Akpeh Nnaemeka & Ors V. Christopher Ozoekwe & Anor (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.C.A.
On the 12-10-2010, the Customary Court Nteje (then Awkuzu) granted the respondents leave to appeal against its decision in a civil suit to the High Court of Anambra State Pursuant to this leave, the respondents herein filed appeal No.OT/1A/2010 in the High Court of Anambra state at Otuocha on 13-10-2010.
The appellants herein filed appeal No. OT/2A/2010 at the same High Court complaining against the order of the Nteje Customary Court granting the respondents herein leave to bring appeal No.OT/1A/2010.
On 28-2-2011, the High court dismissed the preliminary objection of the appellants herein to the competence of Appeal No. OT/1A/2010 and granted the application of the respondents herein for an order extending the time for them to file their written argument of appeal No. OT/1A/2010 as appellants in that appeal.
By a motion on notice filed on 12-9-2011 in this Court, the appellants herein applied for an order extending the time within which they can seek leave to appeal against the above 28?2-2011 interlocutory decisions of the trial Court and leave to appeal against the said
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decisions made in Appeal no, OT/1A/2010. A copy of the notice of appeal they intended filing was attached to and exhibited with the application.
By a motion on notice filed on 27-9-2011 in the trial Court, the appellants herein applied for an order staying further proceedings in appeal No. OT/1A/2010 pending the determination of the appeal sought to be brought in this Court by means of the motion on notice in CA/E/200M/2011 filed in this Court and appeal No OT/2A/2010 pending in the trial Court. The application is supported by an affidavit of 14 paragraphs, and accompanying exhibits and written address. The respondents herein filed no counter affidavit and rather opposed the application on grounds of law. After considering the arguments in respect of the application, the trial Court on 6-10-2011 refused the application, dismissing it as having failed.
Dissatisfied with the 6-10-2011 ruling of the trial Court, the appellants herein on 12-10-2011 commenced his appeal No. CA/E/268/11 by filing a notice of appeal containing five grounds for the appeal.
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Both sides have filed, exchanged and adopted their respective briefs as follows: – appellant’s
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brief and respondents’ brief.
By a notice filed on 15-7-2014, the respondents indicated their intention to rely upon a preliminary objection to the appeal, which objection they argued in pages 3 to 7 of their brief on the ground that grounds 1, 2, 3 and 4 of this appeal are incompetent as appeal on those grounds cannot be competently commenced without leave of Court to so appeal first had and obtained because they are grounds of facts or mixed law and facts in an interlocutory appeal.
Before I delve into the merit of this appeal, let me first determine this preliminary objection to this appeal.
It is not in dispute that the 6-10-2011 ruling of the lower Court refusing the application for an order of stay of further proceedings in the pending Appeal No. OT/1A/2010 was made at an interlocutory stage of the pending proceedings. It is beyond argument that the ruling determined finally the issue of whether the application for the stay of further proceedings in appeal No. OT/1A/2010 was grantable because it foreclosed permanently the right of the parties therein to re-litigate the issue in that Court or Court of co-ordinate jurisdiction and rendered
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the trial Court or its equivalent functus officio on that issue as it could not revisit or reconsider its said ruling on that issue.
The recurring question in this kind of situation is whether a decision which finally determines an issue in a pending suit or appeal and did not determine finally the rights of the parties in the pending substantive suit or appeal is a final or interlocutory decision. Judicial opinion on this point is divided. Some have held that such a decision is interlocutory. The Supreme Court in Western Steel Works Ltd & Anor Vs lron & Steel Workers Union of Nigeria & Anor (1986) LPELR ? 3479 (Sc) held per Kazeem JSC that –
(1) A decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties (and not merely an Issue) in the case, and
(2) Where only an issue is the subject matter of an order or appeal, the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties…is interlocutory,
See similar decisions in Gomez & Anor V Cherubim Seraphim
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Society & Ors (2009) LPELR – 1331 (SC) Ebokam V Ekwenibe & Sons Trading Co (1999) 7 SC (pt 1) 39,The above decisions followed the decision of the Supreme Court in Akinsanya V UBA Ltd (1986) LPELR- 355(SC) which reviewed its previous decisions on the point and the tests adopted in resolving the distinction between interlocutory and final decisions.
