National Inland Waterways Authority V. The Shell Petroleum Development Company Of Nigeria Limited (2006)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

PURSUANT to section 25 (1), (2) and 4 of the Court of Appeal Act, Cap 75 Laws of the Federation 1990, Order 3 Rule (4) (1) of the Court of Appeal Rules 2002 and the inherent jurisdiction of the Court, the applicant seeks the following:

“1. An order extending time within which the applicant/respondent may seek leave to cross appeal against those parts of the decision of Hon. Justice Faji delivered 22nd April 2005 in suit No: FHC/PHC/CS/322/2003 in Federal High Court, Port Harcourt which are interlocutory.

2. An order for leave to cross-appeal in respect of the said decision.
3. An order extending time within which the respondent may cross-appeal against those parts of the decision of Hon. Justice Faji delivered on the 22nd day of April in suit No: FHC/PHC/CS/322/2003, which are interlocutory.
4. An order deeming the notice of cross appeal already filed, served and comprised in the record of appeal as being filed and served.
5. An order extending time within which to file respondent/cross appellant’s brief of argument.
6. An order deeming the already filed and served respondent/cross appellant’s brief of argument as properly filed and served.”

The application which is filed on 29th March 2006 is supported by a ten paragraph affidavit. Paragraphs 3, 4, 5, 6, 7, 8, and 9 have been particularly relied upon by the applicant. The paragraphs are hereunder supplied for ease of reference:

“3. At the time of filling the notice of cross-appeal before this Honourable Court. Counsel had the mistaken belief, that being a final decision, leave was not required. The said notice of cross appeal has been filed and is already included in the record of appeal. A copy of the said notice of cross appeal can be found at pages 272-275 of the record.

4. In the process of writing the brief of argument, it became apparent that there was the need to seek for leave to cross-appeal, as at least two of the grounds of appeal appear to be interlocutory even though the said decision are comprised in what is titled the judgment of the lower court.

(Underlining supplied for emphasis)

5. At this stage, the time provided by the Court of Appeal Act and the rules for making the application for leave to appeal had expired.
6. Further, the applicant/respondent/cross appellant’s brief of argument was not filed until now owing to immense pressure of work and vacation taken by counsel conducting the appeal Mr. Etigwe Uwa between December 2005 and January 2006. In addition the appellant’s brief is very voluminous running into 104 pages as a result of which writing the respondent’s brief and cross appellant’s brief has taken more time than expected. Our chambers have also within this period been occupied with the preparation of several other briefs of argument both in the court of Appeal and in the Supreme Court. Matters were worsened by the fact that our Mr. Etigwe Uwa leading counsel and his assistant Chinasa Unaegbunam took ill in the first and third weeks of February 2006 respectively.
7. It is entirely for this reason that the said brief of argument was not filed until now coupled with the National Census wherein there was no movement in Lagos State from 21st-27th of March 2006 sequel to the stay at home order of the government.
8. The said brief of argument is now ready and has been filed at the registry of this Honourable Court and now forms part of the Record of this Honourable Court to which I crave leave to refer.
9. That the respondent/appellant/cross respondent will not be prejudiced if this application is granted.”

The respondent herein has filed a twenty-paragraph counter-affidavit in opposition to the application. Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16 and 17 of the counter-affidavit being important and relevant are hereunder reproduced:

“3 Judgment was delivered in this matter on April 22, 2005 against the defendant/appellant/respondent.

