NDUKKIE ESIRI 2 ORS (APPELLANT)

v.

UZOR IDIKA 2 ORS (RESPONDENT)

(1987) All N.L.R. 529

Division: Supreme Court of Nigeria

Date of Judgment: 13th November, 1987

Case Number: (SC. 95/1987)

Before: Eso, Nnamani, Uwais, Kawu, Oputa, J.J.S.C.

This matter arose by way of a preliminary objection raised by Counsel for the plaintiff/respondent challenging the jurisdiction of the Court of Appeal Enugu division to make the consequential order it made on the appellants/applicants' application for leave to appeal to the Supreme Court on grounds of fact and or mixed law and fact.

The fact leading to this preliminary objection are as follows-

On the 13th January 1986 the Court of Appeal Enugu division allowed the appeal of the plaintiff/respondent and remitted the case to the Afikpo division of the Imo State High Court to be tried by another judge. The defendant/appellant being aggrieved and dissatisfied decided to appeal against the judgment. On the 28th of February they filed a notice and grounds of appeal dated 26th February, 1986. The grounds were that of fact or of mixed law and fact which in order to be competent required leave but none was obtained either from the Supreme Court or Court of Appeal. However on the 25th of March 1986 the defendant appellant still within Time now applied for leave of the court of Appeal as required by S.213(3) of the 1979 Constitution of the Federal Republic of Nigeria. On the same day the Court of Appeal made the following order-

"It is ordered:

That the Application be and it is hereby granted. The Notice and Grounds of Appeal exhibited with the motion paper is deemed to have been filed on 28/2/86. Costs of N25.00 to the Respondents "

It is against this consequential order of 25th March 1986 which sought to validate the incompetent and purportment Notice of Appeal filed on 28th February 1986 supported by grounds requiring leave where no such leave had previously been either sought or obtained, that the plaintiff/respondent raised objection.

HELD:

(1)     An appeal to the supreme Court from a decision of the Court of Appeal on questions of fact or mixed law and fact in respect of which leave to appeal has not been obtained from the Court of Appeal or the Supreme Court is incompetent-Constitution of the Federal Republic of Nigeria 1979, s.213(3).

(2)     Although s.213(3) of 1979 Constitution gives the Court of Appeal and supreme Court no more than the power to grant leave to appeal it did not deprive either Courts of the inherent powers which enure to is as a superior court of record under S.6(6)(a) of the same Constitution.

(3)     As a superior Court of record the Court of Appeal has inherent powers to make such orders or take such actions as will protect or enhance the dignity of the Court or promote the speedy or fair dispensation of justice.

(4)     An inherent jurisdiction of the court must be distinguished from the exercise of judicial discretion and it may be exercised in any given case not withstanding that there are rules of court governing the circumstance of each case so long as the terms of the inherent jurisdiction of the court is not used in central distinction to the jurisdiction conferred on the court by statute. The court may exercise its inherent jurisdiction conferred on the court by statute. The court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court so long as it can do so without contravening any statutory provision.

contravening any statutory provision.

(5)     The Court of Appeal therefore has power under its inherent jurisdiction to make the consequential order in the terms as per the drawn order.

(6)     Under Order 8, rule 2(1) and Order 2, rule 30 of the Supreme Court Rules 1985 the purported notice of appeal filed by the defendant on the 28th of February 1986 was no notice before the Supreme Court but a mere document because the grounds of appeal raised the question of mixed law and fact of which leave was not sought. The document only acquired a status of a notice of appeal to the Supreme Court after the Court of Appeal on 25th March 1986 granted leave. Therefore the Court of Appeal did not traverse into matters exclusively within the jurisdiction of the Supreme Court.

(7)     The preliminary objection raised no more than an issue of technicality and substantial justice cannot be done unless Courts of Justice strain to ensure that appeals are head on their merit.

