NALSA & TEAM ASSOCIATES (PLAINTIFF)

v.

NIGERIAN NATIONAL PETROLEUM CORPORATION (DEFENDANT)

(1991) All N.L.R. 297

Division: Supreme Court of Nigeria

Date of Judgment: 15 November 1991

Case Number: SC 133/1988

Before: Adolphus Godwin Karibi-Whyte; Saidu Kawu; Phillip Patrick Nnaemeka-Agu; Abubakar Bashir Wali; Uchemefuna Omo, JJSC

ISSUES

Faced with two simultaneous applications - one in which the plaintiffs asked for the striking out of an appeal on the ground of incompetence and the other in which the defendant asked for extension of time to apply for leave, and a deeming order validating the notice and grounds of appeal - was it right for the Court of Appeal to take first the defendant's application, considering the crucial nature of the plaintiffs' application?

Was the Court of Appeal correct in allowing an extension of time within which to obtain leave to appeal, granting the leave and ordering that the patently incompetent and void notice and grounds be deemed to have been properly filed?

FACTS

On 26 November 1986 the defendant applied to the High Court to strike out an action brought against it by the plaintiffs, on the ground that the plaintiff's action had been statute-barred. The plaintiffs had earlier obtained default judgment against the defendant and only when that judgment was set aside did the defendant for the first time in amended pleadings raise the defence of limitation of action. The application was dismissed, and the trial court held that the defendant had waived its right to raise the defence of the statutory barring of the plaintiff's claim.

Without giving notice to this effect the defendant on 14 January 1988 filed a notice of motion in the Court of Appeal seeking an extension of time within which to apply for leave to appeal, leave to appeal and an order that the notice of appeal, the grounds thereof as well as an additional ground be deemed to have been properly filed.

On 3 June 1988 the Court of Appeal rejected the plaintiffs' preliminary objection to the defendant's motion and granted the defendant's prayers in full.

The plaintiffs now appealed to the Supreme Court.

HELD (Unanimously upholding the appeal)

1.      On simultaneous applications before court

1.1 Where one application seeks to strike out proceedings and the other to rectify a point of non-compliance, priority should be given to the latter. This approach is in tandem with the courts' duty to exercise substantive justice, as opposed to technical justice. Time and expenses are also saved in this way. Nnaemeka-Agu, JSC, at pages 307 and 308.

1.2. Nothing prevented the Court of Appeal from exercising its discretion in deciding upon this issue. The hearing of the application that will lead to substantive justice being done in the hearing of the substantive action should be given preference. Karibi-Whyte, JSC, at pages 314 and 318 and, obiter, 1.3. a distinction should be drawn between allowing an application and allowing the prayers contained therein. The one does not necessarily follow the other. Karibi-Whyte, JSC, at page 319.

2.      On the court below granting a "deeming order"

Where the defendant had a statutory period of 14 days within which to file a notice of appeal against a judgment delivered in November 1986, the court below had lost its jurisdiction to order that the notice and grounds of appeal could be deemed to have been properly filed by the time it so found in June 1988 in respect of a notice to that extent having been filed in January 1988. Nnaemeka-Agu, JSC, at page 310.

3.      On the right of appeal

A distinction need be drawn between a right of appeal as of right and one with leave of the court. Where the appeal is based on questions of law alone, the right of appeal, within the statutory time-frame, is automatic (Section 220(1)(b) of the Constitution). Where the appeal touches upon issues of fact only, or upon a mixture of facts and law, leave is required. If such leave is absent, the notice of appeal will be deemed to be of no effect, the same being null and void. In this instance, it was not disputed that the point(s) raised in the grounds of appeal were based on facts and mixed law and facts. Thus, no right of appeal could have followed without leave. Nnaemeka-Agu, JSC, at page 305 and 306.

4.      On granting extension of time for leave and leave on the strength of an incompetent notice and in absence of a prayer to that effect 

4.1 The jurisdiction of a court to extend the time within which a party may appeal, may only be exercised following a prayer to that effect in the motion filed. A request to grant a deeming order cannot substitute this requirement. There was nothing in this case that constituted a valid application for an extension of time. Both the Court of Appeal Act 1976 (Section 25(4)) and the Supreme Court Act 1976 (Section 31(4)) provide for a prayer to extend the time-frame within which to appeal. In the absence of such prayer, no court has the power to declare an invalid and void notice as having been properly lodged. The Court of Appeal was wrong to usurp such powers. Nnaemeka-Agu, JSC, at pages 309; and

4.2 when that court had so exercised a discretion it did not have, this Court (Supreme Court) is duty-bound to intervene. Nnaemeka-Agu, JSC, at page 311.

