Sylvanus Ekemezie V. Anikokwu Ifeanacho & Ors (2009)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
At the Anambra State High Court (hereinafter referred to as “the lower court”), the three respondents as plaintiffs suing in representative capacity instituted an action against the appellant as defendant thereat, also in representative capacity, claiming declaration of customary right of occupancy over a parcel of land called AGBO (Amadim). They also claimed N2,000.00 damages for trespass and perpetual injunction.
The facts which gave rise to this appeal are simply thus: The plaintiffs/respondents and the people they represent are members of AMADIM village in Achalla whereas the named defendant and some unnamed persons he represent are members of the UMUEZEDE VILLAGE in Achalla. Sometimes in 1958, the Umuezede people in Suit No. 0/111/58 instituted an action against the Amadim people claiming title for parcels of land which they (the Umuezede people) called IRUAGU, OKEOKWE and AMAJANA. Judgment was given in (Umuezede people) favour in the High Court. Being dissatisfied with the judgment against them, the Amadim people appealed to the Supreme Court in Appeal No. SC170/04 which after hearing the appeal set aside the judgment of the High Court in Suit No. 0/111/58 and dismissed the claims of Umuezede people over the entire parcels of land in dispute.
Then sometimes in 1971, the Amadim people instituted suit No. 0/93171 against the Umuezede people at the same High Court, this time claiming title of parcel of land called EGEDE. They also, claimed damages for trespass and injunction over the same land.
Judgment was given in their (Amadim people) favour over the said EGEDE land and its adjoining land called AGBO. Aggrieved by the decision of the High Court in Suit No. 0/93/71, the Umuezede people appealed to the Enugu Division this court which was then called Federal Court of Appeal in appeal No. FCA/E/68/77. This court after hearing the appeal varied the decision of the High Court and confirmed the award over the particular parcel of land in dispute which is called EGEDE by Amadim people. This court also set aside the award of the High court over the adjoining parcel of land which the Amadim people called AGBO. Dissatisfied with the decision of this Court, the Umuezede people unsuccessfully appealed to the Supreme Court vide appeal No.SC 74/79 in that the apex court dismissed their appeal and affirmed, in toto, the judgment of this court in the said suit i.e. FCA/68/77.
Sometimes in the year 2000, the Amadim people who are now respondents in this appeal freshly instituted suit No. A/230/2000 which is the subject matter of this appeal, against the people of Umuezede alleging that dated back to 1978 and subsequent dates, the latter people repeatedly committed acts of trespass in to Agbo parcel of land and erected some building structures thereon. They also claimed restraining and injunctive orders from the High Court sitting in Awka, Anambra State (hereinafter) referred to as (“the lower court”). It should be noted that the suit was initially instituted at the Customary Court Achalla, with suit No. ACC/1/2000 before the suit was later transferred to the lower court bearing Suit No. A/230/2000.
Pleadings were ordered, filed and exchanged. When the case was set for hearing in earnest, the defendants now appellants, filed a motion on notice dated 20/5/2002 praying for an order dismissing the suit or striking same out as an abuse of the court’s process.
The defendant/appellant also averred in paragraph 4 of the affidavit supporting the motion that the action was statute barred by virtue of Sections 7 (4) and 15 (2)(a) of the Limitation Act, Cap 522, of Laws of the Federation 1990. The said motion was keenly, contested by the plaintiffs/respondents. In the end, the lower court in a considered ruling dated 23/2/2006, dismissed the application and awarded N5,000 cost against the appellants. Being dissatisfied with the Ruling of the lower court, the appellants appealed to this court vide their Notice and Ground of Appeal dated 151 day of March 2006 and filed on 2/3/2006.
It needs to be stated that after the judgment of this court in Suit No. FCA/E/68/77 was delivered in which the land in dispute in the instant case was excised from the award of the trial court in Suit No. 0/93/71, the plaintiffs/respondents instituted many suits such as AA/60/78; AA/67/78 and AA/62/78 in respect of the same land in dispute which said suits were struck out by the lower court for want of diligent prosecution.
