The Registered Trustees Christ Apostolic Church Nigeria V. Evangelist Chima Uffiem & Anor. (1998)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
The first respondent, in an application in the court below, sought leave to enforce their fundamental right. Apparently before that application could be taken the applicant brought its own application seeking to be joined as respondent in the substantive suit or application or in the alternative applying for the suit or application to be struck out or dismissed for want of competence. The application was supported by an eighteen paragraph affidavit. The first respondent did not depose to a counter-affidavit. The learned trial Judge in his considered ruling refused the application on ground that the applicant was not a necessary party for complete and final determination of the issue involved viz whether or not the second respondent has violated the fundamental rights of the first respondent. Having refused the applicant’s application for joinder as a respondent, it no longer had competence to pursue its second and third reliefs for striking out or dismissal of the substantive suit or application for leave to enforce first respondent’s fundamental human rights.
The applicant was displeased with the ruling refusing its reliefs. It therefore filed its notice of appeal as of right in the court below against the ruling delivered on 6th September, 1995 on the following day, that is 7th September. 1995. On 12th September. 1995 learned counsel for applicant, on applicant’s behalf, filed a motion in the lower court seeking leave to regularize the filing of the notice of appeal already filed since the same was filed without leave. Learned counsel for applicant did not pursue the issue of leave being erroneously of the view that the decision finally disposed of the applicant’s rights and, therefore was a final decision.
The applicant, confident that its notice of appeal was competent, proceeded to compile records as well as file its brief of argument. On 22nd April 1996, it brought an application for, amongst other things. departure from the rules, that the appeal be heard on the bundle of papers attached to the affidavit in support of the motion. But the same application was, on 9th April 1997, struck out at the instance of applicant’s counsel. The notice of appeal filed being incompetent on the grounds that leave of court of appeal, as an interested party was not sought before it was filed.
The applicant then applied to this court asking for the following reliefs-
- Extension of time within which the applicant may seek leave of court to appeal against the decision of the High Court, Enugu in suit No. E/257m/95 delivered on the 6th September, 1995;
- Leave to appeal against the said decision: and
- Extension of time within which the applicant may file its notice of appeal against the said decision.
The application is supported by an affidavit and a further affidavit. In opposing the application, the first respondent deposed to a counter-affidavit. To the affidavit in support of the motion is attached a previous application to the trial court which included the ruling sought to be appealed and the notice and grounds of appeal.
The first relief in the motion was amended by adding the words “as an interested party” immediately after the figures “1995”, The amendment thus obtained introduced into the exercise, in my respectful view, a new complexion. The amendment seems to have short changed the requisite reliefs required before a competent application to appeal from the High Court to this court against an interlocutory decision of that court. This much the applicant itself admitted in its affidavit in support of the present application. Paragraph 8 thereof reads as follows-
- The intervener/applicant was only heard in regard to the prayer for stay of proceedings pending the determination of the appeal which was granted on 16/4/96. The intervener/applicant’s counsel due to inadvertence did not pursue the issue of the leave being of the view the decision finally disposed of the rights of the intervener/applicant and therefore final. Counsel did not consider the fact that the intervener/applicant was only a party interested and not a party on record.” (Italics mine).
With the admission of the applicant that the decision is interlocutory, the applicant requires all the reliefs already set out in this ruling. The three reliefs, before the amendment was introduced, were perfectly in order. But the first relief sought had been amended and it now reads as follows –
“1. Extension of time within which the intervener/applicant may seek leave of court to appeal against the decision of the High Court Enugu in Suit No. E/257m/95 delivered on the 6th day of September, 1995 as an interested party. ”
The amendment thus granted the applicant has bedevilled the application with all sorts of problems. The second prayer was not amended to read “leave of the court to appeal against the said decision as an interested party” as required by virtue of section 222 of the Constitution. In view of the amendment one may be tempted to presume that the second prayer is converted to leave to appeal as an interested party under section 222 of the Constitution and not leave to appeal on grounds other than grounds of law as prescribed by section 221 of the same Constitution. This court is however not entitled to the presumption because it is not given to speculation. Not only that, such presumption at this stage would equally be unfair to the respondents who had no opportunity to be heard. Moreover, to apply for leave to appeal as a party whose interest is affected in the matter does not require extension of time to apply for the leave since neither section 222 of the Constitution nor any other statute prescribed time limit within which to seek such leave to appeal. It is appropriate at this stage to recite section 222 of the Constitution which provides thus:-
“222. Any right of appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution –
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the High Court or the Federal Court of Appeal at the instance of any other person having all interest in the matter, and in the case of criminal proceedings …
(b) shall be exercised in accordance with any Act of the National Assembly and rules of court for the time being in -force regulating the powers, practice and procedure of the Federal Court of Appeal.”