4.3 There can be no leave to appeal where the appeal has ceased to exist. The need for a prayer requesting an extension of time cannot be nullified by deeming proper a notice and grounds improperly filed. Omo, JSC at page 327.

4.4 The orders made by the Court of Appeal are a nullity. That is so because that court did not have the jurisdiction to make those orders, it also did not have discretionary power to do so once the fundamental prayer for an extension of time was absent. Karibi-Whyte, JSC, at page 318.

BO Nwakanma for the Plaintiffs

Seyi Sowemimo for the Defendants

The following cases were referred to in this judgment:

Nigeria

Abaye v Ofili (1986) 1 NWLR 134

Abiegbe & others v Ugbodume & others (1973) 1 SC 133

Adefulu, Timothy Adeilo & others v Oyesile, Bello & others (1989) 5 NWLR 377

Adigun v Attorney-General of Oyo State (No. 2) (1987) 2 NWLR (Part 56) 197 (229)

Ajani v Giwa (1986) 3 NWLR 796

Akilu v Fawehinmi (No. 2) (1989) 2 NWLR (Part 102) 122

Alhaji Sama Mohammed v Alhaji Bala Musawa (1985) 3 NWLR (Part II) 89

Amudipe v Arijodi (1978) 9 & 10 SC 27

Awote & others v Owodunni & another (No 1) (1986) 5 NWLR (Part 46) 941

Bowaje v Adediwura (1976) 6 SC 143

Chief Ebenezer Awote v Sunmola Kadiri Owodunni & another (1985) 5 NWLR 941

Chief Lamai v Chief Orbih (1980) 5-7 SC 28

Ekpenyong & others v Nyong & others (1975) 2 SC 71

Erisi Ndukwe & others v Idika Uzor & others (1987) 9-11 SC 170; (1987) 4 NWLR (Part 67) 503

Harriman v Chief Hope Harriman (1987) 3 NWLR 244

Holman Bros (Nig) Ltd v Kigo (Nig) Ltd (1980) 8-11 SC 43

Ikechukwu & others v Nwankpa (1967) NMLR 224

Kwaham, Fari v Elias, Foud Michael (1960) 5 FSC 224

Niger Construction Ltd v Chief JO Okugbeni (1987) 4 NWLR 787

Nimanteks Associates v Marco Construction (1987) 2 NWLR (Part 56) 267

Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718 SC

Ochonma v Unosi (1965) NMLR 321

Ogbu v Urum (1981) 1 All NLR (Part 2) 240

Ogundipe v Awe & others (1986) 3 NWLR (Part 30) 566

Ojemen & others v Momodu (1983) 3 SC 173

Ojora v Odunsi (1964) 1 All NLR 55

Olowosoke v Oke (1972) 11 SC 1

Onitiri v Benson (1960) 5 FSC 150

Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587 SC

Rev. Moses A Abiegbe & others v Edheremn Ugbodume & others (1973) 1 All NLR 52

Sunday Eguanwense v James Amaghizemeru (1986) 5 NWLR (Part 41) 282

Tilbury Construction Ltd v Ogunniyi (1988) 2 NWLR (Part 74) 64 SC

Tukur v Gov. Gongola State (1989) 4 NWLR (Part 117) 517 SC

Tukur v Govt. of Gongola State (1988) 1 NWLR 39

United Bank for Africa Limited v Dike Nwora (1978) 11 & 12 SC 1

Vice Chancellor of A.B.U. Zaria, & others v Ado Yau Alhaji & another (1986) 3 NWLR (Part 31) 684

Welli & another v Okechukwu & others (1985) 2 NWLR (Part 5) 63

Foreign

Wallersteiner v Moir [1974] 3 All ER 217

The following statutes were referred to in this judgment:

Nigeria

Constitution of 1979: Ss 6(6), 220(1)(b), 221(1), 213(2)

Court of Appeal Act 1976: Ss 15(1), 15(2), 16, 25(2), 25(4)

Nigerian National Petroleum Decree of 1977: S 11(1)

Supreme Court Act, 1960: S 31(4)

The following rules were referred to in this judgment:

Nigeria

Court of Appeal Rules 1981, Order 3 rule 15; Order 3 rule 4; Order 6 rule 3; Order 7

Nnaemeka-Agu, JSC (Delivered the Leading Judgment):- This is an appeal by the plaintiff against a ruling by the Court of Appeal, sitting at Enugu on 3 June 1988.