On 26th May 2002, the defendant/appellant filed a motion on notice dated 17/5/2002 urging the court to dismiss or strike out the above suit as an abuse of court process and also on the ground that the action was statute barred, hence the court lacked jurisdiction to entertain and determine it. The court heard the application and on 2nd day February 2006 dismissed it with N5,000 costs against the appellants.
Aggrieved by the ruling of the lower court, the appellants appealed to this court. The Notice of Appeal filed by the appellant dated 1st March 2006 contained some grounds of mixed law and facts and of facts. Eight grounds of appeal are contained in the said Notice of Appeal.
Briefs of Argument were filed by the learned counsel to the parties. In the Brief of Argument filed by the appellants on 10/11/2006 dated 8/11/2006 six issues were distilled for the determination of the appeal. Also following a preliminary objection argued in the Respondent’s Brief of Argument, the appellant also in response to it filed an Appellants’ Reply Brief on 27/11/2006 dated 26/11/2006.
The Appellant’s Brief of Argument dated 8/11/2006 was also filed on 10/11/2006 while the Respondents Brief of Argument dated 22/1/07 and filed on 24/1/07 contained two issues for determination of the appeal.
However, before I treat the issues for determination of the appeal raised by the learned senior counsel to the parties, I deem it proper to first of all deal with the Preliminary Objection which as I have said supra, the respondents had incorporated in their Brief of Argument. The Preliminary Objection was argued on pages 5 and 6 of his Brief of Argument. It is more ideal to first of all deal with the said Preliminary Objection because if in the end I find same to be sustainable, that will bring the matter to an end since the objection solely touches on the competence of the appeal hence it will be a futile exercise to consider the merits of the appeal. See Nigerian Navy vs. Garrick (2006) 2 NWLR (Pt.969) 69.
The learned Senior counsel for the Respondents while proffering argument on the Preliminary Objection challenged the competence of this appeal on two grounds, namely:-
“(a) That the grounds of appeal in the Notice of Appeal at pages 71-74 of the Records are of mixed law and fact which require leave;
(b) That the Ruling of the lower court now being appealed against as contained on pages 65 to 70 of the Record of appeal is an interlocutory decision, which also require the leave of the lower court or of this court.”
The learned Senior Advocate of Nigeria, Dr. J.O. Ibik, SAN, submitted that leave of court is a pre-requisite in an appeal against interlocutory decision on grounds of mixed law and facts by virtue Section 242(1) of the Constitution of the Federal Republic Nigeria 1999. He said also that the Notice of Appeal which was filed on 21/3/2006 clearly shows that the sum of N710.00 filing fee was paid vide receipt No. CR0269934. Again the Motion on Notice shown on pages 74175 of the Record of Proceedings clearly shows that leave to appeal on grounds of mixed law and facts was only sought and filing fees was only paid for that vide receipt No. 026994. He added that the appeal was not as of right as erroneously purportedly shown in the receipt.
Another submission of the learned senior counsel is that filing a Notice of Appeal which requires leave to first of all be sought and obtained renders the appeal incompetent if such leave was not sought and obtained before filing same. See Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822) 237 at 265/266. In conclusion, he urged this court to hold that the Notice of Appeal is incompetent and has therefore rendered the entire interlocutory appeal incompetent and thereby ousted the jurisdiction of this court to hear and determine the appeal. He finally, prayed that the appeal be struck out for being incompetent.
When the appeal came before us for hearing on the 23rd of April 2009, Dr. J.O. Ibik SAN of learned counsel for the respondent while adopting his preliminary Objection referred us to page 64 of the Record of Appeal and submitted that the Notice of Appeal was filed before leave was obtained. He said despite the leave granted to the appellant, he failed to file a fresh notice of appeal hence he failed to take advantage of the leave granted to him and for that reason it is against the principle enunciated in the case of Ajibi v. Olaewe (supra). He finally submitted that there was no proper appeal before this court and urged us to uphold his preliminary objection.
