Prince Adelusi Busuyi V. Commissioner of Police (2016)

LawGlobal-Hub Lead Judgment Report

FATIMA OMORO AKINBAMI, J.C.A. 

 This is an appeal against the Judgment of the Ekiti State High Court, Ijero-Ekiti Division (hereinafter referred to as the lower Court), sitting in its appellate jurisdiction, delivered by M.A. Agbelusi, J., on 8th November, 2013 in Suit No. HIJ/2CA/2013.

The brief background facts of this appeal are that, the appellant was charged with the offence of conducting himself in a manner likely to cause breach of peace, contrary to Section 249(d) of the Criminal Code Cap. 30 Vol. II Laws of Ondo State of Nigeria, 1978 as applicable in Ekiti State then.

Appellant was arraigned before the Senior Magistrate Grade II, Aramoko-Ekiti on a one count charge. During the trial of the appellant for the offence before the Chief Magistrate Court, the Respondent called six (6) witnesses and the appellant testified for himself in his own defence, and called two other witnesses and during the course of trial a number of exhibits were tendered by both the appellant and Respondent, and admitted by the trial Magistrate Court in proof and in refutation of the offence against the

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appellant. At the close of both parties? cases, both the appellant and the respondent?s counsel addressed the Court and the learned trial Magistrate delivered his judgment on the 30th day of January, 2013, wherein the appellant was convicted of the offence as charged and was sentenced to one month imprisonment, with an option of fine of N5,000:00 and to also enter a bond in the sum of N250,000:00 with a surety to maintain peace for 12 months from the date of judgment.

The appellant appealed to the lower Court against that decision vide a notice of appeal dated 28th day of February, 2013, and filed on the 11th day of March, 2013 upon four (4) grounds of appeal. Learned counsel for both parties addressed the lower Court in support of and against the appeal.

In his considered judgment delivered on 28th of November, 2013 the learned trial Judge sitting at Ijero-Ekiti in its appellate capacity held: –
?The Counsel argued and I agree with him that in this case, Police had no opportunity to investigate the defence of alibi. Counsel urged me to resolve this issue and hold that the defence of alibi lack merit. The presence of the

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accused was fixed at the scene of the crime. This was done by the evidence of PW iii, iv, and v. They even pleaded with him not to pad-lock the gate with their evidence, the prosecution had demolished the defence of alibi?
On the 3rd issue, none reliance on Exhibit D. This in no way affected the judgment of the Court below and the accused suffered no injustice…
In summation, the appeal lacks merit and it is hereby dismissed. For one thing the statement of PW iii, iv and v that the Counsel of the Appellant so much happed upon was not used in the lower Court to arrive at his decision. For another the lower Court based its decision on eye-witness account. I have demonstrated all these in the course of this Judgment and need not go over it again. I therefore dismiss this appeal as lacking in merit.? The conviction of appellant was affirmed.
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Being dissatisfied with the Judgment, the appellant lodged an appeal against the same by a Notice of Appeal dated and filed 4th day of December, 2013 upon ten (10) grounds of appeal. The grounds of appeal shorn

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particulars of error are: –
GROUND ONE
(1) That the learned trial Judge committed a grave error in law when it upheld the decision/judgment of the Chief Magistrate Court, Aramoko-Ekiti, Ekiti State as contained in the judgment of Chief Magistrate P.I. Ayenimo, Chief Magistrate Grade I, dated 30th January, 2013 when prosecution failed in all respects to prove the guilt and charges against the Appellant beyond reasonable doubt.
GROUND TWO
(2) The learned trial judge committed a grave error in law when it relied upon the testimonies and extra judicial statements of the third, fourth and fifth prosecution witnesses which were made to the Police ten (10) months (August, 2011) after the arraignment of the convict/Appellant and several months after trial had began.
GROUND THREE
(3) The learned trial Judge erred in law when it upheld the judgment of the said Chief Magistrate Court and also convicted the appellant inspite of the material contradictions and discrepancies in the evidence of the prosecution witnesses.
GROUND FOUR
(a) The learned judge erred in law when it upheld the judgment of the Chief Magistrate sitting at