The case itself has had a rather chequered history. The plaintiff had, in a Port Harcourt High Court, claimed against the defendant the sum of N500 000 being special and general damages for breach for preparation of the designs for the defendant's eight-story office block at Port Harcourt, Rivers State, pursuant to a contract said to have been awarded to the plaintiff by the defendant in 1978. On the date fixed for trial the defendant was absent and not represented. So, a default judgment was entered against it, but this was later set aside by the Court of Appeal which remitted the case for trial before another Judge. At that stage, pleadings had to be amended. The defendant, in its amended statement of defence, then raised for the first time the issue that the appellant's claim was statute-barred. Based on the plaintiff's amended statement of claim the learned trial Judge, Okara, J, ruled that defendant had waived its right to rely upon a plea of limitation of the action. Without seeking the leave of court, the defendant appealed against the ruling, upon the following three grounds of appeal:-

"Grounds of Appeal

1.      The Learned trial Judge misdirected himself in law and on the facts in holding that the photocopy of the letter dated 10 April 1979 allegedly given to the plaintiff constituted an agreement by the defendant/appellant not to rely on the statute of limitation ie Section 11 of the Nigerian National Petroleum Corporation Decree 1977."

Particulars of Misdirection

"(1)    The original of the said letter was sent to Alhaji Hashim of the defendant Corporation.

(2)     The said letter bears no endorsement attesting to any agreement between the parties.

2.      Judgment is against the weight of evidence."

Additional Grounds of Appeal

"3.     The Learned trial Judge erred in law and on the facts in holding that the defendant/applicant is estopped from raising the plea of statutory bar as provided for in Section II of the Nigerian National Petroleum Corporation Decree 1977 as a result of an agreement with the plaintiff."

Particulars of Misdirection

"(1)    Plaintiff gave insufficient evidence to discharge the burden of proving that there was an agreement by the parties not to rely on the statute.

(2)     Defendant's witness, Prince Essien, the Deputy Manager of the Legal Department gave evidence to impugn the plaintiff's claims.

(3)     The 12-month limitation period had expired before the alleged agreement was reached."

Plaintiff's contention was that all the grounds were of mixed law and fact. Thereupon, he filed a motion on notice to rely upon a preliminary objection dated 28 October 1987 in the following words:-

"Notice by Respondent of Intention to Rely upon Preliminary Objection Or 3 R. 15 C.A. Rules

TAKE NOTICE that the respondent herein named intends, at the hearing of this appeal, to rely upon the following Preliminary Objection notice whereof is hereby given to you viz:-

The appeal by the defendant being an interlocutory appeal is incompetent,

And Take notice that the grounds of the said objection are as follows:-

"(1)    The appeal lodged by the appellant against the Ruling of the High Court of Port-Harcourt Judicial Division dated 26 November 1986 is an interlocutory appeal.

(2)     By virtue of the provision of Section 15(2) Court of Appeal Act the appellant could properly have appealed against the interlocutory order of the High Court only by leave of that Court or of the Court of Appeal. No leave having been obtained, the purported appeal is incompetent. See the case Sunday Eguanwense v James Amaghizemeru (1986) 5 NWLR (Part 41) page 282.

(3)     Under Section 220(1)(b) of the Constitution the appellant has a right of appeal without leave but on grounds of law only. The grounds of appeal filed by the appellant are indisputably on mixed law and fact and by virtue of the provision of Section 221(1) of the Constitution as amended leave of the court or of the court below is a sine qua non to a valid appeal. See the case Holman Bros (Nig) Ltd v Kigo (Nig) Ltd (1980) 8-11 SC 43 at 61."

Obviously conceding that the grounds of appeal filed were all of fact or mixed law and fact, the defendant then filed a motion dated 7 January 1988 seeking the following reliefs:-

"(i) Extension of time within which to apply for leave to appeal in this matter.

(ii) Leave of Court to appeal against the Ruling of Okara J, delivered on 26 November 1986.