Replying to the arguments proffered on the Preliminary Objection by the respondents, the learned senior Mr. G.R.I. Egonu SAN counsel for the appellant argued in his Appellant’s Reply Brief dated 26/11/2007 filed on 27/11/2007, submitted that objection was misconceived. He said the ruling he was appealing against was delivered on 23/2/2006 and he had filed his Notice of Appeal on 2/3/2006. He added that the grounds of appeal contained in his notice were not merely grounds of mixed law and facts but also included or contained grounds of law alone. That being so, by virtue of the provision Section 241 (1)(b) of the 1999 Constitution, he can appeal as of right in respect of the grounds of law i.e. grounds 1, 4, 5, 6, 7 and 8 which are grounds of law and those grounds could sustain the appeal. See Alhaji Aransi Ladoke and Ors. v. Alhaji M. Olobayo and Anor. (1994) 8 NWLR (pt.365) 734 at 741 Paragraph A-B.
With regard to the grounds of mixed law and facts and of facts contained in his Notice of Appeal, the learned senior counsel for the appellants also submitted that such grounds are valid and competent because he had sought and obtained leave of the Lower Court as required by law. He said the law allows him to incorporate grounds of mixed law and of facts in one or single Notice of Appeal and obtain leave of court within the stipulated period to appeal. He cited and relied on Irene Harriman vs. Chief Hope Harriman (1987) 3 NWLR (Pt.60) 244 at 255 paragraph A to H; Azez Akeredolu & Ors vs. Lassi Akinremi (1986) 2 NWLR (Pt.25) p. 710 at 710 C to D; p720 paragraphs F to G, 726 paragraphs D to E; 733 paragraph B to G and p. 734 paragraph B to F; and Ndukwe Erisi & Ors v. Uze Idika & Ors (1987) 4 NWLR (Pt.166) 503 at 512 paragraph G, p. 518 paragraph B and p.519 paragraph B.
In further submission, the learned senior counsel for the appellant argued that the appellant obtained leave from the trial/lower court on the 8th of March 2006 on the grounds of mixed law and facts and of facts, adding that the lower court while granting the leave sought also deemed the Notice of Appeal filed by the appellant on 2/3/2008 as properly filed and served. He said, having filed the Notice and Grounds of Appeal on grounds of law alone within the 14 days and having obtained leave of court within the same period to appeal on grounds of mixed law and facts and on facts, his said Notice of Appeal is valid and competent and in accordance with the law. He said the appellant is not required by law to file two Notices of Appeal hence one notice of appeal suffices. He urged that the Preliminary Objection should be discountenance as it is erroneous and lacking in merit. It should therefore be dismissed, prayed the learned silk.
In the same vein, while responding to the arguments of the learned respondents’ senior counsel when the appeal was being argued in court, Mr. G.R.I. Egonu SAN for the appellant also referred us to page 74 line 15 and pages 75 to 77 of vol. II of the Record of Appeal and also to page 64 of the Record.
In the first place, it needs to be emphasized here and it is indeed beyond dispute, that this is an interlocutory appeal against the Ruling of the Lower Court delivered on 23/2/2006 wherein the court dismissed the preliminary objection of the defendants who contended that the suit was an abuse of process and that it was statute barred. The Preliminary Objection raised by the respondents counsel herein is in two legs, namely:-
(a) That the grounds of appeal in the Notice of Appeal are of mixed law and facts, which require prior leave to be sought and obtained are incompetent due to want of such leave; and
(b) That the appeal against Ruling being an interlocutory decision ought to be with leave and such leave was not sought and obtained by the appellant.
I will deal with the two legs seriatim. On the first leg, I think it will be apt to reproduce below the Notice and Grounds of Appeal with their particulars.
“NOTICE AND GROUND OF APPEAL
TAKE NOTICE that the defendant/appellant being dissatisfied with the decision more particularly stated in paragraph 2 of the High, Court, Awka contained in the Ruling of His Lordship, the Honourable Justice M.I. Onochie, dated on the day of February 2006, doth 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 set out in paragraph 4.
And the Defendant/Appellant further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
- The whole decision.
