of the affidavit as deposed to are those within the knowledge of the applicant and to which the respondent is not obliged to respond to.
The applicant on the totality of his application has not explained his failure to file his notice of appeal three years after the ruling was delivered. The 1st condition having not explained, it is unnecessary to dwell into the 2nd relating to the grounds of appeal. The satisfaction of the second is dependent upon the 1st. On the totality, the application lack merit and same is accordingly refused and dismissed. Costs of N2,500.00 to the respondent.”
Against the ruling, the Appellant brought this appeal vide the undated Notice of Appeal which appears at page 28 – 31 of the Record of Appeal, (without particulars):-
“GROUND 1
The learned Justice of the Court of Appeal erred in law in dismissing the Appellant’s Motion on Notice dated 19th April, 2006 for, inter alia, an order for extension of time within which to appeal against the ruling of the Federal High Court, Lagos dated 07/04/2003 on the grounds that “the Applicant on the totality of his application has not explained his failure to file his Notice of Appeal three years after the ruling was delivered.
GROUND 2
The learned Justices of the Court of Appeal misdirected themselves in law when they held at page of their ruling that; “Casting aspersions on a counsel’s integrity is a very serious matter which needed to have been drawn to his attention. The failure to do so is a serious defect on the application.
GROUND 3
The learned Justice of the Court of Appeal erred in law in refusing Appellant’s learned Counsel’s application for adjournment to enable him put the Counsel referred to, in the supporting affidavit, Mr. Obong-Abasi Inyang, on notice as was being insisted upon by the learned Justices on the ground that the said application for adjournment was belated.
GROUND 4
The learned Justices of the Court of Appeal erred in law when they ignored the overwhelming affidavit evidence of inadvertence of Counsel and proceeded to refuse the Applicant’s application thereby visiting the sin or inadvertence of counsel on the litigant.”
In line with the rules of the Court, learned counsel for the parties filed briefs of argument for theprosecution of the appeal as follows:-
- Appellant’s brief filed on the 3rd February, 2010 and
- Respondent’s brief filed on the 6th April, 2010.
Four (4) issues, in the tenor of the grounds of appeal, were set out at paragraph 3.1 on page 5 of the Appellant brief, while at page 10 of the Respondents’ brief, it said that, the Appellant’s issues raise a sole question challenging the exercise of the discretionary power of the Court below.
Now, the right of appeal against the decisions of the Court below to this Court is donated and vested in a party or person/s having interest, as the case may be, in a matter who is dissatisfied with them, by the extant 1999 Constitution. (as altered).
Section 233 (1) of the Constitution vests exclusive jurisdiction in this Court to hear and determine appeals from the Court below.
Then in Subsections (2) and (3), Section 233 provides that:-
“233 (2) An appeal shall lie from decisions the Court of Appeal to the Supreme Court as of right in the following cases:
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation of application of this Constitution.
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.
(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court;
(3) Subject of the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
Relevant to this appeal are the provisions or Subsection (2) (a) which prescribe that an appeal shall lie from the decisions of the Court below to this Court as of a matter of right on the part of an Appellant or a party who desires to appeal against same, where the ground/s of the appeal involves questions or issues of law alone. The import of the provisions is that an appeal from any decision of the Court below to this Court which raises or involves questions or issues of pure law, alone, is one that is at the unfettered discretion of the Appellant or party, as of right to be brought or filed in the Court subject only to the procedure prescribed in subsection (3) and Section 233. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172, Ngige v. Obi (2006) 14 NWLR (pt. 999) 1, Minister, P. M. R. v. Exposhipping Line Nig. Ltd (2010) 12 NWLR (pt. 1208) 26, (SC). The right appeal, being as of right, is to be exercised only in accordance with the stipulations of practice and procedure of the Court, but freely by the party and without prior resort to either the Court below or this Court before the filing or bringing a proper, valid and competent appeal which the Court is imbued with the requisite jurisdiction to entertain and adjudicate upon. See Clement v. Iwuanyanwu (1989) 4 SC (pt. 11) 89, (1989) 1 NWLR (pt. 107) 39, Saraki v. Kotoye(1992) 11-12 SCNJ, 26, (1992) 1 NWLR (pt. 264) 156, Nalsa & Team Associates v. NNPC (1991) 11 – 12 SC, 83. (1991) 8 NWLR (pt. 212) 652.
Here, because the appeal is as of right, the permission, go-ahead or leave of the Court is not required and so not necessary before the appeal can be validly brought or filed in the Court.
