Chidume Ozo Anieke V. Nnaji Okolie & Ors (2008)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO O. OMAGE, J.C.A.
This is an appeal against the decision of the High Court of Justice, Enugu State, Coram I.A. Umezulike delivered on 20th November 1996. The appeal went to the High Court, upon an appeal from the Iwollo Customary Court which held at Iwollo in suit No.CC1/11/87. In the suit in the customary court, the plaintiff now appellant in this court claim thus:
“(1) Declaration that the plaintiff on behalf of Umuezechi Mbanamba Ndibinagu Iwollo is entitled to a customary right of occupancy over a piece of land called Ofufe Mbanamba situated at Iwollo.
(2) An injunction to prevent the defendant, their agents or servants for (sic) further entry into the said land.”
The claim went before the said customary court and after a visit to the locus-in-quo it delivered judgment as follows:
“(1) That the Ofufe shrine was erected by the forefathers of the plaintiff many generations ago, and they were worshipping it annually to date.
(2) That the forefather of the defendant had never made them to remove it from that land nor did the defendant asked them to do so up till now.
(3) That the court believed that the dwarf fence was built for fire protection and not for demarcation of the boundary otherwise the defendant would not allow one Chiakwe Ucheama and Mr. Godwin Obi to plant their cassava at two portions of the land inside the land last year 1985-86 because cassava sticks were planted in the land over a year old.
(4) That the portion of the land planted yams by the defendant inside the land 1987 is the cause of this present suit.
(5) That the defendants never showed to court anything they did in the land in year 1986 or 1985 downward.
(6) That the court is hereby upholding the evidence given in this court by Mr. Godwin Obi a relative of the plaintiff, who told the court that Iwollo Community is made up of quarters or villages such a Umuezeonyia, Ndibnagu, Amagu, Owoloto Obinagu, Enugu and Aguobu and nobody can allow any person to erect a shrine inside his quarters own land.
(7) That the plaintiff is a native of Ndibinagu, while the defendant is a native of Obunagu and they are not from the same quarter in Iwollo Community” See page 14 of the record of proceedings.
The defendants were dissatisfied with the decision of the, customary court. It lodged an appeal with the High Court on a notice of appeal filed in the Iwollo Customary Court on 28th October 1987, within the time prescribed. The notice of appeal contained further grounds of appeal on 18/4/88. This was sent to the Ezeagu Magistrate Court. The defendant/appellant filed a motion for a stay. It was subsequently struck out.
“Eventually on 13/11/89, the notice of appeal was struck out. A second notice of appeal filed by the appellant after an order to relist same was struck out on 17/6/91 for want of jurisdiction.
The appellant eventually applied to the High Court on 24/7/91 when he filed another appeal. That appeal of 17/6/91 was erroneously contended with since despite the fact that issues were raised and hearing notices were issued, there was in fact no appeal pending. It was not until 20th July 1993, that the motion to relist the appeal was filed by the defendant/appellant in the High Court. The defendant filed the following prayers:
“(1) Leave to file notice and grounds of appeal outside the statutory time.
(2) Extension of time within which to file the notice and grounds of appeal.
(3) Relist the appeal struck out on 26th November 1992”
Upon the appellant’s an application before Soronadi Magistrate grade 1, the notice of appeal which had on 17/6/91 being struck out, but the record of appeal was erroneously sent to the Court of Appeal as a pending appeal.
A new Appeal number was given to it. Whereas the appeal had ceased to exist since 17/6/91. When another application was made on the appeal by the Respondent, the High Court ruled that there is nothing to strike out, and as there is no appeal before the court, the record of appeal was terminated. The defendant/appellant took a motion before the High Court on 20/7/93 in which he sought the following reliefs:
“(1) Leave to file notice and grounds of appeal outside the statutory time.
(2) Extension of time within which to file the notice and grounds of appeal.
(3) Relist the appeal struck out on 26th November 1992”
The application was supported by an affidavit by the appellant, which states the foregoing and the court so ordered. The appellant also filed an application which the court ordered to restrain the respondent from alienating any part of the land in dispute. The appellant also applied and was granted by the court an order to file additional grounds of appeal. The appeal eventually came to be heard by Umezulike, J. who in a final ruling allowed the appeal, and set aside the judgment of the court of Iwollo Customary court delivered on 15/9/1987 in suit No. CC1/11/87 and ordered a trial of the case de novo.
