Auto Import Export V. J. A. A. Adebayo & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

When this appeal came up for hearing on the 7th day of October, 2002, learned counsel for the parties adopted their respective briefs of argument and indicated that they had nothing to add. Of considerable significance, however, is the fact that all three respondents in their briefs of argument raised preliminary points of law which, in the main, turned on the vital issue of jurisdiction. The question canvassed is whether this court has jurisdiction to entertain this appeal. The submission of learned respondents’ counsel is that this appeal is improperly brought before the court, that it is incurably defective and incompetent and that this court is consequently deprived of jurisdiction to entertain it.

Learned leading counsel for the 1st and 3rd respondents, Chief Duro Ajayi, did give notice of his preliminary objection to this appeal in his brief of argument. Relying on the provisions of order 2 rule 9(1) of the Supreme Court Rules, 1985 learned counsel duly gave notice of his preliminary objection. It was argued in his brief of argument that this appeal is not properly brought before the court as the notice of appeal was filed out of time on the 4th day of October, 1996 whereas the judgment of the court below appealed against was delivered on the 1st day of July, 1996. Chief Ajayi submitted that this is contrary to the provisions of section 27(2) (a) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990 which in an appeal in a civil case, prescribe 3 months within which to appeal against a final decision of the Court of Appeal. He argued that reckoning from the 2nd July, 1996, this appeal which is against a final decision of the Court of Appeal ought to have been filed on or before the 1st October, 1996. He conceded that as the 1st of October of every year is a public holiday in this country, this appeal ought to have been filed the next working day which, in the present case, is the 2nd of October, 1996. He submitted that this appeal was not filed until the 4th day of October, 1996, two clear days out of time. Learned counsel called in aid various decisions of this court, inclusive of Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143 at 146 and Nalsa and Team Associates v. NNPC (1991) 8 NWLR (Part 212) 652 at 678 in support of his contention. He stressed that the competence or otherwise of any appeal touches on the issue of the jurisdiction of the appellate court to entertain the cause. He argued that in so far as the notice of appeal in the present proceeding was filed out of time, the appeal is incompetent and ought to be dismissed.

Learned counsel for the 2nd respondent, Ifeanyi Nweze Esq. in his brief of argument substantially raised by way of preliminary objection the same points canvassed by Chief Ajayi. He pointed out that the judgment appealed against was delivered on the 1st day of July, 1996 whilst the notice of appeal against the decision was filed on the 4th October, 1996. He submitted that the notice of appeal was filed more than three months after the delivery of the judgment appealed against. He stated that to his knowledge there was no application to this court for extension of time within which to file this appeal. He therefore submitted that the appeal is incompetent.

Learned counsel referred to the decision of this court in Akeredolu v.Akinremi (1985) 2 NWLR (Pt.10) 787 in support of his contention and he urged the court to strike out the appeal.

Learned counsel for the appellant, O. M. Sagay Esq. in his reply brief of argument submitted that the notice of preliminary objection raised by the respondents is totally misconceived. He argued that the appellant on point of fact filed a motion on notice dated the 20th day of April, 1998 seeking for various reliefs. These reliefs included an order for leave to appeal, extension of time within which to seek leave to appeal, extension of time within which to appeal and an order deeming as properly filed and served the notice of appeal dated the 4th October, 1996 filed on the same date at the registry of the Court of Appeal, Lagos Division against the decision in issue. Learned counsel pointed out that by an order of this court made in chambers on the 17th day of November, 1998 the above reliefs were granted. He therefore contended that the respondents could not be right to suggest that there is no proper notice of appeal or that this appeal is incompetent by virtue of the fact that it was filed out of time without the leave of court.

In further argument, Chief Duro Ajayi, in his amended respondents’ brief submitted that the order of this court made in chambers on the 17th day of November, 1998 purportedly granting the appellant leave to appeal, extension of time to seek leave to appeal and extension of time within which to appeal against the decision of the Court of Appeal in issue is a complete nullity, having been made without jurisdiction. The contention of the respondents is that the said order which was made upon a motion on notice dated the 20th April, 1998 was at no time served on them or on their counsel whether personally or by whatever means. They submitted that the non-service of the process on them before the application was heard in chambers by the court and the relevant orders made constituted a gross irregularity which rendered the entire proceedings of the 17th November, 1998 incurably defective and null and void. They argued that the said orders of this court made on the 17th November, 1998 which purported to regularise the appeal is totally without effect and null and void. In this regard, reliance was placed on the decision of this court in Madukolu v. Nkemdilim (1962) 2 SCNLR 341. (1962) All NLR (Part 4) 587. This court was finally urged to uphold the respondents’ notice of preliminary objection and to strike out this appeal on ground of incompetence.

There was finally the appellant’s reply to Chief Ajayi’s further argument which Mr. Sagay dismissed as misconceived. Mr. Sagay contended in his “appellant’s reply to the preliminary objection raised in the amended brief of argument of the 1st and 3rd respondents filed on the 29th September, 2002 ” that the appellant’s notice of appeal which the preliminary objection is challenging is properly brought before the court even without any order for extension of time within which to file the appeal. He pointed out that the judgment appealed against was delivered on the 1st July, 1996 and that a substantial part of the three months within which to appeal fell into the vacation period of the Supreme Court. He submitted that it is common knowledge by virtue of the practice direction issued by the Honourable Chief Justice of Nigeria that time does not run during vacation in the Supreme Court. He submitted that the motion for extension of time within which to appeal filed by the appellant on the 20th April, 1998 was therefore superfluous. He referred to the provisions of order 2 rule 28(1) of the Supreme Court Rules 1985 whereby every application to the court shall be by notice of motion and pointed out that the respondents failed to adopt this procedure. Citing the decision in Nzom v. Jinadu (1987) 1 NWLR (Part 51) 533, learned counsel argued that assuming that the respondents were not served with the motion on notice for extension of time within which to appeal, the appellant having done all that was expected of it cannot be blamed for the non-service. He concluded by relying on the decision of this court in Babatunde v. Olatunji (2000) 2 NWLR (Pt. 646) 557 at 559 in which it is stated that the option open to a person against whom an order was made or judgment given is to apply to the court to discharge the order or appeal against the judgment so that it might be set aside as the case may be. He pointed out that the order of the 17th November, 1998 not having been appealed against by the respondents with a view to setting it aside by a court of competent jurisdiction remained valid and binding. He relied on the obiter dictum of Romer, LJ. in the English case of atkinson v. atkinson (1952) 2 All ER 567 where the learned Lord Justice observed thus:

“It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void”.

Learned counsel therefore urged the court to dismiss this preliminary objection.

A number of important issues have been canvassed by the parties in this preliminary objection. One of the more important of the issues deals with whether, as contended by the appellant, this appeal was filed within the time prescribed by law and therefore competent. The second question will only arise if the answer to the first issue is in the negative. This concerns whether, as contended by the respondents, this court may on ground of want of jurisdiction properly set aside its order of the 17th November, 1998 made in chambers purporting to regularise the appellant’s appeal filed out of time. There are one or two other side issues which were also contested by the parties in the course of this preliminary objection. These issues will now be considered. I will firstly deal with whether or not this appeal was filed within the time prescribed by law.

The periods prescribed for the giving of notice of appeal to this court in civil cases are stipulated in section 27(2) (a) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990. This provides as follows:

“27(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.”