Ubaka Ifeajuna v. Charles Nnaife Ifeajuna & Anor.
Court of Appeal
Judgement delivered on Wednesday, December 9, 1998
Citation: 41 NIPJD [CA. 1998] 181/1997
Suit No. CA/E/181/97 Jurisdiction: Nigeria
BEFORE THEIR LORDSHIPS
EUGENE CHUKWUEMEKA UBAEZONU, J.C.A
ISA AYO SALAMI, J.C.A. (Delivering the Lead Judgement)
JUSTIN THOMPSON AKPABIO, J.C.A.
Appearances: A.O. Amene for the Appellant
N. Ibegbu for the Respondent
Excerpt from citation:
Learned appellant’s counsel argued that the learned trial judge was wrong to have held in his judgment at page 97 of the record that the evidence that the Respondent drank a contaminated bottle of coke was not properly challenged by the appellant’s pleadings. He submitted that there is an implied joinder of issues on the pleadings last served and that in this case the trial court had misconstrued the case of the parties and his judgment should be aside. He cited Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) page 643 at page 661; Ifeajuna v. Ifeajuna (1997) 7 NWLR (Pt.513) pg.405 at 416-7.
The action culminating in this appeal was taken out by the plaintiff, who incidentally is the appellant in the present appeal, in the Customary Court, Onitsha, claiming a number of declaratory reliefs. The bench of the Customary Court by a split decision of two to one granted the reliefs sought before it.
The defendants were dissatisfied with the decision of the Customary Court and appealed to the appellate jurisdiction of the High Court silting at Onitsha which allowed their appeal by declaring the entire proceedings, before the customary court, a nullity for lack of jurisdiction on the part of the Customary Court. The plaintiff was unhappy with the decision of the High Court and thereby felt aggrieved and has now appealed to this court.
On the day fixed for hearing of the appeal, learned counsel for defendants, respondents herein, sought and obtained leave to take a preliminary objection to the appeal, the notice whereof he had given and served on the appellant, under the provisions of Order 3 rule 15 of the Court of Appeal Rules. Cap 62 of the Laws of the Federation of Nigeria, 1990. The notice by respondents of their intention to rely on preliminary objection reads as follows:
“Take notice that respondents herein named intend at the hearing of this appeal to rely upon the following objection whereof is hereby given to you viz:
That the appeal filed by the appellant is incompetent;
And take notice that the grounds of the said objection are as follows –
1. That the decision in the civil proceedings before the High Court is not one the High Court sat at first instance, as envisaged by section 220(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 therefore leave to appeal against the High Court decision in this matter ought to have been sought and obtained.
2. Not having obtained leave to appeal, the appeal is incompetent.”
In this connection, learned counsel for the respondents contended that the judgment sought to be appealed against is not a decision of the High Court sitting at first instance hence the appeal could not be brought as of right under section 220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria. Learned counsel submitted that the appeal is such that cannot be brought without first seeking and obtaining leave of either the trial court or of this court under section 221 of the Constitution.
On the other hand, learned counsel for the appellant contended that the grounds of appeal being grounds of law simpliciter the appeal was competent.
Learned counsel for appellant contended that the appeal was brought under section 220(1)(b) of the Constitution which permits appeal to be brought from a final decision of a High Court not at first instance provided the grounds of appeal are purely of law. But when confronted with a couple of the grounds of appeal which are clearly not grounds of law, learned counsel for the appellant expressed his desire to withdraw those grounds to validate the appeal.
A right of appeal is conferred by a statute and not by common law or inherent power of the court.
The appellate jurisdiction or a court is conferred by either the statute creating the court or any other enactment conferring it with such power. See the Queen v. Resident Ijebu Province (1959) WRNLR 87; Ugwu v. Attorney-General of East Central State (1975) 6 S.C. 13; Moses v. Ogunlabi (1975) 4 S.C. 81; Akintola v. Commissioner of Police (1992) 7 NWLR (Pt.256)675; Adeigbe v. Kusimo (1965) NMLR 284; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 and Bronik Motors Limited v. Wema Bank Limited (1983) 1 SCNLR 296.