APPEAL dismissed

Mr I.F. Ogbuagu for Appellants/Applicants

Mr A.O. Mogboh for Respondents

Cases Referred to

1.      Abaye v Ofilli & Ors. (1986) 1 S.C. 231 at p.278

2.      Adigun v. A.G. of Oyo State (1987) 11 S.C. 132

3.      Akpasubi v. Unweni (1982) 11 S.C. 132

4.      Akiwiwu Motors Ltd. & Anor. v. Songonuga (1984)

5.      Connelly v. D.P.P. (1964) A.C. at 1301

6.      Lazard Brothers & Co. v. Midland Bank Ltd. (1933) A.C. 289

7.      Macfoy v. U.A.C. Ltd. (1961) 3 W.L.R. 1405 3 ALL E.R. 1169

8.      Ogbu v. Urun (1981) 1 ALL N.L.R. (Part 2) 240 at p.248

9.      Ojeme v. Momodu III (1983) 3 S.C. 173

10.    Oke v. Eke (1982) 12 S.C. 228

11.    Regina v. Madway (1976) 2 W.L.R. 528 at p.545

12.    Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26

13.    U.B.A. Ltd. v. Nwora (1978) 11-12 S.C. 1 at pp. 9-10

Statutes referred to

1.      Constitution of Federal Republic of Nigeria 1979

2.      Supreme Court Act No. 12 of 1960

3.      High Court (Civil Procedure) Rules 1973 of Lagos

4.      Supreme Court Rules, 1977

5.      Supreme Court Rules, 1985

Nnamani, J.S.C. This short matter arose by way of a preliminary objection raised by learned Senior Advocate appearing for the plaintiffs/respondents in the main appeal. The objection, brought under Order 2, Rule 9 of the Supreme Court Rules, 1985 was in these terms-

"TAKE NOTICE that the Respondents intend to raise a preliminary objection to the appeal. The Grounds of objection are as follows-

1       The Notice and Grounds of Appeal filed on 28/2/86 p.179 involved questions of fact or mixed law and fact.

2       No leave of Lower Court or of the Supreme Court was sought for and obtained prior to the filling of the Notice and Grounds of Appeal on issues of mixed law and fact in accordance with the provisions of Section 213 sub-Section 3 of the Constitution of the Federal Republic of NIGERIA.

3       Where no such leave was obtained prior to the filing of the Notice and Grounds of Appeal involving questions of fact or mixed law the said Notice and Grounds of Appeal are incompetent.

4       The said Notice and Grounds of Appeal which entirely and completely involve questions of fact or mixed law and fact are null and void.

5       The Order of court on 25/3/86 granting leave to appeal and deeming the Notice and Grounds of Appeal as being properly filed on 28/2/86 could not and did not have the effect of giving life to any incompetent Notice and Grounds of Appeal. Ex nihili nihil fit-the Court could not possibly build up something on nothing. Leave of Court was a condition precedent to the filing of the Notice of Appeal.

6       After leave was obtained on 25/3/86 no new Notice and Grounds of Appeal was filed despite the fact that the Appellants were within time to do so.

7       The conditions of Appeal given are incompetent since the Notice and Grounds of Appeal upon which those conditions are given are incompetent.

8       There has been no extension of time within which to apply for leave to appeal and to appeal.

9       The Court lacks jurisdiction to entertain the appeal."

This preliminary objection was supported by an affidavit sworn to by AGWU AGNA URO which very succinctly set out the events in the Court of Appeal which led to this object. Paragraphs 4, 5, 8, 9, 11, 12, 13, 15 and 16 particularly contain the core of the objection. Those paragraphs were in these terms-

"4      That after the judgment of the Court of Appeal in this case, the Appellants on 28th February, 1986 filed their Notice and Grounds of Appeal.

5       That the Deputy Chief Registrar of the Court of Appeal by letter Ref. FCA/E/81/81 and dated 4th March, 1986 forwarded seven copies of the Notice of Appeal to the Chief Registrar, Supreme Court, copying and enclosing a copy of the Notice of Appeal to our Counsel.

