Supreme Court Cases: Computation Of The Statutory Period For Filing An Appeal Against A Final Judgement

Areas Of Law: Action, Appeal, Court, Jurisdiction, Lease, Practice And Procedure

By a specially endorsed Writ of Summons and a Statement of Claim, filed in the High Court of Lagos state, the Respondent herein claimed against the Appellant, the sum of N1,500,000 as Mesne Profit for the Appellant’s occupation of the Respondent’s property at 7A, Idejo Street, Victoria Island, Lagos, for the period of 13th October, 1995 to 28th July 1998 at the rate of N500,000 per annum, interest on the said sum at the rate of 21% per annum from 13th October, 1995, to the date of judgment and, thereafter, at the rate of 5% per annum until final liquidation of the sum. The Respondent’s case was that by virtue of a Deed of sublease dated 10th February 1989, the Respondent granted a 3 (three) year lease of the said property to the Appellant. Upon expiration of the term granted under the said lease, same was extended for a further period of 3 (three) years from 14th October, 1992, to 13th October 1995, with the Appellant paying, in advance, rent in the aggregate sum of N1,500,000 for the said 3 years. It was further claimed that, upon expiry of the extended period of the lease, the Defendant/Appellant refused to accept either an increase in the rent, or to vacate the said property, and continued to occupy same without paying rent until it vacated the property on 28th July, 1998. The Respondent, accordingly, claimed Mesne Profit for that period. At the hearing of the summons for Judgment, the Appellant who entered appearance after the Respondent filed its summons for judgement contended that triable issues were raised both in its affidavit showing cause and the statement of Defence. The trial court gave judgment in favour of the Respondent. Being dissatisfied, the Appellant challenged the said judgment at the Court of Appeal on grounds that it ought to have been allowed to defend the action on the merit and that there was no evidence before the Court to sustain the award of pre-judgment interest on the sum claimed. The court below dismissed the appeal on grounds that a court can award interest as a consequential order. The above judgment gave rise to this present appeal.

Appeal Dismissed

Ø  Whether there is a competent Appeal before this Court?

“I seek to state the position of the law also that a notice of preliminary objection pursuant to the provisions of Order 2 Rule 9 of the Court’s Rules may validly be raised to question the competence of an appeal in the respondent’s brief of argument. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257 and 258 and Fawehinmi V. N.B.A. (No 1) (1989) 2 NWLR (Pt 105) 494 at 515 – 516. See also Ogidi V. Egba (1999) 10 NWLR (Pt. 621) 42 at 71 and Salami V. Mohammed (2000) 9 NWLR (Pt. 673 469.” PER C. B. OGUNBIYI, J.S.C.

“In other words, it can operate as a quick and easy weapon in the hands of the respondent to terminate an appeal without dissipating any energy, time or incurring many expenses.

Plethora of judicial authorities is overwhelmingly supportive in their pronouncements. For instance, the case of Efet V. INEC (2011) All FWLR (Pt. 565) page 203 at 216 is extant wherein this court held:-

“The aim/essence of preliminary objection is to terminate at infancy or to nib in the bud, without dissipating unnecessary energy in considering an unworthy or fruitless matter in a court’s proceedings. It, in other words, forecloses a hearing of the matter in order to save time. Where a notice of preliminary objection is filed and moved before a court of law, the court is duty bound to consider the preliminary objection before venturing into the main or cross-appeal as the case may be.”

Also in Rabiu V. Adebajo (2012) All FWLR (Pt. 634) 1836 at 1842 this Court said:-

“A preliminary objection as a threshold issue is a pre-emptive strike to scuttle the hearing of the appeal. It has to be disposed of before any further step can be taken in the appeal.”

The same foregoing principle of law was applied also in the case of Alegbe V. Governor Oyo State (2012) All FWLR (Pt. 534) 53 at 84 wherein this court stated the position of the law on the subject succinctly when it said thus;-

“However vague or minute a Preliminary Objection is, it must be first considered before the court can go forth, since the competence of the process is questioned. It must be resolved so that the court is not made to embark on a futile adventure into an appeal or suit that it either has no power to do or the matter being already dead.”

Other related authorities on the same principle are Abe V. Unilorin (2013) All FWLR (Pt. 697) 682 at 691 – 692; Agbareh V. Mimra (2008) All FWLR (Pt. 409) 3 SCNJ 24; Onyemeh V. Egbuchulam (1996) 4 SCNJ 237; and Yaro V. Arewa Construction Ltd & Ors. (2007) 6 SCNJ 418, (2008) All FWLR (Pt. 400) 603.

On a community reading of the foregoing cases, the underlying exposure is clear that the purpose of preliminary objection and effect if successfully taken, is to put to an end the hearing of an appeal. For a preliminary objection to qualify as such therefore, it should require serious argument and consideration on a point of law which if decided, one way or the other will be decisive of a litigation. In other words, the purpose of a preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective, which, if it succeeds, would put an end to the appeal. A preliminary objection to be successful ought to be taken against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.” PER C. B. OGUNBIYI, J.S.C.