- Grounds of Appeal:
(1) The learned trial court erred in law in failing to consider fully and properly the effect of the documentary evidence tendered at the hearing.
Particulars of Error
(i) The documentary evidence established that in 1958 the parties started disputing over the land the subject matter of suit No.0/93/71 and of the present suit.
(ii) In suit No. 0/93/71 the Plaintiffs/Respondents did not claim the area in dispute in the present suit although the trial court gave them judgment over the said area;
(iii) The area in dispute in this case was excised by the Court of Appeal from the area awarded to the
Plaintiffs/Respondents in suit No. 0/93/71 hence the present suit.
(iv) The effect of the events of 1958 and 1971 relating to the present case were not taken into account in coming to the decision in the Ruling.
(2) The learned trial court misdirected itself in holding that the Plaintiffs/Respondents instituted suit NO. 0/93/71 as a result of unlawful entry of the present Defendant’s people into the Plaintiffs/Respondents land whereas suit No. 93/71 was brought at the heels of their success in the appeal No. SC/170/64 and this brought about a wrong decision in the Ruling.
(3) The learned trial court erred in law in holding that the Plaintiffs/Respondents did not split their cause of action. When they instituted Suit No. 0/93/71 whereas the Defendant/Appellant’s people had in 1958 laid claim of ownership and possession over the land the subject matter of the present suit.
(4) The learned trial court erred in law in determining the issue as to whether the Plaintiffs split their cause of action in suit No. 0/93/71 on the pleadings of the parties in the present case without regard to the judgments in suits Nos. 0/111/58 and 0/93.71 and Appeal No. FCA/E/68/77 and without allowing the issue to be canvassed on oral evidence at the full hearing of the case.
Particulars of Error
(i) A decision as to whether a Plaintiff split his cause of action cannot be based on the Plaintiffs’ pleading denying that he split his cause of action.
(ii) Where the judgments in previous proceedings relating to the issue do not fully and finally resolve the issue then the issue can only be resolved at the hearing of the case.
(5) The learned trial court erred in law in holding that the present case is one of continuous trespass whereas it is not.
(6) The learned trial court erred in law in holding that the plaintiffs’ action is not statute barred on the ground that the acts of trespass alleged are of a continuing nature whereas it had held immediately there above that “It is my view that if at the end of this case the plaintiffs are able to prove their title to the land in dispute in this case, that the continued presence of the uncompleted buildings on the land in dispute is a continuing trespass giving rise to a cause of action, di die in diem (from day to day).”
(7) The Learned trial court erred in law in determining the Issue of limitation of action in this case on the Plaintiffs’ pleadings.
Particulars of Error
(i) The Plaintiffs’ pleading could be looked upon to determine whether his action is statute barred but not determine that it is not statute barred.
(ii) Where there is conflict on the contention of the parties as to whether the Plaintiffs’ action is statute barred or not then the issue could only be resolved on a full hearing of the case.
(8) The learned trial court erred in law in holding that the plaintiffs/Respondents’ case is not statute barred whereas it is.
- Relief sought from the Court of Appeal: That the Ruling of the trial court be set aside and that this Honourable Court should hold that the Plaintiffs/Respondents’ action is statute barred and that they split their cause of action when they instituted suit No. 0/93171.
- Persons directly affected by the appeal:
Nam e
Address
- Sylvanus Ekemezie C/o G.R.I. Egonu S.A.N.
Barrister-at-Law & Solicitor
Plot A/28 G.R.A., Onitsha.
- Anikokkwu lfeanacho )
- Polycarp Nneli)
Amadi Village,
- Oyibo Obiora) Achalla.
Dated this 1st day of March, 2006.
Sgd. G.R.I. Egonu S.A.N.Counsel
And Solicitor for the Defendant/
Appellant, whose address for Plot
A/28 G.R.A., Onitsha.”
