Uyaemenam Nwora & Ors V. Nweke Nwabueze & Ors (2013)
LAWGLOBAL HUB Lead Judgment Report
MAHMUD MOHAMMED, J.S.C
On 3rd March, 2009, the Appellants appeal No.CA/E/30/2009 pending at the Enugu Division of the Court of Appeal came up before that Court for striking out for non-compliance with the rules of Court. The record of appeal at page 333 shows that the parties were absent and not represented. The record of appeal at page 332 also shows that a certificate of non-compliance with conditions imposed upon a would be Appellant issued and signed by the Registrar of the trial High Court on 27th January, 2009 and filed the following day in the Registry of the Court of Appeal, was before the Court of Appeal on the 3rd day of March, 2009. The non-compliance Notice said to have been issued under order 8 Rule 1 of the Court of Appeal Rules 2007 reads –
“Pursuant to Order 8 Rule 1 of the Court of Appeal Rules 2007, I hereby certify that the Appellants in the above named case have not complied with the requirements of Order 8 Rule 1.
Dated at Awka the 27th day of January, 2009
V. O. Osieme (Mrs.)
Asst. Chief Litigation,
Awka Judicial Division”
The Court of Appeal therefore in the absence of the parties considered the Notice of Non-Compliance filed by the Registrar of the trial High Court and struck out the Appellants appeal. The short but very clear Ruling of that Court at page 333 of the record of appeal reads –
“The Registrar has issued a notice of non-compliance with the Rules and there is no Pending application for departure from the Rules. The appeal is therefore struck out.”
The Appellants who were not happy with this order of the Court of Appeal Enugu striking out their appeal, have appealed to this Court by their Notice of appeal containing 3 grounds of appeal from which the learned Counsel to the Appellants identified only one issue for the determination of the appeal. That lone issue is –
“Considering the antecedent of this appeal, and the clear provisions of Order 8 and other relevant Provisions of the Court of Appeal Rules, as well as the Appellants right to fair hearing whether the lower Court was not in grave error and acted without jurisdiction when it struck out the Appellants appeal on 3rd March, 2009.”
The 1st set of Respondents however after referring to the Notice of Appeal of the Appellants, decided to frame one issue each from the 3 grounds of appeal through their learned senior Counsel as follows –
“(a) Whether the decision of Court was perverse (Ground 1)
(b) Whether the Court misdirected itself in law by striking out non-Pending appeal (Ground 2)
(c) Whether the lower Court acted without jurisdiction by striking out Appellants’ appeal (Ground 3)”
In the 2nd set of Respondents brief of argument on the other hand, their learned senior counsel identified 2 issues for the determination of this appeal as follows –
(1) Whether the order of lower Court striking out the appeal of the Appellants on the 3rd March, 2009 was proper in the circumstances.
(2) Whether this appeal is properly before this Court.”
From the 3 grounds of appeal filed by the Appellants complaining of perverse, misdirection and absence of jurisdiction in relation to the decision of the Court of Appeal, the single issue identified in the Appellants brief of argument appears to have covered all the grounds of appeal. I shall therefore determine this appeal on the lone issue as identified in the Appellants brief of argument. This is because the issue number (b) in the 1st set of Respondents brief of argument on the question of misdirection in law in striking out non-pending appeal and the 2nd issue in the 2nd set of Respondents brief raising the alleged incompetence of this appeal, do not appear to have arisen from the 3 grounds of appeal filed by the Appellants. In any case the 2nd set of Respondents not having filed a Notice of Preliminary objection to the competence of this appeal, cannot be heard to be complaining of whether this appeal is properly before this Court.
