John Chukwuka & Ors. V. Ndubueze Gregory Ezulike (1986)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C. 

A PRELIMINARY OBJECTION has been taken to the motion on notice of the Defendants who, in their application dated 25th August 1986, are seeking for an order of court granting them the following reliefs:

(i) pursuant to Section 31(4) of the Supreme Court Act for an order for extension of time within which to apply for leave to appeal to this court from the judgment of the Court of Appeal delivered herein on the 26th day of March, 1984;

(ii) pursuant to Section 213(3) of the Constitution of the Federal Republic of Nigeria, 1979, for an order for leave to appeal from the judgment aforementioned on questions other than questions of law alone;

(iii) pursuant to Order 31 rule (1) directing a departure from the requirements of paragraphs (a) and (b) of Order 2 rule 31(2) and of Order 6 rule 2(1)(c) of the Supreme Court Rules, 1985;

(iv) directing the Registrar of the Court of Appeal to correct the defective sentence on p.114 lines 30-31 of the Record of Appeal and

(v) for such further or other orders as this Honourable Court may deem fit to make:

The reasons given in the supporting affidavit, sworn to by one Rafiu Azeez-

litigation Clerk in the Chambers of Chief F. R. A. Williams for the Applicants failure to act within time are mainly, contained in paragraphs 6, 7 and 8 of the said affidavit, sworn to by the said Rafiu Azeez, which read as follows:

I am informed by Chief Rotimi Williams and I verily believe that he intended to process the appeal for hearing personally and to prepare the brief or any other relevant papers. I am further informed by Chief Williams and I verily believe that through oversight he did not take necessary steps. It was whilst checking through outstanding appeals before this Court shortly after returning from vacation this year that Chief Williams discovered that nothing has been done about this appeal.

7. I am also informed by Chief Rotimi Williams and I verily believe that upon perusing the Record of Appeal he discovered that although the grounds of appeal raised questions other than questions of law alone no leave to appeal had been sought for or obtained when the Notice of Appeal was filed.
8. To the best of my knowledge information and belief, the Appellants have at all times been anxious to prosecute their appeal and were not aware that there has been anything to be done by them which has been left undone.

The motion was first fixed to be heard in Chambers but it was later ordered to be heard in open Court in order that the Court might have the benefit of oral arguments of Counsel in deciding the legal issues raised in the papers filed.

The preliminary objection was to the effect that the Supreme Court having dismissed the appeal of the Appellants on 12th November. 1985, the Supreme Court was not competent to hear the Appeal a second time and therefore lacked the powers to hear the Appeal again. Therefore, argued Mr. Ezekwe for the Plaintiff, the application of the defendants/applicants asking for extension within which to apply for leave to appeal was an abuse of the process of the Court. The Court, he argued, was functus officio.

The argument of Chief Williams in answer to this preliminary objection ran thus:

The grounds of appeal in support of the Notice of Appeal dated 30th May 1984 filed by the defendants together with the Notice of Appeal were filed without leave of the Court of Appeal or of this Court as required by section 213(3) of the 1979 Constitution. They were invalid. He cited in support of that proposition the decisions of this Court in S. U. OJEME & Ors. v. MOMODU II & Ors. (1981) 3 S.C. 173 at 211 and HARRISON WELLI & Anor. v. CHARLES OKECHUKWU (1985) 2 NWLR 63 at 67. In dismissing Appellants appeal on 12th November 1985 the Supreme Court, he argued, lacked jurisdiction since there was no valid appeal before it. Where a determination is made by a Court without jurisdiction, he continued, it is not necessary to have to do anything about it since it was an act done without jurisdiction. He cited KOFI FORFIE v. SEIFAH (1958) A.C. 59; MACFOY v. U.A.C. LTD. (1962) A. C. 152 at 160. He therefore argued that he was entitled to bring the motion for extension of time as he did and to ignore the determination by the Supreme Court of 12th November 1985 given without jurisdiction.