Clement Ezenwosu V. Peter Ngonadi (1992)
LawGlobal-Hub Lead Judgment Report
B. WALI, J.S.C.
The appeal is against the Ruling of the Court of Appeal, Enugu in CA/E/IM/89, delivered on 10th October, 1989 in which Oguntade, J.C.A (With whom Kutigi and Katsina-Alu, J.J.C.A. agreed), granted the present respondent leave to appeal to the Supreme Court:
The facts of this case, as set out in the Ruling of Oguntade J.C.A, are as follows-
The respondent/appellant Clement Ezenwosu was the plaintiff in suit No. AA/44/72 in which he claimed against Aaron Ngonadi (now deceased) for a declaration of title and injunction in respect of a parcel of land situate at Umuchu in Aguata Local Government Area of the then Anambra State of Nigeria. At the end of the trial the learned trial judge, Obi Okoye delivered judgment on the 4th March, 1977 in favour of the plaintiff/respondent granting the two reliefs he asked for.
Sequent to the trial court’s judgment, Peter Ngonadi, (the son of Aaron Ngonadi), filed an application in the Court of Appeal Enugu, for leave to appeal as an interested party. The application was contested and in a considered Ruling of that court delivered by Katsina-Alu J.C.A, on 26th May 1989 (with which Macaulay and Oguntade agreed), he refused that application and dismissed it.
Mr. Peter Ngonadi, being not satisfied with the Court of Appeal Ruling of 26th May 1989 filed another application before the same court; though slightly differently constituted, seeking for leave of that court to appeal to the Supreme Court against the order refusing him to leave appeal. In support of that, among other things he filed, he exhibited three proposed grounds of appeal. In granting the prayers in the application, the learned justice concluded –
“The 3rd ground of appeal above clearly raises an issue of law and applicant can appeal thereupon as of right, without seeking the leave of this court. The complaint therein is that we have incorrectly applied the law to facts that are undisputed. This is an error in law. See Section 213 (2) (a) of the 1979 Constitution and Ogbechie v. Onochie (1986) 2 NWLR. (Pt. 23) 484.
I have considered closely the 1st and 2nd grounds of appeal. I think they raise important issues of mixed law and fact. I would therefore grant the applicant leave to appeal on those two grounds only,”
Henceforth both the applicant and the respondent will be referred to as the respondent and the appellant respectively in this judgment. .
The appellant and the respondent filed and exchanged briefs. Both the appellant and the respondent formulated three issues for determination in their respective briefs.
For the appellant the issues are:-
“(a)(i) Was the Ruling of the Court of Appeal delivered on the 26th of May, 1989, in CA/E/IM/89 a final decision or an interlocutory decision
(ii) Did the Practice Direction of the Court of Appeal No.1 of 1989 published as Government Notice No. 356 of 1989 suspend during the annual vacation of the Court of Appeal the running of time within which to apply for leave to appeal to the Supreme Court as provided in Section 31 (2) (a) of the Supreme Court Act, 1960
(iii) Had the Court of Appeal jurisdiction to hear or grant the applicant-respondent’s application for leave to appeal to the Supreme Court against the Ruling of the Court of Appeal dated the 26th day of May, 1989, dismissing the applicant respondent’s application for extension ‘of time within which to appeal against the judgment of the High Court delivered in Suit No.AA/44/72 on the 4th day of March, 1977.
(b) Was the Court of Appeal right in granting leave to the applicant, respondent to appeal to the Supreme Court”
While that for the respondent also are:-
(i) Is the Court of Appeal right in its judgment that its ruling of 26th May, 1989 was a final decision
(ii) Is the Court of Appeal right to state that the Practice Direction No. 1 of 1989 and published as Government Notice No. 356 of 1989 is not inconsistent with Sec. 31 of the Supreme Court Act, 1960
(iii) Did the Court of Appeal properly exercise its discretion to grant the Applicant/Respondent leave to appeal’ to the Supreme Court on the two grounds of mixed law and facts
Although the issues so formulated by the parties are not identically worded, their purports are the same and simply put are- ,
- Whether the Court of Appeal ruling of 26th May 1989 refusing the respondent leave to appeal against the judgment of the High Court is a final decision.
.2. Whether the Court of Appeal Practice Direction No.1 of 1989 published as Legal Notice No.356″of 1989 is consistent with Sec. 31 of the Supreme Court Act, 1960.
- Whether the Court of Appeal had jurisdiction to grant the respondent leave to appeal to the Supreme Court on the date it did so.