On the other hand, the Supreme Court in Igunbor V Afolabi (2001) 11 NWLR (pt 723) 148 at 165 held that -“The determination of the question whether an order is interlocutory or final has never been one of mean difficulty. The test has been to look at the nature of the order made rather than the nature of the proceedings resulting in the order. What has to be considered is whether the order has finally determined the rights of the parties in the proceedings in issues appealed against and whether the rights of the parties in the substantive action have been finally disposed of see …? A final order or judgment at law is one which brings to an end the rights of the parties in the action. It disposes of the subject matter of the controversy or determines the litigation as to all parties on the merits. On
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the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in action, It is an order, which determines some preliminary or subordinate issue or settles some steps or questions but does not adjudicate the ultimate rights of parties, in the action. However, where the order finally determines the rights of the parties as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order. See ..,? The instant case as rightly submitted by appellant’s counsel, is an interlocutory motion by the appellant to be joined as co-administrators with the respondents. The order of the Learned Trial Judge granting the application determined the rights of the parties in the application. It is an order which did not require something else to be done in answer and without any further reference to itself or any other Court of co-ordinate jurisdiction. The order of the learned trial judge is therefore a
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final order. An appeal on the said order is as of right under Section 220(1) of the Constitution 1979.”
The decision was followed by this Court in Egbuche V Egbuche (CA/E/82/2008, decision of 9-12-2013 in which it held that per Agim JCA ?It is the lack of Jurisdiction of the Court that gave the decision or made the order to revisit or review it that makes it final”.
So a final decision is one which by its nature cannot be reconsidered by the Court that rendered it. The fact that the decision was made during an interlocutory trial or hearing of an issue in a pending suit will not rob it of its character as a final decision”.
It is obvious that the trial Court lacked the jurisdiction to revisit or review its 6-10-2011 ruling refusing the appellant’s application for an order of stay of further proceedings in appeal No. OT/1A/2010.
The ruling determined the right of the appellant to have the proceedings stayed and the right of the respondent to continue the proceedings. It clearly determined the merit of that application. Since the lower Court lacks the jurisdiction to reconsider it, the appellant whose application was refused can only
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appeal to this Court against that refusal as it has sought to do by his motion No. CA/E/200m/2011 in this Court. This Court in Egbuche V Egbuche held in respect of the refusal by the trial High Court of an application to amend pleadings that “It is beyond argument that the decision of a trial Court refusing the application of a party to amend his pleadings cannot be reviewed or reconsidered by the Court that refused the application. The decision determines the merit of the application to amend and the entitlement of the applicant to such amendment. The Court that rendered it or a Court of co-ordinate status has no jurisdiction to reconsider the decision. If the applicant is dissatisfied with the decision, he can only appeal against it to a Court higher in the judicial hierarchy and with the appellate jurisdiction to entertain the appeal. Therefore I hold that the ruling of the trial Court refusing the defendant’s application to further amend the further amended statement of defence is a final decision in a civil proceeding?..?
I am bound to follow the decision of this Court in Egbuche V Egbuchethat followed the Supreme Court decision in
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Igunbor V Afolabi. I have no reason to depart from it.
The 6-10-2011 ruling of the trial Court refusing the application for an order further staying the proceedings in Appeal No. OT/1A/2010 is a final decision. But it is not a final decision of a High Court in a civil or criminal proceeding before it sitting at first instance. It is a final decision made by the High Court in exercise of its appellate Jurisdiction in an appeal to it from a decision of Nteje Customary Court in a civil suit that arose in the said Customary Court. S, 241 (1)(a) of the 1999 Constitution cannot be invoked to appeal as of right against the final decision of the High Court on an issue in an appeal to it from a case originating in a Court below it. An appeal against such a decision cannot lie as of right under any of the provisions of S. 241 (1) of the 1999 Constitution which provides that –
“An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at the first instance.
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(b) Where the ground of appeal involves questions of law alone, decisions in any Civil or Criminal proceedings
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) Decisions made or given by the Federal High Court or a High Court—
(i) Where the liberty of a person or the custody of an infant is concerned,
(ii) Where an injunction or the appointment of a receiver is granted or refused
(iii) In the case of a decision determining, the case of a creditor or the liability of a contributory of the other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) In the case of a decree nisi in matrimonial cause or a decision or in an admiralty action determining liability, and
(v) In
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such other cases as may be prescribed by an Act of the National Assembly.”
