National Insurance Commission & Ors. V. Acen Insurance Co. Ltd. & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
The plaintiffs are the respondents in this appeal. The defendants are the appellants. The plaintiffs sued the defendants on an Originating Summons for Declarations and an injunctive relief.
The suit came before Hon. Justice SJ. Adah of the Federal High Court, Abuja Judicial Division.
The defendants filed a preliminary objection seeking an order dismissing the Suit for lack of jurisdiction, and their learned counsel insisted on his preliminary objection being heard first. S.J. Adah J, thought otherwise and on 22/6/05 ordered that the preliminary objection and the substantive matter shall be heard together.
Dissatisfied with the order of the learned trial Judge the defendants, now as appellants quickly filed a notice of appeal on 29/6/05. Thereafter, both sides proceeded to file multiple applications, and so on 11/5/06 we ordered counsel to file written addresses on all the motions/applications/processes pending before us.
For clarity the motions/applications/processes filed by the appellants are:
(i) Motion for extension of time to seek leave to appeal.
(ii) Notice of preliminary objection to respondents Motion for Interlocutory Injunction.
(iii) Written address,
(iv) Supplementary written address
And for the respondents:
(i) Motion on Notice seeking Interlocutory Injunction.
(ii) Preliminary objection to the appeal.
(iii) Written address.
The facts are very clear. The appellants filed their notice of appeal on 29/6/05. It was an Interlocutory appeal. Realizing that they ought to have obtained LEAVE before filing the Interlocutory appeal, they filed a notice of motion for extension of time etc. to regularize the incompetent appeal.
The defendants appealed against the Judge’s order upon the following three grounds of appeal without seeking the leave of court.
The grounds and their particulars are:-
GROUNDS OF APPEAL
“1. The learned trial court erred in Law when it failed to consider and decide the question of its lack of jurisdiction before ordering parties to join issues and embarking on full trial.
PARTICULARS OF ERROR
i. A preliminary objection to the competence of the action and the competence of the court to determine the action was properly filed before the court on 10/9/04.
ii. The preliminary objection was finally adjourned to 22/6/05 for hearing.
iii. On 22/6/05 when the preliminary objection came up for hearing the trial court suddenly refused to hear and determine same.
iv. It rather ordered the appellant to defy its preliminary objection and instead to file its counter affidavit to facts claimed by the respondent.
GROUND OF APPEAL
The learned trial court erred in Law when it ordered the appellants to file their counter affidavits in answer to the facts contained in the respondents originating summons without first and foremost determining whether it has jurisdiction or not to hear the respondents action.
PARTICULARS OF ERROR
(i) The appellants need not to file counter affidavit to the facts of the Suit having properly raised the issue of lack of jurisdiction, which issue have not been tried and disposed off
(ii) All materials in the preliminary objection which the court required to determine whether it lacked jurisdiction or otherwise were before the court.
GROUND OF APPEAL
- The learned trial court erred in Law when it ordered the objection on jurisdiction and the substantive matter should be taken at one and the same time and relied on Amadi v. NNPC (2000) 10 NWLR (Pt.675) 76 for the order.
PARTICULAR OF ERROR
(i) The case of Amadi never held that question of substantive jurisdiction should be suspended and only to be taken along with the ordinary cause of action.
(ii) The contest in Amadi v. NNPC was whether a pre action notice (ie. a procedural issue) was properly issued and this is different from the question of substantive jurisdiction of court. ”
In situations such as this, the court must decide which of the applications should be heard first.
In view of the fact that counsel were ordered to file written addresses on all the applications, the question as to which of the applications should be heard first was never an issue.
In any case since amongst the applications before us is an application by the appellants filed on 10/5/06, seeking extension of time to seek Leave to appeal, which if successful would save the substantive action, and the respondents preliminary objection to dismiss the appeal as incompetent, the practice for quite a long time in our courts is to take first the application that would save the substantive action if successful.
See: Abiegbe & Ors. v. Ugbodume (1973) 1 SC p. 133; Fari Khawam v. Found Michael Elias (1960) 5 FSC p. 224; (1960) SCNLR 516.
I must observe that in the days when counsel could obtain technical justice the preliminary objection seeking to dismiss the appeal as incompetent would have been heard first. If successful, the case would abate and that would be the end of the matter, notwithstanding the fact that there may be pending, a motion that could have saved the appeal if heard first.