I think issues (a) (ii), (iii) and (b) of the appellant’s brief and issues (ii) and (iii) of the respondent’s brief can be conveniently taken together and if the answers to them as reformulated in this judgment by me are in the negative, that will be sufficient to dispose of this appeal.
On these issues learned counsel for the appellant Mr. G.R.I. Egonu, SAN, contended that although the application for leave to appeal against the Ruling of 26th May 1989 was filed 17 days after its delivery by the Court of Appeal, yet it was not heard by the Court of Appeal until after a period of three months, 3 weeks and 2 days had elapsed. He submitted that whether or not the Ruling is considered to be a final or interlocutory decision the leave was granted well after the statutory periods prescribed for that. He further submitted that Sec. 227 of the Constitution of the Federal Republic of Nigeria 1979 confers on the President of the Court of Appeal; power to make rules for regulating the practice and procedure of the Court of Appeal subject to the provisions of any Act of the National Assembly. Learned Senior Advocate also pointed out that the Practice Direction relied upon by the Court of Appeal to grant the application was made to give effect to the provisions of the Court of Appeal Rules and that it would only affect computation of time to the exercise of that court’s powers under the Rules. The learned Senior Advocate submitted, and rightly too in my view, that the provisions for the periods within which to appeal against the Court of Appeal decisions are contained in Section 31 of the Supreme Court Act, 1960 and therefore that Practice Direction No.1 of 1989 made by the President of the Court of Appeal cannot apply to that Act. In support, the following authorities were cited and relied on – TUNJI BOWAJE V. MOSES ADEDIWURA (1976) 6 SC. 143; AMUDIPE V. ARIJOBI (1978) 9 – 10 S.C.27 at 30; ODOGIY ANI V. HISPANIC CONSTRUCTION (NIG.) LTD. (1986)5 N.W.L.R. (Pt.39) 127; OCEAN STEAMSHIP (NIG.) LTD. (NO.2) V. SOTUMINU & ORS. (1987) 4 N.W.L.R. (PT.67) 996; OWONIBOYS TECH. SERVICES LTD. V. JOHN HOLT LTD. (YAMACO DIVISION) (1991) 6 N.W.L.R. (Pt. 199) 550 and NIGER CONSTRUCTION LTD. V. CHIEF A.O. OKUGBENI (1987) 4 N.W.L.R. (Pt.67) 787.
On these issues, it was the submission of learned counsel for the respondent that although the application for leave to appeal as an interested party was refused by the Court of Appeal on 26th May 1989, yet the Court of Appeal still retained the jurisdiction to hear the subsequent application for leave to appeal to the Supreme Court on grounds other than of law by virtue of the provisions of the Practice Direction of the Court of Appeal. No. 1 of 1989, the purpose of which he said was “made to effectuate the provisions of section 31 (2) (a) of the Supreme Court Act 1960”, It was also the contention of learned counsel that as the Ruling of the Court of Appeal was delivered on 12th June 1989 and the Notice and Grounds of Appeal were filed on 10th October 1989, they were all well within the statutory period allowed, since the time to do so would expire on 26th October 1989, taking into account that the periods of the legal vacation both in the Court of Appeal and the Supreme Court were to be from 17th July, 1989 to 3rd September 1989 and 24th July 1989 to 3rd September 1989 respectively, He urged this Court to dismiss the appeal.
Section 220(1) of the 1979 Constitution confers on the parties the right to appeal from decisions of the High Court to the Court of Appeal, while section 221 confers such right of appeal with the leave of either the High Court or the Court of Appeal. The right conferred by sec. 221 is further subjected to the provision of section 222 of the same Constitution, and sub-section (b) of sec. 222 states clearly that the right “shall be 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. Section 227 confers on the President of the Court of Appeal power to make rules in that con. The relevant Act is the Court of Appeal Act, 1976 while the Rules are the Court of Appeal Rules 1981.
Section 25(1) and (3) of the Court of Appeal Act, 1976 specified time for appealing to the Court of Appeal from a decision of the High Court, Sub-sections (3) and (4) of Section 25 provide that-
“(3) Where an application for leave to appeal 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”
Subsection 4 of section 25 of the Act confers on the Court of Appeal powers to extend time provided for appealing in section 25(1) and (2).
Order 3 rule 3 of the Court of Appeal Rules, 1976 provides the procedure of extending time within which to appeal against the decision of the High Court. By virtue of sections 222(b) and 227 of the Construction, the President of the Court of Appeal promulgated the Practice Direction Number 1 of 1989 to give effect to the Rules for the purpose of computing “any period within when an application for leave to appeal of for filing appellant’s or respondent’s brief or reply brief and in that regard declared that the period “for vacation of the Court of Appeal shall not be taken into account”. In other words, the period to be yearly declared as “vacation period” shall nor be counted against any applicant for computing the period allowed by the Rules.
