Ubaka Ifeajuna V. Charles Nnaife Ifeajuna & Anor (1998)

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SALAMI, J.C.A.,

The action culminating in this appeal was taken out by the plaintiff, who incidentally is the appellant in the present appeal, in the Customary Court, Onitsha, claiming a number of declaratory reliefs. The bench of the Customary Court by a split decision of two to one granted the reliefs sought before it.

The defendants were dissatisfied with the decision of the Customary Court and appealed to the appellate jurisdiction of the High Court silting at Onitsha which allowed their appeal by declaring the entire proceedings, before the customary court, a nullity for lack of jurisdiction on the part of the Customary Court. The plaintiff was unhappy with the decision of the High Court and thereby felt aggrieved and has now appealed to this court.

On the day fixed for hearing of the appeal, learned counsel for defendants, respondents herein, sought and obtained leave to take a preliminary objection to the appeal, the notice whereof he had given and served on the appellant, under the provisions of Order 3 rule 15 of the Court of Appeal Rules. Cap 62 of the Laws of the Federation of Nigeria, 1990. The notice by respondents of their intention to rely on preliminary objection reads as follows:

“Take notice that respondents herein named intend at the hearing of this appeal to rely upon the following objection whereof is hereby given to you viz:

That the appeal filed by the appellant is incompetent;

And take notice that the grounds of the said objection are as follows –

1. That the decision in the civil proceedings before the High Court is not one the High Court sat at first instance, as envisaged by section 220(1)(a) of the Constitution of the Federal Republic of Nigeria, 1979 therefore leave to appeal against the High Court decision in this matter ought to have been sought and obtained.
2. Not having obtained leave to appeal, the appeal is incompetent.”

In this connection, learned counsel for the respondents contended that the judgment sought to be appealed against is not a decision of the High Court sitting at first instance hence the appeal could not be brought as of right under section 220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria. Learned counsel submitted that the appeal is such that cannot be brought without first seeking and obtaining leave of either the trial court or of this court under section 221 of the Constitution.

On the other hand, learned counsel for the appellant contended that the grounds of appeal being grounds of law simpliciter the appeal was competent.

Learned counsel for appellant contended that the appeal was brought under section 220(1)(b) of the Constitution which permits appeal to be brought from a final decision of a High Court not at first instance provided the grounds of appeal are purely of law. But when confronted with a couple of the grounds of appeal which are clearly not grounds of law, learned counsel for the appellant expressed his desire to withdraw those grounds to validate the appeal.

A right of appeal is conferred by a statute and not by common law or inherent power of the court.

The appellate jurisdiction or a court is conferred by either the statute creating the court or any other enactment conferring it with such power. See the Queen v. Resident Ijebu Province (1959) WRNLR 87; Ugwu v. Attorney-General of East Central State (1975) 6 S.C. 13; Moses v. Ogunlabi (1975) 4 S.C. 81; Akintola v. Commissioner of Police (1992) 7 NWLR (Pt.256)675; Adeigbe v. Kusimo (1965) NMLR 284; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503 and Bronik Motors Limited v. Wema Bank Limited (1983) 1 SCNLR 296.

This court is a creation of the Court of Appeal Act, Cap 75 of the Laws of the Federation of Nigeria, 1990 and section 217 of the Constitution of the Federal Republic of Nigeria, 1979.

The time to appeal and the procedure is provided for in Part V of the Court of Appeal Act, (supra). Section 25 prescribes the time within which to bring an appeal by filing a notice of appeal or notice of application for leave to appeal. The provisions of section 25 of the Act is not particularly relevant in the circumstance of the present appeal. We may have to look elsewhere because section 25 seems not to cater for appeal brought from the High Court in its appellate jurisdiction. The answer to the question raised in the notice of preliminary objection can only be found in sections 220 and 221 of the Constitution.