Peter Adeboye Odofin & Anor V. Chief Agu & Anor. (1992)
LawGlobal-Hub Lead Judgment Report
G. KARIBI-WHYTE, J.S.C.
This Judgment is based on the fundamental issue of the jurisdiction of the Court of Appeal to hear and determine the appeal. The issue of the competence of the Court of Appeal to hear the appeal is the subject matter of the first ground of appeal. It is also the first issue for determination arising from the grounds of appeal. The issue of jurisdiction is fundamental to the question of the competence of the Court adjudicating – See Kalio v. Daniel-Kalio (1975) 2 SC.15. Hence it is crucial for any Court adjudicating first to determine the issue. See Barclays Bank v. Central Bank (1976) 6 SC.175. It is therefore necessary in this appeal where the issue has been raised, to consider the competence of the Court of Appeal raised in the first issue for determination.
The question is as follows-
“(a) Whether where an intending appellant is out of time to file his notice of appeal and does not apply for an extension of time to appeal (but he is granted such a prayer) and he subsequently files his notice of appeal, the appellate Court would have jurisdiction to hear and determine his appeal”
There is formulation of an alternative issue which is not necessary to my consideration of this issue. I will therefore not reproduce that issue, as I do not wish to discuss it.
The ground of appeal relied upon for the formulation of the above issue reads-
“1. The learned Justices of the Court of Appeal erred in law in not directing themselves that they lacked the necessary competency to hear and determine the respondent’s appeal before them.
PARTICULARS
(a) the respondent’s notice of appeal was not filed within the prescribed three months period of the delivery of the judgment of the High Court
(b) the respondent filed their notice of appeal against the judgment of the High Court without applying for and obtaining from the Court of Appeal an order extending the time within which to file their notice of appeal;
(c) a condition precedent to the exercise of the Court of Appeal’s jurisdiction was not fulfilled by the respondents;
(d) the appeal filed out of time is incompetent and as such the said appeal, the proceedings and the judgment of the Court of Appeal on it are null and void.”
The facts in support of this ground of appeal and the issue for determination are not disputed. The only dispute is as to whether there was an application for extension of time to appeal, when the Court of Appeal granted such extension I will deal with this later in this judgment.
In 1983, Plaintiffs for themselves and representing Izo and Odofin Community, brought an action in the Akoko South Grade I. Customary Court, against the Defendants, claiming jointly and severally as follows-
“(i) the ownership of a piece of land lying and situate at near Sosan, valued at N1,400.00 (One thousand Four hundred Naira)
(ii) Recovery of N1,300 (One thousand three hundred Naria) being damages for unlawful desurfacing, destruction of economic trees, occupation and trespass unto the plaintiffs’ farmland situate at and known as UGBOVIBIEFA near Sosan, measuring about 200″ X 200″.
(iii) INJUNCTION restraining the defendants and or their agents or members of their community, i.e. Sasan Oke, from further entering or trespassing unto the said farm land, of the plaintiff.”
There was in the Customary Court Grade 1, Akoko South at Oka, hearing of the parties and their witnesses. The Court also visited the locus in quo. Judgment was delivered on the 30th September, 1983 in favour of the Plaintiffs. Defendants appealed to the High Court of Ondo State, sitting at Ikare. The appeal of the Defendants was dismissed on the 16th May, 1985. The record of proceedings shows that on the 4th October, 1985, the Defendants filed a Motion on Notice in the Court of Appeal seeking the following orders.
(a) extension of time within which to ask for leave to appeal to that Court against the decision of that Court dated 16/5/85.
(b) leave to appeal to the Court of Appeal against the said decision.
It is relevant and important here to observe that judgment was delivered in the High Court on the 16th May, 1985. The motion for extension to time within which to ask for leave to appeal and for leave to appeal against the judgment was filed only on the 4th October, 1985. This is a period of more than four months after the delivery of the judgment – In the ruling of the Court of Appeal 21st October, 1985, the Applicant was granted extension of time up to 21/11/85 within which to appeal and leave to appeal against the judgment of the High Court. This was the position when the Respondents filed their notice of appeal dated 11/11/85 on the 13th Nov., 1985.