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Aramoko Ekiti, Ekiti State by refusing and failing to attach any evidential value to exhibit ?D?.
GROUND FIVE
The learned trial Judge erred in law when it wrongfully evaluated the evidence on record and thereby arrived at the perverse decision that the appellant was the person who padlocked the palace gate.
GROUND SIX
The learned trial Judge erred in law when it failed to thoroughly evaluate and consider the defence of alibi raised by the appellant.
GROUND SEVEN
The learned judge erred in law when he relied upon inadmissible, uncorroborated, hearsay evidence on record and mere suspicion in reaching the conclusion that the appellant was guilty of the alleged offence and thereby occasioned a miscarriage of justice.
GROUND EIGHT
The learned trial judge erred in law when it proceeded with the appeal and gave judgment in respect of same despite the strong allegation of bias raised against him in the two letters/complaints written against the presiding judge, Hon. Justice M.A Agbelusi of likelihoods of bias in the handling and determination of the appeal before him, addressed to the Hon. Chief Judge of Ekiti

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State.
GROUND NINE
The learned trial judge erred in law when it delivered the judgment in the criminal appeal without the accused/appellant been docked or been physically present in Court.
GROUND TEN
The judgment is against the weight of evidence on record. Additional grounds of appeal will be filed on receipt of the record of appeal.

In line with the Rules of practice and procedure of this Court, parties filed and exchanged briefs of argument. The appellant?s brief was settled by S.J. Ochayi, Esq. The appellant?s brief of argument is dated 24th June, 2015, and was filed the same day.
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The brief of argument of the Respondent was jointly settled by the learned Attorney-General, Ekiti State .O. Ajayi, Esq, D.P.P. Gbemiga Adaramola, Esq.; Senior Legal Officer Ayodeji Jaiyeoba, Esq. The Respondent?s brief of argument dated 5th of February, 2016 was deemed properly filed and served on 29th February, 2016. Further to the Respondent?s brief of argument, the Appellant?s learned counsel filed an Appellant?s Reply Brief of argument. It is dated and filed on 14th March, 2016 and deemed properly filed on the

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15th March, 2016. The Respondent had earlier on filed a Notice of Preliminary Objection challenging the competence of this appeal. The preliminary objection of the Respondent is dated 2nd February, 2016, filed also on the 8th February, 2016.

The appellant filed a Reply Brief on the 14th of March, 2016 but was deemed properly filed on the 15th March, 2016.
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The appellant distilled six (6) issues from its ten (10) grounds of appeal and they are: –
(a) Whether, having regard to the circumstances of this case and the evidence adduced by the prosecution the prosecution has proved the guilt of the appellant beyond reasonable doubt? (Ground 1).
(b) Whether, having regard to the circumstances of this case and the evidence adduced by the prosecution, the trial Court was right in convicting the appellant upon the inadmissible evidence and statements of the third, fourth, and fifth prosecution witnesses. (Ground 2).
(c) Whether the trial Court was right in convicting the appellant of the offence in charge, inspite of the material contradictions and discrepancies in the testimonies of the prosecution witnesses? (Ground 3).
(d) Whether the

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trial Court properly evaluated Exhibit ?D? before arriving at its decision? (Ground 4).
(e) Whether the trial Court properly considered the defence of alibi raised by the appellant before arriving at its decision? (Ground 6).
(f) Whether the trial Court was right in convicting the appellant upon hearsay, uncorroborated evidence and mere suspicion of the appellant? (Ground 7).