The final decision that can be appealed against as of right under S. 241 (1) (a) of the 1999 Constitution is a final decision in any civil or criminal proceedings before a High Court sitting at first instance or in exercise of its original jurisdiction.
Since the decision is not appealable as of right under S. 241 (1) of the Constitution, it is appealable only with leave of Court first obtained by virtue of S. 242 (1) of the 1999 Constitution which provides that “subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave from the Federal High Court or that High Court or the Court of Appeal”.
It is not in doubt that no leave of Court to bring this appeal was first had and obtained before this appeal was filed on 12-10-2011 contrary to S .242 (1) of the 1999 Constitution.
The entire appeal is incompetent and not just grounds 1, 2, 3 and 4 of the appeal. Where the Constitution or a statute requires leave of Court to appeal against a decision, such leave to
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appeal must first be obtained before an appeal against the decision is commenced. An appeal that is legally required to be with leave, shall it filed without such leave first had and obtained is clearly incompetent and void.
In the light of the foregoing, I hold that the objection succeeds not for the reason that the decision is interlocutory or that grounds 1, 2, 3 and 4 of this appeal are of facts or mixed law and facts, but for the reason that the entire appeal is incompetent as no leave of Court to bring it was first obtained as required by S.242 (1) of the 1999 Constitution, since the decision is not appealable as of right under S.241 (1) of the same Constitution.
Having held that this entire appeal is incompetent there is clearly no need to consider its merit. But let me still consider the merits of the said appeal for whatever its worth may be.
The appellants’ raised the following issues for determination –
1. Whether the learned judge of the Court below was right in holding that appeal does not include an application for leave to appeal/trinity or that there was not appeal pending to sustain the application for stay for which he
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dismissed the appellants’ application for stay of proceedings? (Ground 1).
2. Whether the learned judge of the High Court was right in raising suo motu and for the first time in his decision or ruling without hearing from the appellants the issue that there was not proof before him of the pendency of appeal number OT/2A/2010 to warrant his staying appeal number OT/1A/20l0 pending the outcome of that appeal number OT/2A/2010. (Ground 3)
3. Whether the learned judge of the High Court was right in holding that there was not proof before him of the pendency of appeal number OT/21/2010 to warrant his staying proceedings in appeal number OT/1A/2010 (Ground 2).
4. Whether the learned judge of the High Court was right in giving preferential treatment to the respondents and/or their counsel by allowing them in oral argument despite the mandatory provision of Order 31 Rule 4 (2) of the High Court (Civil Procedure) Rules 2006 of Anambra State 2006? (Ground 4).
The respondents’ brief raised the following issues for determination-
1. “Whether the lower Court was right when it refused the Appellants’ application for stay of proceedings (Grounds 1, 2
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and 3)?.
2. “Whether the leave granted the respondents’ counsel to address the lower Court orally amounted to a preferential treatment (Ground 4).”
I will determine this appeal on the basis of the issues raised for determination in the appellants’ brief.
Let me now consider issue no. 1.
The part of the ruling of the lower Court issue no. 1 is complaining against reads thusly ? ?lt is indeed true that Section 30 of the Court of Appeal Act defines an appeal to include an application for leave to appeal. See also Order 1 Rule 2 of the Court of Appeal Rules 2002. It is equally true that a notice of appeal is filed in the registry of the Court from which the appeal emanates. What it means therefore is that where there is an application for leave to appeal against the judgment of the Court of Appeal, such an application may qualify as an appeal for the purpose of an application for a stay of execution. This is more so where the notice of appeal had already been filed in the Court of appeal Registry. In the instant case, no notice of appeal had been filed in the Registry of this Court. Even if the application for leave made to the
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Court of appeal succeeds, the applicants will still have to file the notice of appeal in the Registry of this Court. It is only after the notice of appeal had been filed pursuant to the orders of the Court of appeal that it could be said that there is a pending appeal. SEE IDRIS V AUDU (2005) 1 NWLR (PT. 908) 612. There is therefore no appeal pending before the Court of Appeal to sustain this application.”
Learned counsel for the appellant argued that by virtue of S.30 of the Court of appeal Act, the application for leave to appeal pending in this Court as appeal No. CA/E/200m/2011 can qualify as an appeal for the purpose of sustaining the application for an order to stay further proceedings in the lower Court and that the lower Court was wrong to have held that no appeal was pending in this Court to sustain the application to it for an order of stay of further proceedings in the appeal pending before it.