(iii) That the Notice and Grounds of Appeal and Additional Grounds of Appeal filed be deemed to have been properly filed."

Both motions came up for hearing on 10 May 1988. The first argument of Counsel was as to which of the two applications should be taken first. The learned Senior Advocate for plaintiff, Mr Ikeotuonye, urged the court to take the one on the preliminary objection first; but the court ruled that the one praying the court for extension of time to apply for leave, for leave and deeming the notice of appeal already filed as duly filed would be taken first.

Mr Sowemimo proceeded to move the motion. For the application for leave he relied on the case of Ojora v Odunsi (1964) 1 All NLR 55 and urged the court to grant the orders as prayed. Mr Ikeotuonye, for the plaintiff, submitted that the appeal filed without leave was incompetent, and so, the court could not grant the prayers urged upon it. He contended that before the court could consider the application for leave to appeal there must have been a prayer for extension of time to appeal. He cited the cases:-

Chief Lamai v Chief Orbih (1980) 5-7 SC 28;

Ezekiel Ogundipe v Job Awe & others (1986) 3 NWLR (Part 30) 566;

Ndukwe Erisi & others v Uzor Idika & others (1987) 4 NWLR (Part 67) 503;

Niger Construction Ltd v Chief JO Okugbeni (1987) 4 NWLR 787;

and Harriman v Chief Hope Harriman (1987) 3 NWLR 244.

The Court of Appeal, after some bitter words for both the learned trial Judge and the learned Counsel for the plaintiff granted the application for extension of time to apply for leave, for leave, and deeming the notice of appeal already filed as duly filed. It held that all the cases cited by learned Counsel for the respondent were not in point. It further ordered as follows:-

"(4)    The appellant shall within 14 days of this decision have the decision drawn up as a formal order and file a copy of the order in the court below, but it shall not be necessary to file another notice of appeal or to serve the respondent with such order.

(5)     It is hereby ordered that this appeal shall be given accelerated hearing having regard to all the circumstances of the case."

Thereafter without giving any consideration to the plaintiff's application for leave to take a preliminary objection, it dismissed it.

The plaintiff has appealed further to this Court upon two grounds of appeal. From the two grounds of appeal filed, he formulated the following issues for determination:-

"(i) Whether the Court of Appeal was right in refusing to take first the appellant's Notice of Intention to rely upon a preliminary objection and in taking first the respondent's application for extension of time, taking into consideration the crucial nature of the appellant's application.

(ii) Whether the Court of Appeal was competent to foist upon a Notice and grounds of appeal that was indisputably invalid and therefore void, an application for extension of time within which to obtain leave to appeal and leave to appeal and then to order that the said incompetent and void notice and grounds of appeal be deemed properly filed."

The defendant did not formulate any different issues but adopted the above issues for its argument.

The gist of the argument of the learned Counsel for the appellant on the first issue is that ordinarily the practice is that where there are two applications before the court, the one which may prevent the court from hearing the substantive case before it on the merits must be taken first. Reliance is placed on the cases of Alhaji Sama Mohammed v Alhaji Bala Musawa (1985) 3 NWLR (Part II) 89 and The Vice Chancellor of A.B.U. Zaria & others v Yau Alhaji Ado & another (1986) 3 NWLR (Part 31) 684. But, he submitted, in the instant case that principle is inapplicable. As there was no competent appeal, nothing can be validly placed on nothing. He cited the cases of -Awote & others v Owodunni & another (No 1) (1986) 5 NWLR (Part 46) 941; and Erisi & others v Idika & others (1987) 4 NWLR (Part 66) 503. He submitted that the Court of Appeal could not properly breathe life into a notice and grounds of appeal that was incompetent at inception without a substantive prayer for extension of time within which to appeal.

Before I can properly consider the issues which have been canvassed in this appeal, it is useful to advert to the true nature of the right of appeal either to this Court or the Court of Appeal. Section 213(2) and (3) or Sections 220 and 221, as the case may be, create two different rights of appeal, namely:-

(i) right of appeal as of right (Sections 213(2) or 220(1); and

(ii) right of appeal with leave of court (Section 213(3) or 221 of the Constitution).

