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Home » Nigerian Cases » Supreme Court » Nigeria Agip Oil Company Limited V Chief Gift Nkweke & Anor (2016) LLJR-SC

Nigeria Agip Oil Company Limited V Chief Gift Nkweke & Anor (2016) LLJR-SC

Nigeria Agip Oil Company Limited V Chief Gift Nkweke & Anor (2016)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

One of the issues placed by the appellant for determination, which I consider more fundamental, is:

“Whether it would not have been just, fair and proper in the circumstances for the Court of Appeal to have directed/ordered the appellant to pay the appropriate filing fees in respect of its Notice of Appeal filed on 22nd March, 2010, the Appellant having taken remedial steps to regularize same.”

Your Lordships, just quite some few weeks ago, this Court was faced with the same question in Appeal No. SC. 693/2013 delivered on the 11th of December, 2015. Except for matters of details and some obvious dissimilarities, this appeal is on all fours with SC.693/2013. In SC.693/2013, which I happened to write the lead judgment, I made the following comments, among others:

“Secondly, a motion to regularize the payment of the shortfall was withdrawn by the learned SAN, Mr. Layonu, for the appellants and it was stuck out by the Court below. This, perhaps, influenced the mind of the Court below to strike out the appeal. It is true that such a decision is always placed within the discretionary

powers of a Court. Exercise of discretion, however, must always be judicial and judicious. A discretionary decision based on a principle that inadequate/shortfall of fling fees is fatal to an appeal is certainly a wrong exercise of discretion. It is settled law that a Court of law will not allow the provisions of an enactment to be read in such a way to deny access to Court by citizens. Thus, it is not the intention of the law to deny any litigant access to justice. A rule of Court stands to guide the Court in the conduct of its business and it must not hold as a “mistress” but as a hand maid. See: Onwuchaka v. NDIC (2002) 5 NWLR (Pt. 760) 371 at 393; Chrisdom Ind. Co. Ltd. v. AIB Ltd. (2002) 8 NWLR (Pt 768) 152 at 178 C & D; KTC Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 296; Chime v. Chime (2001) 3 NWLR (Pt.701) 527 at 553. The established practice of the Courts is to lean towards granting a litigant access to Court rather than denying him of such access. The principle of the law as settled by this Court, as seen supra, in relation to settlement of insufficient filing fees on documents placed before the registry of a Court is

for the Court to direct that such insufficient, inadequate, shortfall be remedied. The striking out of the appeal at the stage the Court below did, was certainly unnecessary and improper.”

See: The Shell Petroleum Development Company Nigeria Limited & 2 Ors v. Chief lsaac Osaro Agbara & 9 Ors. Appeal No. SC 693/2013 delivered on Friday 11th December, 2015. (unreported).

Some of the points of difference between SC.693/2013 and this appeal are in the names of the parties; division of the Federal High Court: months of delivery of the decisions by the divisions of the Federal High Court, panel members of the same division of the Port Harcourt Court of Appeal; learned counsel for the respective parties in the two appeals and ancillary matters relating an appeal.

The initial filing fees in SC.693/2013 assessed by the registry of the Asaba Division of the Federal High Court was N500.00 (five hundred naira) which the appellants paid to the same registry whereas, the one assessed by the registry of the Yenagoa Division of the Federal High Court was N200.00 (two hundred naira) which the appellant paid to the same registry.

In the appeal on hand, when the

issue of payment of appropriate filing fees in respect of the appellants Notice of Appeal arose, the appellant took steps to regularize same by bringing before the lower Court a motion on notice filed on 18/3/2013. After hearing submissions of counsel on 20/3/2013 the lower Court in its ruling delivered on the same day, dismissed the appellant’s application and proceeded to strike out the appellants appeal on the basis that its notice of appeal was incompetent by reason of the payment of insufficient filling fees.

Other issues of relevance in this appeal which were equally treated in SC.693/2013 are: filing of two Notices of Appeal; Leave to amend one of the Notices of Appeal etc. The appellants relied on the Notice of Appeal filed on 4th April, 2013 and abandoned the one filed on 20th, March, 2013.

