Tijani Amoo & Ors V Alhaji Busari Alabi (2003)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal from the Ruling delivered by the Court of Appeal, Ibadan Division, on the 28th of September, 1999 in appeal No. CA/1/M.70/ 97 wherein the Court of Appeal, (Onalaja, Adamu and Tabai, JJCA.), granted the respondent’s application by striking out the two Notices of Appeal dated the 27th day of June, 1996 and 4th July, 1996 filed by the appellants herein in Suit No. HSK/48/91 respectively at the Registry of the Court of Appeal and the High Court Registry, Saki, Oyo State, as being incompetent as same were filed outside the time prescribed by Section 25(2) of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990. But before the consideration of the Grounds of Appeal herein and the issues distilled therefrom, it is convenient at this stage to sketch out the background facts.

The respondents herein were the plaintiffs in Suit No. HOY/48/91 later transferred to Saki Division, Oyo State and renumbered HSK/48/91. On the said suit, the claims were against the appellants herein as the defendants. Immediately the Statement of Claim was served on the defendants, the defendants filed a Motion on Notice praying the court to strike out the suit against them on the ground, amongst others, that the court lacked the jurisdiction to entertain the suit. By a Ruling delivered on the 15th of June, 1992, the defendants’ application was dismissed by the trial court. The defendants being dissatisfied with the Ruling of the trial court filed a Notice of Appeal on the 24th of June, 1992 without seeking and obtaining leave of either the High Court or the Court of Appeal. It should be mentioned that the grounds were of mixed law and facts. Based on the purported Notice of Appeal, the defendants also filed a Motion on Notice praying the trial court to stay the proceedings in the suit pending the determination of the appeal. In the interval, Saki Judicial Division was created out of the Oyo Judicial Division as HSK/48/91. The defendants’ application for stay of proceedings was argued and refused on the grounds that the leave of either the High Court or Court of Appeal was not sought and obtained before filing the Notice of Appeal relied upon by the defendants as the basis for the application for stay of the proceedings, the grounds of appeal being of mixed law and fact. After some futile attempts, the defendants on 2/12/1993 filed an application praying amongst other reliefs, for an extension of time within which to appeal against the ruling delivered on the 15/6/992, leave to appeal and extension of time within which to apply for leave to appeal. By a ruling delivered by the Court of Appeal, Ibadan Division on 21/2/1994, the court refused the said application. The defendants felt unhappy with the Ruling refusing leave to appeal, appealed of this court in Appeal No. SC. 49/1999 and by the judgment of this court delivered on the 2/4/1996, the defendant’s appeal was allowed. This court per Uwais, CJN., stated:

“….. The appeal succeeds and it is hereby allowed. The ruling of the Court of Appeal is set aside. In its place, I grant the application as prayed. The Notice of Appeal to be filed in the Court of Appeal shall contain only the proposed 1st and 2nd grounds of appeal. ”

The defendants in pursuance of the extension of time to appeal to the Court of Appeal granted by this court aforesaid, caused to be filed two Notices of Appeal in the Court of Appeal, Ibadan and in the High Court, Saki on 27/6/1996 and on 4/7/1996 respectively. When the plaintiffs were served with the Notices of Appeal, they filed a Motion on Notice in the court below challenging the competence of the Notices of Appeal. The motion filed by the plaintiffs was in these terms:

“(1) An Order of the Honourable Court striking out the two Notices of Appeal filed by the Appellants/ Respondents in their suit, i.e. one filed on the 27/6/1996 at the Court of Appeal Registry, Ibadan, and the second one filed on 4/7/1996 at the Oyo State High Court Registry, Saki, Oyo State respectively for being incompetent.

(2) And for such further or other orders as this Honourable Court may deem fit to make in the circumstances,”

AND TAKE FURTHER NOTICE that the ground upon which this application is brought is stated hereunder:

“That the two Notices of Appeal filed in this suit pursuant to the Order for extension of time granted by the Supreme Court on Tuesday, the 2nd day of April, 1996, are incompetent, same not having been filed within the time required by Section 25(2) of the Court of Appeal Act, 1976,”

The said application was filed at the Court of Appeal, Ibadan Division on the 28/5/1997. The defendants filed a Notice to rely upon preliminary objection to the hearing of the plaintiff’s application, the grounds of the objection were :

“(1) The court below lacked the jurisdiction “to entertain the application inasmuch as the appeal has not been entered.” and (2) The -application was not made to the court below though there ‘are no special circumstances which make it impossible or impracticable to apply to the court below.”

The court below on the 28th of September, 1999 after hearing the argument of counsel decided that the two Notices of Appeal filed by the defendants were incompetent and the two notices were consequently struck out. The Court of Appeal per Onalaja, JCA.,with Adamu and Tabai, JJCA., concurring held :

On 1st April, 1996, the Supreme Court stated as follows:

“The Notice of Appeal to be filed in the Court of Appeal shall contain only the proposed 1st and 2nd grounds of appea1.’