Owoniboys Technical Services Ltd. Vs John Holt Limited (1991)

LawGlobal-Hub Lead Judgment Report

U. OMO, JSC. 

Set out hereafter are my reasons for allowing this appeal with N500 costs to the appellant when it was argued on 11/6/91. There is really only one issue for determination in this appeal, to wit, whether the Court of Appeal properly complied with the provisions of section 31(2) of the Supreme Court Act 1960 by granting leave to the respondent to appeal against its decision to the Supreme Court, when the statutory period therein provided for so appealing i.e. 90 days, had expired.

The admitted facts are that the Court of Appeal delivered its judgment sought to be appealed against on 7/7/88. On 5/8/88 the respondent filed an application for leave to appeal to the Supreme Court because the grounds of appeal filed were of mixed law and facts. On 13/10/88, 3 months and six days after, this application was granted.

It is trite law that both the leave to appeal and the notice of appeal itself must be filed within the 3 months prescribed by section 31(2) of the Supreme Court Act vide Bowaje v Adediwura (1976) 6 S.C. (Reprint)95; (1976) 6 S.C.143 at 146; Lamai v Orbih (1980) 5-7 S.C.(Reprint)20;(1980) 5-7 S.C.28; Chief Kafaru Oje v. Chief Ganiyu Babalola (1987) 4 N.W.L.R. (part 64) 208 (214). Leave to appeal was therefore granted after the expiry of the time for appealing. The Court of Appeal has no power to extend time within which to appeal to the Supreme Court, and no such application in any event was before it. In its brief the respondent sought to rely on the provisions of the Practice Direction No. 1988 issued by the President of the Court of Appeal as justifying the grant of leave outside the 3 months period. The relevant portion of this Practice Direction states that:-

“1. For the purpose of giving effect to the provisions of the Court of Appeal Rules in respect of any period within which any application for leave to appeal or for filing appellant’s or respondent’s brief or reply brief the period declared for the vacation of the court shall not be taken into account for the computation of such period allowed by the Rules of Court. 2.  For the avoidance of doubt the period between the 15th day of July, 1988 to the 31st day of August, 1988 is hereby declared as vacation period.” (Italics mine) 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 Adeyeri & Ors. v Akinbode Okobi & Ors., 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 respects of appeal pending in the Court of Appeal may be brought.” and as to its scope that “2. if the Practice Direction No. 1 of 1988 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 filing of appellant’s brief or reply brief and not to applications for leave to appeal from the Court of Appeal to the Supreme Court.”  

I agree with this decision. In argument before us however respondent’s counsel conceded that the Court of Appeal had no power to grant leave outside the 3 months period. The concession in effect means that the appeal succeeds.   Respondent’s counsel then proceeded to argue that the respondent still has a pending appeal because an earlier notice of appeal filed by it on 4/8/89 contained grounds of law only, and therefore the leave to appeal granted by the Court of Appeal is superfluous. It is enough to say that there is no substance in this submission which does not detract from the merit of the appellant’s complaint. If the respondent still has an appeal pending to this court he can take necessary steps to pursue it hereafter

A.G.KARIBI-WHYTE, JSC. After argument on the 11th June, 1991 I allowed this appeal, and indicated that I will give my reasons for doing so today. I have read the reasons in the judgment of my learned brother, Uche Omo JSC. for allowing this appeal. I am in complete agreement. As it is unnecessary and tedious to repeat the reasons so lucidly stated in the judgment of my learned brother Uche Omo, JSC. I adopt them.

S. KAWU, JSC. We dismissed this appeal summarily on 11/6/91 after we had heard arguments of counsel and indicated that reasons for our decision would be given today. I have had an advantage of reading, in draft, the lead Reasons for Judgment just delivered by my learned brother, Uche Omo JSC. I entirely agree with his reasons for dismissing the appeal.

The judgment of the Court of Appeal sought to be appealed against was delivered on 7/7/88 and the respondent on 5/8/88 filed an application for leave to appeal to Supreme Court on grounds of mixed law and facts. The applications was granted on 13/10/88 -that is about 3 months and six days after the decision of the Court of Appeal.   It is settled that in order to comply with the provisions of S.31(2) of the Supreme Court Act, 1960, an application for leave to appeal the notice of appeal must both be filed within 30 days see – Bowaje v Adediwura (1976) 6 S.C.(Reprint) 95; (1976)6 s.c. 143. It is patently clear that in this case, leave to appeal was granted outside the statutory period of 30 days and the purported appeal was therefore incompetent.

S.M.A. BELGORE, JSC. Once the time to appeal against its decision has elapsed it would be ultra of Court of Appeal to grant leave to appeal. Leave to extend time within which to appeal and leave to appeal will then be within the competence of Supreme Court only in such circumstances. It was for the above reasons and fuller reasons given by my learned brother, Omo, JSC., that I allowed this appeal on 11th day of June, 1991 and awarded N500.00 as costs against the respondents.