For the detailed determination of this appeal the appellant formulated 3 issues as follows:

a) Whether the provisions of Order 12 Rule 1 of the Court of Appeal Rules are unconstitutional, having regard to the provisions of Sections 248, 254 and 224 of the Constitution of the Federal Republic of Nigeria, 1999 (Distilled from ground 4 of the Amended Notice of

Appeal.

(b) Whether in the light of the principle of stare decisis the Court of Appeal was right when in striking out the appellant’s appeal it preferred its decision in Ibeabuchi & 4 Ors. v. lkookpo & 2 Ors to the decision of this Hon. Court in Akpaii v. Udemba (Distilled from ground 2 of the appellant’s grounds of appeal)

(c) Whether it would not have been just, fair and proper in the circumstances for the Court of Appeal to have directed/ordered the appellant to pay the appropriate filing fees in respect of its Notice of Appeal filled on 22nd March, 2010, the appellant having taken remedial steps to regularize same (Distilled from grounds 1 and 3 of the appellants grounds of appeal).”

Learned senior counsel for the respondents, Mr Igwe, on his side, embedded a preliminary objection (which he argued in paragraphs 3.00-4.15, of pages 3-9) of the respondents’ brief of argument which he filed, adopted and relied on same. He formulated the following two issues for determination in the event he is overruled on his preliminary objection

“6.1. Whether Order 12 Rule 1 Court of Appeal Rules is unconstitutional as alleged by the appellant

6.2. Whether there was a competent appeal placed before the Court of Appeal and whether the Court of Appeal was right to have dismissed the appellants motion on notice filed 18/3/2013 (Grounds 1, 2 and 3 of the appellants grounds of appeal).

Your Lordships, the contention of the senior counsel for the respondents on the preliminary objection as contained in paragraph 3.1 (page 3) of his brief is that:

”This appeal is incompetent: the notice of appeal is defective and ought to be struck out as there is no appeal for this Hon. Court to entertain.

The learned SAN, argued that the ruling of the lower Court striking out the appeal as being incompetent was made on 20th March, 2013. The Notice of Appeal relied on by the appellant was dated and filed on the 4th of April, 2013. He stated that the Notice of Appeal is defective or incompetent as it was dated and filed fifteen (15) days after the date of ruling striking out the appeal. He cited and relied on Section 27 of the Supreme Court Act and several cases among which are: First Bank of Nigeria Plc v TSA lndustries Limited (2010) 4-7 SC (Pt.1) 242; General Electric Company v Akande& 4 Ors (2010) 12

SC (Pt iv) 75; Owoh & 3 Ors v ASUK & Anor (2008) 4 – 5 SC (Pt.1) 153; Agip Nigeria Ltd v Agip Petroleum & 7 Ors (2009) 12 NWLR (Pt.1156) 435 at 453 to 454.

Learned SAN argued that the lower Court in no way determined the rights of the parties in the case. The appellant has the right to file a fresh appeal and as no leave was sought and obtained in the instant appeal. He urged us to uphold the Preliminary Objection and resolve same in respondent’s favour.

Learned senior counsel for the appellants contended in his reply to the Preliminary Objection of the respondent that the Notice of Appeal of 4th April, 2013 was filed within time, which is three months from the date of the decision appealed against. He argued that the decision of the Court of Appeal delivered on the 20th March 2013 by its nature is a final decision, an appeal against which can be initiated within three months in accordance with Section 27(2) of the Supreme Court Act.

My Lords, in determining the period of time within which to file an appeal against a decision/decisions of the Court below to this Court, Section 27 of the Supreme Court Act provides the required

guidelines. It states:

“27(1) Where a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by Rules of Court within the period prescribed by Subsection (2) of this Section that is applicable to the case.(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 decisions and three months in an appeal against a final decision.”

Learned SAN for the respondents/objectors submitted that the decision delivered by the Court below on the 20th March, 2013, is an interlocutory decision which, by the Supreme Court Act, attracts 14 days to file an appeal. Learned SAN for the appellants/respondents submitted that the decision of the Court below of the 20th March, 2013, is a final decision which by the Supreme Court Act attracts three months within which to file an appeal.

