Augustine Ned & Ors. V. Thompson Edi & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A,

The Notice of Appeal filed initially on the 24/8/2001 as well as the Amended Notice of Appeal filed with the leave of the court and deemed filed on the 27/5/0S in respect of the present appeal were the following terms:-

“TAKE NOTICE that the Defendant/Appellants being dissatisfied with the decision in the judgment of Mr. Hon. Justice S.E. Charles Granville dated 27th day of June, 2001, do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief sought in paragraph 4. And the defendants/appellants further state that the names and address of the person directly affected by this appeal are set out in paragraph 5.”

Because the Notice of Appeal in this court is the initiating process which lays the legal and judicial foundation for the invocation of the court’s power and authority over or in an appeal, it has been held to be a fundamental and crucial process which goes to and touches the jurisdiction of the court to adjudicate in an appeal. It is so vital and essential in the appeal process “that any material defect therein would render it incompetent and therefore incapable of initiating the invocation of the court’s jurisdiction over an appeal. See ANADI V. OKOLI (1977) 7 SC 57, ATUYEYE V. ASHAMU (1987) 1 NWLR (Part 49) 267, ODOFIN V. AGU (1992) 3 NWLR (part 229) 350, NNB V. DENCLAG LTD. (2004) All FWLR (228) 606 at 642, ADELEKAN V. ECU-LINE (2006) All FWLR (part 321) 1213 at 1229 – 30. A defective Notice of Appeal makes an appeal incompetent thereby contiguously affecting the competence of the court to entertain same. ODOFIN V. AGU (1992) 3 NWLR (part 229) 350, NWEZE V. EZE (1999) 3 NWLR (part 594) 410.

This court being a creature of the Constitution of the Federal Republic of Nigeria, 1999 in its section 237(1), was conferred and , vested with jurisdiction under section 240. The terms of section 240 are thus:-

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”

These provisions have been interpreted and the nature, scope and extent of the jurisdiction provided therein defined in several cases by both this court and the apex court of the land; the Supreme Court. See BAMAIYI V. A.G.F (2000) 6 NWLR (part 661) 421, OKAFOR V. OKAFOR (2000) 11 NWLR (part 677) 21, NDIC V. SBN PLC (2003) 16 NWLR (part 80) 311, AGBAMU V. OFILI (2004) 5 NWLR (part 867) 540, IKWEKI V. EBELE (2005) 11 NWLR (part 936) 397, TIZA V. BEGHA (2005) 15 NWLR Part 949) 616, EHUWA V. O.S.I.E.C. (2006) 18 NWLR (part 1012) 544. A common feature in these decisions is the decision by the courts that the jurisdiction vested or conferred by the provisions of the section on the court is to hear and determine appeals from the courts specifically named therein and from decisions of a court martial or other tribunal as may be prescribed by a law enacted by the National Assembly. This position is quite beyond reasonable argument since the words used in the provisions of the section are very clear, unambiguous, precise and explicit in conveying the purport of what was provided therein. For that reason, there can be no serious dispute as to the nature scope or extent of the jurisdiction of the court under section 240 of the Constitution.

Under the provision of section 248 of the Constitution, subject to the provisions of any Act of the National Assembly, the President of the Court was given the power and authority to make Rules for regulations, the practice and procedure of the court.

Pursuant to and in exercise of the powers conferred on the President of the court, by section 248, the Court of Appeal Rules, 2007 were made by him to regulate the procedure and practice in the exercise of the jurisdiction of the court to hear and determine appeals from the courts named in the Constitution.

Order 6 Rule 1 of the Rules provides that it shall apply to appeals to the court from any Court or tribunal acting either in its original or its appellate jurisdiction in civil cases, and to matters related thereto.

Section 24(1) of the Court of Appeal Act, 2004 says that where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of an application for leave to appeal in such manner as may be directed by the rules of Court.

By the combined effect of the provisions of the Constitution, the Court of Appeal Act and the Court of Appeal Rules 2007, a person who desires to appeal to the Court of Appeal, was required to give a notice indicating from which of the courts named in the Constitution the appeal is from or against. It is only a notice issued or given of an appeal from the decisions of the courts or tribunals as the case may be, provided for in section 240 that can validly and effectively initiate the jurisdiction vested in the court by the section. A Notice of Appeal which did not indicate from which of the courts/tribunal the appeal is would not be one that is capable of initiating and invoking the jurisdiction of the court under section 240 in law that will not be a valid Notice of Appeal and the Court cannot pretend or purport to exercise any jurisdiction over a decision to which it relates. In legal and judicial parlances, such a notice would be an incompetent Notice of Appeal over which the court has no power or authority to adjudicate.