Before proceeding to resolve the single issue arising for determination in this appeal, it is important to emphasize that on 3rd March, 2009, the Enugu Division of the Court of Appeal acting on the certificate of non-compliance with conditions of appeal singed by the Registrar of the trial High court where the consolidated suits numbers AA/53/75 and AA/11/77 were heard giving rise to the pending appeal by the Appellants at the court of Appeal No. CA/E/30/2001, struck out the appeal. The present appeal is therefore strictly confined to the appeal against that order of the Court of Appeal of 3rd March, 2009, striking out the Appellants appeal. Although there had been an attempt by the learned senior counsel of the Appellants to have the Appellants appeal against the striking out of the Appellants motion on 13th January, 2009 by the same Court of Appeal Enugu to be heard with the present appeal, that attempt was not successful. All the same, the Appellants brief of argument appeared to have included arguments touching on that Appellants appeal against the decision of the Court of Appeal given on 13th January, 2009 before the decision of the same Court given on 3rd March, 2009, which is the subject of this appeal.
On the only issue for determination, learned counsel to the Appellants referred to the Ruling of the Court below being appealed against and pointed out that the Ruling was based on two grounds, namely, the issuance of a Notice of non-compliance and absence of pending application for departure from the rules. The learned Counsel explained that the Appellants in their consolidated suits numbers AA/53/75 and AA/11/77 before the Anambra State High Court Akwa, lost in the judgment against them delivered by that Court on 12th November, 1999 and therefore had appealed against that judgment on 12th November, 1999. Learned Counsel narrated all efforts made to compile the records of appeal but without success up to the date when the Appellants appeal was struck out on 3rd March, 2009 and referred to Order 8 Rules 1, 2, 3, 4 and 18 of the Court of Appeal Rules 2007, to say that it was the duty of the Registrar of the trial Court on receipt of the Notice of Appeal filed by the Appellants to compile and transmit the records of appeal; that it was after the failure of the Registrar to compile the record that the duty to do so devolved on the Appellants; that the same Rules provide that where the Registrar and the Appellants have failed to compile the records, the Respondents may, by Notice of motion move the Court of Appeal to dismiss the appeal; that by Order 7 Rules 1, 8 and 9 of the Court of Appeal Rules, that Court can make an order dismissing the appeal on hearing the parties having regard to the decision of this Court in Oyegun v. Nzeribe (2010) 7 N.W.L.R. (Pt. 1194) 577 at 588. Learned counsel therefore argued that in the absence of the motion filed by the Respondents and the hearing of the parties by the Court below, that Court lacked the jurisdiction to strike out the Appellants appeal; that the decision of the Court below of 3rd March, 2009, was also eroded by the absence of any provision in order 8 of the Rules of the Court of Appeal 2007, empowering the Registrar of the trial court to file Notice of Non-compliance thereby making the decision of the Court below striking out the Appellants appeal a nullity on the authority of several cases including Sken Consult v. Ukey (1981) 1 S.C. 6, Okoye v. N.C.E. & Co. Ltd. (1991) 6 N.W.L.R. (Pt. 199) 501 and Sale v. Monguno (2006) 15 N.W.L.R. (Pt. 1001) 26 at 74. Relying on the case of Madukolu v. Nkemdilim (1962) 2 S.C.N.I.R. 341 and Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 N.W.I.R. (Pt. 1071) 347 at 367, learned Counsel stressed that in the absence of a motion on Notice filed by the Respondents, the Court below was deprived of jurisdiction to hear the matter before it in the absence of a condition precedent to the initiation of the case resulting also in making the decision of the Court below of 3rd March, 2009, a nullity. It was also the contention of the Appellants that failure of the Court below to serve notice of the hearing of the appeal on 3rd March, 2009, rendered the striking out of the appeal a nullity having regard to the cases of Attorney General Rivers State v. Ude & 12 Ors. (2006) 6 – 7 S.C 131 at 143 and Oke v. Aiyedun (1986) 2 N.W.L.R. (Pt. 23) 548 at 558. Learned Counsel concluded by urging this Court to allow the appeal and set aside the order of the Court below striking out the appeal.
