Aluko And Oyebode V. Mr. Golden Leson Awi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. DATTIJO MUHAMMAD, J.C.A.(OFR) (Delivering the Lead Ruling)

By his Notice of motion filed on 25th February, 2010, the applicant seeks the order of this court to dismiss the appeal initiated by the respondent. The application is predicated on the grounds that the appellant/respondent has failed to obtain leave of either the lower court, the Rivers State High Court, or this court before appealing against the interlocutory decision of the former delivered on 26th day of February, 2009 in suit No PHC/1914/2008. The failure to obtain leave before filing the appeal violates section 242 of the 1999 constitution and section 24 of the Court of Appeal Act. Having so appealed, respondent has further failed to diligently prosecute the appeal by refusing to file his brief of argument within the time provided for by order 17 rule 2 of the Court of Appeal rules 2007.

The applicant relies on an eleven paragraph affidavit he deposed to and filed in support of his application. The facts which inform the application are brief and are as contained in the supporting affidavit. I shall attempt a summary at once.

The applicant commenced suit No. PHC/1914/2000 against the respondent at the Rivers State High court. The latter, after filing his statement of defence, raised a preliminary objection on the grounds that the originating process in the suit having been irregularly issued, the court lacked the jurisdiction to proceed. The lower court dismissed the objection. Aggrieved by the decision, the respondent appealed to this court and by 18th May, 2009 had, in compliance with order 8 rule 4 of the Court of Appeal Rules, the record of Appeal compiled and transmitted to this court. The appeal was assigned Appeal No. CA/PH/261/2009. The applicant avers more particularly in paragraphs 8, 9, 10 and 11 of the affidavit in support of his motion thus:

“(8) as at the date of deposing to this affidavit, the Appellant/Respondent has failed to file in this court a written brief in this court a written brief of argument being succinct statement of his argument on this appeal.

(9) The forty five days limited by the court of Appeal rules 2007 has since lapsed on the 5th day of July, 2009.

(10) The Appellant/Respondent never obtained the leave of the High court of Rivers state nor the leave of this Honourable court before filing the Notice of Appeal at pages 180 to 182 of the record of Appeal.

(11) That I or a legal practitioner of choice shall in moving the application for the dismissal of this appeal rely on the record of this appeal (CA/PH/261/2009).”

The affidavit containing the foregoing paragraphs deposed to by the applicant was filed on 25th February, 2009.

The respondent relies on a four paragraph counter-affidavit to oppose the application. Therein, it is averred that respondent’s appeal was filed on 12th March, 2009 while its brief of argument was filed on 23rd February, 2010 along with a motion seeking enlargement of time within which the said brief is to be filed. It is also asserted that respondent requires no leave of either the Rivers State High court or this court before filing its appeal.

Following an order of this court, parties have filed and exchanged written addresses on the Notice of motion to which this ruling relates. These have been adopted and relied upon as arguments for and against the application. In the applicant’s written address a lone issue, on the basis of which he urges the application should be determined, has been formulated. The issue reads:

“Whether the grounds of Appeal are competent” Learned applicant’s counsel contends that the decision the respondent appeals against is an interlocutory one having not finally determined the rights of the parties. By section 242 of the 1999 Constitution, it is argued; such appeals require the leave of either the trial court, or the Court of Appeal for same to be competent. Respondent’s appeal having been filed without such leave is accordingly incompetent. Relying on Onwuta & Ors. V. A.G. Anabr (2006) All FWLR (PT 333) 1775 at 1783 Olatunde v. O.A.U & Anor. (1998) 5 NWLR (PT. 549) 178 at 185; Balogun Adejobi (1995) 2 NWLR (PT 375) 131 at 161 and New Nigerian Bank Plc v. Dencleg Limited & Anor. (2002) 9-1- SC 167, learned applicant counsel urges that respondents incompetent appeal be struck out.

The issue the respondent formulated in his written address as calling for consideration in our determination of the instant application reads:

“Whether the appellant’s/respondent’s appeal as contained in the grounds of appeal is hinged on issues of pure law.”