Whereas an intending appellant can validly exercise his right of appeal as of right at will within the time fixed by statute, leave of either court is a condition precedent to his exercise of the right of appeal with leave. It is trite that where that condition precedent is necessary but has not been fulfilled, there is no appeal. Any notice of appeal filed upon only facts or mixed law and fact without leave where leave is necessary is null and void and of no effect. See on this Olowosoke v Oke (1972) 11 SC 1. In the instant case, as it has not been disputed that the three grounds of appeal filed are on facts and mixed law and facts, it follows that the right to have appealed thereon could only have been exercised with leave.

It is from this background that I shall now consider the first issue. The Court of Appeal, per Kolawole, JCA, held:-

"Having reviewed all the cases cited by learned Senior Advocate, I dare say that not a single one of those cases supports his contention that this Court is incompetent to entertain an application for extension of time within which to apply for leave to appeal. On the contrary, some of these decisions support the appellant's application".

With respects, I believe the learned Justice of Appeal missed the point. The question was not whether the Court of Appeal was competent to entertain an application for extension of time within which to apply for leave to appeal. It certainly was competent to do so, and the learned Counsel for the plaintiff never suggested it was not. Rather he submitted that on the facts of this case where:-

(i) there was an incompetent appeal;

(ii) there was no prayer in the motion before the court for extension of time to appeal but one deeming the incompetent appeal as duly filed; and

(iii) there was before the court an application for leave to take a preliminary objection on the competence of the appeal,

It was not proper to take the application for extension of time to apply for leave and for leave first rather than one seeking to strike out the appeal as incompetent.

Learned Counsel for the plaintiff, therefore, submitted that in view of the fact that the appeal purportedly filed was incompetent the learned Justices of the Court of Appeal should have considered the application raising a preliminary objection to the competence of the appeal first, and that if they did so, the appeal would have been struck out. In reply, learned Counsel for the defendant relied heavily on the decision of this Court in the case of Rev. Moses A. Abiegbe & others v Edheremn Ugbodume & others (1973) 1 All NLR 52, page 63, where this Court per Sowemimo, JSC (as he then was) stated at page 63 thus:-

"We think the above matters require some consideration when an application for extension of time or dismissal for want of prosecution, is being considered either separately or together. It is in the interest of justice that parties should be afforded reasonable opportunity for their rights to be investigated and determined on the merits. What is a reasonable time to do some act or acts depends on many circumstances for different occasions. To dismiss an action for want of prosecution does not give judgment in favour of the defendants nor does it prohibit the plaintiffs from filing a fresh action. It is therefore in the interest of both parties that they should not be subjected to any undue delay and further expenses in order to have their rights determined."

It appears to me that learned Counsel for the defendant as well as the court below lost sight of one important difference between this case and Abiegbe's case (supra). In Abiegbe's case the applicant's default sought to be rectified was the applicants' delay in filing their statement of claim and plan within the time fixed by court according to the rules of court. It was, therefore, a mere irregularity. It is settled that any such irregularity which derives from a breach of the rules of practice and procedure or of an order of court made thereon does not render the proceedings a nullity but a mere irregularity. The court may readily exercise its discretion and extend time in order to regularise the proceedings. (See United Bank for Africa Limited v Dike Nwora (1978) 11 & 12 SC 1. In the instant case what is sought to be rectified by the respondent's motion before the court is an appeal which is indisputably incompetent, for the reasons I have given.

The simple question raised by the first issue in this appeal is, therefore, whether the rule as to the priority of hearing of opposing applications where one side seeks to strike out or dismiss a case on ground of an irregularity in procedure and the other seeks to extend time to regularise the irregularity is applicable in a case like this where the competence of the appeal is the issue.

It appears to me that for a proper resolution of the real issue raised by this aspect of the appeal, it is necessary to bear in mind the fact that where the complaint is as to failure to take a step as provided by the rules or in accordance with an order of court made under the rules, there is already in existence a valid proceeding before the court. In such a case, if there are two motions, one seeking to raise a point of non-compliance with a rule or an order of court and the other seeking to strike out or dismiss the proceedings on the ground of the non-compliance, a court of justice and equity ought to take the motion which seeks to regularise the proceedings and preserve them from being struck out or summarily dismissed first before considering the application for striking out or dismissal for non-compliance. Indeed, invariably, in practice, the motion to summarily dismiss or strike out the appeal is withdrawn and struck out and the applicant compensated with costs. This is in accord with the rule that the courts are now expected to do substantial, and not technical, justice. In such cases the aim of the court ought to be to lean in favour of the proceeding that will bring about the doing of substantial justice: see Fari Kwaham v Foud Michael Elias (1960) 5 FSC 224. To do otherwise will amount to a wrongful exercise of the court's discretion: see Wallersteiner v Moir (1974) 3 All ER 217.