This court is a creation of the Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria, 1990 and section 217 of the Constitution of the Federal Republic of Nigeria, 1979.
The time to appeal and the procedure is provided for in Part V of the Court of Appeal Act, (supra). Section 25 prescribes the time within which to bring an appeal by filing a notice of appeal or notice of application for leave to appeal. The provisions of section 25 of the Act is not particularly relevant in the circumstance of the present appeal. We may have to look elsewhere because section 25 seems not to cater for appeal brought from the High Court in its appellate jurisdiction. The answer to the question raised in the notice of preliminary objection can only be found in sections 220 and 221 of the Constitution.
This is an appeal from the decision of Anambra State High Court sitting in Onitsha in a final decision but not at first instance. The decision was in respect of an appeal on a decision of a Customary Court. This is a further appeal from the appellate jurisdiction of the High Court an appeal from the Customary Court.
There are two sections in the Constitution providing for appeal from a High Court to the Court of Appeal. The two sections of the Constitution providing for appeal are sections 220 and 221 which provide for appeal either as of right or with the leave of the High Court or this court. The appellant did not obtain leave before filing his notice and grounds of appeal in respect of a further appeal from the High Court’s appellate division to this court, contrary to express provisions of sections 220 and 221 of the Constitution. The relevant subsections of the two sections of the Constitution read as follows-
“220(1) An appeal shall be from decisions of a High Court to the Court of Appeal as of right in the following cases –
(a) final decision in any civil or criminal proceedings before the High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
221(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Court of Appeal with the leave of that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of a High Coup in respect of any civil or criminal proceedings in which an appeal has been brought to the High Court from any other court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”
It can clearly be inferred from the provisions of section 121, particularly, subsection (2) thereof that leave is required in any appeal from the decision of a High Court not sitting at first instance. This much learned counsel for appellant conceded but he argued that the present appeal is taken out of the contemplation of section 221 of the Constitution because the ground or grounds of appeal are solely or purely of law. It therefore remains to be seen that the grounds of appeal in the matter resulting in the present controversy are of law simpliciter or that the appeal has any other redeeming factor.
In the circumstance, the examination of the grounds of appeal filed, on behalf of the appellant, along with his memorandum of appeal is required. The essence of the examination is to ascertain whether the appeal comes within the purviews of any of the provisions of paragraphs (a) to (d) or subsection (1) of section 220.
Subsection (1) thereof provides for appeal as of right.
I have scanned all the grounds of appeal contained in the notice of appeal and am of the clear and firm view that the grounds of appeal are not of law alone.
Neither do they raise questions as to the interpretation of the Constitution nor do they raise questions as to the breach of the provisions of Chapter IV of the Constitution. The offending grounds of appeal which do not raise questions of law nor issue of the interpretation of the Constitution nor issue of breach of the provisions of the Chapter IV of the Constitution will he setout anon. The grounds viz grounds
iii. iv and v even though christened grounds of law, pulling them at the highest, are grounds of mixed law and facts. The grounds read as follows.
The learned trial Judge erred in law when he drew the wrong inference from his summary of the evidence of the plaintiff to wit;
‘My brothers the defendants tell me that I have no right to the inheritance of the estate of our late father J.A, Ifeajuna.
They gave me a cheque of N3,000 which I returned to them.’ which caused gross miscarriage of justice to the plaintiff.
Particulars of error
(i) There was no evidence of any value of money realised from the lease before the court.
(ii) Plaintiff’s case as set out in the reliefs show that the 1st and 2nd reliefs are merely declaratory relief based on his interest in the property while the alternate relief is one in accordance with Onitsha custom.
(iii) The gravamen of the plaintiff’s claim or the principal issue in contest was not a claim of monetary relief as there was no prayer for any such relief. But the issue of paternity which entitled the plaintiff to a customary right or interest in the estate of the late J. A. Ifeajuna, his father, in accordance with Onitsha customs.
The learned appellate Judge erred in law when he held that he would not disturb the finding of fact by the Customary Court on the paternity of the plaintiff and his interest, went on to confirm the said findings and yet declared the trial a nullity on the ground of jurisdiction.