However, where an appeal from the decisions of the Court below to this Court is predicated or based on ground/s which raises or involves questions or issues which are not or pure law alone, but involves or raises questions or issue of either mixed law and facts or of facts alone, then the provisions of Subsection (3) of Section 233 come in to play and apply to the right of appeal, which would, in the circumstances, not be exercised as of right, but in accordance with the stipulation therein. The stipulation is that where the ground/s of an appeal against the decision of the Court below involves or raises questions which are not of pure law alone, as set out in the provisions of Subsection (2), then the appeal shall lie to this Court with the leave of Court below or of this Court. The exercise of the right of appeal, in such a situation, is fettered by the requirement of prior leave or permission of the Court below or this Court before the filing or bringing a valid appeal in this Court which will in turn, vest the Court with the requisite competence and jurisdiction to entertain and adjudicate over it. The leave of Court is made a condition precedent to be satisfied or fulfilled for the validity and competence of an appeal to this Court from the decisions of the Court below which involves or raises questions of either mixed law and fact or facts alone, under the provisions of Subsection (3). It is the prior leave of Court; first sought and obtained, that constitutes the fulfillment or satisfaction of the condition precedent for the filing or a valid and competent appeal which will vest the Court with the requisite judicial vires and authority to entertain such an appeal. The absence of the required and so necessary leave of Court in such a situation, will deprive the Court of competence and jurisdiction to hear or adjudicate over the appeal.
There is a formidable body of decisions by this Court on this position of the law which has made it common knowledge in both the Court below and this Court.
For instance, in the case of Kashadadi v. Sarkin Noma (2007) 6 SC (pt. 1) 68m (2007) 13 NWLR (pt. 1052) 510, Tobi, JSC, restated that:-
“By the Constitution, the Supreme Court cannot hear an appeal on grounds of mixed law and facts unless leave of the Court or the Court of Appeal is obtained. Where an appeal requires leave of Court and the leave is not sought for and obtained, the appeal is incompetent and will be struck out. This is because a Court of competent jurisdiction has no jurisdiction to hear an incompetent appeal.”
See in addition, Nalsa& Team Associates v. NNPC (supra), Russel v. Russel (1987) 2 NWLR (pt. 57) 437, Faleye v. Otapo (1987) 3 NWLR (pt. 64) 186, Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (pt. 496) 643 (SC), Ifeajuna v. Ifeajuna (1999) 1 N WLR (587) 492, Ukpong v. Comm. For Finance & Eco. Dev. (2006) 11-12 SC, 36, (2006) 19 NWLR (pt. 1013) 187, SPDCN Ltd. v. Katad Nig. Ltd. (2006) 1 NWLR (pt. 960) 199, Opuiyo v. Omoniwari (2007) 6 SC (pt. l) 35, (2007) 16 NWLR (pt. 1060) 415.
In view of the above foundation, I now turn to look, closely, and consider the grounds contained on the Appellants’ Notice of Appeal, as they appear above, which was filed as of right in order to see if and whether they all or some of them raise or involve questions of pure law alone in order for the Court to be properly seized of the requisite jurisdiction to adjudicate over the appeal without the need for leave of Court.
Perhaps, before embarking on such consideration, I should restate the now elementary position of the law that due to its fundamental and crucial nature, the issue of jurisdiction of a Court to entertain and adjudicate over a matter or, as in this case, an appeal, as a matter of substantive law, can be raised at all stages of proceedings of all the Courts in the judicial hierarchy, at any time, anyhow and by any of the parties or the particular Court, suo motu. It is never late to raise the issue or question of the jurisdiction of the Court to adjudicate over a matter, case or appeal, even viva voce and once it arises or is raised, the Court has the duty to determine it first before proceeding to deal with other issues that may be raised therein, if necessary. The reason for this inviolable position of the law is that all judicial proceedings of a Court conducted without the requisite jurisdiction, along with any product thereof, are null, void and of no legal value and effect ab initio, howsoever otherwise well conducted. See Madukolu v. Nkemdilim(1962) SCNLR, 341, (1962) All NLR, 587, Odiase v. Agho (1972) 1 All NLR (pt. 1) 170, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 7 SC, 158, Oloriode v. Oyebi (1984) 5 SC, 260, Altine v. Afribank Plc. (2000) 15 NWLR (pt. 689) 181 (SC), Senate President v. Nzeribe (2004) 41 WRN, 60 (SC), Cotecna Int. Ltd. v. Ivory Merchant Bank Ltd (2006) 5 SCM, 17, NDIC v. CBN (2002) 7 NWLR (pt. 766) 272 (SC), Equity Bank of Nigeria Ltd. v. Halilco Nig. Ltd. (2006) 7 NWLR (pt. 980) 568 (SC), Shitta-Bey v. A.G., Federation (1998) 7(pt. 11) 121, (1998) 10 NWLR (pt. 570) 392, Onyema v. Oputa (1987) 3 NWLR (pt. 60) 259 (SC), Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 166 (SC), Durwode v. State (2000) 15 NWLR (pt. 691) 467 (SC), Otukpo v. John (2000) 8 N WLR (pt. 669) 507 (SC), among the litany of the pronouncements on the position by this Court.