4. The defendant/appellant/respondent on May 3, 2005 filed an appeal against the whole judgment.
5. Defendant/appellant/respondent filed its appellant’s brief of arguments on November 15, 2005 and served the plaintiff/respondent/applicantion November 17, 2005.
6. The plaintiff/respondent/applicant, filed a notice of cross-appeal on June 3, 2005 against part of the judgment
7. From November 17, 2005 when the defendant/appellant/respondent’s brief of argument was served on the plaintiff/respondent/applicant, the plaintiff/respondent/applicant had 45 days to file its respondent’s brief of arguments. The 45 (forty-five) days expired on January 1, 2006.
8. On February 23, 2006, the defendant/appellant/respondent filed a motion on notice seeking orders of this honourable court for a date to hear the defendant/appellant/respondent’s appeal on the appellant’s brief of arguments.
9. The said defendant/appellant/respondent’s motion on notice was served on the plaintiff/respondent/applicant on March 3, 2006. This honourable court filed the said motion for hearing on March 29, 2005.
10. On March 29, 2006 the day the defendant/appellant/respondent’s motion came up for hearing before this honourable court the plaintiff/respondent/applicant filed its respondent cross-appellant’s brief of arguments, 85 days out of time from January 1, 2006.
11. On March 29, 2006, the plaintiff/respondent/applicant filed a motion on notice now seeking the orders of this honourable court for extension of time to seek leave to appeal and leave to file cross appeal. The defendant /appellant/respondent filed its notice of cross appeal on June 3, 2005 without leave of court.
12. The plaintiff/respondent/applicant did not obtain the leave either of this honourable court or the lower court before it filed the notice of cross appeal on June 3, 2005. That is over ten (10) months ago.
13. The plaintiff’s appeal and the defendant’s cross-appeal have been enter in the Court of Appeal.
14. On March 29, 2006 the plaintiff/respondent/applicant filed and served on the defendant/appellant/respondent its respondent cross appellant’s brief of argument without first obtaining leave to appeal.
15. Chief Richard Akinjide CON, SAN, FCI Arb (UK) informed me and I verily believe him that the plaintiff/respondent/applicant’s notice of cross appeal and the cross-appellant’s brief of argument already filed are incompetent and a nullity.”

It is helpful to refer to the record of appeal filed by the respondent to this application, here see paragraph 4 of the respondent’s counter-affidavit; for us to fully appreciate the issues the instant application raises from the said record.

Applicant herein as plaintiff at the lower court took out an originating summons dated 12th May 2003 against the respondent, as the defendant seeking the determination of the following two questions:

“1. Whether the plaintiff is entitled by virtue of Sections 9, 10, 11, 12, 13 and other sections of the National Inland Waterways Authority Act 1997. (The NIWA Act) to levy, impose and collect charges, dues, and rates for dredging, shoreline utilization along the right of way of declared waterways; use of land on the right of declared waterways for spoil dump, obstruction of waterways through pipeline and such other charges from the defendant and other companies carrying on dredging, oil and shoreline related activities along the right of way, or on declared waterways in spite of the provisions of Section 15 of Petroleum Drilling and Production Regulations and Section 11 (4) of the 2 Oil Pipelines Act.

2. Whether or not the regulation for Dues, Rates, and Charges (Tariffs) made by the plaintiff and approved by the Federal Ministry of Transport on the 16th March 1998 is valid and in accordance with the provisions of section 29 of the National Inland Waterways Authority Act 1997.”

On determining the foregoing questions in the affirmative, the applicant asked the court for the following reliefs: –

“1. A declaration that the plaintiff is entitled to the exclusion of all others to levy, impose and collect charges, dues, or rates for dredging, shoreline utilization and use of land for Spoil Dump along the right of way of declared waterways, and in respect of such similar activities enumerated in Section 9 of the NIWA ACT, from the defendant in accordance with Sections 13 and 29 of the said NIWA ACT.

2. A declaration that the Regulations of Dues, Rates and Charges (TARIFF) made by the National Inland Waterways Authority and approved by the Federal Ministry of Transport on the 16th of March 1998, is the valid and applicable tariff for all the various activities carried out on in or along the right of way of declared waterways, creeks and Lagoons and is binding on all persons or Companies carrying out such activities in or along the right of way of the said declared waterways, creeks and lagoons.
3. Judgment in favour of the plaintiff against the defendant in the sum of N 1,226,671,470.00) One Billion, Two Hundred and Twenty six Million, Six Hundred and Seventy One Thousand, Four Hundred and Seventy Naira) being the total unpaid accumulated dues, charges and dump and other similar charges due from t he defendant to the plaintiff for the years 1997-2003.”