A close look at the grounds of appeal clearly shows that some of the grounds of appeal are of mixed law and facts and some on facts. There also are some that are purely grounds of law. By the provisions of Section 241(1)(b) of the 1999 constitution there is right of appeal as of right on grounds which are purely law. See Obe v. Egberongbe (1999) 8 NWLR (Pt. 615) 485. However, the law is settled that where the grounds are not of law alone but are of facts or of mixed law and facts, the appellant is of necessity required to seek and obtain leave of either the High Court or of this Court for such grounds to become competent. See Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167; Nalsa and Team Associates v. NNPC (1991) 8 NWLR (Pt.212) 652), Erisi v. Idika (1987) 4 NWLR 66. It is also trite law that where the grounds of appeal raise questions of mixed law and facts and at the same time the decision appealed against is an interlocutory one, and then leave of court ought to be obtained before filing the appeal, failing which the grounds of appeal become incompetent. See Adetona v. Edet (2001) 3 NWLR (699) 186; Ekwulugo v. ACB (Nig) Ltd. (2006) 6 NWLR (Pt. 975) 30. Now the question is “Did the Appellant seek and obtain leave to argue the grounds on mixed law and facts and of facts.”? A quick answer will surface if reference is made to the Motion on Notice on pages 74175 of the Records of Appeal and the ruling of the lower court on same. The Motion on Notice is reproduced below:-
“Notice of Motion Sections 241(1) (b) and 242(1) Constitution of the Federal Republic of Nigeria, 1999. Order 3 Rule 3(4) Court of Appeal Rules, 2002 Inherent Jurisdiction of the Court.
TAKE NOTICE that this honourable Court will be moved on Wednesday the 8th day of March 2006, at the hour of 9 o’clock in the forenoon or so soon thereafter as Counsel for the Defendant/Appellant/Applicant can be heard praying the Court for an order granting leave to the Defendant/ Appellant/Applicant to appeal to the Court of Appeal on grounds of mixed law and fact and on facts against the Ruling of the Honourable Court delivered in the above case on 23rd day of February, 2006, and to deem the Notice of Appeal to the Court of Appeal already filed and appropriate fees having been paid and for such further Order or Orders as to this Honourable court may deem just.
Dated this 2nd day of March, 2006.
Signed G.R.I. Egonu, S.A.N.
Counsel & Solicitor for the Defendant/Appellant/Applicant whose address for service is plot A128
G.R.A, Onitsha”
Now after the lower court took arguments of parties’ counsel on the above motion, it on 8/3/2006 delivered its short ruling as per page 64 of the record of appeal which reads thus:
“Court: – I am satisfied that the proposed grounds of appeal are arguable. Leave is granted to appeal against the ruling of this Court delivered on 23/2/2006 on grounds of mixed law and facts and fact simpliciter. Notice of appeal already filed is deemed as properly filed and served on the Respondents. Signed: M.I. Onochie (Judge) 8/3/2006.”
I think from the above quoted ruling of the lower court it can be said that the appellant had actually obtained leave of the lower court to argue the grounds of mix law and facts and on facts as contained in his grounds of appeal in his Notice of Appeal which he filed earlier within the stipulated 14 days period. In the ruling the lower court also deemed the already filed Notice of Appeal as properly filed and served.
From the above quoted ruling of the lower court, it is discernible that the appellant filed his Notice of Appeal before they were granted leave to argue the ground of mixed law and facts and of facts which by the submission of the learned silk for the appellant, he filed within the 14 days period stipulated by law. It is instructive to note that by its ruling it also extended the time of filing the Notice of Appeal by deeming same to have been properly filed and served from the date of its ruling. The issue is, “Does the lower or trial court have the power to extend the time for filing of the Notice of Appeal?”