Parties filed their briefs of argument in the Court below. The appeal was argued and the Court below allowed the appeal on the 7th December, 1988. In allowing the appeal, and reversing and setting aside the judgment of the High Court, the Court of Appeal held unanimously, that
(i) Respondent (Plaintiffs) failed to discharge the primary burden on them of establishing the boundaries or identity of the land in dispute with satisfactory degree of certainty.
(ii) The trial Court was in error to have imposed on the appellant the burden of establishing title to the land in dispute when they never sued for declaration of title to the disputed land.
Plaintiffs dissatisfied with this judgment have appealed to this Court. Four grounds of appeal have been filed against the judgment. As I have already pointed out, I shall consider only the first ground which deals with competence of the Court of Appeal to hear the appeal. Naturally if the first ground of appeal succeeds quaestio cadit.
The locus classicus of the competence of the court to adjudicate is the Federal Supreme Court decision of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 (1962) 1 All NLR.(Pt.4) 587. The principles therein stated have been restated in subsequent decisions of this Court – See Ogunsanya v. Dada (1990) 6 NWLR (Pt.156)347; Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 230 S.C. Attorney-General v. Sode (1990) 1 NWLR (Pt. 128) 500 SC, and numerous others.
One of the essential elements for the exercise by the Court of its jurisdiction is 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.” See Madukolu v. Nkemdilim (supra). The other element is that ‘The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
I have already set out the facts in support of the ground of appeal and the issue for determination. It seems to me from the arguments of Mr. Igbokwe, learned Counsel to the Appellants, that he has no quarrel as to the subject matter of the case being within the jurisdiction of the Court or whether the case comes before the Court initiated by due process of law. My understanding of the contention is that there was a feature in the case in the Court below which prevented the Court from the valid exercise of its jurisdiction. I also understand the contention to mean that the condition precedent to the exercise of jurisdiction was not fulfilled in the Court below. – See Ajanaku v. C.O.P. (1979) 3-4 SC. 28.
I shall consider the arguments of counsel before us. Mr. Igbokwe learned Counsel to the Appellants adopted appellants’ brief of argument and relied on it. In expatiating on the brief he referred to the facts, pointing out that Respondents had only three months within which to seek and obtain leave to appeal and to file the notice of appeal. He referred to section 25 (2) (a) of the Court of Appeal Act, 1976 and Amudipe v. Arijodi (1978) 9-10 SC. 27. He submitted that the three months prescribed expired, on 16th August, 1985. Learned Counsel pointed out the Respondents, aware of the defect, sought extension of time to enable them comply with the statutory provision. He submitted that the two prayers they sought for were not sufficient for the purpose. It was submitted that respondents being out of time, the motion should have included a prayer for extension of time within which to file their notice of appeal, in addition to extension of time to apply for leave to appeal and for leave to appeal.
Learned Counsel referred to the ruling on the Motion dated 21st October, 1985, and observed that the Court of Appeal extended time within which respondents should appeal, a prayer not sought by the Respondents, and also granted them leave to appeal also without indicating its opinion on the prayer for extension of time to apply for leave to appeal. It was submitted that the prayer for extension of time to appeal was granted suo motu and gratuitously. The Court was wrong to have done so, Learned Counsel relied on National Bank of Nigeria Ltd. v. The Are Brothers (Nig.) Ltd, (1977) 6 SC.97 at 107 Kolawole v. Alberto (1989) 1 NWLR (Pt. 98) 382.
Counsel submitted that Respondents being out time to appeal to the Court of Appeal and having not applied for extension of time to file notice of appeal before filing their notice of appeal, the appeal was incompetent. National Bank of Nigeria Ltd. v. NET (1986) 3 NWLR (Pt.31) 667 Omonuwa v. Oshodin (1985) 2 NWLR (Pt.10) 924; (1985) 2 SC. 1 at P.8. Section 25 (2) (a) Court of Appeal Act, 1976.