Where, however, as in this case, the complaint in the preliminary objection is to the effect that the court has no jurisdiction to hear the appeal at all or that there is no competent appeal before the court, or that a threshold issue is involved, then a fundamental issue which goes to the vires of the court has been raised. When such is the case, it is necessary to note that one of two factual situations may arise. The respondent's motion may be one which is capable of breathing life into the incompetent process. In other words, the erring appellant has realised his mistake and has filed a motion which, if granted, will correct it and bring about a valid and competent appeal. When such is the case, although, in the hay days of technicality, the practice was to take the motion which sought to strike out the appeal as incompetent first, leaving the appellant to seek to commence another appeal if he liked, I am of the view that that does not accord with the present inclination of the courts to do substantial justice. For, the days of technicality are gone. If, as a reflection of the present mood of courts to do substantial rather technical justice, a court of justice and equity decides to first take a motion which seeks to bring about a competent appeal, where there is ex facie a proper application for such, before taking the one which seeks to strike out the appeal as incompetent, I can see nothing wrong with the practice. For, to adopt that course will save both time and expenses. In saying so, I am not unaware that in Chief Ebenezer Awote v Sunmola Kadiri Owodunni & another (No 1) (1985) 5 NWLR (Part 46) 941, at page 950, my learned brother, Oputa, JSC, expressed the opinion that this was not the proper course because as the appeal was incompetent, ex nihilo nihil fit (you can build nothing out of nothing). But with respects, I think the statement was obiter and that, although reflective of the old practice, does not now represent the mood of the courts. Now, where there is before the court a proper application to correct the error even if it could have the effect of breathing life into an incompetent appeal. I see nothing wrong with the court taking such an application first.

This brings me to the second factual situation. This may arise where there are before the court an incompetent appeal, a notice of preliminary objection to strike it out, and an application purporting to correct the error but which is incapable of doing so because it is itself defective. Such was the position in this case. From the text of the appellant's application set out above, it can be seen that he prayed the Court of Appeal for extension of time to apply for leave, for leave, and deeming the incompetent notice and grounds of appeal filed as duly filed. It contained no prayer for extension of time to appeal.

In my opinion, the application itself was fundamentally defective. For time within which to appeal to the Court of Appeal is fixed by Section 25(2) of the Court of Appeal Act, 1976. Although subsection (4) of that Section gives to the court the power to extend time to appeal, the jurisdiction of the court to do so can only be invoked by a substantive prayer to that effect in a motion on notice. A prayer asking the court to deem the incompetent notice of appeal as duly and properly filed cannot be a substitute for that substantive prayer where time to appeal has expired. As I shall show later on, the case of Ndukwe Erisi & others v Uzor Idika & others (1987) 9-11 SC 170 which the court below relied upon was misconceived in this respect. In a situation, such as the one that arose in this case, where a notice of preliminary objection to strike out an appeal as incompetent and an application, which is itself ex facie defective, to validate the incompetent appeal come up before a court for hearing, it does not really matter which is taken first. For either way, the appeal will be struck out.

The second issue goes to the merit of the application. Learned Counsel for the plaintiff submitted that the order extending time to apply for leave, for leave, and deeming the notice of appeal as duly filed was one which the Court of Appeal ought not to have made, in any event. This is because, time to appeal having long expired, the applicant needed to include a prayer for extension of time within which to appeal, but it did not. Learned Counsel for the defendant argued to the contrary. He relied on the decision of this Court in Ojora v Odunsi (1964) 1 All NLR 55 and Ndukwe Erisi & others v Uzor Idika & others (1987) 9-11 SC 170. It appears to me, with respects, that learned Counsel for the defendant missed the salient points in these cases. The case of Erisi & others v Idika & others (1987) 4 NWLR 503 is no authority for saying, as the learned Counsel for the defendant seems to say, that the court could have granted the application before it. In that case the unsuccessful defendants on 28 February 1986 filed a notice of appeal against the decision of the Court of Appeal, Enugu Division, of 13 January 1986. All the grounds were those other than of law alone, but the appellants had not obtained leave. On 25 March 1986, that is within the statutory period of three months for appeal, they obtained from the Court of Appeal leave to appeal and an order deeming the notice and grounds of appeal as duly filed with effect from 28 February 1986 when it was filed without leave. In this Court, objection was taken against the order deeming the notice of appeal as duly filed on 28 February 1986. Though the objection was overruled, this Court made it clear that it based its decision on the following grounds:-

(i) It was overruling the objection because the order deeming the appeal as duly filed was made by the Court of Appeal within three months of the judgment appealed against and before the appeal was entered in the Supreme Court, and so the Court of Appeal was still competent to make such an order and was seized of the matter.

