IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, the 25th day of February, 2014
AYO ALABI & ANOR ................. Appellant
MRS. MOJISOLA ADEGBOYE .............. Respondent
Mr. Babatope Fajire for Appellant
Mr. Ekene Ugbede for Respondent
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment):
At Paragraph 17 of their Statement of claim dated and filed on the 6th November, 2012, the Appellants herein who were claimants at the Ekiti State High Court, sitting at Ikere-Ekiti (henceforth to be called 'the lower court') claimed against the respondent the following reliefs: -
"A. A DECLARATION that the parcel of land situate and being at Iro Quarters, off Ijare Road, Ikere-Ekiti covered by the Certificate of Statutory Right of Occupancy dated 9th February, 1996; registered as No. 25 at page 25 in volume 631 of the Lands Registry in the office at Akure, now in Ado-Ekiti State, forms part of the Estate of deceased Ebenezer Folarin Alabi.
B. A DECLARATION that the unauthorized entry of the defendant into the parcel of land situate and being at Iro Quarters, off Ijare Road, Ikere-Ekiti covered by the Certificate of Statutory Right of Occupancy dated 9th February, 1996, registered as No.25 at page 25 volume 631 of the Lands Registry in the office at Akure, now in Ado-Ekiti State, constitutes act of trespass.
C. The sum of N500,000.00 as general damages for the trespass committed by the Defendant.
D. PERPETUAL INJUNCTION restraining the defendant either by herself, her agents, servants or privies from committing any further act of trespass on the parcel of land situate and being at Iro Quarters, off Ijare Road, Ikere-Ekiti covered by the Certificate of Statutory Right of Occupancy dated 9th February, 1996 registered as No. 25 at page 25 in volume 631 of the Lands Registry in the office at Akure, now in Ado-Ekiti State".
The Respondent's statement of defence at the lower court is dated 21st of January, 2013 and filed on the 22nd January, 2013. Both statement of claim and the statement of defence are frontloaded with all the materials required for proof of parties' case. By a motion dated 21st of January, 2013, which was filed on the 22nd January, 2013, along with the statement of defence, the Respondent herein asked the lower court to strike out the Appellants' reliefs 1, 2, and 4 on the ground that the claims constituted an abuse of court process. This motion was heard on the 29th April, 2013. In a reserved and considered ruling which was delivered on the 3rd of July, 2013, Adeleye, J., found that the suit before him amounted to an abuse of the court process in the following words: -
"In the final analysis, suit No: IC22/2012 having been instituted before the instant suit, with the same parties and on the same subject matter amount to abuse of court process.
The instant suit is a camouflage of suit No: 1C/22/2012 which is still pending at the customary court.
Without much ado, the instant suit, 11CR/24/2012 is hereby struck out."
The Appellants are not satisfied with the decision of the lower court. Being aggrieved, they have brought this appeal. The notice of appeal at pages 69-70 of the record of this appeal, dated and filed on the 15th July, 2013 contains one ground of appeal. The sole ground of appeal without its particulars reads thus: -
"The learned trial Judge erred in law in dismissing the Appellants' case as abuse of court of (sic) process as being the same as suit No: IC/22/2012."
Parties filed and exchanged briefs of argument. The sole issue formulated by the appellants reads thus:
"WHETHER SUIT NO: HCR/24/2013 constitutes abuse of court process in view of suit No. 1C/22/2012"
For the Respondent, the following issue is formulated for determination of this appeal thus:-
"Whether suit No: HCR/241/2013 constitutes abuse of court process taking suit No: 1C/22/2012 into consideration"'
Before I take a look at the argument put forward by learned Counsel for both parties, it is pertinent to consider the validity of the sole ground of appeal. This is so because a notice of appeal that fails to contain grounds of appeal or valid grounds of appeal is incompetent, and a court will have no jurisdiction to entertain such an appeal.
The learned trial Judge in his decision struck out the Appellants' case. There is nowhere in that ruling where the Appellants' case was dismissed. However, the sole ground of appeal complains that the learned trial Judge erred in law in dismissing the Appellants' case.
Clearly the ground of appeal does not arise from the decision of the trial Court. In CO-OPERATIVE AND COMMERCE BANK PLC & ANOR. V. JONAH DAN OKORO EKPERI (2007) 29 NSCQLR 175 at 192, the Supreme Court, per Onnoghen, JSC held:
"It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out. See: MERCANTILE BANK OF NIGERIA PLC V. NWOBODO (2005) 130 LRCN 2269 at 2277 - 2278; IKWEKI V. EBETE (2005) ALL FWLR (PT.257) 1401 at 1420 - 1421."
The sole ground of this appeal does not arise from the judgment of the lower court. It is accordingly struck out. With the sole ground of appeal struck out, the Notice of Appeal contains no grounds of appeal. In CO-OPERATIVE AND COMMERCE BANK PLC & ANOR. V. DAN OKORO EKPERI (SUPRA) at PAGE 192, the Supreme Court, per Onnoghen, JSC held:
"It is settled law that a notice of appeal filed within the time but without any ground or valid ground of appeal is a worthless piece of paper being grossly incompetent and liable to be struck out."
I find the notice of appeal herein incompetent and liable to be struck. Accordingly, same is struck out for being incompetent, Incompetent notices of appeal do not activate the jurisdiction of appellate Courts. Since incompetence of such process is a jurisdictional issue, this Court has not insulted the law by raising it suo - motu.
On the whole, the appeal having been founded on an incompetent process is struck out accordingly. There shall be cost of prosecuting this appeal which I assess at N30,000.00 in favour of the Respondent and against the Appellants.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:
I have been privileged to read in advance the lead judgment just delivered by my just learned brother, Paul Adamu Galinje, JCA. I agree that this appeal has been predicated on an incompetent originating process and should be struck out. I also strike out the appeal. Furthermore, I abide by the consequential order made in the lead judgment regarding costs.
FATIMA OMORO AKINBAMI, J.C.A.:
Having had the opportunity of reading the draft leading judgment of my learned brother PAUL ADAMU GALINJE JCA, which decision I agree with. To place my support on record I shall make my views known.
This is an appeal against the Ruling of Ekiti State High Court sitting at Ikere Ekiti delivered by Per Adeleye, J. on the 3rd of July, 2013 in which the learned trial Judge found that the suit before him amounted to an abuse of Court process and consequently struck out the suit.
Appellants being dissatisfied with the decision of the lower Court, appealed to this Court by notice of appeal filed on the 15th July, 2013.
The sole issue raised for determination in this appeal was eloquently dealt with in the lead judgment.
I agree with his reasoning and conclusion in the lead judgment.
I also find the notice of appeal incompetent and liable to be struck out.
The whole appeal having been founded on an incompetent process I also strike it out.
I abide by the consequential orders made by his Lordship.