3PLR – CHIEF J.O. AWHINAWHI & ANOR. V. CHIEF S. E. OTERI & ORS.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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CHIEF J.O. AWHINAWHI & ANOR.

V.

CHIEF S. E. OTERI & ORS.

IN THE SUPREME COURT OF NIGERIA

HOLDEN IN LAGOS

SC.31/1983

ON MONDAY, 7TH MAY

3PLR/1984/14  (SC)

 

OTHER CITATIONS

(1984) 5 SC p. 38

 

BEFORE THEIR LORDSHIPS

GEORGE SODEINDE SOWEMIMO, CJN

AYO GABRIEL IRIKEFE, JSC

MOHAMMED BELLO, JSC

ANDREWS OTUTU OBASEKI, JSC

KAYODE ESO, JSC

ANTHONY NNAEMEZIE ANIAGOLU, JSC

AUGUSTINE NNAMANI, JSC

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL- no proper appeal pending before the Court of Appeal when it pur­ported to deal with this matter- Proper order in the circumstance

 

REPRESENTATION

Mr. A.O. Akpedeye, for the Appellants

Mr. F. H. Eduvie, Legal Adviser, Bendel State Ministry of Justice, for the Respondents.

 

SOWEMIMO CJN. There was no proper ground of appeal filed before the Court of Appeal. The additional grounds of appeal which were later filed by leave of court were out of time. There­fore there was no proper appeal before the Court of Appeal and it was outside its jurisdiction to entertain it and give judgment. In the circums­tances of this appeal therefore, the judgment of the Court of Appeal must be set aside. The judgment of the High Court from which the res­pondents had appealed is the only subsisting Judgment in this matter and will therefore be restored.

 

The appeal is therefore allowed and the respondents will pay N300 to the appellants.

 

IRIKEFE, JSC: There being, on the admission of counsel for the parties no proper appeal pending before the Court of Appeal when that court pur­ported to deal with this matter, this appeal is allowed and the judgment of the Court of Appeal dated 27/2/1981 is hereby set aside and the decision of the court of first instance is hereby restored in full. N300 costs in favour of the appellants in this court.

 

BELLO JSC. The notice of appeal filed in the Court of Appeal was defective in that there was no proper ground of appeal therein. Amended grounds were filed out of time but without having obtained leave to do so. Consequently, there was no proper appeal before the Court of Appeal and this is sufficient ground to set aside the judg­ment of the Court of Appeal.

 

The appeal is accordingly allowed. The judgment of the Court of Appeal set aside and the judgment of the trial Court restored. I agree with the order as to costs made by the Chief Justice.

 

OBASEKI JSC. Both counsel having agreed (1) that the notice of appeal from the High Court to the Court of Appeal was defective in that there was no valid ground of appeal stated in the notice and (2) that there was no extension of time to file a proper notice of appeal applied for and obtained, the appeal to the Court of Appeal was incompetent.

 

There being no appeal properly before the Court of Appeal, the Court of Appeal erred in law in assuming jurisdiction to hear the appeal, and its judgment in the matter is a nullity as being given without jurisdiction.

 

This appeal succeeds and is hereby allowed. The judgment of the Court of Appeal is hereby set aside and in its stead an order striking out the appeal to that court is hereby substituted. The judgment of the High Court, Ughelli, is here­by restored and affirmed.

 

The appellants will have the costs of this appeal assessed at N300.00.

 

ESO JSC. In this court, it has been pointed out to learned counsel that there was no appeal before the Court of Appeal having regard to the defec­tive notice of appeal filed before that Court. The only ground of appeal specifies “weight of evidence” which is no ground of appeal in civil cases. In other words the notice of appeal contains no ground of appeal. A fortiori, the proceeding before the Court of Appeal were null. The only judgment subsisting therefore, is the judgment of the High Court

 

I agree therefore that the appeal be allowed. The decision of the Court of Appeal is set aside. The decision of the High Court is hereby restored.

 

I abide by the order as to Costs in the judg­ment of his Lordship the Chief Justice of Nigeria.

 

ANIAGOLU JSC. Both counsel have agreed that there was no proper appeal pending before the Federal Court of Appeal by reason of the fact that the only ground of appeal of the purported appeal before it was defective. On the date when the ground of appeal. was purportedly amen­ded the period for filing appeal had expired and there being no extension of time within which to file an appeal, the purported amendment was a nullus acta. Therefore, the judgment of the Federal Court of Appeal on 27th February 1981 was without jurisdiction since there was no proper appeal pending before it. The only valid subsisting judgment was that of the High Court which must be and is hereby confirmed in the absence of any judgment of the Federal Court of Appeal. The appeal is, therefore, allowed and the judgment of the Federal Court of Appeal set aside with M300.00 costs to the appellants.

 

NNAMANI JSC. It is clear that in the notice of appeal there was a ground of appeal not known in civil matters. The respondents realizing this filed a motion for leave to file additional grounds of appeal dated 17th November, 1980. Leave to file this was granted by the Court of Appeal. However, if the original notice of appeal was defective, no additional grounds could be hung on it. Besides, these additional grounds were not filed within time nor was there exten­sion of time to enable respondents file notice of appeal. In the circumstances, I am also of the view that there was no appeal before the Court of Appeal and the proceedings there were null and void. I would therefore allow the appeal and restore the judgment of the High Court. I abide by the orders as to costs contained in the judg­ment of the learned Chief Justice of Nigeria.

 

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