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.”

Accordingly, it is crystal clear that the period prescribed by law for the giving of notice of appeal to this court is three months in an appeal against a final decision of the Court of Appeal. From the line of authorities, it is firmly established that although the computation of any period within which to do any act must in individual cases depend on the intention of the law makers as can be gathered from the relevant legislation, as a general rule the date of the event from which the calculation must commence is normally excluded from the reckoning and consequently, the last day will be included. See Radcliffe v. Batholomew (1892) 1 QBD 161; Gelmini v. Moriggia (1913) 2 K.B. 549; Marren v. Dawson Bentley & Co. Ltd. (1961) 2 Q. B. 135. See too section 15(2)(a) of the Interpretation Act, Cap. 192, Laws of the Federation of Nigeria, 1990, wherein it is provided thus:

“15(2) A reference in an enactment to a period of days shall be construed: –

(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs. ”

It is common ground that the decision of the Court of Appeal appealed against was delivered on the 1st day of July, 1996. Accordingly, in computing the period for the filing of the appeal against that judgment, the date 1st July, 1996 on which the Court of Appeal delivered its judgment must be excluded. Consequently, the calculation must commence on the 2nd of July, 1996 and three months from that date would ordinarily end at midnight of the 1st October, 1996. See Azeez Akeredolu and Others v. Lasisi Akinremi (1985) 2 NWLR (Part 10) 787 SC, a full court decision of the Supreme Court. However, as earlier stated, the 1st day of October of every year is a public holiday in Nigeria. This is a notorious fact of which this court is entitled to take judicial notice of pursuant to the provisions of section 74(1) (g) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, whereby the court is enjoined to take judicial notice inter alia, of “the public festivals, fasts and holidays notified in the Federal Gazette or fixed by Act”. See too sections 74(1)(a) and 74(1)(b) of the Evidence Act and section 1 of the Public Holidays Act, Cap. 378, Laws of the Federation of Nigeria, 1990, wherein it is expressly provided that the days mentioned in the schedule to that act which include “National Day 1st October” shall be observed as public holidays throughout Nigeria.

Attention must be drawn at this stage to sections 15(2)(b) and 15(3) of the Interpretation Act, ibid, which provide as follows:

15(2) A reference in an enactment to a period of days shall be construed:-

(a)……………………………..

(b) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday.

15(3) where apart from this paragraph the last day of the period is a holiday, as continuing until the end of the next following day which is not a holiday

15(3) where by an enactment any act is authorised or required to be done on a particular day and that day is a holiday, it shall be deserved to be duly done if it is done on the next following day which is not a holiday”

In the light of all the above, it is plain that the midnight of the 1st October, 1996 was ordinarily the last date the prescribed period of three months within which the appellant was entitled to appeal as of right against the relevant decision of the Court of Appeal in question would have ended. However, the said 1st day of October, 1996 was a dies non. Accordingly, having regard to the above provisions of the law, the three month period prescribed by law within which the appellant should have filed his appeal competently as of right must in all the circumstances of the case have ended at midnight of the next working day. This would be the midnight of the 2nd October, 1996.

It is common ground that this appeal was not filed until the 4th October, 1996. It is clear to me that unless the appellant obtained valid leave of court for an extension of time within which to appeal out of time etc and I will in a moment consider that aspect of this appeal, this appeal was clearly filed two days out of time having regard to the period prescribed by section 27(2)(a) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990.

I think I ought to state that it cannot be over emphasised that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly brought before the court will deprive such appellate court of jurisdiction to entertain the appeal. See Kudiabor v. Kudanu 6 WACA 14. In particular, failure to file an appeal within the statutory period of time prescribed by law without obtaining an extension of time within which to appeal in accordance with the provisions of the rules or to comply with the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate court of jurisdiction to entertain the appeal and whether or not the irregularity was noticed or that no objection was taken to it is not an argument which can legitimately be put forward with any effect when the matter comes before the court. See Oranye v. Jibowu (1950) 13 WACA 41. So, too, in Ohene Moore v. Akese Tayee 2 WACA 43 the judicial committee of the privy council was concerned, not with any extension of time but with failure by the appellant to fulfill certain statutory conditions requisite for the purposes of the appeal. The first appellate court would appear to have dismissed such failure as mere technicality which could be ignored in order that substantial justice might be done but Lord Atkin, delivering the judgment of the judicial committee of the privy council at page 45 of the report made it quite plain that such was not the proper view. Said the noble Lord:

“It is quite true that their Lordships, as every other court, attempt to do substantial justice and to avoid technicalities but their Lordships, like any other court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other court to have jurisdiction”

The appeal was accordingly allowed and the proceedings and judgment of the then first appellate Supreme Court were declared a nullity. I have gone thus far to emphasise in the clearest terms the very grave and serious consequences that necessarily result from filing an appeal out of time without taking steps to have the time extended in accordance with the rules of court or from failure by the appellant to comply with statutory mandatory conditions requisite for the purposes of an appeal.

