Central Bank Of Nigeria & Anor V. Aite Okojie & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

M. A. BELGORE, J.S.C 

This is an application by the appellants/applicants praying for:

i. Waiver of the Rules of this court so that documents which the applicants compiled be used for the purpose of the appeal in this court.

ii. Further proceedings in Court of Appeal in the appeal No. CA/L/121/1999 be stayed pending the hearing of the appeal in this court.

iii. Abridgment of time to file parties brief of argument.

iv. Accelerated hearing of the appeal in this court.

The application is supported by an affidavit and also an affidavit of verification of documents. It is however pertinent to set out the reasons deposed to in the affidavit in support of the application which is as follows:

AFFIDAVIT IN SUPPORT

“I, Tumi Aluko-Olokun, male, Christian, Nigerian and a legal practitioner of No 5 Lokoja Road, Kaduna do hereby make oath and state as follows:

1. That I am one of the counsel in the law firm of B. Aluko-Olokun & Co., solicitors for the appellant in this case.
2. That I am conversant with the facts I deposed to herein by virtue of my aforementioned position.
3. The appellant has appealed against a decision of the Court of Appeal sitting in Lagos. It is an interlocutory appeal.
4. The appellant has compiled the record of appeal. A copy of the record of appeal compiled by the appellant is exhibited hereto and marked as exhibit A.
5. Hearing has not commenced in respect of the substantive appeal in the Court of Appeal.
6. If this appeal succeeds on the issues raised therein the time of the court and parties and the expenses that will be incurred by parties in prosecuting the action will be greatly reduced.
7. If further proceedings in the Court of Appeal are not stayed and the Court of Appeal proceeds to hear and determine, the appeal before the appeal in the Supreme Court is determined irreparable injury will be done to the case of the appellant before the Court of Appeal and miscarriage of justice will be caused to the appellants.
8. It is therefore proper and just to grant the application for stay of the proceedings of the Court of Appeal pending the determination of the appeal to this honourable court.
9. The contents of this affidavit are true and correct.”

Against this application is the 1st respondent’s counter affidavit deposing that the appeal is interlocutory in that Court of Appeal granted discretionary order for respondent to amend statement of claim in line with evidence before trial High Court. In that case leave ought to have been obtained to appeal to this court either from Court of Appeal or from this court. As no leave was obtained the appeal is incompetent as it offends S.233 (3) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, there was a preliminary objection to the appeal filed in this court. The Constitution of 1999 in section 233 is clear as to what right of appeal exists especially in subsection 2 thereof. In respect of appeal on grounds other than that of law or mixed law and fact, subsection 3 thereof applies. The grounds of appeal in this instance appeal are clearly not of law but of mixed law and facts, and no leave having been obtained to file them, the appeal contravenes S.233 (3) of the Constitution and it is therefore incompetent. See Metal Construction (West African) Ltd. v. Migliore & Ors. (1990) 1 NWLR (pt. 126) 299, 305.

I therefore find merit in the objection and hold there is no valid appeal before this court. That being the case, this application has no standing or the peg to hang it. The application and the purported appeal are incompetent, and they are accordingly struck out. I award N1000.00 costs to the 1st respondent.

SC.221/2001