It was finally submitted on the authority of Madukolu v. Nkemdilim (supra), that the condition precedent to the exercise of jurisdiction having Dot been satisfied, there was therefore a defect in the competency and jurisdiction in the Court of Appeal to hear the appeal. The proceedings in the Court below are therefore a nullity – See Salati v. Shehu (1986) 1 NWLR. (Pt. 15) 198. Mr. Adedoyin who appeared for the Respondents in this Court, but Appellants in the Court below relied on his brief of argument.
The only area where he joined issue with, Mr. Igbokwe on the facts was in the issue of the grant suo motu by the Court of Appeal of prayer for extension of time to file notice of appeal Mr. Adedoyin conceded that the Motion on Notice did not contain the prayer, but contended that he made an oral application before the Court seeking such an order. When asked by the court to show on the record of proceedings a notice of such application, Mr. Adedoyin could not do so. The Appeal Court, which is bound by the records cannot go outside it to decide on a disputed issue. We therefore accepted Mr. Igbokwe’s submission based on the Motion before the court that there was no prayer for extension of time to file notice of appeal, and that the Court of Appeal granted it suo motu.
Mr. Adedoyin who was now in difficulty submitted that the Court of Appeal had an inherent power to make a consequential order. He regards the extension of time to file notice of appeal as such a consequential order. He argued that the copy of the Notice was already exhibited along with the affidavit in support of the application in respect of the other prayers. Learned Counsel referred to section 6(1) (6) of the Constitution 1979, Order 2 r. 23 Court of Appeal Rules 1981, Erisi & Ors. v. ldika & Ors (1987) 4 NWLR (Pt. 66) 503.
Learned Counsel submitted that Respondents in the Court below having filed their briefs of argument in the appeal without raising the issue cannot now be heard to challenge the competence of the Court. They have waived their right to complain. Several cases were cited in support of this submission. The appeal, it was submitted, is therefore competent. Learned Counsel distinguished the cases of Amudipe v. Arijodi (supra); National Bank of Nigeria Ltd. v. Are Brother (Nig) Ltd. (supra); Kolawole v. Alberto (supra); National Bank of Nigeria Ltd. v. NET (supra); Omonuwa v. Oshodin (supra); Madukolu v. Nkemdilim (supra) Salati v. Shehu (supra); as not applicable to this case.
In effect learned Counsel’s submission is that notwithstanding that Appellant in the Court below did not in his motion for extension of time to appeal, include a prayer seeking an order extending time within which to file his notice of appeal which was filed out of time, the Court of Appeal could in its inherent jurisdiction and in the exercise of its consequential powers grant the prayer suo motu.
It is a well settled principle of law that the exercise of appellate jurisdiction is entirely statutory, – See Queen v. Resident Ijebu Province (1959) WNLR. 87, Ugwuh v. A-G East Central State (1975) 6 SC. 13. An appellate Court derives its jurisdiction from the statute creating it and other enabling statutory powers, – See Moses v. Ogunlabi (1975) 4 SC. 81. The Court of Appeal is a creature of the Court of Appeal Act, 1976, and section 217 of the Constitution 1979. The exercise of its appellate jurisdiction is spell out in the Constitution.
Section 219 vests in the Court of Appeal, the jurisdiction to hear and determine appeals from the Federal High Court, High Court of a state, Sharia Court of Appeal of a state, and Customary Court of Appeal of a state. Sections 220-225, prescribe the circumstances.
The procedure and time for appealing is prescribed in Part V- of the Court of Appeal Act 1976. Section 25 (1) provides that the time to give notice of appeal or notice of application for leave to appeal, shall be in such manner as may be prescribed by the provision of sub-section (2) of this section that is applicable to the case. Subsection (2); then provides that
“The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision, and three months where the appeal is against a final decision……”
The provision of section 25 (5) of the Court of Appeal Act has clearly stated that the notice of appeal or application for leave to appeal shall be made in such manner as may be directed by Rules of Court within the period prescribed in subsection (2) set out above.