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The jurisprudence of what is “interlocutory” and what is “final” in relation to decisions of Courts has for long been developed. Anything interlocutory

connotes provisional, interim, temporary and not final. It is an occurrence which intervenes between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy. See: Black’s Law Dictionary 5th edition, page 731. In relation to appeals, an interlocutory appeal is not determinable of the controversy, but which is necessary for a suitable adjudication of the pending issue/matter which arises within the life span of a substantive appeal. See: A-G Federation v. A-G Abia State (2001) 11 NWLR (Pt 725) 689.

In Effon v. Fasan (1958) 3 FSC 68, 69, the then Federal Supreme Court held that an Order as to costs made in the course of a proceeding is an interlocutory order. In the same case again, it has been observed that it is not sometimes easy to distinguish between what is an interlocutory order or what is a final order. Thus, there are cases which adopt the nature of the application to the Court as the determining factor whether the judgment or order is interlocutory or final, and there are others which consider the nature of the order made. In some old English decisions, such as Gilbert v. Endean

(1875) G Ch.D. 259; Balakey v. Lathan (1889) 43 Ch.D 25; Salter Rex & Co. v. Gosh (1971) 2 A.E R 865 and Technistady Ltd. v. Kellard (1976) 31 A.E.R. 632, the former view was adopted. However, in Safaman v. Warner (1891) 1 Q.B 734; Bozson v. Albencham UDC (1903) 1 K.B 547 and Blay & Ors v. Solomon (1947) 12 WACA 175, the latter view was adopted. But it seems clear that the tests in the second class of cases had been adopted and applied by the Nigeria Courts and that is the test laid down in Bozson v. Altrincham UDS (supra), for instance, in Omonuwa v. Oshodi & Anor (1985) 2 SC 1 at page 22, this Court espoused the real test as follows:

“The real test of determining whether an order is final or interlocutory is this: Does the Judgment or Order as made, finally dispose of the rights of the parties If it does, then it ought to be treated as a final Order, but if it does not, it is then an interlocutory Order.”

In Igunbor v. Afolabi (2001) 11 NWLR (Pt. 723) 1483, this Court Stated, per Karibi-Whyte, JSC (rtd):

“A final order or judgment at law is one which brings to an end the right of parties in the action. It disposes of the subject matter of the

controversy or determines the litigation as to all parties on the merits. On the other hand, an interlocutory order or judgment is one given in the process of the action or cause, which is only intermediate and does not finally determine the rights of the parties in the action. It is an Order which determines some preliminary or subordinate issue or settles some step or question but does not adjudicate the ultimate rights of the parties in the action. However, where the order made finally determines the right of the parties, as to the particular issue disputed, it is a final order even if arising from an interlocutory application. For instance, an order of committal for contempt arising in the course of proceedings in an action is a final order.”

In the appeal on hand, the order made by the Court below on 20/3/13, striking out the appeal, is an order determinative of the appeal. Nothing of that appeal remains. The Court, in respect of that appeal as at the time it struck the appeal out, became FUNCTUS OFFICIO it could do nothing in respect of that appeal except where an application is filed, determined and granted, restoring the struck out appeal on the cause

list of that Court. It is, in my view, a FINAL Order which determined the appeal with all finality. Therefore, it is the provision of Section 27(2)(a) which is applicable to the filing of the notice of appeal. In other words, the appellant had three months period within which to file Notice of Appeal. In that respect, since decision was delivered by the Court below on 20th of March, 2013, and a notice of appeal against the said decision upon which the appellants relied was filed on 4th of April, 2013, the notice of appeal, in my view, was properly and competently filed within time and it could sustain the appeal.

The preliminary objection by the respondents lack merit and it is hereby dismissed.