In its judgment, the lower court resolved the two questions asked by the applicant affirmatively but ordered pleadings in respect of the third relief.

The instant application relates to the decision of the lower court dated 22/4/05. The issue the application fundamentally raises is whether the necessary leave for the exercise of the right of appeal can be retrospectively granted by this court to the applicant that had filed its notice of appeal without the required leave in the first place. It is an added question whether any or all circumstances attendant to the filing by the applicant of its appeal without leave would also be availing.

In moving the application learned counsel Mr. Uwa resorted to their notice of cross appeal of four grounds. He submitted that grounds one and two thereof are grounds of fact or at best mixed fact and law for which leave was required. Grounds 3 and 4 of the notice of appeal, however, being grounds of law alone required no leave. The first three reliefs in the instant application, therefore, relate to the first two grounds of appeal on the appellant’s notice of cross appeal at pages 272-274 of the record of appeal in respect of the appeal filed by the respondent counsel on 6/5/05.

Paragraph 4 of the affidavit in support of the application glaringly speaks for itself. Learned counsel for the applicant shoulders the blame for filing the first two grounds of appeal without the necessary leave. The necessity for obtaining leave in respect of the two grounds manifested itself long after appellant’s notice of cross appeal had been filed and when learned counsel had embarked on writing the respondent/cross appellant’s brief. By applicant’s 5th and 6th prayers, the extension of time to file and deeming the already filed and served respondent/cross appellant’s brief as properly filed and served are being canvassed. It has argued that with mistake of counsel as the reason behind not obtaining and filing the two grounds of appeal which grounds are arguable. Applicant deserves the grant of the reliefs it seeks. He relies on the decisions in Okeke v. Petmag (Nig.) Ltd. (2005) 4 NWLR (Pt 915) 245 at 261; Alamieyeseigha v. C.J.N. (2005) 1 NWLR (Pt 906) 60 and more particularly the Supreme court’s decision in Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 266 -267.

Chief Akinjide SAN for the respondent in a very terse but powerful response opposed the application. He submitted that failure by the applicant to obtain leave before filing the two grounds of appeal to which reliefs 1, 2 and 3 in the motion relate is fatal. The lapse cannot be retrospectively rectified through the procedure instantly reserved to by the applicant. Inter alia, learned respondent counsel relies on Shaka v. Salisu (1996) 2 NWLR (Pr 428) 22 at 28, Sanusi Mosuro & Anor v. Salami Akinyele Vol. XIII WACA 112 at 113, lfeajuna v. lfeajuna (1999) 1 NWLR (Pt 587) 492 and Akambi v. Alao (1989) 3 NWLR (Pt. 108) 118 at 120.

In furtherance of argument, learned senior counsel contends that the decision of the Supreme Court in Williams v. Mokwe does not avail the applicant herein. Unlike in Williams v. Mokwe’s case, the respondent herein has opposed the grant to the applicant of the reliefs being canvassed. The truth, it is submitted, is that the notice of appeal the applicant filed in respect of its two grounds of appeal without the mandatory leave in place is incompetent.

All other reliefs on the heels of such an incompetent process are equally to no avail. Counsel relies on the case of Macfoy v. UAC (1962) AC 152 and urges that the application being unmeritorious be dismissed.

In reply on grounds of law, learned applicant’s counsel contends that learned senior counsel for the respondent’s objection and reliance on Macfoy v. U.A.C. supra as well as Co-operative Bank v. Ogwuru (1991) 1 NWLR (Pt. 168) 458 is misconceived. The latter decision being a Court of Appeal decision does not take precedence over the decision in Williams v. Mokwe given by the Supreme Court and which binds the Court of Appeal. Counsel urges that this court submits to the authority of the apex court by allowing the application.