As I said earlier, this appeal is purely an interlocutory appeal. The appellant has admitted that he filed his Notice of Appeal within 14 days after the ruling. The next question is “Did he obtain leave to appeal on interlocutory matter before he filed the Notice?” I do not think so. I think if he had obtained such leave, the question of seeking the lower court’s order to deem it as having been properly filed and served would not have arisen. In my view, he ought to have obtained the leave of trial court to appeal against interlocutory decision even before filing his Notice of Appeal. The fact that he filed it before obtaining the leave to appeal against interlocutory decision is as good as not filing it at all, despite the ruling of the lower court extending his time to file the Notice. The said Notice of Appeal remains incompetent in the instant situation. It is trite law that the court whose decision is sought to be appealed against has no power to extend the time within which to appeal to the court to which appeal lies. It is the sole discretion of the appellate court to either extend time to appeal or to grant an extension of time to seek leave to appeal. See Impresit Bakolori Plc. v. Abdulazeez (2003) 12 NWLR (Pt. 834) 2007. Mba v. Ibe (1999) 4 NWLR (Pt. 597) 97. Ibe v. Onuorah (1996) 9 NWLR (Pt.474) 624.
In the instant case, there should not have been an application to the court to deem the Notice as deemed filed from the date of the lower court’s ruling. It is clear and true too as shown in the record that the appellant filed his Notice of Appeal within 14 days from the Ruling now being appealed against interlocutory decision of the court. I am unable to see from the record where the appellants sought and obtained prior leave to appeal against which is an interlocutory decision of the lower court. I will however come to that when dealing with the second leg of the preliminary objection. However, in the result, I am in entire agreement with the submission of the learned senior counsel for the respondent, that the filing of the Notice of Appeal in court first before seeking and obtaining leave rendered the said Notice of Appeal incompetent. The Notice of Appeal is therefore declared invalid and incompetent. The first leg of the preliminary objection is therefore hereby sustained.
I shall now come to the second leg of the preliminary objection raised by the learned senior counsel for the respondents.
Here, it was submitted on behalf of the respondents that this appeal being purely on an interlocutory decision, the appellant as a matter of law has to obtain leave in order to file valid and competent interlocutory appeal. He, the learned senior counsel for the respondents, argued that without leave being first sought and obtained, the purported interlocutory appeal ipso facto becomes incompetent. See Ajibi v. Olaewe (2003) 8 NWLR (pt. 822) 237 at 265 to 266. If I had properly understood the learned senior counsel for the respondents’ argument on this issue, he seems to be suggesting that the appellant in order to have a competent interlocutory appeal, he must have first obtained leave of this court.
On close look at the appellant’s learned senior counsel’s Appellant’s Reply in which he responded to the issues raised in the respondents’ preliminary objection, there was no where he addressed or replied to the respondents’ counsel’s submission with regard to the second leg of the preliminary objection on his (appellant’s counsel’s) failure to obtain leave on this interlocutory appeal. All his arguments merely centered on the grounds of mixed law and facts and of law which he stated, rightly in my view, that he sought and obtained leave of the lower court on 8/3/2006. He simply argued rightly too, that he was not required by law to file two Notices of Appeal, hence one Notice is sufficient. He went further to argue that since he filed his motion for leave to argue grounds of mixed law and facts and of facts within 14 days (i.e. timeously).
By the provisions of Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999, an appeal shall lie from the decisions of High Court to the Court of Appeal as of right in respect of final decisions in any civil or criminal proceedings before High Court sitting at first instance. In other words, no leave is required to appeal against a final judgment of a High Court to the Court of Appeal. A litigant therefore enjoys unfettered liberty under both the constitution and the Court of Appeal Act, to appeal as of right within the period of three months of the decision. See Obe v. Egberongbe (1999) 8 NWLR (pt. 615) 485. However, by the provisions of Section 242 of the 1999 Constitution a litigant who intends to appeal upon an interlocutory decision of a lower court requires leave of the lower/trial court or leave of the court of appeal. In the instant case the appeal being an appeal against interlocutory decision of the lower court, the appellant is required to seek and obtain leave of either the lower court or of this court.
See Ndayako v. Mohammed (2005) 6 NWLR (Pt.920) 86 No such leave was sought and obtained in this instant appeal at all as required by law. In other words, leave of the court must be obtained before the appeal was filed by the appellant, for that reason the appeal becomes incompetent. See Ekwulugo v. ACB
Nig. Ltd (2006) 6 NWLR (Pt. 975) 30 Anoghelu v. Oraelosi (1994) 2 NWLR (Pt. 324) 68; Harriman VS. Harriman (1987) 3 NWLR (pt.60) 244; Adelona v. Edet (2004) 16 NWLR (Pt.899) 338.