Particulars of error
The findings of fact of the paternity of the plaintiff gives him a customary right and interest in the estate of his father, No. 45 New Market Road. Onitsha, and a decision/or judgment in plaintiff’s favour in accordance with the alternative relief and the decision of the majority Customary Court judges.
The judgment is against the weight of evidence.”
Some of the grounds of appeal are of very doubtful validity but I do not propose to dissipate my energy on that aspect of the appeal which is not immediately in contest. Learned counsel sought to withdraw these grounds of appeal which are not of law in the course of replying to the objection raised by the learned counsel for the respondents to get the hearing of the appeal underway. The learned counsel for respondents spurned the proposals to withdraw certain grounds of appeal to get the hearing of the appeal on course on the ground that it was rather late in the day for the appellants to take such step so as to avoid the inevitable result. I seem to agree with the respondents’ counsel that the appellant’s learned counsel should not be permitted to adopt fire brigade measures to save the appeal as it is presently constituted. Learned counsel for respondents who took the preliminary objection gave the appellant due notice of what he proposed to do at the hearing of the appeal.
At the hearing of the appeal, he indicated his intention to take the objection which appellant’s counsel intimated his desire to oppose. He then proceeded to answer the objection pretending, as it were, that all was well. He contended that the grounds of appeal, in this appeal, were of law alone, not until he was confronted with the grounds already set out in this judgment. It was the pressure from the court that made him to relent his opposition to the objection founded on deceit viz. that the grounds of appeal are solely of law. He then made a volte face and applied to withdraw some of the grounds of appeal. I think the court should not grant this type of application mainly because it is prejudicial to the respondents. The application to rectify the errors is meant to over reach the respondents. Furthermore, the grounds of appeal have been formulated into issues which have been canvassed in the briefs exchanged by the parties.
Most importantly, the jurisdiction of this court is statutory. It is conferred by the Constitution, the Court of Appeal Act. Cap 75 of the Laws of Federation of Nigeria, 1990 and Court of Appeal Rules, Cap 62 of the Laws of Federation 1990.
The inherent jurisdiction to regulate proceedings in this court does not arise until there is a lis extant upon which the inherent jurisdiction operates. There is no provision either in the Constitution, the Court of Appeal Act or Court of Appeal Rules vesting this court with jurisdiction to validate by rectifying defects in appeals which are otherwise incompetent. There is no power in this court to entertain any application for or grant any relief in respect of a putative or incompetent appeal.
S.6(6)(a) of the Constitution cannot be craved in aid until there is a competent appeal. In short this court has no inherent jurisdiction and cannot exercise one until the appeal is competent. See Chief Iro Ogbu & Others v. Chief Ogbaru Urum & Anors. (1981) 4 S.C. 1, 12.The appeal is a civil proceedings in a Customary Court in Onitsha on appeal from the Anambra State High Court sitting in Onitsha to this court. It is not a final decision of that High Court sitting at first instance. The grounds of appeal are not of law alone. Neither do they raise issues pertaining to the interpretation of the Constitution nor question dealing with the breach of the provisions of Chapter IV of the Constitution. Consequently the appeal cannot be brought as of right under section 220(1). I am quite aware that paragraphs (a) to (d) of subsection (1) of section 220 are not exhaustive of the circumstances where an appeal may be brought as of right.
After examining the remaining paragraphs of the section, there is hardly any one that can be craved in aid of the appeal. Paragraphs (e) to (g) deal with sentencing, election, company matters, injunction and matrimonial causes, they can, therefore, not be invoked to sustain the appeal. Learned counsel for appellant did not even make such suggestion in his submissions before us. Indeed he confined his submission to paragraph (b) of section 220(1). The appeal has no redeemable factor.
The appellant, in the circumstance, is required to seek leave to appeal to this court by virtue of the provisions of section 221 of the 1979 Constitution. The appellant failed to take step or steps to comply with the requirement of the Constitution by applying for leave to appeal from a final decision of a High Court not sitting at first instance. The reading of sections 220(1) and 221 of the constitution amply demonstrates that this appeal could not be competently brought from final decision of a High Court sitting on appeal as of right in any civil or criminal proceedings when it is not sitting at first instance; the grounds of appeal are not of law alone and are not related to the interpretation of the Constitution nor concerned with the breach of the provisions of Chapter IV of the 1979 Constitution.