In addition, the issue of jurisdiction to entertain an appeal by this Court can be raised at the judgment stage by the Court without the need to call for address and proceed to decide it, being the final appellate Court in Nigeria.
In the recent case of NNPC v. Roven Shipping Ltd (2019) 9 N WLR (pt. 1676)67 at 92, paragraphs 13 – D, M. D. Muhammad, JSC, repeated the law when he said:-
“Now, it is beyond contention that the requirement of giving parties the opportunity to address a Court on an issue raised by the Court suo motu is a general rule which, like all others, has exceptions. Decisions of this Court abound specifying these exceptions. See Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (pt. 1213) 106, Tukur v. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 and Bola Omoniyi v. Jacob Adegboyega Alabi (2015) LPELR-24399 (SC) (2015) 6 NWLR (pt. 1456) 572. It has been held by this Court in those decisions, that the principle that whenever a Court raises an issue not within the contemplation of parties and suo motu parties should be given a hearing before a decision on the issue so raised, applies mainly to issues of fact and that, in special circumstances, an issue of law or jurisdiction may be raised suo motu and without hearing the parties, decide upon the issue so raised.”
This position is an affirmation or the earlier pronouncement by Rhodes- Vivour, JSC, in Omokuwajo v. FRN (2013) 9 NWLR (pt. 359) 300 at 332, paragraphs D – E whereinHis Lordship stated that:-
“The need to give the parties a hearing where a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction.
(b) both parties are/were not aware or ignore a statute which may have bearing on the case. That is to say where by virtue of statutory provision, the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.”
See also Katto v. CBN (1991) 9 NWLR (pt. 316) 159 at 178, Ejowhomu v. Edok-EterMandilas Ltd. (1986) 5 NWLR (pt. 39) 1, Olutola v. Unilorin (2005) All FWLR (pt. 245) 1154, Alims Ltd. v. UBA, Plc (2013) 1 MJSC (pt. 1) 156 at 170.
It may be recalled that I did not set out the particulars provided under each of the grounds of the appeal as contained on the Notice of Appeal. My reason for so doing is that all the particulars set out under each of the grounds are mere arguments in support of the grounds and not facts which flow directly from and which should ossify the complaints of alleged misdirection or errors of law in the grounds. See Agbara Estates Ltd. v. Odejayi (2010) LPELR- 3650, Atuyeye v. Ashamu (1987) 1 NWLR (pt.49) 267, Rinco Constr. Co. Ltd. v. Veepee Ind. Ltd. (1995) 5 NWLR (pt. 240) 248.
I now turn to the grounds.
From the notice set out on the Notice of Appeal, the decision of the Court below complained against by the Appellant is contained in the Ruling delivered on the 20th November, 2006, on the motion/application for the trinity prayers of extension of time to seek leave, leave and extension of time to appeal. Apparently therefore, the real complaint in the appeal and all the grounds on the Notice of Appeal is against the exercise by the Court below of its judicial discretion conferred on it by the provisions of Section 25 of the Court of Appeal Act, as well as Order 3 Rule 3(4) of its Rules, 2007 to entertain such applications/motions. See Nigerian Lab. Corp. v. Pacific Merchant Bank Ltd (2012) LPELR – 7859 (SC), Mini Lodge Ltd v. Ngei (2009) 18 NWLR (pt. 1173) 254, Adejumo v. state (2006) 9 NWLR (pt. 986) 627. It is known that the exercise of any Judicial discretion, which has been described in its general usage, as the power and freedom to decide what should be done in a particular situation or the exercise of judgment by a judge or Court based on what is fair under given circumstances, guided by rules and principles of law, See Akinyemi v. Odu’a Invest. Co. Ltd. (2012) LPELR 8270 (SC), is predicated on appraisal and evaluation of facts presented before the Court by the parties in a case, but in particular, the facts from the party seeking the exercise of the discretion in his favour. Speaking generally, it is said that a ground of appeal challenging the exercise of such a discretion, would be one of, at best, mixed law and facts, depending on the nature of the complaint therein. Obinyiriuka v. Aliche (1991) 4 N WLR (pt. 183) 87 at 95.
