Independent National Electoral Commission, Anambra State & Anor. V. Ifeanyichukwu E. R. Okonkwo (2008)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
This is an appeal against the judgment of Federal High Court, Enugu Division (Coram Alagoa J.) delivered on 27th May 2005, which granted all the reliefs sought by the applicant, now respondent against defendants, now appellants. The reliefs sought by the plaintiff which were granted by the lower court as per the Originating Summons are as follows:
“A. A declaration that neither the 1st defendant INEC nor the 2nd defendant the Resident Electoral Commissioner, Anambra State are vested with any power for the clearing/approval or revalidation of the candidature for the said election of Mr. lfeanyichukwu E. R. Okonkwo, the validly nominated candidate of the Nigeria Advance Party in purview of having complied with the provisions of Section 21 of the Electoral Act 2002 by the Plaintiffs.
B. A declaration that the delistment and exclusion of the names of Mr. lfeanyichukwu E. R. Okonkwo, and the Nigeria Advance Party his sponsor, the 1st Respondent INEC amongst those other 13 names of candidates and their political parties purportedly clear, (sic), approved and or revalidated by the Defendants to contest the said election which was pasted at the 1st Defendants Head Quarters at Awka and circulated to newspapers Houses (among which is (sic) the This Day, The Sunday News Paper of April 13th 2003 is unconstitutional, null and void ab initio.
C. A declaration that the Nigeria Advance Party and its validly nominated candidate for the 19th April 2003 Governorship Election in Anambra State, Mr. lfeanyichukwu E. R. Okonkwo were unlawfully excluded from the said election, by the Defendants.”
The Facts which gave rise to this appeal as can be gleaned from the record of proceedings can simply be summarized below.
On the 28th July 2003 as stated earlier the plaintiff/respondent filed an originating summons at the Federal High Court, Enugu Division (herein after called “The Lower Court”) basically for the interpretation of Section 21 of the Electoral Act 2002 and has also sought the three above listed reliefs. The Plaintiff as respondent herein, on 1/8/03 filed an Ex parte application sought wherein he sought and obtained leave of the lower court to prosecute his suit in representative capacity. The Respondents now appellants also sought and obtained leave of the court on 31/5/04 to enter appearance out of time.
Then for over one year nothing happened in the suit perhaps, due to the plaintiffs application to the Chief Judge of Anambra State seeking the transfer of the suit to another judge on his complaint of bias against the Judge then handling the matter. Later on 13/1/2005, hearing in the suit started de novo before Alagoa J. who later adjourned the suit to 3/2/2005 as conceded by both parties. On that day, the plaintiff/respondent appeared in court while the defendants/appellant were absent and not represented, even though they were in court on 18/1/05 when the matter was adjourned to 3/2/05 with the consent of the parties. On this day (3/2/05) the plaintiff applied to the court to strike out all the processes the defendants filed earlier among which were the Notice of Preliminary objection filed on 13/8/03, Motion filed on 12/1/04 for leave to file memorandum of appearance and motion dated 15/8/03 for want of diligent prosecution. He also successfully applied for permission to argue his Originating Summons. The lower Court obliged him and stuck out all the processes earlier filed by the defendants and adjourned the matter to 23/2/2005 and ordered that hearing notice of the Originating Summons be served on the defendants. For undisclosed reason, the court did not sit on 23/2/2005. It however sat on 15/3/05 without the defendants or their counsel putting up appearance. On that day the plaintiff argued his Originating Summons after which the court adjourned to 6/4/05 for ruling. On 6/4/05 the lower court delivered a ruling and granted same and urged the plaintiff alone to address it on some issues which it raised suo moto and adjourned the matter to 3/5/2005 for the address. It should be noted that when the issue of address was raised by the court there was no indication in the courts record that defendants were to be served with any hearing notice. Again, on the subsequent adjourned date, i.e. 3rd May 2005 defendants were also not served with hearing notice to appear for the hearing of the Originating Summons. The plaintiff was on that day allowed to argue his application ex-parte. After his argument the court adjourned the matter to 24/5/2005 for judgment. The judgment was however not delivered on 24/5/05 but was instead delivered on 27/5/2005, wherein the lower court granted all the three declaratory reliefs sought by the applicant/plaintiff in the Originating Summons.