Before considering the merits or otherwise of this application, certain facts conceded by the respondent to the applicant need to be appreciated. Learned applicant counsel, Mr. Uwa, has contended that their notice of appeal in respect of their 3rd and 4th grounds of appeal being in respect of the lower court’s final decision and filed within the con of Section 241 of the 1999 Constitution and the time Section 25 of the Court of Appeal Act prescribes for such appeals to be filed, remains valid. Applicant’s problem relates to its 1st and 2nd grounds of appeal that had been filed contrary to what the constitution provides. Learned respondent senior counsel has not differed from applicant’s counsel in this regard. The issue the application raises, therefore, is whether an appeal that required leave to be filed but had been filed without the necessary leave can be retrospectively regularized by obtaining the leave subsequently.

Now, the right of appeal is conferred by statute be it one which creates either the trial or appellate court or such other enactment which confers appellate powers. In the instant case the right of appeal to this court from the Federal High Court or the High Court of a state is provided by Section 241, Section 242, and Section 243 (b) of the 1999 Constitution as well as part V of the Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria 1990. These enactments are hereunder reproduced.

“241 – (1) An appeal shall lie from decisions of the Federal High Court or 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 Federal High Court or a 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 of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;

(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;

(f) decisions made or given by the Federal High Court or a High Court –

(i) where the liberty of a person or the custody of an infant is concerned;

(ii) where an injunction or the appointment of a receiver is granted or refused;

(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or relating to companies in respect of misfeasance or otherwise.;

(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability; and

(v) in such other cases as may be prescribed by any law in force in Nigeria.

(2) Nothing in this section shall confer any right of appeal –

(a) from a decision of the Federal High Court of any High Court granting unconditional leave to defend an action;

(b) from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and

(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties as to costs only.

242- (1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or 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 the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal Court or a 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.

243. Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be

(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court of criminal proceedings at the instance of an accused person or, subject to the provisions, of this Constitution and any powers conferred upon the; Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;

(b) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”

(Italics supplied for emphasis)

Pursuant to Section 243 (b) supra, section 25 of the Court of Appeal Act as well as Order 3 Rule 4 of the Court of Appeal Rules, being an Act of the National Assembly and rules of principles have direct impact in the right of appeal created by the constitution Section 25 of the Court of Appeal Act provides: –

“25 (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3) Where an application for leave is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the court of Appeal.

(4) The court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.

Order 3 rule 3 sub rule 5-

“lf leave to appeal is granted by the Court or by the court below the appellant shall file a notice of appeal within their time prescribed by section 25 of the Act.”

Order 3 rule 4-

“The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply”

A community reading of rights of appeal exercisable the foregoing sections reveals with leave of either the High Court or the Court of Appeal to include:

(a) Against the interlocutory decisions of the Federal High Court or a High Court, except such interlocutory decisions which involve questions of raw alone. It follows that the right of appeal against an interlocutory decision of any of the High courts that involves pure questions of law is exercisable as of right and does not require the leave of either the High Court which decision is appealed against or the court of Appeal; see Ayansina v. Co-op Bank Ltd (1994) 5 NWLR (pt 347) 742.

(b) Any appeal from a decision of any High court consented to by parties or on the costs awarded against any of the parties only.

(c) Any appeal against the decision of High Court exercising appellate jurisdiction in any civil or criminal proceedings.

(d) Appeals by an interested party. See In Re: Madaki (1996) 7 NWLR (pt. 459) 153 SC and Owena Bank (Nig) PLC v. NSE Ltd (1997) 8 NWLR (Pt 151) 1 SC.

The constitution has in the foregoing instances donated a right of appeal, which becomes operable only with leave of court. The right “enures” to the appellant only with permission of the court. Where an aggrieved person within the con of any of the instances outlined in (a) – (d) supra files his appeal without the required leave, the permission of either the High Court or the Court of Appeal, his appeal is incompetent. The right of the appellant remains dormant and lifeless in the absence of the “leave”, “the permission” it takes to bring the appeal to life. A right of appeal which requires leave is akin to a crossed cheque. The value of such cheque remains in the account into which it must be paid. It cannot be paid over the counter to any individual. Value of the cheque is accessed over the counter if the cheque is opened. Leave in the appeal process is the opener without which the right of appeal is not accessed. In the instant case where the applicant had filed a notice of appeal which, in respect of grounds 1 & 2 thereof required leave, being neither grounds of law alone nor in respect of the aspect of the tower court’s decision that is final, the notice of appeal is to that extent, as submitted by chief Akinjide (SAN) for the respondent, incompetent. Decisions of both this court and the Supreme Court are legion and seemingly endless. The two cited by learned senior counsel for the respondent are part of the lot. They are apt and helpful in this regard.