Among the grounds, and principally because of the conclusion of the said court is the following decision of the court see below which is the reason why the plaintiff/respondent/appellant has come to this court. After the submission in the High Court by the Plaintiff/Respondents counsel, the trial court ruled:-
“That the judgment of the Customary Court at Iwollo was delivered on 15/9/1987 and the notice and grounds of appeal were filed on 23/8/95 pursuant to the leave of court granted on 10/7/93 the counsel submitted that the notice and grounds of appeal was incompetent and that the High Court lacked jurisdiction to entertain the appeal. The trial court in his judgment ruled thus, “This fact seems to me to have taken the punch away from the seemingly profound argument of “Respondents” counsel. I say so because this court is not competent to set aside or invalidate an order made by a court of coordinate jurisdiction no matter how differently this court would have thought or approached the matter. In any case at the time the application was granted it remains extant and cannot be impugned or invalidated by this court”.
The Plaintiff/Respondent was dissatisfied with the decision of the court below which ordered the retrial of the claim in the court below. He has filed this ground of appeal namely. “The lower court erred in law in holding that it had jurisdiction to entertain this appeal.”
And the particulars of the ground include “when there was no valid appeal before the High Court”. The appellant’s brief was filed on 19th April 2005. It was adopted in court on 7/4/08, and the sale ground of appeal as formulated by the appellant is whether the appeal is properly before the High Court
The Respondent filed his brief on 23/5/05 and the brief was adopted on 7/4/05. Each party in turn seek an order of court to allow the new appeal, and set aside the judgment of the court below. While the respondent urged the court to disallow the appeal and affirm the judgment of the court below.
The argument in favour of allowing and or of disallowing the appeal devolved on the one issue formulated, “whether there was a pending appeal before the court below”.
In this appeal the notice and grounds of appeal were allegedly filed on 3/2/93. Hearing in the court below was concluded on 5/10/87 when judgment was delivered. Seven years after when the fresh notice of appeal was filed in the High Court, the leave of court to extend time to appeal was required, (2) the leave to appeal was required, and (3) an application for extension of time to appeal is required for the appeal from the court below to the High Court before the appeal is competent. Section 6 of the Customary court Edict of 1995, and sections 5, 51 sub rule 1, 2 & 3 being the applicable rules when time has lapsed and the application is made direct to the High Court. The application is made directly in the current circumstance since it is uncertain that the customary court at Iwollo exists at now as it did in 1987 when the said judgment was delivered. This creates an exceptional reason why the appeal from the Iwollo Customary Court can be made directly in the High Court; see Bandana v. Jensey Banh Co. Experts 13 App case 832 PC.
However when such an application is made it must be of the nature of trinity prayer as stated above. See also Odofin v. Agu (1992) 3 NWLR (Pt.229) p.350 at 372, where Nnaemeka Agu JSC. took the view that each of the trinity prayer is separate; and none is consequent to the other. In the judgment in the High Court, while the trial judge agrees and wrote. See page 52 of the record that “the notice of appeal filed, which does not contain the trinity prayer is incompetent, he further held the view and ruled that as a high court of coordinate jurisdiction as Onyia, J had ruled that the same grounds of appeal in this suit had ruled that the notice and grounds of appeal filed by the appellant is competent, the high court now cannot overrule the decision on the same issue of that court. “Besides the court in the judgment said, that as no appeal was filed at the time it is now not possible to raise the issue,” the court therefore held that the notice and grounds of appeal filed is competent. On this the appellant in his brief has distilled the ground that “no appeal exists before the appellate High Court.” He urged the court to set aside the judgment of the appellate High Court.
The respondent urged the court in his brief to rule that the appeal filed on 20/7/93 is valid before the court as ordered by Hon. Justice M.D. Edozie and that though the appeal may not be made in trinity, at the time, there was no appeal against the order of court at the time the order was made. The respondent submitted that neither the customary court edict nor the provision of the High Court Civil Procedure Rules Anambra State 1988 applicable in Enugu State required the appellant in an appeal to ask for third prayer of extension of time to appeal when the time within which to appeal has lapsed, though the respondent submitted that there is a requirement to ask for leave to appeal, and for extension of time to ask for such leave. He submitted that as the requirement to file an appeal is statutory, what is not contained in the statute is not binding. He urged the court to dismiss the appeal, and affirm the decision of the High Court and order a retrial of the proceedings in the customary court delivered on 5/10/87.