The appeal can only be brought as of right if the matter appealed from were a final decision of the High Court sitting at first instance, or the ground or grounds of appeal are purely of law or they raise question of the interpretation of the Constitution or an issue of violation of the provisions of Chapter IV of the Constitution. In any other circumstance of this appeal, leave must first be sought and obtained from either the High Court or the Court of Appeal before the appeal can be competent. The notice of appeal filed by the appellant, in the absence of requisite leave, is inchoate. It is invalid, null and void ab initio.
There is merit in the preliminary objection taken by the learned counsel for respondents. This court cannot proceed with the determination of this appeal on the merit, the appellant having failed to satisfy the condition precedent for bringing a competent appeal. Seeking and obtaining leave is sine qua non to bringing the appeal. The proceedings would be a nullity, however well conducted, in view of the defect in the competence of the appeal: A. G. Federation v. Sode (1990) 1 NWLR (Pt.128)500; Madukolu v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 and Osafile v. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130.
Jurisdiction is a threshold question which permits the court to enter into the hearing of the cause or matter at all; without competence it cannot make a binding order, not even after tinkering with the appeal as postulated in the submission of learned counsel for appellant. The notice of appeal dated 16th May. 1996 and filed without first seeking and obtaining leave to appeal against the decision of the High Court on appeal, from Onitsha Customary Court, is seriously defective. It is for that reason struck out with costs assessed at N2.000..00, costs in favour of the respondents.
AKPABIO, J.C.A.: I have read in advance the lead ruling of my learned brother, Salami, J .C. A. just delivered and agree with him that since the appeal of the appellant was against a decision of the High Court sitting in its appellate jurisdiction, and not as a court of first instance, leave of the said High Court or of this court should have been obtained (see s.221 (1) of the Constitution of the Federal Republic of Nigeria. (1979).
Since no such leave has been obtained, the appeal is incompetent for failure to comply with a condition precedent. It is accordingly also hereby struck out by me with N2.000.00 costs in favour of respondent.
UBAEZONU, J.C.A.: I have had a preview of the judgment of my learned brother Salami J.C.A. just delivered. I agree with him that the notice of appeal is incompetent and should be struck out. I also strike it out.
The failure of this appeal to take off is unfortunate. Unfortunate in the sense that counsel for the appellant failed to do what he ought to do. Learned counsel for the appellant who impresses me as an up-coming brilliant counsel has failed in this appeal for what in cross-examination in court I call ‘one question too many’. He failed because of three grounds of appeal are too many. His grounds I and 2 are perfectly in accord with section 220(1)(b) of the 1979 Constitution of this country being grounds of appeal which involve “questions of law alone”. These two grounds could have sustained this appeal. He however added too much salt in the soup by framing three other useless grounds of appeal. Those three grounds of appeal are not “questions of law alone”. They are either on fact or at the best on mixed law and facts. Those grounds are caught by section 220(1)(a) & (b) of the Constitution since the grounds are not based on a decision of the High Court sitting at first instance nor are they on questions of law alone.
The more pathetic thing about the appeal is that on being served with the notice and grounds of appeal, learned counsel for respondents who is another upcoming brilliant counsel quickly filed a notice of preliminary objection to the appeal for the failure of the appellant to comply with s. 221 of the 1979 Constitution which requires the appellant to obtain leave in the circumstances of his case. What the appellant ought to have done was to file a motion immediately on being served with the notice of preliminary objection and seek to strike out his grounds 3-5 of the grounds of appeals leaving grounds 1 & 2. He did nothing. He waited until the day of the appeal. He then sought to take a step which would have “the effect of over-reaching the preliminary objection. The important point is that on the day of the appeal, his notice of appeal was incompetent. That was not the end of the matter. He waited until counsel for respondent took his preliminary objection. It was too late in the day for him, at that stage, to seek to amend his grounds of appeal by seeking to withdraw grounds 3, 4 and 5. Counsel should be vigilant in the prosecution of his appeal.
Appeal struck out.