8       That the Notice and Grounds of Appeal filed by the Appellants involved questions of fact and mixed law and fact.

9       That prior to filing the Notice and Grounds of Appeal the Appellants neither sought nor obtained leave either of the lower court or the Supreme Court to appeal on issues of purely fact or mixed law and fact.

11      That the conditions of Appeal given and the perfection of such conditions were based on the Notice and Grounds of Appeal filed on 28/2/86, which Notice was filed without leave of either the Court of Appeal of the Supreme Court.

12      That on 25th March, 1986 the Appellants realising that they required leave of the Lower Court to appeal to the Supreme Court on issues of fact or mixed law and fact then applied to the Court of Appeal for leave.

13      Counsel for the Appellants in paragraph 4 of the Affidavit in support of the application as follows-

"That I am aware that the Grounds of Appeal are not only one grounds of law alone and therefore the defendants/applicants require the leave of this Honourable Court in order to appeal."

15      That the Court of Appeal on 25th March, 1986 made an order granting Appellant's leave to appeal. The said order is attached herewith and marked Exhibit D.

16      That the Court in Exhibit D deemed the Notice and Grounds of Appeal filed by the Appellants on 28/2/86 without leave as having been properly filed."

I should add that the Defendant/Appellants who are Respondents to this objection filed a Counter-Affidavit but I shall come to that later.

The order made by the Court of Appeal dated 25th March, 1986 and which is really at the core of this objection is in these terms-

"Court: Order as prayed. Notice and Grounds of Appeal Exhibit A deemed duly filed. Costs of N25.00 to Respondents

A.I. KATSINA-ALU,

Justice Court of Appeal,

25/3/86."

In his submissions to this Court, learned Senior Advocate, Mr Mogboh, contended that the order of the Court of Appeal cannot be retrospective. He challenged that order which deemed the notice of appeal previously filed proper. It was Mr Mogboh's contention that the Court of Appeal acted without jurisdiction. He referred to the decision of this Court in Akwiwu Motors Ltd. and Anor. v. Dr B.O. Sangonuga (1984) 5 S.C. 184 at 186. He agreed however that at the time the Court of Appeal made its order, the respondents were still within time to appeal so that there could have been no question of applying for extension of time to appeal.

The defendants/appellants as earlier mentioned filed a counter affidavit sworn to by one UZOR IDIKA. Paragraphs 7, 8 and 10 appear to me relevant to the contention here. They stated as follows-

"7.     That our counsel informed me and my people and we verily believe him, that the Ground for the objection is not a matter for taking a preliminary objection but one the Respondents should have taken up on Appeal if they were dissatisfied with the said order of the Court of Appeal.

8.      That our Counsel further informed me and I verily believed him that the proceedings of the Court of Appeal on the 25th March, 1986 which appears at page 173 of the Records, show that the Respondents were represented by Counsel who was present and who neither opposed the Motion nor the Order of the Court of Appeal.

10.     That our Counsel further informed me and I verily believe him, that even at the date the Court of Appeal made the order, that there was a NOTICE OF APPEAL filed by the appellants within the time prescribed by law, and that the leave to Appeal was granted to make the Appeal competent and invest this Court with jurisdiction to hear the appeal. That the Appellants satisfied within time the conditions of Appeal."

In his submissions before this Court, Mr Ogbuagu, learned Counsel to the defendants/appellants reiterated these points set down in the counter affidavit. He submitted that the Court of Appeal had the power to make the order it made. It did it, he further submitted under its inherent jurisdiction having regard to the following facts-

(i) The Constitution allows the Court of Appeal to grant leave;

(ii) at the time the order was made the appellants were within time;

(iii) the order was to regularise the papers already filed.

He referred to the decision of this Court in U.B.A. Ltd. v. Dike Nwora (1978) 11-12 S.C. 1 at pp.9-10.

Two issues in my view arise for resolution in this objection. First, did the Court of Appeal have power to make the order which it made? Second, and in a related sense, was that order made in violation of the jurisdiction of this Court such that it would necessarily have been made without jurisdiction?