Against this judgment of the lower court delivered on 27/05/2005, the appellants appealed to this court. They filed Notice of Appeal dated 9/8/05 containing two grounds of appeal. One issue for determination was distilled from the two grounds of appeal in the appellants’ brief dated and filed on 9/1/2006 which read thus:-
“Whether the Federal High Court is clothed with the jurisdiction or competence to inquire/adjudicate/determined the issue/question as to whether a candidate for the 2003 Governorship Election was unlawfully excluded/delisted in view of the provisions of section 28(2) of the Constitution of the Federal Republic of Nigeria 1999: Sections 21(8)(9), 132 and 134 (1) (d) of the Electoral Act 2002?”
The learned Appellants’ counsel also filed Appellants’ Reply brief on 23/2/08 in reply to some issues raised in the brief of argument filed by the Respondent.
The respondent on the other hand, filed his brief of argument on 3/2/06 upon being served with the appellants’ brief of argument. In this brief of argument also one issue for determination was proposed which reads as below:-
“Whether under the 1999 Constitution Section 251(1) (q) and (r) with regards to the plaintiff/respondent’s Originating Summons, for the construction of Section 21 of the Electoral Act 2002, and the reliefs sought, the judgment dated 27/5/2005, is not within the jurisdiction of the Federal High Court of Nigeria?”
It should be stated at this stage, that the respondent had before the hearing of the appeal, filed a Notice of Preliminary Objection on 3/2/06 dated the same day. The seven grounds upon which the preliminary objections was filed vide the said Notice of Preliminary Objection are reproduced below.
“A. That there is no appeal before the Honourable Court of Appeal against the decision delivered on 3rd day of May 2005 on issue of jurisdiction which was raised by the Honourable Court suo motu. Therefore, the Defendants/Appellants cannot ignore that decision of 3/5/2005 and proceed with the present appeal filed on 10/8/2005 against the decision of 27/5/2005.
The Appeal of 10/8/2005 cannot validly constitute an appeal against that decision on jurisdiction, without the leave extending time within which to appeal firstly obtained, the time within which to appeal as of right had expired on 2nd day of August, 2005.
B. The decision of 3/5/2005 being a final decision on issue of jurisdiction by the court below, the Defendants/Appellants have a duty to firstly appeal against the decision and or to have joined the appeal against that decision with that of 27/5/2005 a condition precedent, the failure of which has robbed the Honourable Court of Appeal of the jurisdiction to entertain this present appeal against the later decision of 27/5/2005.
C. The judgment of the Federal High Court of Nigeria and dated 27/5/2005 being a Default Judgment may be set aside under the Federal High Court (Civil Procedure) Rules 2000, Order 38 Rule 9, and Order 40 Rules 6 & 7. Therefore, the Appeal by the Defendants/Appellants filed against the said default judgment on 10/8/2005 is incompetent for non-compliance with condition precedent before commencement of the action.
D. The Defendants/Appellants Notice and Grounds of Appeal challenging the competence of the Plaintiffs Originating Summons is invalid for failure by the Appellants to have challenged same at the court below and not at the Court of Appeal for the first time.
E. The Appellants Ground 1 (one) is incompetent having not been framed on what the trial Court decided on 27/5/2005.
F. The Appellants’ Ground 2 (two) is incompetent because what an appeal court has to decide in an appeal before it is, whether the decision or judgment appealed against is right and not whether the reasons for the judgment is right. See State vs. Ogbubunjo (2001) 2 NWLR (part 698) SC; Okafor vs. A-G Anambra State (2000) 11 NWLR (part 679) 479 CA.