The issue for determination in the three decisions of this court relied upon by learned senior counsel was whether an appeal filed by the appellant who had not obtained the required leave to appeal against the judgment of the High Court is competent?

In shaka v. Salisu (1996) 2 NWLR (Pt. 248) 22 the Kaduna Division of this Court relied on a passage in Mosuro & Anor v. Akinyele 13 WACA 112-113 to hold an appeal filed without a required leave of court incompetent. The passage reads:

“As an appeal is a creature of statute, this court must first be satisfied that there has been strict compliance with the statutory requirements which govern the very existence of an appeal of those requirements. There can be none more fundamental than the necessity for obtaining, in the manner; leave to appeal to this court. But that in the very thing that has not been done in the present case, and for that reason – whatever may have been the attendant circumstance – I find it impossible to say that there is an appeal before this court.

It follows that in my view, there can be no question of invoking the provisions of section 9 in respect to something which plaintiffs refer to as an “appeal” but which, in law, has no existence as such.”

The decision in Shaka v. Salisu supra which is of this court; See Yakubu v. Governor Kogi State & 4 ors (1995) 3 NWLR (Pt 383) 367 and “Co-operative & Commerce Bank Ltd v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630, has been further affirmed by the court in Ifeajuna v. Ifeajuna supra. These decisions are informed quite apart from the decision of the West African Court of Appeal in Mosuro & Anor v. Akinyele supra, but by the Supreme Court as well. See Okotie-Ebula v. Okotie Eboh (1986) 1 SC 479 at 487.

It must thus be emphasized that the leave envisaged under any of the sections of the Constitution under reference is a condition precedent to the exercise of the right of appeal under the said sections. It is settled that where the condition precedent is necessary but has not been fulfilled the appeal as filed is illegal and incompetent. See Ayausina & Anor v. Co-operative Bank Ltd (1994) 5 NWLR (Pt. 347) at 754. In the instant case, applicant had filed its notice of cross appeal of four grounds on 3/6/05 ostensibly within the time allowed by Section 25 (2) of the Court of Appeal Act in respect of all categories of appeal: ninety days for appeals against final decisions of the lower court in civil cause or matter and fourteen days in respect of the court’s interlocutory decision. Grounds 3 and 4 of the grounds of applicant’s cross-appeal, both counsels agree, relate to the court’s final decision dated 22nd April 2005. The first two grounds of the cross appeal, there is no controversy here also, are against the interlocutory part of the judgment cross-appealed against. It is not in doubt that these two grounds, which applicant counsel himself admitted required leave of the court, had been filed without the necessary leave. Yet acquisition of leave from the court, it is trite, is a condition precedent to a lawful exercise of applicant’s right of appeal. In the instant case where such a condition had not been fulfilled, the notice of appeal in so far as the two grounds of appeal relating to the interlocutory aspect of the judgment appealed against, is incompetent. See Anyasina & Anor v. Cooperative Bank Ltd (1994) 5 NWLR (Pt 347) 742 at 754.

Learned counsel has argued that given the Supreme Court’s decision in Williams v. Mokwe (2005) 14 NWLR (Pt 945) 249 at 266 – 267 , the procedure of filling its 1st and 2nd grounds of appeal is just an irregularity and being not a fundamental vice, it is being remedied by the instant application. On being granted the leave the applicant now seeks from us, the defect would be cured. I am unable to agree that the Supreme Court has said so in Williams v. Mokwe supra. One dares say that the very Supreme Court which in countless authorities held that court’s must give effect to statutes, and that rules of court are meant to be obeyed would not state that otherwise be done. Undoubtedly there is some misapprehension as to the import of the apex court’s decision Applicant’s counsel seeks to rely upon. Most certainly, the facts and issues on the basis of which the decision in Williams v. Mokwe evolved are not the same with the facts of the instant case. I shall amplify lavishly at once.