It is necessary to start with Section 213(3) of the Constitution of the Federal Republic of NIGERIA 1979 as amended (hereinafter referred to as the Constitution).

It provides as follows-

"213 (1)     The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal

(3)     Subject to the provisions of Subsection (2) of this Section (which grants appeal as of right in certain cases), an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court."

Subsection 2, as mentioned earlier, deals with appeals on questions of law alone, questions whether civil or criminal relating to the interpretation of the Constitution, questions relating to Chapter IV of the Constitution, questions relating to elections and decisions in any criminal proceeding in which any person has been sentenced to death. It would be seen that decisions in any civil or criminal proceedings involving questions of fact or mixed law and fact are not included. It is to those decisions that Subsection 3 applies. There are a plethora of decisions of this Court, and this matter has almost become trite law, that an appeal to the Supreme Court from a decision of the Court of Appeal on questions of fact or mixed law and fact in respect of which leave to appeal has not been obtained from the Court of Appeal or the Supreme Court is incompetent and would inevitably struck out. In such a case the Supreme Court would lack jurisdiction to entertain such an appeal. If it was necessary to mention an authority, I would refer to Akwiwu Motors Ltd. (Supra). There Obaseki, J.S.C. put it clearly when he said at page 186,

"This Court has, in a series of cases, decided that where grounds of appeal involve questions of mixed law and facts, leave of the Court of Appeal or the Supreme Court must be obtained to make the appeal competent and invest the Supreme Court with jurisdiction to hear the appeal."

See Ojeme v. Momodu III (1983) 3 S.C. 173; Oke v. Eke (1982) 12 S.C. 228; Akpasubi v. Unweni (1982) II S.C. 132. Similar opinions were expressed by Bello, J.S.C. (as he then was), Eso, Aniagolu and Nnamani, J.J.S.C.

The notice and 3 grounds of appeal dated 28th February, 1986 and field by the Defendants/Appellants at the Court of Appeal Registry Enugu obviously at best raised issues of mixed law and fact, an attempt by learned Counsel, Mr Ogbuagu, to submit that ground one raised issues of law was summarily rejected by this Court. It is not being argued that the Court of Appeal had no power to grant leave to appeal as it did. It is only being contended that, until it did, the appeal was incompetent and it could not do anything which would appear to revive it. More specifically, it was contended that the Court of Appeal after granting leave to appeal became functus officio and had no power to make any further order such as it made. The motion paper filed by the defendants/appellants had in the prayers, a prayer for "such further and other orders as this Honourable Court may deem fit to make."

It is conceded that Section 213(3) of the constitution in its terms gives the Court of Appeal, or for that matter the Supreme Court, no more than the power to grant leave to appeal. But it cannot correctly be argued that it deprived either court of the inherent powers which enure to it as a Superior Court of Record. Section 6(6) (a) of the Constitution provides as follows-

"6      (6)     The judicial powers vested in accordance with the foregoing provisions of this section-

(a)     Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law."

By Section 6(5) of the constitution, the Federal Court of Appeal is among the Superior Courts to which the whole of Section 6 applies. Inherent powers enure to a Superior Court of Record enabling it to make such orders or take such actions as will protect or enhance the dignity of the Court, or promote the speedy or fair dispensation of justice. In Adigun v. A.G. of Oyo State (1987) 2 N.W.L.R. 197, this Court quoted with approval the views of Mr Jacob in an article titled "The inherent jurisdiction of the Court" to the effect that,

"(a) the inherent jurisdiction of the Court is a concept which must be distinguished from the exercise of judicial discretion;

(b)     it may be exercised in any given case notwithstanding that there are rules of court governing the circumstances of each case. The powers conferred by Rules of Court are generally speaking additional to and not in substitution of powers arising out of the inherent jurisdiction of the Court;

(c)     the terms inherent jurisdiction of the Court is not used in contra distinction to the jurisdiction conferred on court by Statute. The Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court so long as it can do so without contravening any statutory provision."