Learned counsel for the respondents argued in reply, relying on Order 1 Rule 5 of the Court of Appeal Rules 2011 and Omatsola V Omovie (2005) All FWLR (Pt. 263) 653 at 658, that for there to be an appeal, the notice of appeal must have been filed in
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the registry of the Court from which the appeal emanates and that the application for leave to appeal in Appeal No. CA/E/200m/2011 pending in this Court does not qualify as an appeal.
Let me determine the merit of the above arguments.
It is not in dispute that the appellants herein filed in this Court a motion on notice in Appeal No. CA/E/200m/2011 applying for leave to appeal against the 28-2-2011 decisions of the trial Court and that the said application is still pending in this Court and has not been argued, considered and granted and that it is until this application is granted and a notice of appeal is filed as prescribed by Order 6 Rule 2 (1) of the Court of Appeal Rules 2011, that an appeal against the 28-9-2011 rulings of the trial Court could be said to be pending. Since the application for leave to appeal is still pending and has not been granted and since no notice of appeal has been filed against the said rulings as prescribed by Order 6 Rule 2(1) of the Court of Appeal Rules, no appeal against them is pending in fact.
Without an appeal filed and pending, the Application to the lower Court for an order staying further proceedings in
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Appeal No. OT/1A/2010 pending “the appeal filed at the Court of Appeal, Enugu in appeal number CA/E/200/201” is incompetent. An application for an Order of stay of proceedings pending the determination of an appeal to be competent must be preceded by the filling of a Notice of appeal. The filing of an application for leave to appeal against the rulings cannot be equivalent to the filing of a Notice of appeal in the registry of the lower Court as required by Order 6 Rule 2 (1) of the Court of Appeal Rules. The former is an expression of a desire to appeal and is an act preparatory to appealing, while the latter is the appeal.
It is beyond argument that S.30 of the Court of Appeal Act 2004 has defined “an appeal” elastically to include the act of filing a notice of appeal and the expression of the desire to appeal by acts preparatory and precedent to the filing of a notice of appeal, such as an application for leave to appeal and application for extension of time to appeal.
?It may be attractive to argue that since S.30 of the Court of Appeal Act has defined an appeal to include application for leave to appeal, an application for an order of stay of
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proceedings or execution of a Judgment pending an appeal can be anchored or predicated on a pending application for leave to appeal, when no notice of appeal had been filed. My view is that such argument cannot be valid. S. 30 of the Court of Appeal Act by defining an “appellant” as any person who desires to appeal or who applies for leave to appeal or who appeals from a decision of the Court below, recognizes the distinction between an act preparatory to an appeal and the filing of the appeal. While both are regarded as forming part of the appeal process, the actual act of appealing only takes place when the notice of appeal is filed as required by Order 6 Rule 2 (1) of the Court of Appeal Rules. Order 1 Rule 5 of the same Court of Appeal Rules defines an “appeal” as the filing of the notice of appeal in the registry of the Court below.
It is settled by case law that an application for stay of execution or proceedings so as to enable a judgment or decision in the proceedings be challenged by an appeal or other legal process cannot competently be made when the appeal has not actually been filed. It can only be validly made after the filling of the notice
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of appeal against the judgment or decision. See Dingyadi V INEC (No. 2) (2010) LPELR-952 (SC), Intercontractors Nig. Ltd. V UAC Nig. Ltd. (1988) LPELR – 1521 (SC), Deduwa v Okorodudu (1974) 6 SC & Olanyinka V Elusanmi & Anor.(1997) INMR 277, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 @ 644 and Ofole V Ofole & Ors (Decision of this Court in CA/E/72/1999 delivered on …..)
In the light of the foregoing, I uphold the decision of the lower Court that there was no pending appeal to sustain the application for an order of stay of further proceedings pending appeal to this Court.
Issue no. 1 is resolved in favour of the respondents.
Let me consider issues 2 and 3 together.