For the 1st set of the Respondents, their learned senior Counsel citing and relying on a number of cases on the features of a perverse decision or what constitutes a perverse decision, had argued that the decision of the Court below now on appeal, was not perverse. Some of the decisions relied upon include Baridan v. State (1994) 1 N.W.L.R. (Pt. 320) 250, Opeyemi v. Bamidele (1968) 1 All N.L.R. 31, Maja v. Stocco (1958) 1 All N.L.R. 141 and Egba v. Appah (2005) 10 N.W.L.R. (Pt. 934) 464. On the alleged irregularity regarding the officer who issued the certificate of non-compliance, learned senior Counsel referred to the definition of “Registrar” under Order 1 Rule 2 of the High Court (Civil Procedure) Rules, 2006 of Anambra State to say that the officer who issued the certificate was fully covered by the definition under the Rule; that since it is not the case of the Appellants that the 1st set of Respondents were privy to the initiation of the process leading to the order of the Court below now on appeal, nor was it their case that any of the sets of Respondents was served with a hearing notice for the hearing of the appeal on 3rd March, 2009, there was no order made in favour of the Respondents and as such the Appellants were not prejudiced by that order as they were at liberty under the Rules to apply for its being set aside. Learned senior Counsel emphasized that the Notice of Appeal in the present case was filed before the coming into force of the 2002 Court of Appeal Rules and as such the parties are bound to comply with the prevailing Rules of Court in force when their case was being heard which therefore ruled out the application of the 2007 Rules of that Court because under the 2002 Rules by Order 3 Rule 20(1), on the receipt of certificate of non-compliance with rules 10 and 11 of that Order by the Court of Appeal, thereupon the Court shall order that the appeal be dismissed.
On the argument of the Appellants that failure to serve hearing notice on them before their appeal was struck out deprived the Court below of jurisdiction to strike out the appeal, learned senior Counsel for the 1st set of Respondents pointed out that the Rule under which the appeal was struck out required no service of notice of hearing on the parties; that by filing the appeal and not taking steps to prepare or pay for the preparation of the records of appeal, the Court below on the authority of Ukachukwu v. Uba (2005) 18 N.W.L.R. (Pt. 956) 1 and Mohammed v. Hussein (1998) 14 N.W.L.R. (Pt. 584) 108, was right in regarding the Appellants appeal as an abuse of process of Court and the Court was right in striking out the appeal.
As for the 2nd set of Respondents, their learned senior Counsel contended that although the Registrar of the trial Court in issuing the Notice of non compliance with rules acted under Order 8 Rule 1 of the Court of Appeal Rules 2007, the applicable rule having regard to the time the appeal was filed and settlement of record was made by the parties before the Registrar of the trial Court, the applicable Rule to the present case is Order 3 Rule 20(1) of the Court of Appeal Rules 1981; that on failure of the Appellants to comply with the conditions of appeal in Rules 10 and 11 of Order 3 of the applicable Rules, the Court below was right in striking out the Appellant’s appeal under Rule 20(1) of the Rules relying on the cases of Oyegun v. Nzeribe (2010) 7 N.W.L.R. (Pt. 1194) 577 at 500 and Maiwada v. First Bank of Nigeria Plc (1997) 4 N.W.L.R. (Pt. 500) 497 at 507. Learned senior Counsel referred to the provision of the Court of Appeal Rules requiring compliance with conditions of appeal by Appellants in Order 3 Rule 10 of the Court of Appeal Rules 1981, Order 8 Rule 2 of the 2007 of the same Rules and Order 8 Rules 2 of the same Rules of 2011 and submitted that where there was non-compliance as was the case in the present appeal, the Court below acted correctly in striking out the Appellants appeal, pointing out that the order of the Court below was without prejudice to the right of the Appellants under Order 8 Rule 20 of the Court of Appeal Rules 2007, to apply to the same Court to restore the appeal thereby making the steps taken to pursue this appeal, quite unnecessary.
