Emokpae V. Stanbic Ibtc Pension Managers Ltd (2021)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Notice of Appeal at pages 373 – 375 of the Records has two grounds of appeal namely: – the complaint against the finding of fact that “the Appellant failed to prove that the Respondent breached its duty of care”, and the omnibus ground of appeal complaining that the judgment of the Court of Appeal (the lower Court) was against the weight of evidence. Both grounds are complaints against the lower Court’s findings of fact. The grounds require leave first sought and granted before they could be legitimately filed in the further appeal to this Court from the lower Court, an intermediate Court.

Section 233(2) & (3) of the Constitution is mandatory. A ground of appeal against concurrent findings of fact requires leave first sought and granted before filing. These two grounds of appeal, being grounds of pure facts against the decision of the Court of Appeal, an intermediate Court, filed in defiance or insubordination of the provisions of Section 233(2) & (3) of the Constitution, are incurably defective – no leave having been first sought and granted before they were filed are incompetent.

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The incompetence of the Notice of Appeal vitiated the appeal predicated thereon.

Appellant who, purporting to exercise his constitutional right of appeal, brings his appeal in a manner flagrantly violative of the Constitution cannot be countenanced. It will be ultra vires to grant to such litigant a right denied to him by the Constitution. Similarly, if exercise of the right of appeal is conditional; unless the mandatory conditions are met and fulfilled, the Court acts ultra vires to entertain such appeal process.

In part 2 of the Notice of Appeal, the part requiring the appellant to show the part of the decision of the lower Court complained of, the Appellant herein stated that he was complaining against “part of the decision not allowed”. Which part if I may ask? He gave no particulars of the “part of decision not allowed”. He left it to speculation as to that “part of the decision not allowed”. This ambiguity defeats the very essence of fair hearing, particularly audi alteram partem, requiring the respondent to have particulars and notice of the complaint in the case he is going to meet in order that he must adequately prepare for and against

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As it is presently constituted, the Notice of Appeal in part 2 thereof is not explicit as to whether the “decision not allowed” includes the trial Court’s decision which the Supreme Court has no jurisdiction to entertain, or that portion of the lower Court’s decision the appellant cannot complain of as of right.

In the Relief Sought, the Appellant merely sought the “setting aside of part of the judgment of the Court of Appeal granting the last relief claimed by the Appellant”. The last relief claimed at the trial by the Appellant against the Respondent was the claim for damages for negligence against the defendant. There were no particulars of the damages claimed by the Appellant herein against the Respondent. The question: which damages did he seek for negligence against the Respondent? Again this Court lacks jurisdiction to entertain complaints against or from the decision of a Court of first instance: Section 233(1) of the Constitution.

The bottom-line is that the only two grounds of appeal in the instant appeal are incompetent in view of Section 233(2) & (3) of the Constitution. The two original grounds of appeal were filed in clear

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violation of the mandatory provision of Section 233 (2) & (3) of the Constitution. Consequently, there is no valid or legitimate ground of appeal existing that can, or sustains, the appeal. The Notice of Appeal at the time it was filed was fundamentally defective and void ab initio. It is hereby accordingly struck out.

I also observe that the clumsy manner the Notice of Appeal was conceived and contrived was intended to deny fair hearing to the Respondent particularly having regard to the substance of the grouse of the Appellant.

The appeal is hereby struck out. Parties shall bear their respective costs.

SC.812/2015