(ii) The "deeming order" ought to take effect from 25 March 1986, when the Court of Appeal actually gave leave and not from 28 February, 1986, when the notice of appeal was filed.

(iii) It was making the "deeming order" as a consequential order in exercise of the power undoubtedly vested in the court: see Ogbu v Urum (1981) 1 All NLR (Part 2) 240; Abaye v Ofili (1986) 1 NWLR 134.

In effect, therefore, the Court held that the court had no power to deem the appeal as duly filed between 28 February 1986 when the notice of appeal was filed without leave and 25 March 1986 when leave to appeal was given. The court had power to deem the notice of appeal as having been duly filed on 25 March 1986, as the statutory period of three months within which the appellants could appeal had not expired.

The facts of the instant case are different and distinguishable for a number of reasons. Most important, the "deeming order" in this case was made on 3 June 1988, deeming as duly filed a notice of appeal against a ruling delivered on 26 November 1986, that is over one year six months after the expiration of the statutory period of 14 days within which the appellant could have validly appealed. The court below had, therefore, lost the power and jurisdiction to make the "deeming order" as a consequential order at the time it purported to make it.

Ojora's case (supra) is also distinguishable. Although the appellant had appealed without leave arguing that the order was final for which no leave was necessary, he also ex majore cautela filed an application for leave and extension of time to appeal. Considering the difficulty of deciding, sometimes, when a decision was interlocutory, and hence, leave would be necessary and when it was final and hence no leave would be necessary, the Supreme Court extended time and granted leave, after coming to the conclusion that the decision was interlocutory. The difference in this case is that there is no application for extension of time to appeal at all. All that is included is a prayer deeming an invalid and incompetent appeal as having been duly filed. I would like to seize this opportunity to reiterate that such a prayer deeming an incompetent or invalid notice of appeal as having been duly filed a long time after the statutory period to appeal had expired cannot properly be a substitute for a substantive prayer for extension of time to appeal. Without a prayer asking the court to invoke its statutory power to extend time to appeal as contemplated by Section 25(4) of the Court of Appeal Act, 1976, or Section 31(4) of the Supreme Court Act, 1960, neither court has power to deem any invalid or incompetent notice of appeal as having been fully filed. The Court of Appeal was, therefore, in error to have thought that it had such a power. A leave of court to appeal obtained after the statutory period to appeal has expired or an appeal filed thereon is useless where there is no extension of time to appeal or a prayer therefore upon which the court could extend time. (See Timothy Adeilo Adefulu & others v Bello Oyesile & others (1989) 5 NWLR 377, at page 417-418). The Court of Appeal was, therefore, in error when it proceeded to exercise its discretion in favour of the defendant upon a motion without a prayer for extension of time within which to appeal. It is, of course, settled that although the discretion in this case is that of the Court of Appeal, yet, when it turns out as it now appears, that that Court exercised its discretion upon wrong principles, this Court has the right, indeed the duty, to intervene.

For the above reasons, the appeal succeeds and is allowed. I set aside the decision of the Court of Appeal extending time for the defendant to apply for leave to appeal against the decision of Okara, J, sitting in a Port Harcourt High Court. In its place, as it has not been disputed that the three grounds upon which the interlocutory appeal was based are of fact or mixed law and facts and that they have been filed without leave. I hold that the appeal was incompetent under Section 220(1)(b) of the Constitution, 1979. I therefore strike it out. I set aside all the orders made by the Court of Appeal.

The plaintiff shall have the costs of this appeal which I assess at N1 000 in this court and N500 in the Court of Appeal.

Karibi-Whyte, JSC:- I have read the judgment of my learned brother Nnaemeka-Agu, JSC in this interlocutory appeal. I agree with his reasoning and conclusion that the appeal be allowed. I however, wish to give my own reasons, though not substantially different, for so agreeing.