The aim of the courts, for quite a long time now has been to do substantial justice between the parties. The days of technicality or technical justice have gone forever. See: Panache Communications Ltd. v. Aikhomu (1994) 2 NWLR Pt.327 p. 425; Bello v. A.G. Oyo State (1986) 12 SC p. 1; (1986) 5 NWLR (Pt.45) p. 828.
Hearing the application that would save the substantive action first, is founded on the reasoning that if the application succeeds, then the other applications can be heard. I will now proceed to hear the appellants application filed on 10/5/06.
At the hearing on 12/9/06 learned counsel for the respondents, MR. A.N. Akin-Oni adopted his written address and urged us to dismiss the appellants’ application for extension of time to seek Leave to appeal and Leave to appeal and uphold the preliminary objection.
Relying on: Bowaje v. Adediwura (1976) 6 SC p. 143; Lamai v. Orbih (1980) 5-7 SC p. 28.
He observed that the Notice of Appeal is incompetent because Leave was not obtained before it was filed.
Learned counsel for the appellants. Chief B. Ayorinde, SAN adopted his written address and argued that where a Notice of appeal is filed without Leave an application can be brought to breathe life into the Notice of Appeal. He relied on Nalsa and Team Associates. v. NNPC (1991) 8 NWLR (Pt.212) p. 652.
I must point out at this stage that the Constitution provides for two different rights of appeal. Right of appeal as of right, Sections 241, 242-246 of the Constitution.
Right of appeal with Leave. Section 242 of the Constitution.
An examination of the grounds of appeal reveals one of mixed law and fact. This is so because the said grounds question the exercise of discretion by the lower court. This fact is not in dispute between the parties.
The position of the law is that once grounds of appeal against an interlocutory decision are of facts, or mixed law and fact, it can only be filed in this court with leave of either the High Court or this court. See: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) p. 718; Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) p. 410.
That explains why the appellant filed a motion on notice on 10/5/06 seeking to regularize his appeal filed without obtaining Leave.
In issue is an appeal that needs leave before it can be filed.
Leave means permission. By virtue of the provisions of section 242 of the Constitution, leave is a statutory precondition that an appellant must obtain. Put in another way, where obtaining leave is mandatory before a party can appeal, leave thus becomes a condition precedent to his exercise of the right of appeal with leave where leave is necessary. Consequently a notice of appeal filed on facts or mixed law and fact (as is this appeal) without the appellant first obtaining Leave is incompetent. There is no appeal. See Olowosoke v. Oke (1972) 11 Sc. p. 1; Lamai v. Orhih (1980) 5-7 Sc. P. 28.
The simple issue for determination is whether this court can save an incurably defective notice of appeal. This is a situation where an appeal that can only be filed with Leave was filed without leave.
The question is whether granting Leave now can still regularize the incompetent appeal or breathe life into an incompetent appeal.
Being obvious, and learned counsel conceding that his notice of appeal ought to have been filed after obtaining leave since the grounds of the appeal are indisputably on mixed law and fact he filed a Notice of Motion on 10/5/06 seeking the following reliefs:-
- Extension of time within which to seek Leave to appeal against the ruling.
- Leave of court to appeal against the Ruling of S.J Adah J.
- That the Notice and Grounds of appeal filed on 29/6/05 be deemed to have been properly filed.
Prayer 1 is for extension of time to seek Leave to appeal. This prayer presupposes that the time allowed by Statute to appeal has expired.
Consequently the appellants seek permission of the court to extend time to enable him appeal.
Prayer 2 is for Leave to appeal. This prayer is sought when the appeal is not as of right. The appellants seek permission of the court to file an appeal.
Prayer 3 is a prayer asking the court to deem the incompetent notice of appeal filed on 29/6/05 as duly, and properly filed.
This application if granted will revive the incompetent notice of appeal filed on 29/6/05. The appeal would no longer be incompetent. It would be a valid notice of appeal.
This application can only succeed if the motion paper contained a prayer for extension of time to appeal. The application was thus fundamentally defective and incurable in the absence of such a prayer.
A prayer for extension of time to appeal is the foundation of the appeal, and which the other prayers rest on.
Indeed, time within which to give notice in interlocutory appeals in civil matters in fourteen days. See Section 25(1) of the Court of Appeal Act 1976.