Learned Counsel for the appellants argued under these issues that the lower Court’s decision refusing to stay further proceedings in Appeal No. OT/1A/2010 pending the determination of Appeal No. OT/2A/2010 because processes showing the existence and pendence of the later appeal were not attached to the application is wrong. The part of the ruling complained against here states thusly- “In this application, it was also sought to stay further proceedings in this appeal
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pending the determination of Suit No. OT/2A/2010. No process in that suit was exhibited to this application to show that there is such an appeal. Courts do not speculate on the contents of documents not before it.” (sic)
Learned Counsel for the appellants argued that the deposition in the affidavit in support of the application that Appeal No. OT/2A/2010 exists and is pending before the lower Court obviated the need to exhibit the appeal processes showing its existence, because the said deposition was not challenged or contradicted by a counter affidavit, that the said Appeal no. OT/2A/2010 was pending before the same Judge and so the Judge was duty bound to take judicial notice of it. These arguments are not valid because the basis for the prayer for an Order staying further proceedings in OT/1A/2010 pending the determination of OT/2A/2010 is stated in ground 3 for the application in the motion paper thusly “Appeal No. OT/2A/2010 is challenging the leave granted by the Customary Court pursuant to which this Appeal No. OT/1A/2010 has been brought and if the appeal in that OT/2A/2010 succeeds, it dispossess off this appeal OT/1A/2010 as same with abate
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hence it will be improper to continue with this appeal OT/1A/2010 as same is an abuse”. This ground for the application made it mandatory for the application to be accompanied by at least the notice and grounds of appeal in OT/2A/2010 and the reliefs sought therein that would show that the success of appeal OT/2A/2010 will terminate Appeal No. OT/1A/2010. This is a conclusion that can be reached only upon a consideration of the grounds of appeal and the reliefs sought in Appeal No. OT/2A/2010. Such a conclusion cannot be reached from the bare deposition that such an appeal is pending. So it is not enough to allege that the appeal is pending without placing before the trial Court the materials that support the ground for the application. The appellant did not place any materials before the Court from which it can determine if the success of Appeal No . OT/2A/2010 would render futile Appeal No. OT/1A/2010. The trial Court was therefore right when it held that it cannot speculate on the content of documents not before it. The law is settled by a long line of decisions that a Court should not speculate on what is not before it. Speculation is not a proper course of
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exercise of the judicial function of a Court. See ACB Ltd V Emostrade Ltd (2002) 4 SC (pt. II) 1.
The argument of learned counsel of the appellants under issue 2 that the issue of the absence of OT/2A/2010 appeal processes was raised suo motu by the lower Court and determined without affording the parties the opportunity to address on it is not supported by the record of this appeal which show clearly at page 18 that the issue was raised by S. O. Nworie, Learned counsel for the respondents herein during his oral address in reply to the written address of Chief I. M. Anah, Learned counsel for the applicants herein. Mr Nworie submitted that “secondly, No process relating to suit No OT/2A/2010 is before this Court. We urge the Court to dismiss this application”. So, the argument that the lower Court raised the issue suo motu has no factual basis.
In the light of the foregoing, issues 2 and 3 are resolved in favour of the respondents.
Let me now determine issue No. 4.
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Learned Counsel of the appellants has argued that since the respondents failed to file any process including a written address in response to the ones filed and served upon them by
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the appellants, the trial Court acted contrary to Order 31 Rule 4 (2) of the Anambra State High Court (Civil Procedure) Rules 2006 in granting them leave to address it orally in reply and that the lower Court relied on their said oral argument to refuse the appellant’s application.
Order 31 Rule 4 (2) of the 2006 Anambra State High Court (Civil Procedure) Rules state thusly –
“where any party fails to file a written address or comply with the time limits set out above for filing and serving the written addresses, he will be deemed to have nothing to urge the Court and shall not be heard in oral argument.”
It is not in dispute that the respondents herein failed to file a written address in response to the written address of the appellants herein in support of their application for stay of further proceedings.
Learned Counsel of the respondents argued in reply that the lower Court in the exercise of its discretion and in the interest of justice granted leave to the respondents’ counsel to address it orally, that the record of the proceedings of 28-9-2011 show that the two motions filed on 27-9-2011 were served on the respondents on 28-9-2011
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and was argued same day, that after the oral address of the respondents. Learned Counsel of the appellants made a reply that the appellants have not shown the injustice they have suffered by the grant of leave to the respondents to address orally and that the trial Court judiciously and judicially exercised its discretion in granting the said leave to the respondents counsel to address it orally.
Let me consider the merits of the above arguments.