There is no Act of National Assembly nor rules of court regulating, at the moment, powers, practice and procedure of the Court of Appeal in seeking leave by any party having an interest in the matter. It, therefore, necessarily follows that a party having an interest in a matter has no time constraint. It is within his right, in my respectful opinion, to seek the leave within a reasonable time. The relief seeking extension of time to apply for leave to appeal as an interested party is respectfully, redundant. It is uncalled for and superflous. The position is different from when one appeals on grounds of appeal other than one of law or on a further appeal from a High Court to the Court of Appeal as by sections 220 and 221, the exercise of which power is regulated by section 25 of the Court of Appeal Act which stipulates time within which an appeal may be brought.
Section 25 of the Court of Appeal Act, Cap. 75, of the Laws of Federation of Nigeria, 1990 is recited immediately hereunder. It reads as follows –
“25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provisions of subsection (2) of this section that is applicable to the case. (2) 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;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.” (Italics mine)
There is no similar provision governing an appeal brought by a party interested in the matter. In the result the first relief as amended is otiose and it is struck out.
The applicant, in the circumstance, is left with two prayers, that is, leave to appeal and extension of lime within which to appeal against the ruling of the trial court delivered on the 6th day of September, 1995. The prayers presented are grossly inadequate because the grounds of appeal are not of mixed law and facts. The period of fourteen days prescribed by section 25(2)(a) having expired by effluxion of time, he requires three separate reliefs, in view of the nature of his grounds of appeal, which reliefs are set out immediately hereunder in view of the provisions of section 25(1)(2)(a) of the Court of Appeal Act, Cap. 75. –
(a) extension of time within which to apply for leave;
(b) leave to appeal; and
(c) extension of time within which to appeal.
It is these three reliefs that are euphemistically referred to as “trinity in this court. Both the leave to appeal and the extension of time to appeal where the time specified within which to appeal had expired must be sought and the appeal brought within the time specified. See Tunji Bowaje v. Adediwura (1976) 6 S.C. 143 where the Supreme Court in interpreting section 31(2)(a) of the Supreme Court Act 1960 which is in impair materiam with section 25(1) and (2) (a) of the Court of Appeal Act, Cap. 75 said at pages 146 – 7 that-
“We now proceed to consider the application before us. Under the provisions of section 31(2)(a) of the Supreme Court Act in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the subsection but must also file his notice and grounds of appeal, after having obtained leave within the same period. The appellant/plaintiff in the present case failed to file his notice of appeal and the grounds of appeal within three months as he ought to do.” (Italics mine).
See also Amudipe v. Arijodi (1978) 9-10 S.C. 27. The application was brought under Order 3 rules 3 and 4(1) of the Court of Appeal rules, Cap. 62 of the Laws of Federation of Nigeria, 1990 which was made pursuant to section 222(b) of the 1979 Constitution, rule 4(1) provides thus –
“4(1) The court may enlarge the time provided by these rules for the doing of anything to which these rules apply.”
Order 3 rule 3(6) of the Court of Appeal rules is equally in the same term.
I am encouraged in this view by the dictum of Wali J.S.C. in the case of Adeyemi v. Y.R.S. Ike Oluwa & Sons Limited (1993) 8 NWLR (Pt.309) 27 at P. 49 where the Supreme Court, per Wali, J.S.C. said:-
“As I have said earlier, having looked at all the grounds of appeal, I found them to be of fact or at best mixed law and fact. In order to have a competent application therefore, the appellant requires the following prayers since the appeal is on issue of fact and/or mixed law and fact –
“1. Extension of time within which to seek leave to appeal;
- Leave to appeal on facts and/or mixed law and fact; and
- Extension of time within which to file the notice of appeal.”
Where the grounds of appeal are either of fact and/or mixed law and facts, the application must contain the three prayers, otherwise it will be incompetent and be struck out. See Dweye & Ors v. Iyomahan & Ors (1983) 2 SCNLR 135; (1983) NSCC (Vol. 14) 393; 395; Akwiwu Motors Ltd. v. Sangonuga (1984) 5 S.C. 184; (1984) NSCC (Vol. 15 352; Ojemen v. Momodu III (1983) 3 S.C. 173; (1983) 1 SCNLR 188; Oke v. Eke (1982) 12 S.C. 218 and Akpasubi v. Umweni (1986) 11 S.C. 132.
At the same page of Adeyemi’s case (supra), Wali, J.S.C., said thus
“To appeal out of time without taking steps to have the time within which to file so extended is an incurable irregularity that cannot be regarded as a mere technicality: See Oranye v. Jibowu 13 WACA 41.”
The appellant in the instant appeal even though had grounds of appeal of law, mixed law and facts or facts having regard particularly to grounds 1 and 4 made only two of the three prayers required of him. He did not ask for extension of time within which to seek leave to appeal. The proposed notice of appeal can only competently be filed when leave to appeal and extension of time to appeal have been properly sought and obtained. In the circumstance of the application, the same is respectfully incompetent and it is struck out. There is costs in favour of the respondent which I assess at N2,000.00.
Other Citations: (1998)LCN/0415(CA)
