Ihenacho & Ors V. Egbula & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C.

This is an appeal against the decision of the Court of Appeal Port Harcourt Division delivered by Coram J. O. Ogebe, J.C.A., S.A. Nsofor, J.C.A. and A. J. Ikongbeh, J.C.A. on 27/12/2001 wherein the Court of Appeal unanimously affirmed the judgment of the High Court of Justice Imo State, holden at Owerri. The facts that led to this appeal are as follows:

In 1975, the appellants who were the plaintiffs at the High Court had a dispute with the respondents over landed property delineated in plan No. JJ. 38/63 (p. 192 at 35) in which they claim belongs to Ehihie and as descendants of Ehihie they had title to that piece of land. They gave the history of how the land devolved on them through their ancestor Ehihe. The respondents who were the defendants, at the High Court pleaded estoppel per rem judicata, evidencing the judgment of their predecessors in title as regards the instant land in dispute and urged the Court to dismiss the suit. The trial Court, while it upheld the defence of res judicata also considered the entirety of the case on the merit and dismissed the claim of the appellants. The Court of Appeal affirmed the judgment of the trial Court. Dissatisfied with the judgment of the lower Court, the appellant filed this appeal.

I will commence by dealing with the preliminary objection raised by counsel for the respondents regarding the competence of the notice of appeal filed by the appellants before dealing with the crux of the appeal.

The respondents in their brief have raised a notice of preliminary objection on pg. 3 par. 3.0 therein challenging the hearing of this appeal on the grounds that:

a. The notice of appeal was filed out of time rendering the appeal incompetent.

b. The notice of appeal contains issues of mixed law and facts which were raised without the leave of this Court or the lower Court.

On the first head of objection, learned respondents’ counsel in the brief settled by S.C. Imo Esq., submitted that the judgment of the Court of Appeal which is being challenged by this appeal was delivered on the 27th day of November, 2001. The notice of appeal upon which this appeal is founded was filed on the 26th February, 2002. By the computation of time, the 90 (Ninety) days within which the appellants must file his notice of appeal expires on the 25th February, 2002. Counsel insisted that the notice of appeal in this appeal was therefore filed out of time and without the requisite leave of this Court and therefore urged this Court to strike out this appeal for being incompetent. Counsel cited Madam Oni Amudipe v. Chief Ogunleye Arijodi (1978) 9 & 10 SC @ 27.

The appellants submitted that contrary to the respondents’ view in their amended brief that the appellants had 90 days within which to file their notice of appeal, Section 27(2)(a) of the Supreme Court Act, 1960 (Cap. S.15) prescribes three months for persons desirous of appealing against the final decisions of the Court of Appeal to file their notice of appeal. He urged the Court to hold that the time within which notice of appeal is to be given by persons desirous of appealing to the Supreme Court against the final decision of the Court below is three months and not 90 days.

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Thus, while the respondents’ counsel is claiming that the time to appeal is 90 days which means the notice of appeal should have been filed on 25/2/2002. Counsel also argued that by S.15(4) of the Interpretation Act, public holidays are excluded from computation of time. He cited Mustapha Adenekan v. Alh. Ajayi & Ors (1998) 8 NWLR (Pt. 562) pg.472 at 479.

My Lords, in resolving the first head of objection, it is to be noted there is no ambiguity that this civil appeal is against the decision of the lower Court. The procedure for the commencement of an appeal in this Court in civil causes like the instant appeal is as prescribed by the Supreme Court Act. By Section 27(2)(a) of the Supreme Court Act (Cap. S15, LFN 2004), the applicant was supposed to appeal within three months of the judgment delivered on 27/11/01. By the provision of the Act, the Supreme Court may extend the period prescribed for filing an appeal. The Supreme Court Rules 1999 in Order 2 Rule 31 prescribed conditions to be followed in bringing an application for extension of time within which to appeal.

It is important to state here that according to Section 15(2)(a) of the Interpretation Act Cap. 123 L.F.N. 2004 which provides as follows:

A reference in an enactment to a period of days shall be construed.