In the case just reviewed, however, this Court held that its undoubted inherent jurisdiction cannot over-ride the finality of its judgments as provided by Section 215 of the Constitution and Order 7, rules 30 of the Supreme Court rules, 1977, now Order 8, Rule 16 of the 1985 Rules. Lord Morris in Conelly v. D.P.P. (1964) A.C. at 1301, writing on the inherent jurisdiction of the Court was of the view that "a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its powers." (Italics mine).

It seems to me that the Court of Appeal had the power under its inherent jurisdiction to make the consequential order in the terms as per the drawn order.

"the Notice and Grounds of Appeal exhibited with the motion paper is deemed to have been filed on 28/2/86."

Be it remembered that these notice and grounds of appeal were at all materials times before the Court of Appeal having been annexed to the motion papers praying for leave to appeal. If the consequential order was not made, the defendant/appellants would have prepared another notice and grounds of appeal, filed same in the Registry and probably paid fees a second time. That to me would be reducing the processes of court to mere mechanical exertions completely oblivious of any consideration for the much talked about speedy administration of justice. The Court of Appeal, be it added has not contravened any statutory provision, at least not Section 213(3) of the Constitution. It had gone beyond it.

This necessarily brings me to the final, and perhaps more important second issue. The inherent jurisdiction of a court does not empower it to act in a matter outside its jurisdiction. To relate this to the circumstances of this case, the Court of Appeal cannot make an order in respect of a matter which is properly before the Supreme Court. To be even more specific, if the appeal was already pending before this Court, the Court of Appeal would have no power howsoever described i.e. inherent or not, to make the order it made on 25/3/86 about which there is now complaint. By the papers filed by the appellants on 28/2/86 was an appeal pending in this Court?

Order 8, Rule 2(1) of the Supreme Court rules, 1985 provides that,

"All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called "the notice of appeal") to be filed in the Registry of the Court below which shall set forth grounds of appeal..."

Furthermore, Order 2, Rule 30 of the Supreme Court Rules, 1985 provides that-

"An Appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below"

On the fact of the two Rules of this Court, it would seem as if there was indeed an appeal pending in this Court but this is not so. As previously mentioned, the grounds of appeal in the 'purported' notice of appeal filed by defendants on 28/2/86 raised questions of mixed law and fact, and as no leave was obtained prior to their filing, they remained no more than mere documents. They were not notice and grounds of appeal within the meaning of Order 2, rule 20 and Order 8, rule 2, Supreme Court Rules, 1985. They acquired that statute after the Court of Appeal orders on 25th March, 1986. It follows that there was prior to 25/3/86 no appeal by the Defendants pending in this Court. The Court of Appeal did not therefore traverse into matters exclusively within the jurisdiction of this Court.'

What the Court of Appeal did in the instant case is what this Court has done in numerous cases, all in an attempt to hasten the paces of the administration of justice. It was probably that spirit that this Court exhibited in Nwora and U.B.A. Ltd (Supra). There the plaintiff served amended writ of summons together with amended statement of claim on defendants. When the defendants failed to file statement of defence within 14 days from date of service of statement of claim on the as provided for in Order 18, Rule 6 of the High Court of Lagos (Civil Procedure) Rules 1973, the Plaintiff on 10th February 1976, applied for an order entering judgment as per his writ of summons. On receiving a copy of the motion for judgment, each defendant filed his statement of defence. The Chief Judge of Lagos, refusing to enter judgment for the plaintiff, ordered that the defendants should file their application for enlargement of time to file a defence within 10 days. Held as per Fatayi-Williams, J.S.C. (as he then was) on appeal that by ordering the defendants, as he did, to apply within 10 days to file another statement of defence, the learned Chief Judge was merely taking refuge in an unnecessary legal technicality which would obviously delay the hearing of the case further. It was further held that he should have extended time to file the statements of defence to the date of his ruling, order that the statements of defence already filed had been duly filed and fix a date for hearing.