The preliminary objection is that, this Court lacks jurisdiction to hear and determine this appeal. It is predicated on two grounds which state thus: –
(i) The Appellant?s entire complaints in this Appeal attack the decision of the trial Magistrate Court of Ekiti State, whereas the Court of Appeal has no jurisdiction to entertain appeals directly from the judgment of Chief Magistrate Court of Ekiti State.
(ii) The Appellant failed, refused and/or neglected to seek and obtain the leave of Court, whereas this appeal can only be brought pursuant to the leave of Court in consonance with Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
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The arguments in support of the preliminary objections are

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contained in paragraphs 3:03 to 5:02 at pages 4 to 14 of the Respondent?s brief of argument.

At the hearing of the appeal on the 19th April, 2016 learned counsel for respondent, Gbemiga Adaramola, (DPP) Ekiti State, indicated that they filed a preliminary objection on the 8th February, 2016. In respect of the preliminary objection, learned counsel for the respondent urged this Court to uphold the objection, and dismiss this appeal for being incompetent.

?On the other part, the argument of the Appellant in opposing the preliminary objection is contained in paragraph 1 of the Appellant?s Reply Brief. The learned counsel for the Appellant urged on this Court to dismiss the preliminary objection and proceed to decide this appeal on the merit.

In respect of the substantive appeal, while the learned counsel for the Appellant urged on this Court to allow this appeal, the learned counsel for the Respondent urged upon this Court to dismiss this appeal. In situations like this instant appeal, the proper approach is for this Court to first and foremost consider and determine the issues arising out of the preliminary objection, especially, since

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the objection touches on the competence of this appeal and the consequent jurisdiction of this Court to adjudicate thereupon. If the preliminary objection succeeds, that will terminate the appeal, but if it fails, the issues distilled from the grounds of appeal will be taken accordingly. For the competence of an action and the jurisdiction of Court are threshold questions which once raised, must be taken first and decided before considering any other issue. This is because, any defect in competence is fatal, as it is extrinsic to adjudication and proceedings conducted without competence amount to a nullity however well conducted and decided. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR P.341; (2) Onyenucheya v. Military Administrator of Imo State (1997) 1 NWLR (Pt.482) 429; (3) Sowemimo v. Awobayo (1999) 7 NWLR (Pt.610) 335; (4) Ayorinde v. Oni (2000) 3 NWLR (Pt.649) 348; (5) Galadima v. Tambai (2000) 11 NWLR (Pt.677) 1 and Salami v. Oseni (2000) 14 NWLR (Pt.788) 623.
Therefore, there is no doubt that the preliminary objection is a very crucial issue that requires prompt, immediate and priority attention.
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The learned counsel for the

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Respondent submitted that, this appeal is entirely an attack against the decision of the Chief Magistrate Court of Ekiti State sitting at Aramoko-Ekiti, contrary to the provisions of the Constitution and the Court of Appeal Act. That this Court lacks jurisdiction to entertain appeals from a Magistrate Court. Learned counsel submitted that Courts are creations of the Constitution and Statutes, and are therefore vested with jurisdiction not of their own accord, but by the Constitution or Statutes. See K.S.I.E.C v P.D.P. (2005) 6 NWLR (Pt.920) 25 at 47-48, 48-49; Ehuwa v. O.S.I.E.C (2006) 10 NWLR (Pt.1012) 544. The appellate jurisdiction of the Court of Appeal, is provided for in Section 240 of the Constitution.

It was noted by learned counsel that from the provisions of Section 240 of the Constitution, the Court of Appeal lacks jurisdiction to entertain and determine appeals directly against the decision of the Magistrate Court of Ekiti State. In that the Constitution does not confer such jurisdiction and neither has any Act of the National Assembly. See case of Udor v. State (2004) LPELR 23064 SC.
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On the grounds of appeal, learned counsel submitted

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that the grounds of appeal with their particulars, and the issues distilled therefrom reveal that this appeal is entirely on the correctness or otherwise of decision of the Chief Magistrate Court of Ekiti State, sitting at Aramoko-Ekiti. He therefore urged the Court to hold as held in Udor v. The State (Supra) and Francis Nwanezie v. Nuhu Idris and Anor (1993) 3 NWLR (Pt.297) 1.