As can clearly be seen on the face of the Notice of Appeal filed by the Appellants in this appeal, the notice therein is not from any of the courts named in section 240 but from a decision in the judgment of a judge whose court was not even mentioned in the notice.

Perhaps it should be realized that the framers of the provisions of section 240 of the Constitution deliberately and intentionally vested jurisdiction in this court to hear and determine appeal from courts and not judges who preside over such courts/tribunals because the decisions are not personal to the judges but of the courts over which they presided. The Constitution created or established courts/tribunal named therein which are institutions of state whereas judges who preside over them come and go leaving the decisions of the courts/tribunals behind. The Constitution therefore confers the right of appeal from or against decisions of the courts/tribunals and conferred jurisdiction on this court to hear and determine such appeals. The Constitution did not confer or vest jurisdiction in the court to hear and determine an appeal from decision of judges of any court/tribunal including the ones named in section240. As a result, the Notice of Appeal filed in this appeal is not only bad, but incurably defective and incompetent. This court cannot pretend or purport to exercise a jurisdiction which does not exist ab initio in respect of such a notice.

It was pursuant to the Notice of Appeal filed by the Appellants which has now turned out to be incompetent and thereby robbing the court of jurisdiction to entertain the appeal, that the parties affected by the appeal filed briefs of argument which were adopted at the hearing of the appeal on the 18/5/09. The fundamental and terminal vice in the Notice of Appeal was not observed before or at the hearing of the appeal, but in the course of preparing judgment. However because the law is that it is never too late to raise an issue which affects or involves the jurisdiction of a court to hear and determine a matter (in this case, an appeal), we find it expedient for the court to raise it in order to avoid what might eventually turn out to be an exercise in futility. The law is settled that the issue can be raised at any stage of the proceedings before judgment either by the court suo motu or any of the parties. BRONIK MOTORS V. WEMA BANK (1983) 1 SCNLR 296, SATE V. ONAGIORUWA (1992) 2 SCNJ 3RD EYE-COMM. V ISHOLA (1999) 2 NWLR (part 592) 549 at 557, JERIC LTD V. UBN (2000) 15 NWLR (part 691) 447, F.R.N. V. (2003) 15 NWLR (part 842) 113.

Another known principal of law is that once it arises or is raised, it is to be settled or determined first before further steps are taken by the court in the proceedings of the matter. AJAYI V. MILAD ONDO STATE (1997) 5 NWLR (Part 504) 237, ASOCIWA V. CHUKWU (2003) 4 NWLR (part 811) 540. Where the issue was raised by the court suo motu, the court was required to hear the parties before deciding it. However where the issue relates to a process filed by the parties which prima facie is incompetent under the law, then the addresses by the’ parties become unnecessary since the law cannot be changed thereby or the defect in the process cured, In such a situation, the court may proceed to strike out the incompetent process as no miscarriage of justice will be occasioned to any of the parties by the application of the law to the process in question.

A miscarriage of justice can only occur where parties have the right of a hearing in cases or matters that were filed or initiated in accordance with the due processes of law. WAEC V. AKINKUNMI (2008) 9 NWLR (part 1091) 151 at 174. Where a process, particularly an initiating process, was not filed in accordance with the provisions of the Constitution; the ground norm, or any substantive law, it cannot validly confer any right on the party filing same which can be claimed thereunder. Specifically, such a process is incapable of conferring the party a right of hearing in respect of such a process which in the eyes of the law, was not filed at all. As far as the law is concerned, with or without a formal declaration by the court, such a process is void abinitio and so for legal purposes, does not exist. Because the defect in the Appellants Notice of Appeal goes to the root of the appeal it could not be have been cured in law by the filing of additional grounds of appeal or even amendment of the original grounds. See NSIRIM V. NSIRIM (1990) 3 NWLR (part 138) 285, GLOBAL TRANS OCEANICO S.A. V. FOCE ENTERPRISES (2001) 5 NWLR (part 706) 426 at 438.

In the present appeal, both the original and the Amended Notices of Appeal are afflicted with the same incurable defect as demonstrated before now.

Because all the processes filed and the hearing of the appeal were entirely based and premised on the incompetent Notice of Appeal filed by the Appellant, they are also incompetent in law and cannot form the basis of a decision of an appeal which does not exist.

For the reasons given above, I am of the view that an invitation for the parties in this appeal to address the court the competence of the Notice of Appeal would not and cannot serve any useful legal or judicial purpose. It is completely and absolutely unnecessary in the circumstances of the appeal.

In the final result, for being incompetent, the Notice of Appeal filed by the Appellants is/are hereby struck out along with all other processes filed in respect of thereof. In effect, the appeal is struck out for being incompetent.

The circumstances of the above decision do not warrant the award or grant of costs and so I order each party to bear their respective costs of the appeal.

Other Citations: (2009)LCN/3329(CA)