In this case, notice of appeal was filed on the seventh day after the ruling appealed against was delivered. It was filed within time but since Leave was not obtained before the appeal was filed, the appeal is incompetent, null and void. It amounts to a waste of time to file within time, an appeal that ought to have been filed only after obtaining Leave. Without Leave there is no appeal before us.
By the provisions of subsection 4 of Section 25 of the court of Appeal Act 1976 this court has power to extend the time to appeal.
That jurisdiction can only be invoked by a prayer seeking that relief.
This is so because since there is an incompetent appeal, time to appeal has long since run out. There must in the circumstances, be a substantive prayer for extension of time to appeal. See: E. Ogundipe v. J. Awe & Ors. (1986) 3 NWLR (Pt.30) p. 566; Niger Construction Ltd. v. Chief J.O Okugbeni (1987) 4 NWLR (Pt.67) p.787; Nalsa & Team Associates v. NNP.C. (1991) 8 NWLR (Pt.212) p. 652.
The legal effect of not seeking Leave to appeal is that the appeal is incompetent, null and void. See Oshatoba v. Chief Olujitan (2000) 5 NWLR (Pt.655) p. 159; Abidoye v. Alawode (2001) FWLR (Pt.43) p. 322; (2001) 6 NWLR (Pt.709) 463; The Nigerian Air Force v. Wing Commander TL.A. Shekete (2002) 12 SC (Pt.11) p. 52; (2002) 18 NWLR (Pt.798) 129.
Nalsa & Team Associates v. N.N.P. C. (supra) relied on by learned counsel for the appellant in support of his application is very relevant. In that case the Supreme Court made it abundantly clear that an incompetent appeal filed because Leave was not obtained can be revived if the appellant/applicant included in his motion an application for extension of time to appeal.
My lords, in my view the appellants application filed on 10/5/06 to revive the incompetent appeal filed on 29/6/05 is fundamentally defective in the absence of a substantive prayer for extension of time to appeal against the ruling of SA. Adah J.
The legal effect of the omission of the said prayer is that the appellants Notice of Motion is defective and the Notice of Appeal filed on 29/6/05 remains incompetent, null and void ab initio. Where an appeal can only be filed with Leave, but Leave was not obtained, an application seeking Leave without a prayer for extension of time to appeal would amount to an exercise in futility. This is so because this court cannot invoke its statutory power to extend time to appeal as provided by Section 25(4) of the Court of Appeal Act, 1976 without prayer asking for extension of time to appeal.
I must observe that this is an unnecessary Interlocutory appeal arising from a preliminary objection on Jurisdiction, and such objections have been frowned upon time and time again by the Supreme Court. See Tukur v Government of Gongala State (1988) 1 NWLR (Pt.68) 39; Globe Fishing Industries Ltd. v. Coker (1990) 11 SCNJ p. 56; (1990) 7 NWLR (Pt.162) 265.
This Suit was filed in the court below in 2004. The preliminary objection to strike out the suit for want of Jurisdiction is dated 10/9/04. The ruling of the High Court on whether to hear the preliminary Objection on jurisdiction was delivered on 22/6/05. The ruling of this court is delivered today 28/11/06.
It is now over two years since the action was instituted in the court below. The appellant may very well appeal to the Supreme Court. The Supreme Court may deliver its ruling affirming this Ruling after another two to three years. It would thus have taken five years for the appeal to be finally decided by the Supreme Court, and then it would be sent back to the court below for trial on the merits. This could easily have been avoided if trial went on to conclusion at the court below and a dissatisfied party could appeal on both the issue of Jurisdiction and the Judgment.
“Justice delayed is justice denied” is an adage heard frequently nowadays and it may not apply any more in our courts if, and only if counsel assist the courts to reduce the delay by not filing unnecessary preliminary objections. They are also a waste of resources and precious judicial time.
For the reasons I have given, the application fails and it is hereby dismissed.
Furthermore, since the three grounds of appeal filed against the ruling of S.J Adah J. are on facts, mixed law and facts, and were filed without Leave, the notice of appeal contravenes the provisions of Section 242 of the Constitution and so incompetent. It is hereby struck out.
All pending applications fade into insignificance as there is no appeal.
The respondents shall have the costs of this appeal which I assess as N 10,000.
Other Citations: (2006)LCN/2094(CA)