P.K. NWOKEDI, JSC. On 11th June, 1991, this appeal was heard by this court and was allowed, but it was indicated that the reasons for allowing the appeal would be given today. I hereby give my reasons for allowing the appeal.    This is an appeal against the decision of the Court of Appeal in an interlocutory application made before it in the matter of this appeal.

The present appellants were plaintiffs in the suit in the High Court of Kwara State, Ilorin, where they obtained judgment. The present respondents who were defendants in the High Court appealed to the Court of Appeal. The Court of Appeal in its judgment dated 7th July, 1988, found for the present respondent in some aspects of the claim and dismissed the appeal on other aspects. The present respondents (also appellants in the Court of Appeal) filed a notice of appeal on 4th August, 1988.

This notice contained four grounds of appeal. It is not necessary to outline them in this Ruling.   On 5th of August, 1988, the respondents herein, as appellants in the Court of Appeal, filed an applications by a motion seeking the following reliefs: ‘1. Leave to appeal from the decision of this Honourable Court given in this matter on the 7th day of July 1988. 2. An order for stay of execution of the judgment of this Honourable Court pending the applicant’s appeal to the Supreme Court. 3.  Such further or other orders as this Honourable Court may deem fit to make.”   On 13th October, 1988 the Court of Appeal granted the said application as follows:

“The application in the first prayer is granted. Leave to appeal to the Supreme Court is granted. On the second prayer the respondents are ordered to issue a bankers guarantee to pay back the judgment debt within 30 days from today to the applicants if they succeed in their appeal against the judgment of this court at the Supreme Court. N60.00 costs to the respondents.”  

The appellants herein, as respondents in the lower court, appealed against the said decision, the grounds of appeal were filed as follows: GROUNDS OF APPEAL I.  The learned Justices of the Court of Appeal erred in law and acted without jurisdiction in entertaining and granting respondents application for leave to appeal to Supreme Court against their decisions delivered on 7th July, 1988.  

PARTICULARS OF ERRORS (a)  Jurisdiction granted under section 213(3) of the Constitution of the Federal Republic of Nigeria 1979 is exercisable only in accordance with an Act of National Assembly and Rules of the Supreme Court.  (b) The Court of Appeal lacks jurisdiction to extend the mandatory three months period within which to appeal to Supreme Court. (c) The Court of Appeal was bound to apply section 31(2) of the Supreme Court Act 1960. 11. The learned Justices of the Court of Appeal erred in law and acted without jurisdiction in granting the respondents application for an order staying execution of judgment delivered on 7/7/88.  

PARTICULARS OF ERRORS (a) There was no valid notice of appeal to ground the order for a stay of execution of judgment. (b) An order of stay of execution of judgment is predicated upon the exercise of valid notice of appeal before the court. (c) The order is against all known rules and practice of stay of execution of judgment. (d) Court is bound to have regards to and be guided by the laid down principles for ordering a stay of execution of judgment which the court ignored in this case.”  

In appellant’s brief of arguments two issues were raised as hereunder.  “1. Whether or not the Court of Appeal acted within the jurisdiction to grant the respondent leave to appeal to the Supreme Court. 2.  If the answer is in the negative, whether the consequential order directing appellant to provide bank guarantee to the respondent was valid.”  

In respect of the first issue, the appellant argued that the right to appeal to the Supreme Court as provided for in section 213(3) of the 1979 Constitution must be exercised as provided by section 31(2) of the Supreme Court Act 1960.   In other words the appeal must be filed within 3 months of the decision appealed from. In respect of the application in question, the judgment in the suit was delivered by the Court of Appeal on 7th July, 1988, and the application for leave to appeal granted on 13th October, 1988, which was outside the statutory period of three months by 5 days. He therefore contended that the Court of Appeal acted without jurisdiction.

On the second issue, he submitted that a valid notice of appeal is a condition precedent to the exercise of the power to stay execution. He submitted that since the order of 13th October, 1988, was void, the consequential order based on the said order was equally void. Counsel relied on Mobil Oil (Nig.) Ltd. v. Agadagho (1988)2 N.W.L.R. (pt. 77) 383 at 387.   Learned counsel for the respondents, submitted the following issues for determination: 1. Whether the notice of appeal filed on the 4th August 1988 was valid.