From the supplementary Record of Appeal filed by the 1st set of Respondents on 8th July, 2011, it is clear that the Notice of Appeal was filed on 8th November, 1999 while the Principal Registrar of the trial High Court by a letter dated 16th March, 2001 invited the Appellants’ Counsel to come to the Registry for the settlement of the records of appeal on 28th March, 2001. It is apparent from the records of appeal also that up to the 27th day of January, 2009, the Appellants Counsel had failed to comply with the requirements of the Rules of the Court of Appeal on the settlement of the records of appeal. The question therefore is whether the steps taken by the Registrar of the trial Court to terminate the Appellants appeal by issuing a certificate of non-compliance to the Court below, ought to have been done under the 1981 Court of Appeal Rules operating at the time the Notice of Appeal and the invitation to the Appellants for the settlement of records was issued in 1999 and 2001 or the 2007 Court of Appeal Rules which were in force at the time the notice or certificate of non-compliance with the rules was signed and issued by the Registrar of the trial Court on 27th January, 2009. Under the 1981 Rules the relevant Rule is Order 3 Rule 20(1) which states –
“20(1) If the Appellant has not complied with any of the requirements of rules 10 and 11 of this Order, the Registrar of the Court below shall certify such fact to the Court, which shall thereupon order that the appeal be dismissed either with or without costs and shall cause the Appellant and the Respondent to be notified of the terms of its order.”
If the Court below were to have proceeded under the above rule as insisted by the two sets of Respondents, the Court below was quite right on seeing the notice or certificate of non-compliance with the rules to apply the rule by dismissing the Appellants appeal without any requirement of hearing the parties before making the order. In other words under the provisions of order 3 Rule 20(1) of the court of Appeal Rules, 1981, all the court below was required to do on being served with the Notice or certificate of non compliance with the rules by the Registrar of the trial Court, was to proceed in the absence of the parties who are not required to be put on notice under the rule and dismiss the appeal with or without any order on costs. The parties are merely to be put on notice by the court of its order of dismissal of the appeal. This provision of Order 3 Rule 20(1) of the 1981 Rules of the Court of Appeal are the same with the Rules of that Court of 2002.
However, it is significant to state here that by the provisions of Order 1 Rule 1(2) of the Court of Appeal Rules 2002 which came into force on 1st April, 2002, the entire Court of Appeal Rules, 1981 were revoked. In similar vein, the 2007, court of Appeal Rules which came into force with effect from 1st September, 2007, specifically and clearly by Order 1 Rule 2 thereof, repealed the entire provisions of the Court of Appeal Rules, 2002. By these very clear provisions of the 2002 and 2007 Court of Appeal Rules, it is not at all in doubt that both the provisions of the 1981 and 2002 Rules of the Court of Appeal having been revoked or repealed, were not in force as at 27th January, 2009, when the Registrar of the trial High Court issued the notice or certificate of non-compliance to the Court below in respect of non-compliance with the rules of Court by the Appellants. In other words the applicable rules at the time the Court below took action on the Appellants appeal, are the 2007 Court of Appeal Rules and I so hold.
The law is well settled that an action is governed by the substantive law applicable and in force at the time the cause of action arose. See Agbajo v. Attorney General of the Federation (1986) 2 N.W.L.R. (Pt. 23) 528 and Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1937) 1 N.W.L.R. (Pt. 49) 212.
In the same vein, it is also well settled that the rule governing the practice and procedure in an action or in an application, is the rule inforce at the time of the trial of the action or at the time that the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure. See Rica v. Erlanger (1874) 3 Ch. D. 69. In otherwords, a litigant only has the right to rely on the procedure prescribed for the time being for the hearing of his matter by the court. Therefore where the procedure is changed or altered, the litigant must proceed according to the changed procedure as was the case in Owala v. Anyigon (1993) 2 N.W.I.R. (Pt.276) 380 at 391, where this Court found that the Supreme Court Rules 1961 which were applicable to the court of Appeal which came into existence as an intermediate appellate Court in 1976, had ceased to apply to that Court when the Court of Appeal Rules 1981 came into force on 1st July, 1981. See also the case of Olajide Olaore & Ors. v. Titus Adigun Oke (1987) 4 N.W.L.R. (Pt. 67) 769.
In the present case, the Notice or Certificate of non-compliance with the rules of Court issued and signed by the Registrar of the trial Court on 27th January, 2009, was clearly issued to the court below under order 8 Rule 1 of the then applicable Court of Appeal Rules 2007.