G. The two grounds of Appeal and their particulars breached the mandatory provisions of Order 3 Rule 2(2) of the Court of Appeal Rules 2002.”
As has been the practice, I shall first deal with the Preliminary Objection raised and argued by the respondent on pages 3-7 of his brief of Argument before I consider and determine the appeal if need be.
On the first ground of objection i.e. Ground A, it is submitted by the respondent that the lower court delivered its ruling on jurisdiction on 3/5/05 and not 27/5/2005 and that ruling being a final decision, the defendant ought to have appealed within 90 days and thus ought to have filed Notice of Appeal on the issue on or before Monday 1/8/05. By not appealing timeously, the appeal become incompetent under section 241 (a) of the 1999 Constitution. If they defendants/appellants failed to appeal within time, they ought to have applied for extension of time within which to appeal. This they failed to do according to the learned respondent’s counsel.
The respondent went further to argue that the judgment delivered on 27/5/05 being a default judgment might be set aside under Order 38 Rule 9 and 40 Rules 6 and 7 of the Federal High Court Rule 2000 therefore the appeal filed on 10/8/2005 is incompetent for non compliance with condition precedent before commencement of action. While proceeding his argument on this first ground of objection, the respondent went ahead to make some submission which to my mind are more relevant to Ground C of the Objection which I will deal with later. In his reply on this ground of objection, the learned counsel for the appellants submitted that their appeal is against the judgment delivered on 27/5/05, which is a final judgment. He said they are to appeal within 3 months, which they did. He said they in fact appealed within 75 days from 27/5/05 the date the judgment was delivered.
I think in this respect, I tend to agree with the submission of the learned counsel for the appellants. The Notice of Appeal on pages 81-84 of the record dated 9/8/05, clearly shows that they were appealing against the judgment. As shown on the Record of Proceedings there was not any judgment or Ruling delivered on 3/5/08. What transpired on that day was taking of the argument posed by the respondent/plaintiff and the issue the lower court raised suo muto and called for address on them. In any case even if there was such or any judgment or ruling delivered by the lower court on that day it is the party that felt aggrieved by it that could decide whether to appeal against it or not. The respondent can therefore be termed a busy-body to insist that the appellant should or must appeal against it or any other ruling or must raise it in his or their grounds of appeal along with others. I therefore do not see any merit in this leg of the objection and it is accordingly overruled by me. Closely related to the first ground is Ground B, which also related to a judgment purportedly, delivered on 3/5/08. This court has jurisdiction to and is also entitled to look at the contents of its file or Record of proceedings of a trial court filed before it as decided in the cases of. See West African Provincial Ins. Co. Ltd. vs. Nigerian Tobacco Co Ltd. (1987) 2NWLR (pt. 56) 299 at 306; Alhaji Nuhu v. Alhaji Ogele (2003) 12 SCNJ 158 at 178 or (2003) 18 NWLR (Pt. 852) 251 at 272 and Jikantoro vs. Dantoro & 6 Ors. (2004) 5 SCNJ 152 at 177 and that the record of proceeding bind both the parties and the court. See Texaco Panama Incorporation vs. Shell Petroleum Development Corporation of Nigeria Ltd. (2002) 2 SCNJ 102 at 118 or (2002) 5 NWLR (Part 759) 209 at 234; Onigbe & Anor vs. Bulara Una & 10 Ors 16 NWLR (792) 175 at 206/207. As I said supra, there was no Ruling or judgment delivered on 3/5/08 (as being suggested by the respondent) which could be appealed against but was not so appealed against by the appellant or which ought to have been joined with the judgment delivered on 27/5/05 the subject matter of this appeal. I also do not see any merit in this leg of the objection which seems to be suggesting that failure to appeal against a particular ruling or judgment should affect another ruling or judgment appealed against. That is inconceivable and ought to be discountenanced. I accordingly overrule this leg of the objection also as it is not well taken.