In this appeal, all the four (4) grounds complain about the appraisal and evaluation of the facts deposed to in the Affidavit in support of the motion filed by the Appellant before the Court below seeking the exercise of the discretion for extension of time and leave to appeal. Although an Affidavit qualifies as and is evidence, the exercise of the discretion by the Court below involved the evaluation or such evidence on the basis of the facts deposed to in the affidavit in order to make the finding of facts in its ruling and the law is now firmly settled that a ground which challenges the evaluation of evidence, is at best, one of mixed law and facts and not of pure law alone. See UBA Ltd v. Stahlbau GMBH & Co. KG, (1989) 1 NWLR (pt. 110) 374 (SC), Obinyiriuka v. Aliche (supra)
In the case of Ehinlanwo v. Oke (2008) 6 – 7 SC (pt. II) 123, (2008) 16 NWLR (pt. 1113) 357, Onnoghen, JSC (later CJN) stated law, in the determination of whether a ground or appeal is one of law or mixed law and facts, inter alia, that:-
“(ii) A ground which challenges the findings of fact made by the trial Court or involves issues of law and fact can only be argued with the leave of the Appellate Court.
(iii) where the evaluation of fact established by the trial Court before the law in respect thereof is applied, is under attack or question, the ground of appeal is one of mixed law and facts.
(iv) where the evaluation of evidence tendered at the trial Court is exclusively questioned, it is a ground of facts.”
The grounds on the appellant’s Notice of Appeal clearly, come and are wholly covered by the above principles because they all seek to question or challenge the appraisal and evaluation of the facts in the Affidavit and the findings of facts made by the Court below on application of its rules to the facts. In these premises, the grounds are not of pure law alone to clothe the Appellant with the right of appeal as of right as stipulated under the provisions of Section 233 (2) (a), rather, the grounds are at best, of mixed law and facts, which by dint of the provision of Section 233 (3), (as shown earlier), require prior leave of either the Court below or this Court as a condition precedent, to be validly and competently brought and for the Court to have the requisite jurisdiction to adjudicate on same. I have also demonstrated before now, that the absence of such leave renders an appeal, incompetent and deprives the Court of the jurisdiction to adjudicate over it.
That is the fate of this appeal.
The above position, as it is apart, I have also noticed that the Notice of Appeal was in fact signed by proxy; by way of a contraption of a signature, for the person whose name was set out clearly. The name of the person who inscribed or appended the contraption of the signature on behalf of and for the person whose name was set out is not stated or written in order to be identified for the purpose of determining whether he is a legal practitioner known to law by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act (LPA) and so competent to sign the Notice of Appeal, as an initiating process in this Court. The law is that once it is not certain and clear as to the actual person who signed a process to be filed in Court by clear indication of the name, the process is incurably incompetent. See SLB consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1352) 317, Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 446 at 485, Okarika v. Samuel (2013) 7 NWELR (pc. 1352) 19.
In the appellate Courts, the Notice of Appeal is the initiating process and so the foundation of an appeal over which the requisite jurisdiction of the appellate Court can validly by invoked. It is sine qua non. Any defect in the Notice of Appeal would render it incompetent, thereby depriving the appellate Court of the jurisdiction to entertain and adjudicate over an appeal.
In law, in the absence of a valid and competent Notice of Appeal, there will be no appeal over which anappellate Court could adjudicate or conduct judicial proceedings, ab initio. SeeRe: Osibakoro D. Otuedon (1995) 4 NWLR (pt. 392) 655, Uwazurike v. A. G., Federation (2007) 2 SC, 19, (2007) 8 NWLR (pt. 1035), Odunze v. Nwosu (2007) 5 -6 SC, 40, (2007) 13 NWLR (pt. 1050) 1, Adelekan v. Ecu-Line NV (2006) 5 SC (pt. II) 32, (2006) 12, NWLR (pt. 993) 33, Shelim v. Gobang (2009) 12 NWLR (pt. 1156) 435, Oketie v. Olughor (1995) 5 SCNJ, 217 and Thor Ltd. v. FCMB Ltd. (2002) 2 SCNJ, 85.
On the ground that the Notice of Appeal was signed by a proxy who did not clearly and specifically write his name and cannot be identified and is not reasonably identifiable, it is incurably defective and incompetent. It is incapable of invoking the jurisdiction of this Court, over the purported appeal and is liable to be struck out.
In the final result, for the aforenamed reasons, the undated Notice of Appeal at pages 28 – 31 of the Record or Appeal is struck out for being incompetent.
There shall be costs assessed at two (2) million naira (2,000,000.00) in favour of the Respondent to be paid by the Appellant, for the prosecution of this 2010 appeal in this Court.
SC.9/2010