It remains for me to say, with all respect, that substantial and well reasoned as this objection has been, it is nevertheless a further journey into the arena of technicalities. This Court has resolutely set its face against them, preferring in numerous decisions of which Nofiu Surakatu v. Nigeria Housing Development Society Ltd. and Anor. (1981) 4 S.C. 26, may be one of those marking the beginning of that stance, to do substantial justice between the parties. The Courts are Courts of law but may the day never come when they cease to be courts of justice. Substantial Justice cannot be done unless Courts of Justice strain to ensure that appeals are heard on their merit.

This preliminary objection has failed and it is accordingly dismissed. Costs of N25.00 are awarded against the Plaintiffs/Applicants herein and in favour of the Defendants/Appellants.

Eso, J.S.C. I have had a preview of the ruling just delivered by my learned brother, Nnamani, J.S.C. I am in full agreement with his reasoning and conclusion.

I abide by all the orders made in the said ruling of my brother Nnamani J.S.C.

Uwais, J.S.C. I have had the opportunity of reading in draft the ruling read by my learned brother, Nnamani, J.S.C. I agree with the ruling and adopt it as mine. I endorse the order as to costs.

Kawu, J.S.C. I have had the advantage of reading in draft the Ruling of my learned brother, Nnamani, J.S.C. which has just been delivered. I am in complete agreement with the Ruling and for the reasons stated therein, I too will dismiss the preliminary objection with N25.00 costs against the Plaintiffs/Applicants and in favour of the Defendants/Appellants.

Oputa, J.S.C. On the 28th day of September, 1987 when this appeal came up for hearing, Mr Mogboh, S.A.N., learned Counsel for the Plaintiffs/Respondents raised a preliminary objection challenging the jurisdiction of the Court of Appeal Enugu Division to make the consequential order it made on the Appellants/Applicants' application for leave to appeal to the Supreme Court on ground of fact and/or mixed law and fact. The essential and relevant facts are as follows-

1       On the 13th day of January, 1986 the Court of Appeal Enegu Division allowed the appeal of the Plaintiffs and remitted the case to the Afikpo Division of the Imo State High Court "to be tried by another judge."

2       The Defendants aggrieved and dissatisfied decided to appeal against the above judgment of the Court of Appeal.

3       The Notice and Grounds dated 26th February 1986 were filed on the 28the day of February 1986.

4       The Grounds supporting, sustaining and animating the Notice of Appeal were all Grounds of fact or of mixed law and fact which, to be competent grounds, required leave.

5       No leave of the Court of Appeal or of the Supreme Court was obtained before the purported Notice of Appeal and Grounds were filed on the 28/2/86.

6       On the 25th day of March, 1986 the Defendants/Appellants, still within time, then applied for leave of the Court of Appeal, as required by Section 213(3) of the 1979 Constitution of the Federal Republic of Nigeria, to appeal on grounds of fact and/or mixed law and fact.

7       On the same day-25th day of March, 1986-the Court of Appeal Enugu Division made the following Order-"It is ordered That the Application be and it is hereby granted. The Notice and Grounds of Appeal exhibited with the Motion paper is deemed to have been filed on 28/2/86. Costs of N25.00 to the Respondents" (the Italics are mine).

The quarrel of learned Counsel for the Respondents is with the underlined consequential Order of 25th March 1986 which sought to "validate" the incompetent and therefore purported Notice of Appeal filed on the 28th day of February, 1986 supported by grounds requiring leave where no such leave had previously been either sought or obtained.

This Court has by S.213 of the 1979 Constitution appellate jurisdiction to hear and determine appeals from the Court of Appeal. But this Court will only exercise that jurisdiction after the appeal has been entered under Order 8 Rule 11. Before then the Court of Appeal acts as a conduit pipe to receive and transmit documents filed in its Registry. All appellate Courts are creatures of Statute which clearly defines and delimits their jurisdictions. By Order 2 Rule 30 of the Supreme Court Rules of 1985-

"An appeal shall be deemed to have been brought when Notice of Appeal has been filed in the Registry of the Court below."