The third aspect of the Preliminary Objection deals with the competence of this appeal in view of the fact that the judgment now being appealed is a Default one. I will deliberately defer the consideration of this ground until after I deal with the other grounds of the objection relating to the competence of the two grounds of appeal.
Ground D of the Preliminary Objection queries the competence of Ground of Appeal, No. (1) in that the respondent challenges its competence because it was not framed on what was decided by the lower court. The learned respondent’s counsel cited and relied on the case of the Trustees PAW Inc. vs. Trustees of AACC (2002) 15 NWLR (Pt. 790) 424. The learned counsel for the Appellant replied that the said ground of appeal being challenged is competent as it touches on jurisdiction of the court and therefore need not flow from the decision of the court or from what the trial court decided. It is well settled law, that ground of appeal must challenge a decision a court made pronouncement on or must be predicated upon what the court decided but not on what it did not decide. See the case of Trustees, PAW Inc. vs. Trustees AACCC (supra); Akilu vs. Odutan (2000) 13 NWLR (Pt. 685) 446 at 461; Igbinovia vs. UBTH (2000) 8 NWLR (Pt.667) 53. This is even in keeping with the provisions of Section 318 (1) of the 1999 Constitution, which defines “decision”. I must however say, that there is an exception to this general rule with regard to the issue of jurisdiction. Issue touching on jurisdiction of a trial or appellate court can at any time be raised even before the apex court for the first time. It is never a pre-condition that before an issue of jurisdiction is raised on appeal the trial or appellate court must have earlier pronounced or ruled on it in view of its fundamental nature and the fact that it is that aspect that gives fetus or live to the suit. Without jurisdiction whatever a court decides no matter how well, is null, void and of no effect. It is my view therefore, that ground No. 1 which relates to issues of jurisdiction is competent. The objection on that leg is equally overruled. The respondent also challenged ground NO. 2 on the ground that it is not against the findings or conclusions of the lower court. He argued that it offends Order 3 Rule 2(2) of Court of Appeal Rules 2002. Reliance was placed on WAB Ltd. vs. Savannah Venture Ltd. (2002) 10 NWLR (Pt.775) 401; State vs. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 SC; Okafor vs. A-G Anambra State (2000) 11 NWLR (Pt. 679) 479; SBM Services (Nig) Ltd. vs. Okon (2004) 9 NWLR (Pt. 879) 529; A/C Ltd. vs. NNPC (2005) 11 NWLR (Pt. 937) 653 SC; Amobi vs. Nzegwu (2005) 12 NWLR (Pt. 938) 120 and Okotie Eboh vs. Manager All FWLR (Pt. 241) 277 SC. Responding to this submission, the appellants’ counsel stated that all the authorities cited by the respondent supra are irrelevant and inapplicable adding that the two grounds of appeal have duly complied with Order 3 Rule 2(2) of Court of Appeal Rules 2002. The appellants’ reply to this leg of objection as per their Appellants’ Reply brief is that the second ground is competent for the same reason he advanced in his argument on the first ground of appeal. That is to say it did not run riot to the provisions of Order 3 Rule 2(2) of Court of Appeal Rules 2002. It is trite and settled law too, that in determining whether a ground of appeal conforms with the provisions of Order 3 Rule (2) (3) & (4) of Court of Appeal Rule 2002, the courts nowadays look at the substance rather than the form of the ground. This is basically in order to do substantial justice to the case. See Hambe v. Hueze & 2 Ors. (2001) FWLR (Pt. 42) 11 at 12 or (2001) 4 NWLR (Pt. 703) 372 at 387; Alhaji Adewunmi & Anor v. Olowu (2000) 2 SCNJ 180. Looking at the 2nd ground of appeal closely and dispassionately would wipe out any doubt that the substantial issue of law especially on jurisdiction was put in question. The Law is equally settled that although ordinarily issues/points cannot be raised on appeal for the first time, there is an exception to that rule