The second issue raised by learned counsel in his objection, is the issue of the mandatory leave of Court having not been obtained before filing this appeal.
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It was noted by learned counsel that this is an appeal against the judgment of the High Court of Ekiti State sitting on an appeal against the judgment of the Chief Magistrate Court of Ekiti State. The Appellant was convicted by the Magistrate Court and sentenced to one month imprisonment with an option of a fine of Five Thousand Naira (N5,000:00). The High Court of Ekiti State sitting at Ijero Ekiti in its appellate capacity affirmed the conviction of the Appellant. The appellant being aggrieved has chosen to ventilate his grouse against the affirmation of his conviction by the High Court before this Honourable Court, as

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he is ordinarily expected to do, but which he did in disregard of the Constitutional provisions regarding appeals to this Court.

Learned counsel pointed out the constitutional provisions in Section 241 and 242 of the 1999, Nigerian Constitution. He made reference to the facts of this appeal, which does not fall into any of the circumstances listed in Section 241 of the Constitution.

The Judgment of the High Court of Ekiti State appealed against is though a final decision of the Court sitting at first instance. It is a decision of the Court in a proceeding initiated by appeal. Learned counsel referred to the grounds of this appeal and the issues distilled therefrom. That it is beyond doubt that the appeal does not involve just questions of law alone, rather it involves largely evaluation of evidence. That the appeal does not also call for interpretation or application of any provision of the Constitution as envisaged by Section 241 (1) (c) of the 1999 Constitution (as amended). It was further noted by learned counsel that Section 241 (1) (d) (e) and (f) of the Constitution do not apply to this appeal.
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In his further submissions Learned Counsel

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argued that this appeal falls under Section 242 of the Constitution. The implication of Section 242 of the Constitution is that in so far as an appeal does not fall under any of the provisions of Section 241 of the Constitution, an appeal shall only lie from the decision of the High Court to the Court of Appeal with leave of the High Court or the Court of Appeal.

It was therefore submitted by learned counsel that the appellant ought to have sought and obtained the leave of Court before filing this appeal. Where an appeal can only be filed with the leave of Court, it is that leave that confers jurisdiction on the Court, therefore, it is very vital and fundamental that leave be obtained before an appeal is filed. In the absence of such leave, the appeal is rendered incompetent, as the Court is not vested with the jurisdiction to entertain it. Seeking and obtaining the leave of Court is fundamental and condition is precedent to filing this appeal and having not so obtained the leave, the appeal is incompetent. See Okon v. Ekanem (2002) 15 NWLR (Pt.789) Page 106 at 125; Savannah Bank Plc v. Kyentu (1998) 2 NWLR (Pt.536) Page 41; C.M.B. (Nig.) Ltd. v. Usane

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Construction (Nig.) Ltd. (1996) 8 NWLR (Pt.466) Page 372; Shaka v. Salisu (1996) 2 NWLR (Pt.428) P.22; Mosuru v. Akinyele 13 W.A.C.A 112; Yakubu v. Gov. Kogi State (1995) 3 NWLR (Pt.393) Page 367; C.C.B. Ltd v. Ogwuru (1992) 3 NWLR (Pt.284) Page 630.

It was further argued by learned counsel that certain grounds of this instant appeal are grounds of fact or mixed law and facts requiring the leave of Court, but no leave whatsoever was sought and obtained prior to the filing of this appeal. See the cases of Mr. Donatus Nweze v. Chief Eddie Brown Ayoghu (2013) LPELR 21887 (CA); Maduabuchukwu v. Maduabuchukwu (2006) 10 NWLR Pt.989 Page 475 at 493; Aqua v. Ondo State Sports Council (1998) 4 NWLR (Pt.91) Page 622.

