Chijoke Azubuike V. Alhaji Ahmad Hassan (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Kano State in Suit No. K/660/2002 delivered by Honourable Justice Nuhu Galadanci on the 9th of February, 2009. The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, under the Undefended List Procedure in the High Court of Kano State and his claims was for the sum of N563,000.000.

The Appellant filed a notice of intention to defend accompanied with as affidavit of facts. The lower Court heard the matter under the Undefended List and entered judgment in favour of the Respondent in the sum of N28,000.00 and it transferred the balance of the claim to the general cause list and ordered the parties to file pleadings.

The Respondent filed a motion for extension of time to file his statement of claim and, consequent on the granting of which, his statement of claim was deemed proper. The Appellant filed a statement of defence in response. The matter proceeded to trial and the Respondent called his witnesses and closed his case and the Appellant opened his defence. In the course of presenting his defence, the Appellant filed a motion on notice dated the 2nd of April, 2008 and in which he prayed the lower Court to strike out the suit on the ground that the motion for extension of time and the statement of claim were improperly signed by a law firm and not by a legal practitioner.

The lower Court took arguments on the application and it dismissed same in a considered ruling delivered on the 9th of February, 2009. The records of appeal show that at the conclusion of the ruling, Counsel to the Appellant was dissatisfied with the ruling and he applied orally for leave to appeal. The records show that the request for leave to appeal was granted by the lower Court. The Appellant caused to be filed a notice of appeal dated the 17th of February, 2009 and it contained two grounds of appeal.

In compliance with the Rules of this Court, Counsel to the Appellant filed a brief of arguments dated the 28th of July, 2009. The Respondent filed a notice of preliminary objection to the appeal and it was dated the 29th of November, 2011 and it was predicated on two grounds. Counsel to the Respondent presented a brief of arguments dated the 29th of November, 2012 and filed on the 3rd of December, 2012 and this was sequel to an order of this Court extending the time for the Respondent to file his brief of arguments.

The brief of arguments encompassed the arguments on both the notice of preliminary objection and the substantive appeal. Counsel to the Appellant filed a reply brief of arguments to the notice of preliminary objection and it was dated the 16th of January, 2013. At the hearing of the appeal, this Court took the arguments on the notice of preliminary objection and thereafter Counsel to the parties relied on and adopted the arguments on the substantive appeal in their respective briefs of arguments.

The Respondent raised two contentions on his notice of preliminary objection and these were:

i. Whether the leave of court to appeal an interlocutory appeal can be obtained orally without the formal filing of a motion supported by an affidavit.

ii. Whether a notice of appeal filed against an interlocutory decision on the basis of the oral application and leave to appeal given by the lower Court is competent to activate the jurisdiction of the Court of Appeal to heat and determine such an appeal.

On the first contention, Counsel to the Respondent stated that by the provision of section 242 of the Constitution of the Federal Republic of Nigeria it is a mandatory requirement that every litigant that seeks to appeal an interlocutory decision of the lower Court must seek and obtain the leave to do so and that any appeal against such decision without obtaining the leave of either the lower Court or of this Court is incompetent and he referred to the case of Iro v. Christopher Echewendu & Sons (1996) 8 NWLR (Pt. 468) 629, amongst others. Counsel stated that section 14 (1) of the Court of Appeal Act also provides that an application for leave to appeal an interlocutory decision must be filed within fourteen days after the ruling and that the Courts have held that where the application for leave to appeal is not filed and decided within fourteen, days the lower Court will lose the power to entertain the application. Counsel stated the statute governing application for leave did not contemplate the possibility of the application being made orally, otherwise it would not have stipulated a time limit for filing same and that the filing of an oral application is unknown to our judicature. Counsel stated that the lower Court was not empowered and had no jurisdiction to grant an application for leave on an oral application and that as such the leave to appeal granted to the Appellant by the lower Court was made per incuriam and that the order was a nullity. Counsel said that the law views a null act as an event that never occurred, that never happened and he referred to the case of UAC v. Mcfoy (1962) AC 152. Counsel urged this Court to uphold this contention.

Using the above arguments as a base, Counsel stated, on the second contention, that since the order of leave to appeal granted on the oral application of the Appellant was a nullity, this appeal is incompetent and deserves to be struck out. Counsel stated that the issue raised cannot be treated as a mere technicality because the practice of law should not be regarded as anything goes and that where a Counsel has committed a fundamental error he must be stopped from taking refuge under the clich of mere technicality. Counsel urged this Court to uphold the contention and strike out the appeal.

Counsel to the Appellant predicated his response to the notice of preliminary objection on three grounds; namely:

i. Whether by virtue of the relevant laws, the Appellant was under any legal obligation to seek for and obtain the leave of the lower Court or that of this Honourable Court before filing his notice of appeal.