because such issues/points can be allowed to be raised where it is shown or is clear that it is a substantial point of substantive or adjectival law and that no further evidence which could have been called in the lower court if it was raised there could have affected the decision one way or another. As I said earlier, the second ground even partly raised jurisdictional point which party raising it has no hindrance to do so at any time and in any court even without leave. See also Oke v. Oke (supra); Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Eligbe vs. Omokhafe (2004) 18 NWLR (Pt. 905) 219 where the Supreme Court held:
“It is generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
It is therefore my candid view that the second ground of appeal is also competent. I overruled the objection on same. Having said so, the learned respondent’s submission on leg E of the Preliminary objection that the court is to determine whether the judgment is right and not whether the reason for the judgment is right will not hold water since it also touches on point of substantial law particularly relating to jurisdiction. The decisions in State vs. Ogbubunjo (2001) 2 NWLR (Pt. 698) 576 and Okafor vs. AG Anambra State (2000) 11 NW. LR (Pt. 679) 479 cited and relied on by the respondent are inapplicable to the point in issue. The justice of the matter is that looking at the form of the two grounds of appeal, they are competent and have complied with Order 3 Rule (2) of Court of Appeal Rule 2002.
Coming to the third, ground of preliminary objection (ground C), it is the submission of the respondent that the judgment delivered on 27/5/05 is a default judgment for that reason the respondent argued that this appeal is incompetent for non-compliance with the condition precedent of an appeal against default judgment. He cited the case of Malgwi v. Gadzama (2000) 11 NWLR (Pt. 678) at 268. He argued that the defendants/appellants’ Notice and Grounds of Appeal challenging the competence and the plaintiffs Originating Summons is invalid. According to the respondent, the Originating Summons should first be challenged at the lower court so that it will form an issue in the case, thereby giving the trial court an opportunity to review its decision thereby fulfilling the role as an appellant court. See Adegoke Motors Ltd. vs. Adesanya (1989) 3 MWLR (Pt. 109) 250 at 270. Owena bank Plc vs. Olatunji (2002) 12 NWLR (Pt. 781)259 at 312. The appellants’ counsel in reply to the above submissions of the respondent, argued that they were challenging jurisdiction of the lower court to entertain the matter on issue of jurisdiction which can be raised at any stage of the proceedings and even for the first time in a court of last resort. He added that the fundamental nature of the issue of jurisdiction exempts it from many disabilities and restrictions which would frustrate other legal point on appeal if not raised in the court below. See Connecticut Fire Insurance Co. vs. Kanavagh (1892) Ac 473 at 480; Dr. O.G. Sofekun vs. Akinyemi & 4 Ors. (1980) 5 – 7 SC 1 at 21; Management Enterprises Ltd vs. Otgunsanya (1987) 4 SC 76; Saleh v. Shehu (1986) SC 332 at 368. Shobegun vs. Sanni & Ors (1974) SC 35.
On page 110 of the Record of Proceedings the lower court had this to say:-
“On the 15th day of March 2005 when this matter came up for hearing of the Originating Summons, the Defendants were absent and had continuously absented themselves on previous occasions. The record show that the Respondents were properly served. On that day Mr. lfeanyichukwu E. R. Okonkwo representing himself addressed the Court.”
Again in the concluding part of its judgment now being appealed against, the lower court also have held on pages 112 to 113 as follows:-
“Also by virtue of the decision the Director of SSS vs. Agbakoba (supra) cited by the plaintiff, the defendants having failed to enter any defence by way of counter-affidavit I will enter judgment in favour of the plaintiffs. Consequently all the reliefs stated in “A”, “B”, “C” in the reliefs sought on the Originating Summons are hereby granted as prayed.”