Respondent as Appellant in the Court below made the application to satisfy the provisions of section 25(1) of the Court of Appeal Act, 1976, when pursuant to Order 3 rule 3,4, of the Court of Appeal Rules 1981, he brought his application by notice of motion dated 4th October, 1985.
Mr. Adedoyin is not disputing the fact that the notice of motion filed by the Appellant for extension of time to appeal and for leave to appeal, omitted the prayer for extension of time to give notice of appeal.
The provisions of section 25 (1) of the Court of Appeal Act, 1976, with the expression “shall give notice of appeal or notice of his application for leave to appeal” are clearly mandatory, Effect must be given to the words.
The Court is however, empowered by Order 3 r.4 (1) of the Court of Appeal Rules, 1981 to enlarge the time provided by these Rules for doing anything to which these Rules apply. These rules apply to the time within which to give notice to appeal, leave to appeal, etc. Thus except where the court has enlarged time pursuant to an application properly brought before it seeking to enlarge the periods to appeal in a civil cause or matter, the period prescribed in section 25 (1) (a) applies. In the case before us Appellant made his application as prescribed by the rules, but omitted a relevant prayer. That is the prayer extending time to give notice of Appeal. This notice is crucial and decisive because as admitted on both sides the judgment appealed against was decided on the 16th May, 1985. The three months within which to give notice of appeal expired on the 15th August, 1985. Thus on the 4th and 21st October, 1985 when the application was made and the Court of Appeal gave the ruling respectively, the Appellant was more than six weeks out of time. It was therefore necessary for the Court to enlarge the time for giving notice, to have a valid notice of appeal before the Court – See Order 3 rule 4 Court of Appeal Rules 1981, see Premier Breweries Ltd v. Anere Construction Co. Ltd. (1987) 3 NWLR. (Pt. 62) 688.
The notice of appeal against the judgment complained of is the real and constitutional signal of dissatisfaction against the judgment. The important and governing position of a notice of appeal is exemplified by Order 3 rule 2 (1) Court of Appeal Rules 1981, which provides that the notice of appeal to be filed shall set forth the grounds of appeal, the whole or part of the judgment complained of, the exact nature of the relief sought, the names and addresses of all parties directly affected by the appeal- The notice of appeal is without doubt the foundation of the appeal, – See Tukur v. Gov. Gongola State (1988) 1 NWLR. (Pt.68) 39.
Now, where as in this case, the application to appeal was made out of time, a notice of appeal made out of time will require a prayer for enlargement of time within which to file such notice of appeal. In the absence of a notice of appeal, namely, the foundation of the appeal, there is no appeal before the Court – See N.B.N. Ltd., v. N.E.T. (1986) 3 NWLR, (Pt.31) 667.
I agree with Mr. Igbokwe that the court below lacked the competence to exercise jurisdiction to hear the appeal. An important ingredient of the exercise of appellate jurisdiction is that there is no feature in the case which prevents the Court from exercising its jurisdiction. – See Madukolu v. Nkemdilim (supra).
As was pointed out in Madukolu v. Nkemdilim (supra), any defect in competence is fatal, for the proceedings however well conducted are a nullity.
Now then, Mr. Adedoyin’s main contention is that the Court of Appeal has an inherent power to make a consequential order. He includes a gratuitous order for extension of time to file a notice of appeal as a consequential order. There are few misconceptions here. First, I have pointed out the exercise of appellate jurisdiction is entirely statutory. There can therefore not be an inherent jurisdiction outside the statute. Secondly, learned counsel was confusing the exercise of jurisdiction with exercise of power. See Adeigbe v. Kushimo (1965) 1 All NLR. 248; (1965) NMLR 284 Power cannot be exercised unless where there is jurisdiction in respect of the subject-matter. See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; (1983) 6 S.C. 158. It is not exercised in vacuo.