Learned counsel for the appellant did however attempt to avoid the disastrous consequences that must visit his purported appeal if, in fact, the same was filed out of time. He submitted that the appeal was filed well within the time stipulated by law, that the common practice in the Supreme court is that during annual vacation, time does not run and that if the period of vacation of either the Court of Appeal or the Supreme Court is subtracted from the period between the 1st July, 1996 when the judgment was delivered and the 4th October, 1996 when the notice of appeal was filed, it would be seen that the said notice of appeal was filed well within time.

It would seem to me that the practice direction learned counsel for the appellant appears to be alluding to is that issued by the Honourable Chief Justice of Nigeria which took effect from the 24th day of June, 1985. It went inter alia, as follows:

“In giving effect to the provisions of order 6 rules 5 of the Supreme Court Rules, 1985, the period of the vacation which is declared between July and September each year shall not be taken into account for the computation of the period of filing briefs by either the appellant or the respondent in an appeal before the court”. (Italics supplied for emphasis)

The above practice direction which was rightly issued pursuant to the provisions of order 10 rule 2 of the Supreme Court Rules has since been regarded as part of those rules. However, that practice direction merely pertains to the computation of the period of filing briefs by either parties to an appeal and does not concern the statutory period of time within which to appeal from a decision of the Court of Appeal as expressly provided for under section 27(2) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990.

At all events, I need, perhaps to stress that neither practice directions nor indeed rules of court can override statutory provisions. Section 27(2)(a) of the Supreme court Act, Cap. 424, Laws of the Federation of Nigeria, 1990 which makes provision in respect of the periods of time within which to appeal has neither stipulated nor suggested that the times therein prescribed shall cease to run during periods of vacation and I do not conceive it the duty of this court to usurp the legislative powers of the National Assembly under whatever guise by amending laws enacted by them other than to interpret them in accordance with the laws of the land.

The appellants have also contended that the respondents’ preliminary objection is incompetent as it was not brought, by way of motion on notice contrary to the provisions of order 2 rule 28(1) of the Supreme Court Rules which stipulate that every application to the court shall be by notice of motion supported by affidavit and it shall state the rule under which it is brought and the grounds for the relief sought. I think the submission of the appellants in this regard is clearly without merit and totally misconceived. This is because it is now well settled that a notice of preliminary objection pursuant to the provisions of order 2 rule 9 of the Supreme Court Rules may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt. 105) 494 at 515 – 516. See too Ogidi v. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469.

It cannot be disputed that the object of the said order 2 rule 28(1) of the Supreme Court Rules is to give an appellant before the hearing of his appeal notice of any preliminary objection to the hearing of his appeal and the grounds thereof in order to enable him to be prepared to meet the objection at the hearing of the appeal. I think the rule is a safeguard against embarrassing an appellant and taking him by surprise. This is exactly what the respondents have done in the present appeal by raising their preliminary objection in their briefs of argument. In my judgment, I can see nothing wrong in the procedure the respondents adopted in this appeal by raising their preliminary objection to the appeal in their briefs of argument.

Learned appellant’s counsel raised yet another fascinating point.

He argued that even if the notice and grounds of appeal in this case were filed out of time on the 4th October, 1996, the appellant duly filed a motion on notice dated the 20th April, 1998 for various reliefs which included an order for extension of time within which to appeal against the decision of the Court of Appeal etc together with an order to deem as properly filed and served the notice of appeal dated the 4th October, 1996 already filed and served. He stated that these reliefs were granted by an order of this court made in chambers on the 17th November, 1998. He therefore submitted that it could not be right to say that there is no proper notice of appeal in this case or that the present appeal is incompetent.

Learned counsel for the respondents, on the other hand, submitted that the said order of the 17th November, 1998 granting the appellant leave to appeal, extension of time within which to seek leave to appeal and extension of time within which to appeal is a nullity, having been made without jurisdiction for non-service of the process.