The respondent in the Mokwe’s case was not a party to the proceedings at the trial court. Before judgment, it applied to be joined. For some inexplicable reasons, the application for joinder dated 8/7/94 was not heard and determined by the trial court. Judgment was entered eventually in favour of the appellant who was the plaintiff at the trial stage. Even though not party, having not been joined, respondent G. C. Mokwe & Sons Ltd being dissatisfied with the decision of the trial court filed its notice against the judgment on 28/7/94.

Respondent also filed its application for leave to appeal at the trial court, a day after it had filed its notice of appeal on 29/7/94. Respondent on 24th June 1995 applied to the Court of Appeal under Section 222(a) of the 1979 Constitution for leave to appeal as party interested against the trial court’s judgment dated 28/7/94. The application which was not opposed by the appellant was granted as prayed on 5th February 1996 more than six months after the respondent had filed its notice of appeal. The appeal was heard and allowed by the Enugu Division of the Court of Appeal A review was ordered after the trial court’s decision appealed against had been set aside. Being dissatisfied, the appellant appealed to the Supreme Court. It was argued that the Court of Appeal’s order dated 5/2/96 granting leave to the respondent to appeal against the decision of the trial court following respondent’s application subsequent to the filing of notice of appeal to that effect was illegal. In dismissing the appeal, the Supreme Court observed that appellant had neither opposed respondent’s application at the Court of Appeal for leave and for the deeming of respondent’s irregularly filed notice of appeal as properly filed nor appealed against the said order. In affirming the decision of the Court of Appeal, the court per Kalgo JSC first referred to the decision of that court thus:

“The appeal was heard by the Court of Appeal and in its judgment Niki Tobi, JCA (as he then was) who read the leading judgment said:

“It is clear from the record book that the motin in question (for leave to appeal) was moved by learned counsel for the appellant on 5/2/96. A. U. Chilota counsel for the respondent did not oppose the motion. This court accordingly granted it as prayed. Leave therefore granted the applicant. The order was given way back on 5/2/96. The respondent had all the opportunity to appeal if he was not satisfied. But there was no appeal.

He now raises the issue in his brief filed on 28/10/96. I do not think the law allows him to do so. The objection on the competence of the appeal therefore fails.”

The apex court concluded as follows:

“The facts elicited in the above quotation were perfectly correct according to the proceedings in this case, and I entirely agree with the Court of Appeal that without an appeal the orders, the objection to the competence of the appeal on that ground cannot be taken. That should be the end of the matter.”

The foregoing is the rationes decidendi in the Mokwe’s case. Learned senior advocate is therefore correct in his submission that the decision cannot bind the instant case. The objection expressed to the instant application was not a feature in Mokwe’s case. Most certainly, a subsisting judgment of a court of law, even where the court lacked the necessary jurisdiction is valid until same is set aside. The decisions of this court earlier referred to in this ruling, Ifeajuna v. Ifeajuna persist is one of them, as same had evolved on the basis of the same facts as those in respect of the instant application. Applicant’s application for leave to appeal subsequent to its filing of a notice of appeal without the mandatory leave in the first place is incompetent. We must submit to the binding authorities of the decisions in – Ekwulugo v. A.C.B. (2006) 6 NWLR (Pt 975) 30 at 40; Mosoru & Anor v. Akinyele 13 WACA 112 to the effect that any process attendant to an incompetent notice of appeal, including brief of argument is equally incompetent. As held in MACFOY v. UAC supra, because applicant’s notice of appeal is ab initio void and cannot be regularized retrospectively every process or proceedings founded on such a nullity is incurably bad. We cannot add to a notice of appeal that does not exist all the orders we are asked to make by the applicant and expect same to say.

For all these reasons, I find no merit in the application and dismiss same with cost of N2, 500.00 against the applicant in favour of the respondent.

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Other Citations: (2006)LCN/2040(CA)