2. Whether the Court of Appeal was entitled to grant leave to appeal on grounds in the notice of appeal other than of law. 3. Whether the Court of Appeal was entitled to make preservation orders. In his argument, the respondents herein, contended that they had filed a notice of appeal dated 4th August, 1988, and in so far as it contained grounds of law was validly filed and cognisable in law for the purpose of stay of execution by the Court of Appeal. He therefore submitted that if any one of the grounds of appeal in the notice is a ground of law, then questions 1 and 3 must be answered in the affirmative. To the contention that the Court of Appeal acted without jurisdiction, he replied that “the Court of Appeal did not purport to grant extension of time within which to appeal rather that the court in computing time which had elapsed since its decision against which leave to appeal was sought, did not, in accordance with its rules of court, include the days falling during it’s vacation. This was not a matter of extending time. It was a matter of computation of time which is certainly within its powers and subject to the rules of each court. See Practice Directive No. 1 of (1988) 5 N.M. L.R. (part 84).  

Pressed further in this argument, learned counsel conceded that the Court of Appeal had acted without jurisdiction in granting his application dated 5th, August, 1988, because the statutory period of three months had expired by 8th October, 1988. He stated that he was relying on his former notice of appeal, dated 4th August, 1988 which was filed for the substantive appeal. With this notice which was properly and validly filed, the Court of Appeal still had jurisdiction to consider the application for a stay of execution.  

I think that the issues raised by the appellant are more germane to the grounds of appeal filed. Whether the notice of appeal filed on 4th August, 1988, contained valid grounds of appeal or whether the said grounds were validly filed, shall be considered when the said appeal shall be heard.

The present appeal is against the order made by the Court of Appeal on 13th October, 1988, granting the respondent herein leave to appeal and the order for the appellant herein to provide bank guaranty to cover the payment of the judgment debt.   Judgment in the main suit was delivered by the Court of Appeal on 7th July, 1988. On 4/8/88 the respondent herein filed a notice of appeal. This notice was within the time stipulated by section 31(2) of the Supreme Court Act, 1960. As already stated, the point in controversy presently is whether the application seeking leave to appeal dated 5/8/88 and the order granting the said leave by the Court of Appeal made on 13/10/88 was validly made.

The period limited for appeals or application for leave to appeal are stipulated by section 31(2)(a) of the Supreme Court Act, 1960. Appeal or application for leave to appeal and an appeal following therefrom if granted must be within the said period of three months. This has been considered in this court in Bowale v. Adediwura 1976) 6 S.C.(Reprint) 95;(1976) 6 S.C.143; Amudipe v Arigodi (1978) 9-10 S.C.(Reprint) 19; (1978)2 LRN. 128 and Akeredolu and others v Akinremi (1986) 2 NWLR (Pt.25) 710;(1986)1 N.S.C.C.183.   The power to extend time stipulated above is conferred on the Supreme Court by section 31(4) of the Supreme Court Act, 1960. No similar power has been conferred on the Court of Appeal in respect of appeals emanating from that court to the Supreme Court Act, 1960.

It follows therefore that in granting the applicant leave to appeal to the Supreme Court, five days after the expiration of the statutory period of three months, the Court of Appeal had inadvertently usurped the jurisdiction of the Supreme Court.   To the argument that the Court of Appeal did take into consideration the period of its annual vacation in computing time as per Practice Directive No.1 of 1988 the only answer is that appeals to the Supreme Courts from the Court of Appeal are guided by the Supreme Court Rules, the Supreme Court Act, 1960 as amended and section 213 of the 1979 Constitution.

The Court of Appeal cannot in this respect make rules to bind the Supreme Court. In Nneli v. Chukwu (1988) 3 NWLR. (part 81) page 184 the court held that the rules of practice made for one court, cannot be binding on another court, either higher or lower, in the judicial hierarchy. I therefore hold that the order made by the Court of Appeal on 8th October, 1988 granting the respondent herein leave to appeal was made without jurisdiction and consequently null and void.  

On the second issue, to wit, whether the consequential order which directed the appellant to provide bank guaranty to cover the judgment debt paid to him was valid, the respondent has argued that even if the order granting him leave to appeal already filed, before the said order, that the order for the Bank guaranty should ensure for the benefit of the earlier notice of appeal, being an order to preserve the res. To the above contention, the appellant submitted that if the first order was null and void, the second, which was ancillary to it, was equally null and void. He relied on Mobil Oil (Nig.) Ltd. v Agadagho (1988)2 NWLR. (pt. 77) 383 at 387.    The respondent had in his application applied for leave to appeal and exhibited his grounds of appeal. The said grounds of appeal were examined by the Court of Appeal in granting leave to appeal.

The said grounds of appeal were examined by the Court of Appeal in granting leave to appeal. The second arm of the prayer followed. If the respondent had wanted to rely on his notice of appeal dated 4/8/88, it becomes necessary for the same to be considered as to the validity thereof. I think it would be proper for the respondent to pray for the stay of execution on the basis of the original notice of appeal thereby giving an opportunity for same to be considered in respect of the said application. This opportunity is still open to him.   The appeal on this score is also allowed.

Other Citation: (1991) LCN/2458(SC)