I have had the privilege of a preview in draft of the lead Ruling just delivered by my learned brother Nnamani, J.S.C. and I am in total agreement with his reasoning and conclusions. In my view the issues involved in this seemingly minor objection are quite radical and substantial. They include-

(i)      When is an appeal to the Supreme Court from the Court of Appeal brought de jure rather than de facto? In other words what is the scope of Order 2 Rule 30 of the Supreme Court rules 1985?

(ii)     What is the extent of the jurisdiction conferred on the Court of Appeal by Section 213(3) of the 1979 Constitution of the Federal Republic of Nigeria?

(iii)    Can the Court of Appeal in the exercise of its constitutional power to grant leave proceed to make a consequential order after granting the leave sought?

I will like to make my own contribution to the issues stated above to further emphasise the points made in the lead Ruling.

Any Court after delivering its judgment either at first instance or on appeal becomes functus officio and then will lack the jurisdiction to take any further step in the case/appeal except as provided for in and by any written law. In this case, when the Court of Appeal Enugu Division delivered its judgment on the 13th day of January, 1986 its normal jurisdiction came to an end. The next step in the process of litigation will then be an appeal to the Supreme Court. When that has happened then the Supreme court by Order 8 Rules 11 and 12 of the Supreme Court Rules 1985 becomes the appropriate Court to hear and determine any applications in respect of the pending appeal. Now the first questions for determination as stated above arises.

When is an appeal deemed to be legally before the Supreme Court? By Section 31(1) of the Supreme Court Act No. 12 of 1960-

"31     (1)     Where a person desires to appeal to the Supreme Court 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..."

The above Section draws the necessary distinction between a Notice of Appeal and a Notice of an application for leave to appeal. This is so because Section 213 of the 1979 Constitution gave an appellant two rights namely-

1.      A right of appeal as of right; and

2.      A right of Appeal with leave.

When an appellant is appealing on a point of law, that is to say, when his grounds of appeal are grounds of pure law he appeals as of right, see Section 213(3) of the 1979 Constitution. But when he appeals on grounds of fact or of mixed law and fact his purported appeal is incompetent, a nudum factum, without the requisite leave. Therefore to decide whether there is a proper appeal pending before the Supreme Court by virtue of Section 213 supra, one has to go beyond the papers title "Notice of Appeal" and carefully examine all the grounds supporting and animating that Notice of Appeal. If none of the grounds is a ground of law and if in addition no prior leave has been obtained pursuant to Section 213(3) of the 1979 Constitution, then no appeal is yet pending before the Supreme Court. Papers title Notice and Grounds of Appeal had been filed, yes indeed, but those papers were worthless and quite ineffective to constitute a valid and competent appeal. The papers titled "Notice of Appeal" and "Grounds of Appeal" were coram non judice and a nullity and the Court of Appeal would be perfectly justified in the exercise of its inherent jurisdiction to overlook those invalid "Notice" and "Grounds" as constituting an appeal to the Supreme Court which should have deprived it of further jurisdiction in the matter: See Lazard Brothers & Co. v. Midland Bank Ltd. (1933) A.C. 289. If Notice and Grounds of Appeal are not in conformity with the requirements of the Constitution and of the law they must be treated as void ab initio-Macfoy v. United Africa Company Ltd. (1961) 3 W.L.R. 1405, (1961) 3 All E.R. 1169: (1962) A.C. 152 refers. Order 2 Rule 30 of the Supreme Court Rules stipulates-

"Order 2 Rule 30-

An appeal shall be deemed to have been brought when Notice of Appeal has been filed in the Registry of the Court below."

This Rule has to be read inconjunction with Section 213 of the 1979 Constitution and when the Rule talks of Notice of Appeal it means a Notice of Appeal supported by at least a valid ground of appeal as prescribed by the afore-mentioned Section 213 of the 1979 Constitution.