The position of the law was reiterated by learned counsel that leave of Court is a prerequisite to a valid ground of appeal which is of fact or mixed law and facts and shorn of the requisite leave, the ground is incompetent and liable to be struck out. See C.C.C.T.C.S Ltd v. Ekpo (2006) 6 NWLR (Pt.1083) Page 762; Maduabuchukwu v. Maduabuchukwu (Supra) 10 NWLR (Pt.989) Page 475 at 493; Orakosim v. Menkiti (2001) 87 LRCN 1536; Obijuru v. Ozims (1985)

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2 NWLR (Pt.6) Page 167; Erisi v. Idika (1984) 4 NWLR (Pt.66) Page 51; Abidoye v. Alawode (2001) 85 LRCN 736.

It was further contended by learned counsel that Grounds 3, 4, 5, 6, 7 and 10 are grounds of facts. This appeal is an appeal of mixed law and facts and it is settled law that an appeal of mixed law and facts requires the leave of Court. See C.C.C.T.C.S Ltd v. Ekpo (Supra) and Maduabuchukwu v. Maduabuchukwu (2006) 10 NWLR (Pt.989) Page 475 at 493.

As no leave of Court was sought and obtained before filing this Notice of Appeal, learned counsel urged this Court to strike out this appeal or the particular offending grounds and issues distilled therefrom for want of competence. Learned counsel urged this Court to strike out Grounds 8, 9 and 10 of the Appeal as no issue was formulated from any of them. See Araka v. Ejeagwu (2000) 82 LRCN 3406.
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Replying, the learned counsel for the Appellant submitted that the appellate jurisdiction of the Court of Appeal is conferred by Section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That it is trite law that an appeal shall lie from decisions of the Federal High Court or

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a High Court to the Court of Appeal as of right in the following instances/cases. He referred to Section 241 (1) (a) (b) (c) (d) (e) (f) (i) (ii) (iii) (iv) and (v) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That it is settled law that an appeal shall lie from the decision of a High Court to the Court of Appeal as of right without leave of Court:
?Where the ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings.?

See Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It was contended by learned counsel that the Grounds of Appeal (as contained in the Notice of Appeal) borders on, alleging a misunderstanding and or the misapplication of the law to the settled facts by the Judge of the High Court of Justice, Ijero Judicial Division, Ekiti State (Lower Court) in such instance, the Grounds of Appeal are Grounds of law. Further, the questions raised by the Grounds of Appeal in the Appellant?s Notice of Appeal are all questions of law. That the forms in which the questions are raised are immaterial. See F.B.N. Plc v.

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Abraham (2008) 18 NWLR (Pt.1118) 172 at 189 Paras C-F; Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484; P.N. Udoh Trading Company Ltd. v. Abere (2001) 11 (723) Page 114.

Learned counsel submitted that this criminal appeal is against the decision of Hon. Justice M.A. Agbelusi of the High Court of Justice, Ijero-Ekiti Judicial Division, Ekiti State, delivered on 28th November, 2013 in the exercise of its appellate jurisdiction. That the grounds of appeal raise questions of law and require answers and explanations in accordance with the law. See Idris v. Agumagu (2015) 13 NWLR (Pt.144) 441 at 472 paras C-H. C.C.C.T.C.S Ltd v. Ekpo (2008) 6 NWLR (Pt.1083) 362; NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148; Atago v. Nwuche (2013) 3 NWLR (Pt.1341) 337 and M.M.A Inc. v. N.M.A (2012) 18 NWLR (Pt.1333) 506. He urged the Court to dismiss the preliminary objection and to allow the appeal.

Preliminary objection is the procedure that is used where a Respondent opposes the hearing of an appeal, and its purpose is to terminate the hearing of an appeal, in limine either partially or totally ? see S.P.D.C.N v Amadi (2011) 14 NWLR (Pt.1266) 157 SC and

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Mohammed & Anor v. Olawunmi & Ors (1990) 4 SCNJ 23 where Nnaemeka ? Agu, JSC said:
?By the preliminary objection, he is saying that the suit or motion before the Court ought not to be heard at all because it is incompetent or is bedeviled by some other fundamental vice. If the Court, by its ruling, decides that the objection is not well-founded, that does not necessarily mean that the suit or motion before the Court must succeed. The Court is then bound to consider the suit or motion on its merit.?