The whole exercise deals with appeals from the High Court to the Court of Appeal. It does not apply to an appeal lying from a decision of the Court of Appeal to the Supreme Court. The power of initiating an appeal from the Court of Appeal to the Supreme Court is provided in Sections 213 and 216 of the 1979 Constitution, and the Supreme Court Act 1960 section 31, while the Supreme Court Rules, 1985, spelt our the procedure. Where for any reason person desirous to appeal to the Supreme Court runs out of the prescribed statutory period or doing so, only the Supreme Court can extend the time and give him leave to do so. It is also only the Chief Justice of Nigeria that can issue Practice Direction for the implementation of the Rules made by him as a result of the power conferred on him by section 216 of the Constitution. The Court of Appeal is only empowered to grant leave to appeal within the statutory period allowed for appealing: Both the application for leave to appeal and the granting of the leave must all be within the statutory period but not otherwise.
The interpretation and application of the practice Direction No. 1 of 1989 made by the president of the Court of Appeal was considered by this Court in the case of OWONIBOYS TECHNICAL SERVICES LTD. V. JOHN HOLT LTD. (1991) 6 N.W.L.R. (Pt.l99) .550 at 558. Where it was held by Uche Omo, J.S.C, delivering the lead judgment of the Court that-
‘”Nothing therein empowers the Court of Appeal to extend time within which to appeal to the Supreme Court. The Practice Direction must apply to the powers which the Court of Appeal can exercise, to wit, in respect of computation of time for appeals from the High Court to the Court of Appeal, and compliance with its orders on other matters within its jurisdiction. It cannot conceivably apply to statutory provisions governing time within which to appeal to the Supreme Court.
The Court of Appeal has itself so decided in Dopemu v. Adeyeri & Ors. v. Akinbode Okobi & Ors. (1989) 5 NWLR (Pt.119) 1. When it held, as to the purpose of the aforesaid Practice Direction, that it is meant-
‘1. …. to give effect to the provisions of the Rules of the Court of Appeal by excluding the period of Vacation of the Court from computation of the period within which any application for leave to appeal to the Court of Appeal from the decisions of the High Court or for filing of briefs’ of arguments in respect of appeals pending in the Court of Appeal may be brought’.”
and as to its scope that
“2. If the Practice Direction No.1 of 1989 is construed to extend to applications for leave to appeal to the Supreme Court, it means that the president of the Court of Appeal made a rule regulating the practice and procedure of the Supreme Court which is not the case. The Practice Direction therefore applied to all applications for leave to appeal to the Court of Appeal from the decisions of the court below and the filing of appellant’s brief or reply brief and not just application for leave to appeal from the Court of Appeal to the Supreme Court’.”
As shown by the learned Senior Advocate for the appellant, the leave granted by the Court of Appeal was well outside the statutory period, whether the decision is considered to be interlocutory or final, and it is therefore null and void. It is so declared. It is therefore not necessary to make any pronouncement on whether the Court of Appeal ruling of 26th May, 1989 is final or interlocutory. The exercise will for this purpose be merely academic.
The appeal succeeds and it is allowed. The decision of the Court of Appeal dated 10th October, 1989 granting the respondent leave to appeal is declared a nullity as it was given without jurisdiction. N1,000.00 costs is awarded to the appellant against the respondent in this Court and N500.00 costs in the Court below.
S. KAWU, J.S.C.: I have had the privilege of reading, in draft, the lead judgment of my brother, WALI, J.S.C. which has just been delivered I agree entirely with him that for the reasons fully set out in his judgment, this appeal ought to be allowed.
It was common ground that the respondent’s application to the Court of Appeal for leave to appeal was considered outside the statutory period of three months allowed by section 31(2)(a) of the Supreme Court Act, 1960. The issue is whether the Court of Appeal had jurisdiction to entertain the application when it did.
In my view, the Court had no jurisdiction to entertain the application simply because, as had been stated by this Court in Owoniboys Technical Services Ltd. v. John Holt. Ltd. (1991) 6 N.W.L.R. 9Pt.199), the Practice Directions of the Court of Appeal, No. 1 of 1989 cannot possibly apply to the statutory provisions relating to time within which an appeal, or leave to appeal to the Supreme Court must be filed. I allow the appeal with N1,000.00 costs awarded to the appellant.
Other Citation: SC.274/1989