One nagging question is that of the constitutionality or otherwise of the provisions of Order 12 Rule 1 of the Court of Appeal Rules. Learned counsel for the appellants compared that Rule with Sections 248, 254, and 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Order 12 Rule 1 of the Court of Appeal Rules, 2007, provides as follows: “1. Save as hereunder provided, the fees prescribed in the Third Schedule hereto shall be charged in

respect of matters which thay are respectively assigned and shall be paid to the Registrar of the Court below or of the Court as the case may be.”(underlining for emphasis)

The Third Schedule to the Court of Appeal Rules , 2007 provided:

“On filing of Appeal against a final judgment or decision ……. N5,000.00”

Learned senior counsel for the respective parties made several submissions on this issues. The learned SAN for the appellant, submitted that the President of the Court of Appeal under whose hands the 2007 Rules were made has made rules regarding the fees to be paid in respect of notices of appeal at the registries of the Courts from which appeals lies to the Court of Appeal. He argued further that the President of the Court of Appeal’s powers to make rules is limited to the authority given to him by Section 248 of the Constitution by making rules limited to Court of Appeal only. That any exercise by the President, Court of Appeal of powers outside the scope of the provision of Section 248 of the Constitution would be unconstitutional, ultra vires his office and therefore null and void.

The learned SAN argued that Section 44 of the Federal High Court

Act, Cap. F12, LFN, 2004, clothes only the Chief Judge of the Federal High Court with the power to determine the fees to be paid in respect of the filing of all processes filed at the registry of the Federal High Court. He cited and relied on Section 254 of the Constitution in support. He again supported his submissions by decided cases such as Nwaigwe & Ors v. Okere (2008) 13 NWLR (Pt. 1105) 445 at 473 C-E, INEC & Anor v. Musa & Ors (2003) 3 NWLR (Pt. 806) 72 at 157 D-G, A-G of Lagos State v. The A-G of the Federation & Ors (2003) 12 NWLR (Pt. 833) 1 at 244 A-D, Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at 64, etc.

The learned SAN conceded (paragraph 4.38 on page 17 of his brief) that no fee for filing a notice is included in the list as contained in Appendix 2 of the Federal High Court Rules. He however, referred to Order 56 Rule 8 of those Rules which made a provision to cover any lacunae by, for instance, adopting such similar procedure in other Rules as will do substantial justice between the parties concerned.

Learned SAN for the appellants conceded (paragraph 4.40, page 17 of the brief ) that such default as in the full payment

of the filing fees, would not ordinarily invalidate the notice of appeal. The default is an irregularity that can be remedied under Order 51(1) 1 of the Federal High Court Rules. He urged this Court to declare the provisions of Order 12 Rules 1 of the Court of Appeal Rules of 2007, inconsistent with the provisions of Section 248, 254 and 274 of the Constitution and urges further, that the issues should be resolved in the appellant’s favour.

In his submissions on the issue of unconstitutionality of Order 12 Rule 1 of the Court of Appeal Rules (supra), the learned SAN for the respondents, argued that Section 32 of the Federal High Court Act clearly recognizes the application of the Court of Appeal Act and the Court of Appeal Rules to matters relating to appeals emanating from the Federal High Court to the Court of Appeal. Order 12 Rules 1 of the Court of Appeal Rules, in no way usurped the functions or powers of the Chief Judge of the Federal High Court as alleged by the appellant. He stated that Section 44(1) of the Federal High Court Act, relied on by the appellant confers on the Chief Judge of that Court general powers to make Rules for the Court. There is

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no conflict between the Federal High Court Act and Rules and the Court of Appeal Act and Rules.

My Lords, when exercise of power by a person or authority is alleged to have been done outside the provisions of the Constitution or that such exercise is in direct conflict with the spirit of the Constitution, then that exercise is said to be unconstitutional. Is Order 12 Rule 1 of the Court of Appeal Rules, 2007 (as amended), unconstitutional This is the issues under consideration.

At the risk of repetition, it behooves me to set out, once more the provision of that Rule:

“1. Save as hereunder provided, the fees prescribed in the Third Schedule hereto shall be charged in respect of matters which they are respectively assigned and shall be paid to the Registrar of the Court below or of the Court as the case may be.”

Third Schedule to the said Rules, prescribes, inter alia, as follows:

On filing of Appeal against a final judgment or decision ……. N5,000.00

On filing notice of appeal against an interlocutory order or decision …. N5,000.00

On filing notice of appeal where leave is granted …… N5,000.00

On filing amended or additional grounds of

appeal …….