In this case the exercise of jurisdiction to extend time in respect of period to give notice of appeal is statutory and prescribed under section 25(2) (a) of the Court of Appeal Act, 1976. It is not a power which can be exercised outside the provisions of the enabling statutory provisions. – See Onigbeden v. Balogun (1975) 4 SC.85. The provisions of section 6 of the Constitution 1979 which deal with inherent powers is of assistance only where there is a valid exercise of jurisdiction – See Exparte Atem (1961) 1 All NLR. 51. Bronik Motors Ltd. v. Wema Bank Ltd. (supra). The Order 3 r.23 and Erisi & Ors. v, Idika & Ors (supra) cited are not of any relevance. It was also submitted that there was a waiver of the competence of the Court by the participation in the appeal by the Respondents without objection. None of the cases cited and relied upon can be remotely regarded as supporting the proposition that parties can by acquiescence vest jurisdiction in the Court. It is more preposterous to suggest that by waiver of a disqualifying condition a party has waived incompetence of the Court. The competence vel non of a court is a legal condition which cannot be waived by the parties. Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by considerations of substantial justice. Mr. Adedoyin can therefore not rely on the inherent jurisdiction of the Court or waiver by Respondent for the exercise of the jurisdiction in this case.
I shall now turn to the issue whether the Court of Appeal was right to have granted a prayer not asked for by the applicant. Mr. Igbokwe has correctly pointed out that the motion relied upon did not contain the prayer for extension of time to give notice of appeal. I agree with his submission that there was no prayer on which to found the order for extension of time so made.
Our adjudicatory system has severely circumscribed and restricted the awards to be made by the Court within the scope of the claims made and reliefs sought by the parties before the Court. The view of this Court is that it is without power to award to a claimant or grant a relief that which he did not claim. In Ekpenyong v. Inyang & Ors., (1975) 2 SC. 71, this Court said the proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. I entirely agree. A fortiori the Court should never award that which was not claimed or pleaded by either party. – See Ochonma v. Unosi (1965) NMLR. 321. In the instant case. it is not easy to conceive how the Court of Appeal could have validly made the order extending time to give notice of appeal, in the absence of a prayer. Where the Court observes the defect in the application, the proper course was to draw the attention of the applicant to the omission and to give the applicant the opportunity to rectify it. In the circumstances of this case, the application remained throughout with its fatal defect. Accordingly, at the time the appeal was heard and decided by the Court of Appeal, there was no valid notice of appeal on which the appeal was founded. There was no valid ground of appeal on which the appeal was argued. Indeed there was no valid appeal before the Court of Appeal. The entire exercise was a nullity and in the now commonly used expression, it was an exercise in futility.
As I have already pointed out, and on the above reasoning, I consider it unnecessary and of a mere academic interest to express any opinion on the other grounds of appeal. Any opinion so expressed is bound to be obiter dicta. I shall therefore conclude this judgment on the opinion that since there was no appeal before it the Court of Appeal lacked the necessary competence to hear and determine the appeal.
The appeal succeeds on this ground alone.
The appeal is accordingly allowed.
Respondent shall pay N1,000 as Costs to the Appellants.P. NNAEMEKA-AGU, J.S.C.: The only issue in this appeal I would wish to comment upon is this: where an intending appellant who is out of time to file his notice of appeal does not include a prayer for an extension of time to appeal along with his prayers for extension of time to apply for leave and for leave to appeal but he is granted such a prayer for extension of time to appeal, and he subsequently files his notice of appeal whether the appellate court had jurisdiction to hear and determine his appeal
The facts from which this issue has arisen could be summarized briefly. The plaintiffs in a suit commenced in Akoko South Grade A Customary Court in Ondo State claimed against the defendants title of ownership to a piece or parcel of land situate at or near Sosan, recovery of N1,300.00 as damages for trespass to the plaintiffs’ said land called Ugbovibiafa and perpetual injunction. After hearing and a visit to the locus in quo, the Court entered judgment in favour of the plaintiffs for title and awarded N500.00 damages for trespass. Dissatisfied with the said judgment, the defendants appealed to the High Court which dismissed their appeal on 16th May, 1985. By a motion filed on 4th October, 1985 that is, more than three months after the decision, the defendants applied for:
- Extension of time within which to ask for leave to appeal against the judgment delivered on the 16th of May, 1985; and
- Leave to appeal against the said judgment.