It is common ground that the application in issue was rightly made by the appellant by motion on notice which therefore needed to be served on the respondents before it may properly be heard by the court. All the respondents in their preliminary objection have repeatedly stressed in their respondent’s brief of argument that neither themselves nor their learned counsel were served with the relevant motion for leave to appeal, extension of time within which to seek leave to appeal etc which is now in issue. The appellant in answer to this grave issue has not as much as tendered the affidavit of service of the process or any endorsement of such a service, whether personal or otherwise, on the said respondents or on their counsel. In the circumstance, the court has most carefully studied the original case file of the appeal. The motion in issue is dated the 20th day of April, 1998 but was not filed in the registry of this court until the 25th of August, 1998. There is an affidavit in support of the application. It is apparent from the endorsements on the face of the motion paper that no fees were paid by the appellant in respect of service of the application by the court on the respondents. Neither an affidavit of service nor any endorsement or acknowledgement of such service on the respondents was produced by the appellant. The onus is on the appellant who did not pay for the service of the application by the court to establish that it duly served the respondents or their counsel with the process. This it failed to do. I am satisfied that there was no service of the process in issue on the respondents.

Now, it is well settled that service of a writ of summons or process is a condition precedent to the exercise of jurisdiction by the court out of whose registry the writ or process was issued. See Skenconsult (Nig.) Ltd. and Another v. Godwin Ukey (1981) 1 SC 6 at 26. See too Adeigbe and Another v. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17. Under our adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process except in a proper ex parte proceedings would render the trial a nullity as service of the court’s processes are basic and indispensable to any effective adjudication. Whereas in the present case, service of a process is required, failure to serve it is a fundamental vice and the person affected by the order but was not served with the process, again as in the present case, is entitled ex debito justitiae to have the order set aside as a nullity. See Obimonure v. Erinosho and Another (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535, (1994) 10 SCNJ 109 at 128; Skenconsult v. Ukey (1980) 1 SC 6 at 26. Accordingly, service of a process in proceedings other than in ex parte proceedings is fundamental to the assumption of jurisdiction. Failure to serve a process where service is required goes to the root of proper conceptions of recognised procedure of litigation. It is a fundamental vice which renders null and void an order made against the party who should have been served as the idea that an order can validly be made against a party who has no notification of the action against him is one that is clearly undesirable and indeed, unacceptable in our judicial system. See Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 55) 179.

Learned counsel for the appellant has submitted that the option open to a person who was not served with any process but against whom an order was made or judgment given is to apply to the court to discharge the order or to appeal against the judgment so that it ought be set aside. I agree entirely with this proposition of law.

Additionally, however, a court has inherent power to set aside its own order or judgment which is a complete nullity like the order in issue in this present case. Where, therefore, it is shown that there was a fundamental defect which goes to the issue of jurisdiction or competence of the court, as in the present case, such court has inherent jurisdiction to regard the order made as a nullity and to set it aside upon application. See Ogbu v. Urum (1981) 4 SC 1, Ojiako v. Ogueze (1962) 1 SCNLR 112 or (1962) 1 All NLR 58. In other words, a court has an inherent power to set aside its own judgment or order, which is a complete nullity. See too Salisu Idris Saliyim and Ors. v. Alhaji Mashi and Others (1975) 1 NMLR 55 at 58.

In Craig v. Kanssen (1943) K.B. 256, it was restated by the court of Appeal in England that a failure to notify or serve the opposing party of the institution of any proceeding, other than one which is properly brought ex parte connotes that a condition precedent to the exercise of jurisdiction has not been fulfilled and that in such a situation, the party not served is entitled ex debito justitiae to have it set aside by the court which made it. I must say that I agree entirely with this proposition of the law.

In the present case the respondents now seek to set aside an order of this court made on the 17th November, 1998 which order was obviously made without jurisdiction for want of service of the process on the respondents. That order which purported to grant leave to the appellant to appeal out of time having been made without jurisdiction is invalid, null and void. I think this court in all the circumstances of the case is entitled ex debito justitiae to set it aside and it is hereby set aside.

The position, as I see it, is that this appeal was filed by the appellant on the 4th day of October, 1996 out of the prescribed period stipulated by law. The order of this court made on the 17th November, 1998 for leave to appeal, extension of time within which to seek leave to appeal, extension of time within which the appellant may appeal etc having been declared a nullity, has now been set aside by this very court that made it. In these circumstances it seems to me that these preliminary objections are bound to succeed. The order granting leave to the appellant to appeal out of time is invalid, null and void. The consequence is that there is no valid appeal before this court. Accordingly, this appeal is incompetent and the same is hereby struck out with N10,000.00 costs to each set of respondent against the appellant.

SC.49/1997(1)