In this instant appeal, the Respondent rightly filed an appropriate Notice of Preliminary Objection. The law insists that where an objection is raised against the hearing of the appeal, it must be taken first ? See Aregbesola v. Oyinlola (2011) 9 NWLR (Pt.1253) 458 and Obasanjo-Bello v. F.R.N. (2011) 10 NWLR (Pt.1256) 605, wherein Galinje, JCA clearly stated ?
?Any objection to the competence of an appeal is a preliminary issue, which has to be determined timeously as it touches on the competence of the Court of Appeal to adjudicate on the appeal. In other words, when a preliminary objection is raised in an

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appeal, it must be resolved first before proceeding to determine the appeal.?

In this appeal, the Respondent contends that the appeal is incompetent, because on a careful examination of the grounds of appeal, that the substance of the appeal and all the grounds of appeal relate to the decision of the trial Magistrate Court of Ekiti State and not the High Court of Ekiti State Judgment.

I have carefully considered the arguments of the respective learned counsel along with the legal authorities cited. Respondent?s counsel rightly pointed out that no issue was formulated from Grounds 8, 9 and 10. Consequently, they are hereby struck out. The complaints of the respondent is that the decision of the lower Court having been given in exercise of its appellate jurisdiction, leave of the lower Court or this Court as the case may be, is required for that decision to be appealed to this Court.
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In my view, in order to resolve the preliminary objection, the relevant question to consider is, whether the Appellant properly exercised his right of appeal. The right of appeal against final as well as interlocutory decisions, is conferred by Statute,

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be it one which creates either the trial Court or appellate Court or the enactment which confers original or appellate powers. The right of appeal to this Court from either the Federal High Court or the High Court of a State is provided for by Sections 241, 242 and 243 of the 1999 Constitution, as well as Section 24 Part (v) of the Court of Appeal Act, 2004 and Order 7 Rules 5 and 10 (1) of the Court of Appeal Rules, 2007. For easy reference, the above enactments are hereunder reproduced respectively, as follows:-
1999 Constitution, Section 241(1):
?An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases ?
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as

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whether any of the provisions of Chapter IV of this Constitution has been, is being or likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or High Court ?
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused.
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the area of a Decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this Section shall confer any right of appeal;
(a) From a decision of the Federal High Court or High Court granting unconditional leave to defend an action;
(b) from an order absolute for the dissolution or nullity

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of marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that of the High Court or the Court of Appeal.
(2) The Court may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243. Any right of appeal to the Court of Appeal from the decisions of

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the Federal High Court or a High Court conferred by this Constitution shall be:
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State, to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
(b) 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.
Court of Appeal Act:
24(1) Where a person desires to appeal to the Court of Appeal, 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 the provision of Sub-Section (2) of

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this Section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are ?
(a) in an appeal in a civil cause or matter, fourteen (14) days where the appeal is against an interlocutory decision and three (3) months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety (90) days from the date of the decision appealed against
(3) Where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Sub-section (2) of this Section, be allowed a further period of fifteen (15) days, from the date of the determination of the application by the Court below, to make another application to the Court of Appeal.
(4) The Court of Appeal may extend the periods prescribed in Sub-sections (2) and (3) of this Section.
Court of Appeal Rules:
Order 7 Rules:
(5) If leave to appeal is granted by the Court or by the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the

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Court of Appeal Act, 2004.
10 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
From the foregoing enactments, that is, Sections 241(1) and (2) of the 1999 Constitution, an appeal shall lie from the decisions of the Federal High Court or a State High Court, to the Court of Appeal as of right in the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has

