Ndukkie Esiri & Ors. V Uzor Idika & Ors (1987)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This short matter arose by way of a preliminary objection raised by learned Senior Advocate appearing for the plaintiffs/respondents in the main appeal. The objection, brought under Order 2, Rule 9 of the Supreme Court Rules,1985 was in these terms

“TAKE NOTICE that the Respondents intend to raise a preliminary objection to the appeal. The Grounds of objection are as follows

1 The Notice and Grounds of Appeal filed on 28/2/86 p.179 involved questions of fact or mixed law and fact.

2 No leave of Lower Court or of the Supreme Court was sought for and obtained prior to the filing of the Notice and Grounds of Appeal on issues of mixed law and fact in accordance with the provisions of Section 213 sub-Section 3 of the Constitution of the Federal Republic of NIGERIA.

3 Where no such leave was obtained prior to the filing of the Notice and Grounds of Appeal involving questions of fact or mixed law the said Notice and Grounds of Appeal are incompetent.

4 The said Notice and Grounds of Appeal which entirely and completely involve questions of fact or mixed law and fact are null and void.

5 The Order of court on 25/3/86 granting leave to appeal and deeming the Notice and Grounds of Appeal as being properly filed on 28/2/86 could not and did not have the effect of giving life to any incompetent Notice and Grounds of Appeal. Ex nihili nihil fit, Court could not possibly build up something on nothing. Leave of Court was a condition precedent to the filing of the Notice of Appeal.

6 After leave was obtained on 25/3/86 no new Notice and Grounds of Appeal was filed despite the fact that the Appellants were within time to do so.

7 The conditions of Appeal given are incompetent since the Notice and Grounds of Appeal upon which those conditions are given are incompetent.

8 There has been no extension of time within which to apply for leave to appeal and to appeal.

9 The Court lacks jurisdiction to entertain the appeal”.

This preliminary objection was supported by an affidavit sworn to by AGWU AGNA URO which very succinctly set out the events in the Court of Appeal which led to this object. Paragraphs 4,5,8,9, 11, 12, 13, 15 and 16 particularly contain the core of the objection. Those paragraphs were in these terms

“4 That after the judgment of the Court of Appeal in this case, the Appellants on 28th February, 1986 filed their Notice and Grounds of Appeal.