In this judgment it is necessary to reiterate that a notice of appeal struck out by the court no longer exists for the purpose of adjudication unless the application to relist same succeeds. In the instant appeal the notice of appeal filed on 28/10/87 could not be relisted upon the application of the then respondent/appellant because the appellate high court discovered during the hearing of the motion to relist that the record of proceedings was erroneously sent to the High Court by the registrar who did not know that the motion to file the notice of appeal has been struck out previously in the same High Court. The court there upon wrote that there is nothing to strike out. Subsequently a motion on notice was filed by the appellant which contained two prayers instead of three. There were in the motion paper prayer for leave to appeal and for extension of time for leave to appeal. The vital prayer missed out in that application is the one requiring for extension of time within which to appeal. The court having granted the prayer for extension of time to leave and for leave after seven years to appeal cannot grant extension of time to appeal. It is important and necessary for leave for enlargement of time to be prayed for to appeal. The court cannot grant an order for extension of time to file the appeal without the prayers before it. A court of law does not grant an order that is not asked for, see Ekpenyong v. Nyong (1972) 2 Sc. 71. Consequently the prayer ordered by the court below does not found a competent request to file an appeal out of time, and the prayers before the court are incomplete. The motion is incompetent.
Consequently no grounds of appeal exist upon which his appeal may be heard.
The respondent has submitted that the now appellant did not appeal on the issue when Edozie J. ruled allowing the application. It seems curious to me that a legally trained mind can raise such an issue in an appeal as done by the trial judge in the High court that because a court of concurrent jurisdiction had ruled wrongly he is bond by the ruling and that because an appeal was not filed on a wrong issue of law, it is now too late to do appeal on it. It is elementary that the failure or delay to appeal on an issue of a breach of statutory provisions makes it lapse and that lapse can rectify the error or delete the error contained in the failure to observe the rule of court.
My lords, no such failure or delay to appeal on a breach of statutory provision of the law can rectify and regularize the error. The breach or in application of the rule of law remains a breach or an error for as long as it is not appealed against. The same rule applies to the situation referred to in the judgment when the appellate High Court judge ruled that as the High Court previous to his sitting as a high court has a coordinate jurisdiction with this court, his own court cannot rule to correct a wrong conclusion on the law made in that previous ruling he therefore upheld the error of the said court which held that the two prayers for extension of time to apply for leave which does not contain an application for extension of time to appeal is competent. Such affirmation of the law is clearly wrong. The prayers must be tripartite where necessary. There is in my view a misconception of the rule of coordinate jurisdiction. Such a rule does not apply to an error of the provision of court which is patently a misdirection of the law. The subsequent court of coordinate jurisdiction is entitled at law to distinguish the previous wrong decision and the current position of the law. The requirements is necessary to make the trinity prayer when an extension of time to file appeal is sought after the time to file an appeal has lapsed. It is required when time has elapsed within which an appeal may be filed in the trial court. It is contained in section 255(2) of the 1999 Constitution and Section and 93 of the Court of Appeal Act 1998.
It is absolutely necessary to pray to the appellate court whether in High Court or Court of Appeal to seek for the trinity prayer of the Court of Appeal out of time that is to enlarge the statutory period within which the appeal may be lodged in the court other than the trial court. See Ibrahim Popoola & Anor v. Olorinfoin Ojo (1973) 3 WACA 265. The court is entitled to reject the appeal where a good cause is not shown for extension of time. In the instant appeal, an appeal in the trial court may be lodged within 30 days – see the provisions of the Customary Court of Appeal rules 1995.
Seven year have elapsed before the notice of appeal was filed and it does not contain a third prayer for extension of time to file the appeal. The application of 28/7/93 is incompetent and there is no application before the court to appeal. There is therefore no basis on which the appellate High Court made an order to set aside the decision of the customary court. That order of the High Court per Umezulike J. is set aside.
The appeal of the plaintiff/appellant succeeds it is allowed.
Other Citations: (2008)LCN/2785(CA)