(various fees ranging from N1,000.00 – N2,000.00, depending on the period of filing)

The above were part of the Rules made by the Hon. President of the Court of Appeal, in 2007, in exercise of the powers conferred upon him by Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and by virtue of all powers enabling him in that behalf. Learned senior counsel for the appellant argued that such exercise of power by the Hon. President of the Court of Appeal could only be limited to Rules applicable to the Court of Appeal only and any exercise by the Hon. President of the Court of Appeal of powers outside the scope of Section 248 of the Constitution would be unconstitutional, ultra vires his office and null and void.

In a recent appeal which is almost on all fours with the one on hand, same issue of constitutionality of Order 12 of the Court of Appeal Rules 2007 was raised. Permit me my lords, to set out what I said in that appeal – SC.693/2013 (supra):”The next point under consideration is whether the Court below can make Rules for the trial Court. Mr. Nwosu SAN says, it can. Mr. Akoni,SAN, disagreed. Each supported

his contentions with authorities.

Let me say right away that Court Rules are meant to guide the Court in the conduct of its affairs. The filing of notice of appeal by intending appellant has grown along with appellate Courts practice whereby the intending appellant is specifically requested by the Rules of the Appeal Court to raise with the Court which handed down the decision he would want appeal against by putting that Court on notice of his complaint against its decision. That is why the appeal Court mandates him to file his notice of appeal with the registry of that Court/tribunal. In almost all the appellate Courts including this Court, the Court Rules guiding the Practice and Procedure of that Court stipulate that notice of appeal should be filed at the registry of the Court that delivered the decision which is the subject matter of appeal. The Supreme Court Rules of 1999 (as amended) were made pursuant to the provision of Section 236 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Order 8 of the Rules deals with Civil Appeals in the Court. Order 9 deals with criminal appeals. In instituting an appeal to the Court, each of the

above orders stipulates in the main.”

”All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal TO BE FILED IN THE REGISTRY OF THE COURT BELOW.

(emphasis supplied by me)

The Court of Appeal Rules 2007, Order 12 Rule 1, thereof, replicates the above rule of practice and it provides as follows:

Save as hereinafter provided, the fees prescribed in the 3rd Schedule hereto shall be charged in respect of the matters which they are respectively assigned and shall be paid to the Registry of the Court below or of the Court as the case may be.

The above rule is saying, in other words, to my humble understanding, that filing fees payable in respect of any appeal which is as of right must be paid to the registry of the High Court, whether Federal or State. Equally, where time is extended within which to file Notice of Appeal, the filing fees should be paid to the registry of that same High Court, Federal or State within the time extended. However, where leave is granted to an appellant to file his notice of appeal, and or, where the appeal has already been entered at the

appeal Court, that applicant shall file his Notice of Appeal at the Registry of the appeal Court. Equally, where there is an amendment to the Notice of Appeal, filing fees in respect of the amended Notice of Appeal should be paid to the registry of that appeal Court.

In relation to the appeal on hand, it is to be noted that the Federal High Court is not essentially an appellate Court and except for matters specified in Order 54 (appeal to the Court from Professional Bodies), limited number of appeals lies to the Court from Magistrate Courts.

The Rules do not provide either, fees for processing appeals to the Court of appeal. A Lacunae should not be allowed to peep into the conduct of affairs of that Court. In any event, the Constitution is very clear in Section 243(1)(b) where it provides, inter alia:

243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court, National Industrial Court or a High Court conferred by this Constitution shall be (b) exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the Process, Practice and Procedure of the Court of

Appeal.

I am thus, in agreement with Mr. Nwosu, SAN in his submission that by the very IPSISIMA VERBA of the above provisions, it is the Rules of the Court of Appeal made pursuant to Section 248 of the Constitution, 1999 (as amended) that govern any right of appeal from the decision of a Federal High Court to the Court of Appeal.

I agree with Mr. Nwosu, SAN, again in his submission in respect of the Act as contained in Cap. F12, Laws of the Federation of Nigeria, 2004, which provides as follows:

“32- Appeals to the Court of Appeal

Subject to the provisions of the Constitution of the Federal Republic of Nigeria, the Court of Appeal Act and the Rules of the Court of Appeal, appeals shall lie from the decisions of the Court in its original or appellate jurisdiction to the Court of Appeal.”

