Central Bank Of Nigeria V Aite Okojie (2002)
LAWGLOBAL HUB Lead Judgment Report
S.M.A. BELGORE, JSC.
This is an application by the appellants/applicants praying for; i. Waiver of the Rules of this Court so that documents which the applicants compiled be used for the purpose of the appeal in this Court. ii. Further proceedings in Court of Appeal in the appeal No. CA/L 121/1999 be stayed pending the hearing of the appeal in this Court. iii. Abridgement of time to file parties brief of argument. iv. Accelerated hearing of the appeal in this Court. The application is supported by an affidavit and also an affidavit of verification of documents. It is however pertinent to set out the reasons deposed to in the affidavit in support of the application which is as follows: AFFIDAVIT IN SUPPORT “1. Tumi Aluko-Olokun, male Christian, Nigerian and a legal practitioner of NM 5 Lokoja Road, Kaduna do hereby make oath and state as follows: 1. That I am one of the counsel in the law firm of B. Aluko-Olokun & Co., solicitors for the appellant in this case. 2. That I am conversant with the facts deposed to herein by virtue of my aforesaid position. 3. The appellant has appealed against a decision of the Court of Appeal sitting in Lagos. It is an interlocutory appeal. 4. The appellant has compiled the record of appeal. A copy of the record of appeal compiled by the appellant is exhibited hereto and marked as Exhibit A. 5. Hearing has not commenced in respect of the substantive appeal in the Court of Appeal. 6. If this appeal succeeds on the issues raised therein the time of the court and parties and the expenses that will be incurred by parties in prosecuting the action will be greatly reduced. 7. If further proceedings in the Court of Appeal are not stayed and the Court of Appeal proceeds to hearing and determine the appeal before the appeal in the Supreme Court is determined irreparable injury will be done to the case of the appellant before the Court of Appeal and miscarriage of justice will caused to the appellants. 8. It s therefore proper and just to grant the application for stay of the proceedings of the Court of Appeal pending the determination of the appeal to this honourable Court. PAGE| 2 9. The contents of this affidavit are true and correct.” Against this application is the 1st respondent’s counter affidavit deposing that the appeal is interlocutory in that Court of Appeal granted discretionary order for respondent to amend statement of claim in line with evidence before trial High Court. In that case leave ought to have been obtained to appeal to this Court either from Court of Appeal or from this Court. As no leave was obtained the appeal is incompetent as it offends S.233 (3) of the Constitution of the Federal Republic of Nigeria 1999. Thus there was a preliminary objection to the appeal filed in this Court.
The constitution of 1999 in section 233 is clear as to what right of appeal exists especially in subsection 2 thereof. In respect of appeal on grounds other than of law or mixed law and fact, subsection 3 thereof applies. The grounds of appeal in this instant appeal are clearly not of law but of mixed law and fact, and no leave having been obtained to file them, the appeal contravenes S.233 (3) of the Constitution and it is therefore incompetent (See Metal Construction (West Africa) Ltd. v. Migliore & Ors.) (1990) 1 NWLR (Pt. 126) 299, 305. I therefore find merit in the objection and hold there is no valid appeal before this Court. That being the case, this application has no standing or the peg to hang it. The application and the purported appeal are incompetent, and they are accordingly struck out. I award N1,000.00 costs to the 1st respondent.
E.O OGWUEGBU, JSC.: I had a preview of the Ruling of my learned brother Belgore, JSC and I agree with him that the application is incompetent as it has its foundation on an incompetent appeal. The appellant/applicants were defendants/appellants in the court below while the 1st respondent was the plaintiff. The plaintiff/respondent brought an application in the court below for leave to amend his statement of Claim in line with the evidence already given which was said to be uncontroverted and acted upon by the trial court. The court below granted the plaintiff/respondent leave to amend in terms of the motion papers in the exercise of its discretionary power. The defendants/appellants appealed to this court against the order of the court below granting the application.
They filed a motion on 20-7-2001 for the following orders. “1. An Order that compliance with the rules of the Supreme Court be waived so that the record of proceedings and processes of the Federal High Court in Suit No. FHC/L/CS/1331/96 and the Court of Appeal in the appeal No. CA/L/CS/121/91 in respect of this action which are contained in the bundle of papers exhibited hereto and marked as Exhibit A shall be utilized as the record of appeal in this appeal…… 2. An Order that further proceedings in the hearing of the appeal No. CA/L/12/99 before the Court of Appeal shall be stayed pending the hearing and determination of the appeal which the Central Bank of Nigeria has lodged against the ruling of the Court of Appeal dated 16-7-2001. 3. An Order that the time granted to parties for the filling of briefs of argument be abridged….. 4. An Order for accelerated hearing of this appeal.” The learned respondent’s counsel filed a notice of preliminary objection to the application. The grounds of the objection are that: “1. The Honourable Court has no jurisdiction to grant a stay of further proceedings pending the determination of the Appeal as there is no valid Notice of Appeal as prior leave of Court was not obtained. 2. The Notice of Appeal is incompetent as the only ground of appeal is Vague and a Vague ground of appeal cannot grant a stay of further proceedings pending appeal.” Section 233 of the Constitution provides for the appellate jurisdiction of this Court. It enumerates the decisions that could be appealed against from the Court of Appeal to this court as of right. It covers question of law alone, the interpretation or application of the Constitution, whether there has been a violation of a fundamental right or a threatened violation of the same as provided in Chapter IV of the Constitution. (See section 233(2) of the Constitution). The above instances are not exhaustive.
The appeal filed by the appellants/applicants is in respect of the grant by the court below of leave to amend the Statement of Claim which is an appeal against an interlocutory decision of that court made in the course of appeal No. CA/L/121/99 pending before it. By virtue of section 21(2) of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1990, an appeal against such a decision lies to this court by leave of the court below or this court. The appellants/applicants neither obtained the leave of the court below nor of this court before filing their notice of appeal. The appeal is also against the exercise of the discretionary power of the court below which is invariably a question of mixed law and fact as the only ground of appeal filed happens to be. The notice of appeal filed is accordingly incompetent. As there is no competent appeal before this court, the application by the appellants/applicants is incompetent. The preliminary objection is upheld by me and I hereby strike out the application for incompetence. The respondent is entitled to N1,000.00 costs.