Applying the above to the facts of this case one soon discovers that on the 25th day of March 1986 when the Appellants applied to the Court of Appeal for leave, there was no appeal deemed to have been brought before the Supreme Court. By s.213(3) of the 1979 Constitution the Court of Appeal Enugu Division has the legal authority and the constitutional power and therefore the jurisdiction to entertain an application for leave to appeal from its decision to the Supreme Court on issues of fact or of mixed law and fact. The Court of Appeal Enugu Division then exercised its undoubted jurisdiction to grant leave and ordered that "the application for leave be and is hereby granted." After that it then made a consequential order which is the subject of Mogboh's present objection. It ordered that "the Notice and Grounds of Appeal exhibited with the Motion paper is deemed to have been filed on 28/2/86..." There is no doubt that the proper procedure after the grant of this leave by the Court below is that stipulated in Order 2 Rule 28(5) that is to say-the Appellants will then file their Notice of Appeal.

Before considering the jurisdiction of the Court of Appeal or any Court for that matter including the Supreme Court to make a consequential order, one is force to comment on the incongruity and inelegance of the order made by the Court below the subject-matter of this objection. The incompetent "Notice of Grounds of Appeal" exhibited with the motion paper were in fact filed on the 28/2/86. There was therefore no need at all for the Court of Appeal to deem them to have filed on the very same date 28/2/86. That incidentally added nothing to the discussion. Would it have been otherwise if the Court below deemed the Notice and Grounds to have been properly filed on the 28/2/86? I seriously doubt it, for then the Appellants would have come face to face with another substantial hurdle namely that on 28/2/86 no leave had been obtained as required by Section 213(3) of the 1979 Constitution. What the Court below should have done was to have deemed the Notice and Grounds already filed to have been properly filed on the 25th March, 1986 after the granting of leave for it was on the day leave was granted that the Notice and Grounds became competent and not before. It would even have been sufficient for the Court below simply to order that the Notice and Grounds filed on 28/2/86 are now deemed to be properly filed. This is a small point but not an insignificant or inconsequential point since it goes to competence of the Notice and the subsequent jurisdiction of this Court. Mr Mogboh's objection however was not directed against the dates 28/2/86 or 25/3/86 but with the jurisdiction of the Court of Appeal to make the consequential Order of deeming the Notice and Grounds already filed to be properly filed.

Now the judicial powers of the Federation vested in the Courts by Section 6(1) of the 1979 Constitution "shall extend ... to all inherent powers and sanctions of a Court of law"-see Section 6(6) (a) of the Constitution. In Regina v. madway (1976) 2 W.L.R. 528 at p. 545 Lawson, J. reading the judgment of the Court of Appeal in England stated inter alia-

"... the jurisdiction of this Court and of its predeccesor is based upon Stature ... the inherent jurisdiction to regulate proceedings before the Court of Statutory jurisdiction there is a lis extant before the Court upon which that inherent jurisdiction can operate" (the Italics are mine).

My learned brother Obaseki, J.S.C. cited with approval the above dicta in Chief Iro Ogbu & Ors. v. Chief Ogburu Urum & Ors. (1981) 1 All W.L.R. (Part 2) 240 at p. 248. In this case the Court of Appeal had not merely statutory but even constitutional jurisdiction under Section 213(3) of our 1979 Constitution to grant leave to appeal on grounds of fact or mixed law and fact. Now in the exercise of that constitutional jurisdiction has it any inherent jurisdiction to make a consequential order regulating the proceedings by deeming the Notice filed as properly filed? Under Order 2 Rule 28(5) Supreme Court Rules 1985-

"Order 2 Rule 28-5

If leave to appeal is granted... by the court below the appellant shall file a notice of appeal."

This simply means that in this case the consequential Order of the Court below has given a de jure recognition to what the Appellants did de facto on the 28th February, 1986 that is taking their notice of appeal to the Registry of the Court and paying the requisite filing fees.

Secondly in Abaye v. Ofilli & Ors. (1986) 1 N.W.L.R. 134 at p. 148 in a lead judgment, my learned brother Uwais, J.S.C. held

"There is no doubt that the Court of Appeal, being a superior Court of record under the 1979 Constitution of the Federation of the Republic of Nigeria, has sufficient powers to make the consequential Order. These powers are derived from different sources..."