It is noteworthy that although a motion was filed well after three months of the delivery of the said judgment, there was no prayer for extension of time within which to appeal. However, the Court of Appeal in its ruling dated 21st October, 1985, extended for the defendant’s time within which to appeal against the said judgment and granted them leave to appeal. Notice of appeal, pursuant to the Court of Appeal order was filed on the 11th of November, 1985, that is nearly six months after the judgment appealed against. On the 11th of December, 1988 the Court of Appeal, after considering the briefs filed by both parties and the oral arguments by counsel, allowed the appeal and set aside the judgments of the courts below. Hence the plaintiffs (hereinafter called appellants) hay, with leave, appealed to this Court.
Four grounds of appeal were filed and amended and four issues raised in argument by both sides. But, as I stated above, I shall confine myself to commenting on the first issue which I have set out above.
When this issue was first raised on the brief and in the argument of learned counsel for me appellants, because of the conflicting stances of counsel on both sides, we had to call for me part of the record of the court below which dealt with what transpired when me above motion was granted. In the end, we had filed not only the official record of the Honourable Presiding Justice but also the “notes” of another justice who participated on the 21st of October, 1985 when the motion was heard and granted. It does appear from these records that, with respects, the learned Justices of Appeal did not fully advert their minds to the seriousness of the issue of jurisdiction which has now been raised in mis appeal. It is enough to state that one of the Honourable Justices thought that what they were considering was an application for extension of time to apply for leave and for leave. This was, in fact, what was applied for in the motion paper. So there was no prayer for extension of time to appeal. In spite of this position, the other record of the proceedings of that day recorded as follows:
“Adedoyin moves for an extension of time within which to appeal against the decision of Ajayi, J given on 16/5/85 in Suit No HIK/1A/84 in Ikare High Court and (b) leave to appeal against the said decision.”
According to the above record, it does appear that what the applicant whose application on record was for extension of time to seek leave and for leave, prayed for in oral argument were for extension of time within which to appeal and for leave. I sought in vain for any oral application to amend the prayers in the motion paper, but could find none. Even assuming that there was such an application, there would still arise the question: could a person whose time to appeal had expired simply apply for leave to appeal without a prayer for extension of time within which to apply for leave He cannot.
I wish to pause here to emphasize that a person who wishes to seek leave on any grounds to appeal after the expiration of the statutory periods to appeal under section 25 of the Court of Appeal Act (No.43) of 1976 (or section 31 of the Supreme Court Act (No.12) of 1960) requires three substantive prayers, namely for-
(i) extension of time to seek leave to appeal;
(ii) leave to appeal; and
(iii) extension of time within which to appeal.
That any such application must contain these three prayers is not a matter of mere cosmetic importance which could be waved off with levity or waived. Rather, it is a matter which goes to the serious issue of the jurisdiction of court. The periods within which a party can appeal in our courts are prescriptions of statutes; and leave to appeal, where necessary. is a requirement of our Constitution. When necessary, it must be applied for and obtained within the Statutory period to appeal unless time to do so has been extended: See Owoniboys Technical Services Ltd. v. John Holt Ltd. (1991) 6 N.W.L.R. (Pt.198) 550, at PP. 557-558. This Court has also decided in a number of cases that where leave is necessary before an appeal can be validly filed, it ought to be applied for and obtained and notice of appeal filed within the statutory period. See-
Amudipe v. Arijodi (1978) 2 L.R.N. 128;
Atanda v. Olarewaju (1988) 4 N.W.L.R. (Pt.89) 394;
Lamai v. Orbih (1980) 5-7 S.C. 28.
As this is the case, it follows that if any of the above prayers is absent in an application such as this then such an application is fundamentally defective. An intending applicant cannot apply for leave after time to appeal had expired unless he applies for an extension to time to do so. Leave to appeal obtained after time to appeal has expired and there is no order for an extension of time is useless. An appeal filed out of time is incompetent. So, the three prayers complement one another and are necessary in a case like this.
