S. N. Ibe V. Peter Onuora (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

This motion, asking this court to amend its judgment of 8th day of January, 1996 so as to reflect exactly what the intendment of this court really is. It is brought under Order 2 rule 28(1) and Order 8 rule 16 Supreme Court Rules, and under the inherent jurisdiction of this Court under section 6(6) (a) of the Constitution of the Federal Republic of Nigeria 1979. The motion is supported by affidavit and this affidavit has a counter-affidavit against it. .

The appeal in question No. SC.155/1991, came up on 8th January, 1996 for hearing. The grounds of appeal, six in number, contained at page 204 through to page 209 of the record of proceedings sent from the lower court consisted of nothing but facts even though most were tagged as grounds of law or misdirection. All the grounds needed leave before they could be filed much less argued.

Later by an application to Supreme Court leave was granted to argue the grounds. However, when the appeal came up for hearing on 8th day of January, 1996 (Coram: Belgore, Kutigi, Ogundare, Mohammed and Onu JJ .S.C.) it was discovered that there was a gross incompetence not noticed by the Court of Appeal and perhaps by both parties. Court of Appeal went ahead, heard the appeal and handed down its judgment.

The reasons for the flaw in the appeal leading to its incompetence in the Court of Appeal but unnoticed there are as follows:

1. High Court of Anambra State, as court of first instance gave judgment on 7th day of April, 1982.
2. The aggrieved party never appealed within the statutory period of three months after the judgment, but six months after went before the same trial Court to seek leave for extension of time to seek leave to appeal and also for extension of time to appeal and the prayers were granted on 28th day of October, 1982. The trial court has no statutory power to extend time for the Court of Appeal, it is the exclusive right of the Court of Appeal to grant such prayers (see section 221(1) of the Constitution of 1979). When this serious error was discovered, it meant that an appeal had been entered against a judgment passed on a decision of the Court of Appeal which erroneously never adverted to the flaws aforementioned and heard the appeal as if it was competently before it. The two parties to the “appeal”, shall I say “matter”, before us discovered that indeed the appeal was incompetently before the Court of Appeal, a fortiori the one before us. The lead ruling of this Court then read as follows:

“JUDGMENT’

(Delivered by BELGORE, J.S.C.)

“The High Court of Anambra State gave judgment on 7/4/82. Instead of appealing to Court of Appeal the appellant (now respondent in this Court) waited a whole six months before seeking leave to appeal not in Court of Appeal but at trial Court. The trial court gave its order to appeal on 28/10/82, an order that was incompetent. Neither the parties nor Court of Appeal took notice of this discrepancy nor alluded to it. The appeal heard in Court of Appeal was based on incompetent appeal and that court’s decision is a nullity. The appeal to this court is therefore based on a nullity. It is therefore incompetent. The appeal is allowed on the above reasons. No order as to costs is made.

Sgd.

S.M.A BELGORE,

JUSTICE, SUPREME COURT.”

This being a matter raised suo motu by the court to which the parties had no reply but to accede, we all wrote our rulings.

Ogundare, J.S.C. wrote

“JUDGMENT’