Thus, any right of appeal from the decision of the Federal High Court including the appeal on hand, is exercisable in accordance with the Rules of the Federal High Court. Order 12 Rule 1 is the correct Rule to guide the Registry of the trial Court in assessing the fees payable in respect of the appeal on hand.

I do not believe that the Rules as competently

made by the President of the Court of Appeal are meant to rob or deprive the Federal High Court of its power to make Rules regulating its own practice and procedure as provided by Section 254 of the Constitution, 1999 (as amended). M.D. Muhammad, JSC, is again quoted, per his dictum, in Ogwe v. IGP & 2 Ors (supra) that:

The practice that has evolved over the years is for an appellant whose appeal is within time prescribed under Section 24 of the Court of Appeal Act to file his appeal to the lower Court to the registry of the Court against which decision the appeal is being filed. And this is what the appellant herein did. It is at that registry that he paid the fees to the officer of the Court assigned for the purpose assessed and requested him to pay. Having paid the fees and left his Notice of Appeal at the Registry with the officer responsible, the appeal on the authorities is deemed properly filed.

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My Lords, that in my view, is the correct position of the law, I may even add that by the principle of hierarchy of Courts, the Supreme Court supervises all other Courts in this country. The Court of Appeal, thus, is not only an Appellate Court,

but has supervisory role as well on all other Courts in the federation apart from this Court. Where it is mandated to make rules in respect of any matter, I do not think that such rules can easily be thrown away by the wave of hand. They should be complied with.”

In giving more support to what I said in SC.693/2013 (supra), permit me to consider in greater details relevant provisions from the Federal High Court enabling Act, Rules and some other authorities. In the first place, it is my observation that nothing in Appendix 2 to the Federal High Court (Civil Procedure) Rules, 2009, contains any provision on the fees to be paid for filing of a notice of appeal from the Federal High Court to the Court of Appeal. In order not to allow for a lacunae, Order 56 Rule 8 of the Federal High Court (Civil Procedure Rules, 2009, provides that:

“Where a matter arises in respect of which no provision or no adequate provision are made in these Rules, the Court shall adopt such similar Procedure in other Rules as will in its view do substantial justice between the parties concerned.” (underlining for emphasis)

Secondly, by the provisions of Sections 240 -243

of the Constitution, appeals generally, lie from the decisions of the Federal High Court to the Court of Appeal. Section 243(1)(b), specifically stipulates that any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall

be exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.

Section 32 of the Federal High Court Act, Cap F12, LFN, 2004 too, provides as follows:

Subject to the provisions of the Constitution of the Federal Republic of Nigeria, the Court of Appeal Act and the Rules of the Court of Appeal, appeals shall lie from the decisions of the Court in its original or appellate jurisdiction to the Court of Appeal.

Thirdly, it is the same Constitution that confers powers or authority on the President of the Court of Appeal to make rules of Practice and Procedure of the Court of Appeal. Section 248 of the Constitution provides:

Subject to the provision of any Act of the National Assembly, the President of the Court of Appeal may make rules regulating the Practice and Procedure of the Court of Appeal.

My humble understanding of the above constitutional provision is that the President of the Court of

Appeal is clothed with powers to make rules governing the Practice and Procedure on matters, among other things, coming to the Court of Appeal. That was the essence of the use of the phrase regulating the Practice and Procedure ”OF” the Court of Appeal.

Now, as I stated earlier, the practice of the Court of Appeal since its inception till now, is for an appellant to file his Notice of Appeal (except in a few instances), at the Court from where the appeal emanates. Perhaps it would have limited the practice only to matters in the Court of Appeal if the phrase used the word FOR instead of OF. In other words, if the phrase used was regulating the practice and procedure FOR the Court of Appeal.

Fourthly, although Section 44 of the Federal High Court, Cap F12, LFN, 2004, confers on the Chief Judge of the Federal High Court powers to make Rules of Court, those powers in contradistinction to the powers conferred on the President of the Court of Appeal, are general in nature and meant specifically to regulate matters highlighted therein.

