Gladis Samuel V. Yahaya Etubi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is from the decision of the Kogi State High Court (to be called simply as the High Court hereafter) sitting in its appellate jurisdiction in appeal No.AYHC/2A/2007 delivered on the 9/12/09. The High Court in the said decision had struck out the Appellant’s appeal on the ground that it was incompetent because the notice of appeal was filed in that Court instead of the Registry of the Upper Area Court from where the said appeal emanated as provided for by Order 48, Rule 1 of the Kogi State High Court (Civil Procedure) Rules 2006 (to be henceforth referred to as 2006 Rules).

Being dissatisfied with the above decision by the High Court, the Appellant filed a notice of appeal against it on the 21/12/09 containing two grounds of appeal. Because of the challenge on the competence both the notice and grounds of the appeal, it is expedient to set out the two grounds contained on the notice of appeal, without their particulars. They are thus:-

“GROUND ONE

The Lower Court in its appellate capacity erred in law when it held that the Notice of Appeal against the decision of the Upper Area Court, Anyigba filed at the Registry of this Court is incompetent and proceeded in that error to strike out the appeal, thus occasioning a miscarriage of justice.

GROUND TWO

The Lower Court in exercise of its Appellate jurisdiction erred in law in holding that the appeal in this case has not been initiated in accordance with the due process of law since the condition precedent to bringing an appeal before the Appellate Court has not been fulfilled to enable this Court exercise its jurisdiction and thereby caused a miscarriage of justice.”

The learned Counsel for the parties to the appeal in line with the practice prescribed by the Rules of Court, filed briefs of argument in support by their respective positions.

The Appellant’s brief was filed on the 15/9/10 while a notice of preliminary objection and the Respondent’s brief in which it was argued, were filed on the 4/10/10. The Appellant’s Reply brief filed on the 23/11/10 completed the settlement of briefs in the appeal.

At the hearing of the appeal on the 15/3/11, learned Counsel for the Respondent had moved the preliminary objection by adopting the arguments thereon at pages 2-4 of the Respondent’s brief. He urged us to uphold same and strike out the notice of appeal for being incompetent. Learned Counsel for the Appellant adopted his submissions on the preliminary objection as set out at pages 2-4 of the Appellant’s Reply brief and urged us to dismiss it.

Learned Counsel thereafter adopted their respective briefs on the merit of the appeal and each urged us to uphold their submissions on the issues canvassed therein. We were invited to allow or dismiss the appeal as the case may be.

As required by prudence and established principles of law on the procedure and judicial practice, I intend to determine the preliminary objection raised by the Respondent on the competence of the notice of appeal first since its aim is to terminate the proceedings in the appeal at its stage because it goes to the jurisdiction of the court to entertain the appeal if successful.

The law is now elementary that judicial proceedings conducted by a court of law without the necessary or requisite jurisdiction, no matter how otherwise well conducted, would be null and void ab initio for want of the judicial power and authority on the part of the court to conduct such proceedings. See: UZOUKWU v. EZEONU II (1991) 6 NWLR (2000) 708, OKIKE V. L.P.D.C. (No.2) (2005) 7 SC III 75,

N.P.A. V. EYAMBA (2006) ALL FWLR (320) 1022