I think that the decision of the lower Court in giving the respondents leave to address it orally is justified by the justice of the peculiar circumstances of the case and that decision and the oral address should not in the said circumstances and by virtue of Order 5 Rule 1 (2) of the 2006 Anambra State High Court (Civil Procedure) Rules be nullified.
The record of the proceedings of 28 9 2011 show that Learned Counsel for the appellants herein informed the Court thusly- “I have only just now served Mr. Nworie with two motions I filed yesterday”. Learned Counsel for the respondents then said “We are ready to proceed”. Learned Counsel for the appellants then moved his motion. Thereafter, the Learned
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Counsel for the respondents stated thusly – “We oppose the application and we seek the leave of the Court to reply orally”. There is no indication that the appellants opposed or did not oppose the respondents? application. The Court granted it. Learned Counsel for the respondents made his oral reply and thereafter, Learned Counsel for the appellants replied on points of law without more.
I think that the fact that the appellants’ motion and accompanying affidavit and address were just served on the respondent on 27-7-2011, the day before the hearing of the motion, the fact that the respondents avoided waste of time by not invoking their right to more and sufficient time to react to the said processes, the fact that the appellants did not oppose the respondents application for leave to orally address, justify the decision of the lower Court to allow oral address contrary to the said Order 31 Rule 4 (2). The appellants herein have not shown why that decision and the oral address it allowed should be nullified by this Court for non-compliance with Order 31 Rule 4 (2). The appellant, who did not object to the application, replied to the respondents’ oral
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address without complaining that it violates the said Order 31 Rule 4 (2). The appellants have not shown or even alleged that the decision to allow the oral address and the oral address caused them injustice in any way. By virtue of Order 5 Rule 1 (2), the said decision and oral address are mere irregularities that cannot be vitiated until the Court declares them nullities. The said Order 5 Rule 1 (2) state thusly –
“where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any direction as he thinks fit to regularize such steps.”
In any case, this issue No. 4 and the ground 4 of this appeal from which it is derived and the arguments of the issue are incompetent because the issue is being raised here in this Court for the first time as a fresh issue without any prior leave of Court to so raise it as a fresh or new issue on appeal. Being an issue of non-compliance with the Anambra
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State High (Civil Procedure) Rules 2006, it ought to have been timeously raised immediately after the respondents applied for leave to reply orally. This was not done. The appellants did not raise it even when they replied to the respondents’ oral address. So, throughout the proceedings in the lower Court leading to this appeal, it was not raised. Order 5 Rule 2 (1) of the same rules limit the time to which the issue can be raised before the complaining party takes any fresh step after becoming aware of the irregularity. It is settled law that a party is deemed in law to be aware of such irregularity in a process upon having notice of the process. In our present case, the application for leave to orally address was made in the presence of appellants’ counsel in open Court. Therefore he was at that time aware that the application ran contrary to Order 31 Rule 4 (2), yet he did not object to it, did not complain about the leave to address orally and the address until judgment.
The appellants are now raising it in this appeal for the first time, when they had reasonable opportunity to do so in the lower Court during the hearing of the application for stay of
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further proceedings. Order 5 Rule 2 (1) bars them from bringing such complain after they had taken steps by replying to the oral address of the respondents. Assuming their complaint was not caught by the limitation of time in Order 5 Rules 2 (1) of the said 2006 Rules, the appellants still need leave to raise it as a fresh issue in this appeal. Since no such leave was obtained before ground 4 of this appeal was filed, then the said ground of this appeal is incompetent and void. It is settled law that a fresh issue of procedure cannot be raised on appeal without the leave of Court to raise it. A fresh issue raised on appeal without leave of Court is incompetent and void.
Since ground 4 of this appeal is incompetent, it follows that issue No. 4 deriving therefrom and the arguments thereunder are equally incompetent.
It is also settled law that issues for determination in an appeal can only validly be raised from competent grounds of appeal. An issue for determination derived from an incompetent ground of appeal would be incompetent. Equally arguments in an appeal must be based on competent issues and grounds and would be incompetent if the issues and or
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grounds upon which they are based are incompetent.
For the above reasons, issue No. 4 is resolved in favour of the respondents.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The ruling of the High Court of Anambra State sitting at Otuocha on 6 -10-2011 in Suit No. OT/1A/2010 per J. I. Nweze J, is hereby upheld and affirmed.
The appellants shall pay costs of N100, 000.00 to the respondents.
Other Citations: (2016)LCN/8990(CA)