It is my humble view therefore that Order 12 Rule 1 of the Court of Appeal Rules,

2007 is not in conflict with the Constitution, Federal High Court Act and or Rules. They are, rather, complementing one another. In the case of Clement & Anor v. Iwuanyanwu & Anor (1989) 3 NWLR (Pt 107) 39, also cited by both learned SANs for the respective parties, this Court recognized the need for the Court of Appeal to fall back on the Rules of this Court and even on the English Rules to fill in some lacunae where it exists. Oputa, JSC (rtd) and (now late) did observe:

The Court of Appeal Rules dealing with appeal from the High Court and other inferior Courts did not specifically provide for (in its Order 3 dealing with Civil Appeals) the procedure is applications for leave to appeal from the Court of Appeal to the Supreme Court. The jurisdiction to grant such leave having been vested in the Court of Appeal by the Constitutional provision of Section 213(3) of the 1979 Constitution, it is desirable that the President of the Court of Appeal makes definite Rules to regulate the exercise of that particular jurisdiction or else incorporates by reference, the provisions of Order 6 Rule 2 of our Supreme Court Rules, 1985 being incorporated, it is my

view that as we fall back on English Rules to fill in some lacuna in our own Rules so also that Court of Appeal may fall back on Order 6 Rule 2 of the Supreme Court Rules of 1985″

(underlining supplied)

Thus, borrowing a leaf from the above dictum and other authorities referred to above, it sounds reasonable, where there is no provision in the Rules of the Federal High Court relating to appeals to the Court of Appeal to apply the rules of Court of Appeal.

Thus, by reason of purity, the powers of the President of the Court of Appeal conferred on him by Section 248 of the Constitution, are similar to the powers conferred on the Hon. the Chief Justice of Nigeria by Section 236 of the Constitution. These powers, my lords are constitutional and legitimate in the best interest of the administration of justice. Order 12 Rule 1 of the Court of Appeal Rules, 2007, is not, in relation to Rules of the Federal High Court, unconstitutional. Rather, such rules are complimentary to the Federal High Court Rules and I so hold.

My lords, the issue of stare decisis raised by the appellant has already been settled by the authorities I referred to earlier in this judgment. Both the law and practice in Courts are trite that a lower Court is bound by the

decision of a higher Court irrespective of its palatability. Section 287 of the Constitution is authority on the binding nature of the decisions of Courts as established by the Constitution in their hierarchical order. See also: Dalhatu v. Turaki (2003) 15 NWLR (Pt 843) 310; where the attention of a Court is drawn to a superior authority, that Court, even if it is the Apex Court is bound to reconsider its stand and follow the superior authority. This Court, in the case of Veepee Ind Ltd. v. Cocoa Ind Ltd. (2008) 13 NWLR (Pt 1105) 486, held, inter alia:

“The position of the law is that ordinarily, the Court adheres to the principle of stare decisis. It will therefore hold itself bound by its previous decision. But where it is satisfied that any of its previous decisions is erroneous or was reached per incuriam and will amount to injustice to perpetuate the error by following such decision, it will overrule it or depart from it. This power of the Supreme Court is predicated on the fact that it is better to admit an error than to preserve in error.”

A Court of appeal has no reason to prefer its own decision and above the decision of this Court. That

will in fact amount to judicial impertinence. See: Dalhatu v. Turaki (supra).

In conclusion, I must commend the learned senior counsel for the respective parties for the industry in their submissions and of course same goes to Dr. Onyechi Ikpeazu, SAN and Mr. Y.C, Maikyau SAN, for accepting to serve as AMACU CURIAE in this appeal. we appreciate their industry.

Finally, I find merit in this appeal. I accordingly, allow the appeal. I hereby set aside the decision of the Court below which struck out the appeal, i.e. No. CA/PH/187/2010. The appeal is hereby restored to the Court of Appeal list. The appellant should take steps to remedy the defect in its Notice of Appeal filed on the 4th day of April, 2013. I make no order as to costs.


SC.162/2013

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