From the above excerpts in the lower court’s judgment, it is not disputable to say that the judgment being appealed against is one given in default of appearance/or defence on the part of the appellant. It is the submissions of the respondent that being a default judgment the appellants has no right to appeal directly to this Court without first of all approaching the lower or trial court to set same aside. On the other hand, the appellants’ contention is that since he is challenging the jurisdiction of the lower court to entertain the originating summons he could do so at any time and even in the apex court without any hindrance. It is well settled law that a court is only competent to adjudicate on a matter if the under mentioned conditions are fulfilled, namely:-
a) that it is properly constituted as regards number and qualifications of the members of the bench and no member is disqualified for one reason or another;
b) that the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c) that the case comes before the court initiated by due process of law and upon fulfillment of any conditions precedent to the exercise of jurisdiction. Any defects in competence is fatal, for the proceedings are a nullity however well conducted and decided, this defect is extrinsic to adjudication See Madukolu vs. Nkemdilim (1962) 2 SCNCR 341.
Now much as I am in entire agreement with the submission of the learned counsel for the appellants and that is trite too, that jurisdictional issues can be raised at any time, however, I wish to say such principle is only tenable where there is no feature in the case which could prevent the court from exercising its jurisdiction or where the case is initiated by due process of law and all conditions that are pre-requisite to the exercise of such jurisdiction are met or fulfilled. There must be a valid and lawful forum where the issue of jurisdiction can be ventilated and such forum must be based on law or valid substratum. For instance, one can not jump to the Supreme Court to challenge the decision of a High Court without first of all appealing to the Court of Appeal or for example before challenging the jurisdiction of a court one must have a valid and competent Notice of Appeal which is the base on which one can stand to challenge the jurisdiction of a court in a given suit.
I think there is a need to pause a little here and reflect on what default judgment is all about. In actual fact default judgment is categorized into two, namely (1) judgment obtained in default of pleadings which is governed by Order 39 Rules 7, 8 and 9 of Federal High Court (Civil Procedure) Rules, 2000, and a judgment in default of appearance or of defence of the trial of the suit, as in this instant case, which is also governed by Order 39 of the same Rules. There is a world of difference between the two. With regard to the first category, i.e., judgment obtained in default of pleadings; such judgment can be set aside by the trial court on proper application by the defendant at anytime as there is no time limit. But as for the second category, such judgment may also be set aside by the trial court on proper application filed within six days from the date such judgment was delivered. Permit me my Lords, to emphasize that the six days time limit is very important and is not mere cosmetics and must be strictly complied with.
In N.A. Williams vs. Hope Rising Voluntary Fund (1982) 1-2 SC 145 at 153 – I55 the Supreme Court said per Coker JSC as follows:-
“When, however, the application before the court is for it to set aside its own judgment given in the absence of one of the parties before it in order to give the other party opportunity of being heard different considerations apply. There were fully set out by me in Idowu Ugwu and Ors vs. Nwaye Aba and Others (1961) All NLR 438 (See also) Adebayo Doherty vs. Ade Doherty (1964) MNLC 144 at 145, Among other things, the court must consider (1) the reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence, (2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists, (3) whether the latter party (i.e. in whose favour the judgment subsists) could be prejudiced or embarrassed upon an order for re-hearing of the suit being made so as to render such a course inequitable and (4) whether the applicant’s case is manifestly unsupportable; and I respectfully agree with the views of my learned brother, my Lord Bello SPJ (as he then was) and of blessed memory, in Momoh v. Gulf Insurance Corporation (1975) 1 NMLR 184 at 186, that in addition to the foregoing factors the court being asked to set aside its own judgment must also be satisfied that the applicant’s conduct throughout the proceedings i.e. from the service of the writ upon him to the date of judgment has been such as to make his application worthy of a sympathetic consideration ..”