“It is incumbent on a court therefore to outrightly consider the preliminary objection raised by a respondent. On determining it, one way or the other, the court will proceed to either strike out the appeal or consider same on its merit. See Abe V. University of Ilorin (supra); Utuk V. Nda (2005) 6 SC (Pt. 11) 69, and Uwazurike V. Attorney-General, Federation (2007) All FWLR (Pt. 367), 834″. PER C. B. OGUNBIYI, J.S.C.                 

The Black’s Law Dictionary, 9th Edition at page 1299 also gave the effect of preliminary objection that when upheld would render further proceedings before a tribunal impossible or unnecessary.” PER C. B. OGUNBIYI, J.S.C.

“It is crystal clear that the period prescribed by law for the giving of notice of appeal to this court is three months in an appeal against a final decision of the Court of Appeal. From the line of authorities, it is firmly established that, although the computation of any period within which to do any act must in individual cases depend on the intention of the law makers as can be gathered from the relevant legislation, as a general rule, the date of the event from which the calculation must commence is normally excluded from the reckoning and, consequently, the last day will be included. See Radcliffe V. Batholomai (1892) 1 QBD 161; Gelmini V. Moriggia (1913) 2 KB 549 and Marren V. Dawson Bentley & Co. Ltd. (1961) 2 KB 135. See also section 15(2)(a) of the Interpretation Act, Cap 192, Laws of the Federation of Nigeria, 1990, wherein it provides thus:

(a)    Where the period is reckoned from a particular event, as excluding the day on which the event occurs.”

“I wish to restate further and with emphasis that appeals generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive such appellate court of jurisdiction to entertain the appeal. See Kudiabor V. Kudanu 6 WACA 14. Failure to meet the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate court of jurisdiction. See in support the cases of Oranye V. Jibowu (1950) 13 WACA 41 and Ohene Moore V. Akese Tayee 2 WACA 43 whereby the Judicial Committee of the Privy Council was concerned, not with any extension of time but with failure by the appellant to fulfill certain statutory conditions requisite for the purpose of the appeal.” PER C. B. OGUNBIYI, J.S.C.

“The foundation is incurably defective and cannot be cured by any subsequent amendment. You cannot build something on nothing and expect it to stand. The entire structure, if any will surely collapse. The purported initial notice as well as the amended Notice of appeal filed by the appellant in the purported exercise of the right of appeal against the decision of the lower court are all incompetent and cannot be covered by section 233 of the Constitution. See the decision in Auto Import Export V. Adebayo & Ors (2002) 12 SC (Pt. 1) 158. See also Sken Consult V. Ukey (1980) 1 SC 6 at 26″. PER C. B. OGUNBIYI, J.S.C.

“The law is trite that facts not disputed are taken as established. They need no further proof. After all, an admitted fact is the best evidence establishing the fact in issue.” PER E. EKO, J.S.C.

“All processes or proceedings founded on a notice of appeal that is incompetent and void ab initio are all a nullity. They are incurably bad and cannot be regularised. As Lord Denning, MR, would put it: you cannot place something upon anything and expect it to stay. See Macfoy v. U.A.C. Ltd. (1961) W.LR. 3; (1961) A.C. 154″. PER E. EKO, J.S.C.

“A court is said to have jurisdiction to entertain a cause or matter when:

(1) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another;

(2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) the case comes before the court initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.

See: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Tukur Vs Governor of Gongola State (1988) 1 NWLR (Pt.68) 39: A.G. Kano State Vs A.G. Federation (2007) 6 NWLR (Pt.1029) 164.” PER K.M.O. KEKERE-EKUN, J.S.C.

“In the exercise of the right of appeal conferred by Section 233 of the 1999 Constitution, as amended, an appellant must comply with the provisions of Section 27 of the Supreme Court Act, which provides:

   (a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.”

“Failure to file an appeal within the time prescribed, in the absence of an application for enlargement of time within which to do so, would mean that the appeal is not initiated by due process of law. The defect in competence in such circumstance goes to the root of the competence of the entire appeal. The jurisdiction of the court to entertain the appeal would be ousted. See: Afribank (Nig) Plc Vs Akwara (2006) 5 NWLR (Pt.974) 619: Auto. Import Export Vs Adebayo (2002) 18 NWLR (Pt.799) 554.” PER K.M.O. KEKERE-EKUN, J.S.C.

“Order 2 Rule 31(1) & (2) of the Supreme Court Rules empowers this court to enlarge the time for doing any of the acts to which the Rules apply upon the fulfilment of certain conditions. The applicant must satisfy the court that there are special or exceptional circumstances to warrant the exercise of the court’s discretion in his favour. Sub-section (2) sets out what such an application must contain.” PER K.M.O. KEKERE-EKUN, J.S.C.

“In the absence of an application for enlargement of time, a Notice of Appeal filed out of time has no foundation. It is liable to collapse and nothing, such as an amendment of the incompetent process, can stand on it. A fundamentally defective notice of appeal cannot be cured by amendment. See: Nwaigwe Vs Okere (2008) 13 NWLR (Pt.1105) 445: FBN Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444: Uwazurike Vs A.G. Federation (20071 8 NWLR (Pt.1035) 11.” PER K.M.O. KEKERE-EKUN, J.S.C.

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

High Court of Lagos State (Civil Procedure) Rules, 1994.

Supreme Court Act Cap. 424 Laws of the Federation of Nigeria 1990

Supreme Court Rules 1999

Culled from The Legalpedia