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imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court ?
(i) where the liberty of a person or the custody of an infant is concerned;
(ii) where an injunction or the appointment of a receiver is granted or refused;
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other Officer under any enactment relating to companies in respect of misfeasance or otherwise;
(iv) in the case of a Decree nisi in a matrimonial cause or a decision in an admiralty action determining liability and
(v) in such other cases as may be prescribed by any law in force in Nigeria.
However, by virtue of Section 242(1) of the 1999 Constitution, an appeal will become operable only with the leave of either the Federal High Court or State High Court or the Court of Appeal in the following instance:
(a) Against the interlocutory decisions of the Federal High Court or a High Court, except such interlocutory decisions which involve questions of law alone. It follows that the right of appeal against an interlocutory decision of any of the High Courts that

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involves pure questions of law is exercisable as of right and does not require the leave of either the High Court which decision is appealled against or the Court of Appeal;
(b) Any appeal from a decision of any High Court consented to by parties or on the costs awarded against any of the parties only;
(c) Any appeal against the decision of High Court exercising appellate jurisdiction in any civil or criminal proceedings;
(d) Appeals by an interested party.
The import of the provisions of Section 242(1) is that the right of appeal enures to an appellant only with the permission of Court.
Leave is, the permission it takes to activate or infuse life into an appeal that is hitherto dormant.
The Supreme Court as well as this Court has laid it down in several authorities that, the leave envisaged under the provisions of Section 242(1) of the Constitution is a condition precedent to the exercise of the right of appeal under the said Section. Therefore, the law is trite that, where the condition precedent is necessary but has not been fulfilled, the appeal as filed is illegal and incompetent. See the cases of (1) Ayansina v. Co-operative

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Bank Ltd (1994) 5 NWLR (Pt.347) 74 and (2) N.I.W.A v. S.P.D.C (Nig.) Ltd (2007) 1 NWLR (Pt.1015) Page 305. It follows that, an appeal filed pursuant to the provisions of Section 242(1) without the requisite leave, in law, robs the Court of Appeal of the jurisdiction to entertain and determine the issue(s) raised in such appeal. See the case of Ukpong v. Commissioner of Finance (2006) 19 NWLR (Pt.1013) Page 187.
Upon the combined reading of the provisions of Sections 241 (1) and 242(1), an appeal from the decision of a High Court given in its appellate jurisdiction requires the leave of either the High Court or the Court of Appeal. In this situation, it is immaterial that, the decision is an interlocutory or final decision, or those, the issues involved are those of law or facts or mixed law and facts. In other words, leave of the Court is required before a competent and valid appeal can be lodged. This requirement of leave as stated earlier on above is, mandatory.
In the instant appeal, there is no doubt that, the Appellant herein had the legally bounding duty to obtain the leave of either the lower Court or this Court, as the lower Court was

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sitting in its appellate jurisdiction in the suit under consideration. Since the Appellant did not seek and obtain the mandatory leave of either the lower Court or this Court, this appeal is incompetent and this Court is devoid of jurisdiction to entertain it. I rely on the cases of (1) Mosuru v. Akinyele (13) WACA P.112 (2) Salami v. Oseni (Supra) (3) Ekwulugo v. A.C.B. (Nig.) Ltd (2006) 6 NWLR (Pt.975) 30 and (4) N.I.W.A v. S.P.D.C (Nig.) Ltd (Supra) at pages 330-331 paras H-B.

In consequence of my above enunciations, I hold that the notice of appeal dated 4th December, 2013 and all other attendant processes, including the briefs of argument purportedly filed thereto are incompetent.

This is because an incompetent notice of appeal is ab initio, void, incurably bad and cannot be regularized. See the case of: Macfoy v. U.A.C AC Page 152.

In the final analysis, I uphold the preliminary objection and hold that this appeal having been declared incompetent, its merits or demerits cannot be delved into. Therefore, Appeal No. CA/EK/80C /2014 is hereby struck out accordingly.

Other Citations: (2016)LCN/8800(CA)