However there is still room for an applicant who failed to bring an application to set aside judgment in default of appearance within the stipulated six days, to seek an extension of time. In this situation, he can bring an application to the court that gave the default judgment which must contain the under mentioned tripartite prayers namely:
i) An order for extension of time within which to apply to the court for an order setting aside its judgment;
ii) An Order setting aside the judgment; and
iii) An order that the principal case be relisted for hearing and determination on the merits. See Williams vs. Hope Rising Voluntary Fund Society (Supra); Akinnuli vs. Ayo Odugbesan (l992) 8 NWLR (Pt. 258) 972.
By the provisions of Orders 39 of Federal High Court Rules 2000, an application to set aside any decision or judgment obtained in default of pleadings or appearance of a party at the trial of the suit application must first of all be made to the trial court and thereafter if such application is refused by the trial court, this court can be approached. Order 3 Rule 3 of the Court of Appeal Rules 2002 which is in pari material with Order 7 Rules 3 and 4 of Court of Appeal Rules 2007, provides that where the application was refused by the trial court, a similar one can be made to this court within fifteen days after the date of such refusal. Again, Order 3 Rule 3(4) of the same Rules also provides that where an application may be made either to the Court of Appeal or to the Court below, it should not be made in the first instance to this court except where there are special circumstances making it impossible or impracticable to apply to the court below.
Now in this instant case, there is no evidence that the present appellants had earlier applied to the lower court to set aside its judgment given in default of their appearance or defence. Instead, they decided to directly appeal to this court apparently without any cogent reason. One would have expected them to first of all apply to the lower court to set aside its judgment and if it refuses then they approach this court for same. By not doing so, they can be said to have not exhausted all the remedies available to them. This to my mind, is done in utter and flagrant disregard to the rules and practice of both the lower and this courts.
It is settled law, that condition precedent to the commencement of action is violated (See Madukolu vs. Nkemdilim (supra). This ‘jumping up’ or violation of the laid down condition precedent therefore robs this Court of jurisdiction to entertain the matter. In Malgwi vs. Gadzama (supra) which has similar facts with the instant case, this court decided that the Appellant ought to have filed an application for the setting aside of the judgment at the lower court. By not so doing, and instead directly appealing to this court, this court lack jurisdiction. I entirely agree with the decision, as I have no reason to refuse to follow it. This appeal is therefore premature for want of first filing an application of setting aside of the judgment at the lower court. Consequently, this court lacks jurisdiction to hear and determine the appeal on the merit at this stage.
Before concluding my consideration of this ground of preliminary objection, I deem it apposite to emphasize on the need by parties to suits to always comply with rules of court. These courts procedural rules are not there for fun. They are not mere cosmetics. Unless courts guard jealously against flouting of their rules the purpose for which they are made to serve will be defeated. Parties appearing in the courts on the other hand are duty bound to strictly comply with the rules of court and not to treat them with utter disregard or with levity. If rules of court are disregarded or flouted, injustice will certainly be installed. See Ojiako v. AG Anambra State (2000) 1 NWLR (Pt. 641) 375. Adeli v. Atega (1995) 5 NWLR (Pt. 398) 656; Asuguo vs Etim (l995) 7 NWLR (Pt. 405) 104; 7Up Bottling Co Ltd. v. Abiola & Sons (Nig) Ltd. (l995) 3 NWLR (Pt. 383) 257.
The resultant effect of all that I have remarked above, is that the appeal is incompetent as it prematurely found its way to this court. The third leg of the respondent’s preliminary objection therefore succeeds and is accordingly sustained. I reject the appellants’ argument that the instant appeal is properly before this court since condition precedent applicable in challenging Default Judgment had not been exhausted or met. The appellants’ argument in my opinion lacks merit and is rejected by me. The Preliminary Objection therefore is well taken on the third leg only and is accordingly upheld.
Having found that the appeal is premature for reasons I posited above and that the appeal is therefore incompetent, I feel it will be an effort in futility to consider the issues raised in the appeal.
On the whole, I strike out the appeal for want of jurisdiction. I decline to make order as to costs.
Other Citations: (2008)LCN/2848(CA)