Also by virtue of the provisions of Section 25 of the Court of Appeal Act, Cap 75, Laws of the Federation of Nigeria (1990) where a litigant desires to appeal to this court he must give notice of appeal or notice of his application for leave to appeal in such manner as prescribed by the rules of this court within the period stipulated by Section 25(2) that is applicable to his case. The periods for giving of notice of appeal or notice of application for leave to appeal in an appeal in a civil cause or matter are:
(i) Fourteen days, where the appeal is against an interlocutory decision; and
(ii) Three months where the appeal is against a final judgment.
As I said earlier, in this instant case, although the appellant filed the Notice within the fourteen days from the date the Ruling was delivered, he did not obtain leave to appeal against the interlocutory decision. Any ground of appeal based upon an interlocutory decision of the lower court requires leave of the lower court or the court of Appeal by virtue of the provisions of Section 242 of the Constitution. See Ndayako v. Mohammed (2005) 6 NWLR (Pt. 920) 86. The law is well settled that where leave of court is required to initiate a process, the initiation of that process without the prior leave of court having been sought and obtained renders the process filed a nullity, as the condition precedent to the conferment of jurisdiction on the court has not been complied with. In that event therefore, the court would have no jurisdiction to entertain the subject matter of that process. See Afric Mining Co Ltd v. NIDB Ltd (2000) 2 NWLR (Pt. 646) 618). In this instant case, the appeal which is an interlocutory one was filed without obtaining prior leave hence the Notice of Appeal which was meant to initiate the appeal is a nullity ab initio. See UBN Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504 A Notice of Appeal or to put it clearer a competent Notice of Appeal is the foundation and substratum of every appeal. Any defect on it will render the entire appeal incompetent and this court will lack jurisdiction to entertain it including the entire interlocutory application based on the Notice of Appeal. See Amadi v. Okoli (1977) 5 SC 57; Olarewaju v. BON Ltd. (1994) 8 NWLR (Pt. 364) 622; Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 39; Adenekan v. Eco – Line NV (2006) 12 NWLR (Pt.993) 33 at 40. Thus, in the light of all that I stated above, the second leg of the preliminary objection also succeeds. The objection IS well taken and is accordingly sustained. Having said so, now what would be the effect of upholding the objection as regards the fate of this appeal? It has been decided in plethora of decided authorities that where a preliminary objection succeeds, there would be no need to go further to consider the argument or determine the merits of the case.
However, the apex court always enjoins or advises this court to go ahead to consider the matter in the alternative. This is simply to save litigation time in the event this court wrongly upheld the preliminary objection. The same apex court however advised that where the preliminary objection is so fundamental and went to the root of the appeal as in this instant case, it would be right and justifiable to decline to go further to determine or deal with any issue or issues after upholding the preliminary objection See ANNP VS. The Returning Office, Abia State Senatorial District (Mr. Festus Ukagwu) (2005) 6 NWLR (Pt.920) 140; Okomji v. Njokanma (1991) 7 NWLR (Pt.202) 13; Onyemeh v. Egbuchulam (1996) (Pt. 448) 255; Anyaduba v. Nigeria Renowned Trading Co. Ltd (1992) 5 NWLR (Pt. 243) 535; 7up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (2007) 13 NWLR (Pt.730) 469. UBN Plc v. Sogunro (Supra); NEPA v. Ango (2007) 15 NWLR (Pt. 737) 627.
On the whole, having upheld the Preliminary Objection filed and argued by the learned respondents’ senior counsel, to the effect that the interlocutory appeal is incompetent; I do not deem it worthwhile to consider, or treat the issues raised by the senior counsel for the parties. The Notice of Appeal dated 1st March 2006 is incompetent and the appeal filed by the appellant is hereby struck out for reasons adumbrated above.
No order is made on costs so parties are to bear their respective costs.
Other Citations: (2009)LCN/3514(CA)
