Peter Adeboye Odofin & Anor V. Chief Agu & Anor. (1992)

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G. KARIBI-WHYTE, J.S.C. 

This Judgment is based on the fundamental issue of the jurisdiction of the Court of Appeal to hear and determine the appeal. The issue of the competence of the Court of Appeal to hear the appeal is the subject matter of the first ground of appeal. It is also the first issue for determination arising from the grounds of appeal. The issue of jurisdiction is fundamental to the question of the competence of the Court adjudicating – See Kalio v. Daniel-Kalio (1975) 2 SC.15. Hence it is crucial for any Court adjudicating first to determine the issue. See Barclays Bank v. Central Bank (1976) 6 SC.175. It is therefore necessary in this appeal where the issue has been raised, to consider the competence of the Court of Appeal raised in the first issue for determination.

The question is as follows-

“(a) Whether where an intending appellant is out of time to file his notice of appeal and does not apply for an extension of time to appeal (but he is granted such a prayer) and he subsequently files his notice of appeal, the appellate Court would have jurisdiction to hear and determine his appeal”

There is formulation of an alternative issue which is not necessary to my consideration of this issue. I will therefore not reproduce that issue, as I do not wish to discuss it.

The ground of appeal relied upon for the formulation of the above issue reads-

“1. The learned Justices of the Court of Appeal erred in law in not directing themselves that they lacked the necessary competency to hear and determine the respondent’s appeal before them.

PARTICULARS

(a) the respondent’s notice of appeal was not filed within the prescribed three months period of the delivery of the judgment of the High Court

(b) the respondent filed their notice of appeal against the judgment of the High Court without applying for and obtaining from the Court of Appeal an order extending the time within which to file their notice of appeal;

(c) a condition precedent to the exercise of the Court of Appeal’s jurisdiction was not fulfilled by the respondents;

(d) the appeal filed out of time is incompetent and as such the said appeal, the proceedings and the judgment of the Court of Appeal on it are null and void.”

The facts in support of this ground of appeal and the issue for determination are not disputed. The only dispute is as to whether there was an application for extension of time to appeal, when the Court of Appeal granted such extension I will deal with this later in this judgment.

In 1983, Plaintiffs for themselves and representing Izo and Odofin Community, brought an action in the Akoko South Grade I. Customary Court, against the Defendants, claiming jointly and severally as follows-