That Rule 1 of Order 8 of the Rules for the avoidance of doubt states –
“8(1) The Registrar of the Court below shall within sixty days after the filing of the notice of appeal compile and transmit the record of appeal to the Court.”
It is not difficult to see from the above rule that it does not give the Registrar of the trial Court power to issue any notice of non-compliance with the rules of the Court below for use in striking out the Appellants’ appeal. The rule only gives the Registrar 60 days to compile and transmit the record of appeal to the Court of Appeal, after the date of filing the Notice of appeal. The same Order 8 in Rules 2, 3 and 4 thereof only gave the Registrar of the trial Court power to summon parties for the purpose of the settlement of the record of appeal and even to proceed to settle the record where the parties put on notice fail to attend. Where the Registrar fails to settle the record of appeal within 60 days of filing the notice of appeal, the Appellant himself is empowered under Rule 4 of order 8 to compile the record and transmit the same to the court of Appeal. However,where both the Registrar of the trial Court and the Appellant fail to discharge their responsibilities regarding the settlement and transmission of the record of appeal to the court of Appeal, these 2007 court of Appeal Rules in Rule 18 of Order 8 allow the Respondent to approach the Court of Appeal by way of motion on Notice to dismiss the appeal after giving the parties a hearing.
Some of the important features of the 2007 Court of Appeal Rules in Order 8 thereof are – the taking away of the power of the Registrar of trial Court to issue notice of non-compliance and serve the same on the Court of Appeal. The same Rules also deprived the Court of Appeal of the power to act on the notice of noncompliance without putting the parties on notice to dismiss or strike out the Appellants appeal. In this respect therefore the 2007 Court of Appeal Rules have introduced elements of affording the parties to the appeal fair hearing before the Court of Appeal can strike out or dismiss a pending appeal for the Appellant’s failure or neglect to comply with the rules of that Court regarding the compilation and transmission of the record of appeal. It is for this reason that the action of the Court below in striking out the Appellants appeal pursuant to Order 8 Rule 1 of the Court of Appeal Rules 2007, which does not give it the power to do so, is a complete nullity with no effect whatsoever resulting in leaving the Appellants’ appeal No. CA/E/30/2009, still intact and remains pending in that Court. See Skenconsult v. Ukey (1981) 1 S.C 6 and Saleh v. Monguno (2006) 15 N.W.L.R. (Pt. 1001) 26 at 74.
Looking at the proceedings of the Court of Appeal of 3rd March, 2009, now on appeal from the angle of the requirements of Order 8 Rule 18 of the 2007 Rules of the Court of Appeal which prescribes new method of terminating an appeal for failure to comply with the rules of Court in the production of records of appeal, the fact that there was no motion by the Respondents in which the parties were given a hearing before the Appellants’ appeal was struck out, means that the necessary conditions precedent were not complied with to invoke the jurisdiction of the Court below to hear the matter.
The law is well settled that for a Court to have jurisdiction in a matter, it must be commenced by due process of law and upon the fulfillment of any condition precedent to assumption of jurisdiction. See Madukolu & Ors. v. Nkemdelim & Ors. (1962) 2 S.C.N.L.R. 341, Skenconsult v. Ukey (1981) 1 S.C 5 and Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 N.W.I.R. (Pt. 1071) 347 at 367. The result of the proceedings of the Court below undertaken in the absence of a motion by the Respondents in which the parties were given a hearing, was plainly embarked upon without jurisdiction resulting in the order of the Court below striking out the Appellants appeal, a complete nullity.
For the foregoing reasons, this appeal must succeed and the same is hereby allowed. For the reasons also already given in this judgment, the Judgment/Ruling of the Court below given on 3rd March, 2009 striking out the Appellants’ appeal No. CA/E/30/2009 shall be and is hereby declared a nullity. With this conclusion, it is my view that the need to set aside the decision of the Court of Appeal now on appeal as urged by the Appellants in their Notice of Appeal and brief of argument, is hardly necessary as the nullification of the order of the Court of Appeal of 3rd March, 2009 leaves the Appellants appeal still in place to be pursued in accordance with the law.
I make no order on costs.
SC.418/2010