Learned counsel for the respondents, while admitting that what the applicants (respondents) applied for in their motion were for extension of time to seek leave and leave to appeal, submitted that when the Court of Appeal granted an extension of time within which to appeal.It was merely making a consequential order. The Court has powers to make consequential orders, as part of its inherent powers under section 6 (6) (a) of the 1979 Constitution, he submitted. He relied on the case of Ndukwe Erisi & Ors. v. Uzor Idika & Ors. (1987) 4 N.W.L.R. (Pt.66) 503, at PP. 517-519. It was his further submission that as the Court of Appeal granted an extension of the time that should be the end of the matter. In any event, the appellants did not challenge the grant of it: rather they waived it. In support, he cited a number of cases, including:
Atanda v. Ajani (1989) 3 N.W.L.R. (Part 111) 511. P. 545;
Nneji & Ors. v. Chukwu & Ors. (l988) 3 NWLR (Pt.81) 184 (1988) 6 S.C.N.J. 132, ‘P.139-140;
Adegoke Motors Ltd. v. Adesanya & Anor (1989) 3 N.W.L.R. (Pt. 109) 250;
Alhaji D. Saude v. Alhaji H. Abdullahi (1989) 4 N.W.L.R.(Pt.1I6) 387.
Now, a consequential order is one giving effect to a judgment or order to which it is consequential. See Obayagbona v. Obazee (1970) 5 S.C. 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made. In this case, each of the three prayers which I have discussed above is a substantive prayer: none can be consequential to the other. I, therefore, do not agree with learned counsel for the respondents that the order for an extension of time to appeal was a consequential order to either a prayer for extension of time within which to seek leave or leave to appeal. Each of the three prayers must have to be prayed for and duly asked for before it can be granted.
It has been said times without number that a court ought not to play the role of Father Christmas which can go around granting to parties relief which they have not asked for. See Nwanya v. Nwanya (1987) 3 N.W.L.R. (Pt.62) 697. The case of Ndukwe Erisi & Ors. v. Uzor Idika & Ors. (supra) which the respondents relied upon is inapplicable. In our adversary system, a court makes orders on the lis or issues raised by the parties. Where a court grants to a party a relief which it did not seek, it has made the order on a lis not raised by the party. This will be an order made without jurisdiction and therefore a nullity; see Umenweluaku v. Ezeana (1972) 5 S.C. 343; Western Steel Works Ltd. v. iron & Steel Workers Union (1986) 3 N.W.L.R. (Pt.30) 617. 618.
The further submission that because appellant failed to raise the issue until now, he cannot raise it now, in my view, has lost sight of the nature of the issue. It raises, as I have said, a serious issue of jurisdiction of the court to have made the order at all as well as the competence of the proceedings. Jurisdiction is a threshold, issue in that a court must have jurisdiction before it can enter into the cause or, matter at all or before it can make a binding order in it. Where the statutory period to appeal has expired, the appellate court loses jurisdiction to hear an appeal on the matter. It requires a proper application under Order 3 rule 4 of the Rules as well as a prayer and a valid order for an extension of time to restore that jurisdiction. In the absence of these a condition precedent to exercise of jurisdiction would be lacking: See Ajanaku v. Commissioner of Police (1979) 3-4 S.C. 28. Where a court has no jurisdiction in a cause or matter, the only order it can validly striking out the proceedings. Such matters which go to the jurisdiction of the court can be raised not only at any stage of the proceedings but also even for the first time on appeal before this Court. See Oloriode v. Oyebi (1984) 5 S.C. 1. at pp.28-33. This is because they challenge the vires of the court to have entertained the proceedings at all. Where a court lacks jurisdiction or competence to entertain a proceeding, the parties to the suit cannot by acquiescence, waiver, or even agreement confer jurisdiction or competence upon the Court. I am, therefore, satisfied that the point can be, and has been duly, raised in this appeal.
On this issue and for the fuller reasons given by my learned brother, Karibi-Whyte, J.S.C. in his lead judgment. I would, and hereby do, allow the appeal. I set aside the judgment and order of the Court of Appeal and subscribe to the other order as to costs or otherwise made in the lead judgment.
SC.101/1989