My learned brother Nnaemeka-Agu, JSC has stated the facts comprehensively. I need therefore not repeat them. However, I shall in the interest of completeness and for the purposes of my decision state so much of the facts as I consider relevant to the determination of this appeal, against the judgment of the court below.

The facts briefly stated are that on 26 November 1986, Okara, J of the Rivers State High Court sitting at Port Harcourt, dismissed an application by the defendants seeking an order to strike out the action of the plaintiffs against them. The contention was that plaintiffs brought the action more than twelve months after the cause of action arose. Defendants/ applicants relied on the provisions of Section 11(1) of the Nigerian National Petroleum Decree of 1977, to argue that the action was statute-barred and should be dismissed. Defendant appealed against the ruling, on three grounds.

The first two grounds of appeal filed on 26 November 1986 are as follows:-

" (i) The Learned trial Judge misdirected himself in law and on the facts in holding that the photocopy of the letter dated

10 April 1979 allegedly given to the plaintiff constituted an agreement by the defendant/appellant not to rely on the statute of limitation ie Section 11 of the Nigerian National Petroleum Corporation Decree 1977.

Particulars of Misdirection

(1)     The original of the said letter was sent to Alhaji Hashim of the defendant Corporation.

(2)     The said letter bears no endorsement attesting to any agreement between the parties.

(ii) Judgment is against the weight of evidence. On 13 November 1987, nearly 12 months after defendant gave notice of appeal against the ruling of Okara, J dismissing his preliminary objection. Plaintiff filed his notice of preliminary objection dated 28 October 1987, that the appeal of the defendant being interlocutory was incompetent. Plaintiff relied on the provisions of Section 15(2) Court of Appeal Act, and Section 220(1)(b), Section 221(1) of the Constitution 1979.

By notice of motion dated 7 January 1988, but filed on 14 January 1988, after service on him of plaintiff's motion filed on 13 November 1987 defendant by motion sought for:-

(a)     Extension of time within which to apply for leave to appeal.

(b)     Leave of the Court of Appeal to appeal against the ruling of Okara, J delivered on 26 November 1986.

(c)     That the notice and grounds of appeal and additional ground of appeal filed be deemed to have been properly filed.

The additional ground of appeal referred to is numbered ground 3 and dated 5 October 1987, but filed on 14 June 1988. The complaints against the judgment is as follows:-

"(3)    The learned trial Judge erred in law and on the facts in holding that the defendant/applicant is estopped from raising the plea of statutory bar as provided for in Section 11 of the Nigerian National Petroleum Corporation Decree 1977 as a result of an agreement with the plaintiff.

Particulars of Misdirection

(1)     Plaintiff gave insufficient evidence to discharge the burden of proving that there was an agreement by the parties not to rely on the statute.

(2)     Defendant's witness, Prince Essien, the Deputy Manager of the Legal Department gave evidence to impugn the plaintiff's claims.

(3)     The 12-month limitation period had expired before the alleged agreement was reached."

On 6 November 1987, Learned Counsel to the plaintiffs A.B.C. Iketuonye SAN swore to an affidavit in which he deposed as follows:-

"1.     That the appellant has served on me the Record of Appeal in the interlocutory appeal now pending in the Court of Appeal.

2.      That upon perusal of the said Record it became clear to me that the appellant did not obtain leave before lodging its appeal.

3.      That an appellant in an interlocutory appeal is required by law to obtain leave before lodging appeal.

4.      That I have given notice of preliminary objection to the appeal lodged without leave."

Thus on 10 May 1988, two applications simultaneously came before the court below. There was:-

(1)     The notice of preliminary objection by the plaintiff brought under Order 3 Rule 15 of the Court of Appeal Rules 1981 seeking an order to strike out the appeal on the ground that it is incompetent.

(2)     On the other hand the defendant was by motion, dated 7 January 1988, and filed on 14 January 1988 seeking:-

(a)     Extension of time within which to apply for leave.

(b)     Leave to appeal against the ruling dismissing the application to strike out the action.

(c)     The notice and grounds of appeal filed be deemed to have been duly and properly filed.

The issue before the Court below therefore was which of the two applications should be heard first. It was the contention of learned Counsel to the plaintiffs that his preliminary objection as to the competence of the appeal before the Court should first be heard. Learned Counsel Iketuonye SAN, submitted that the notice of the interlocutory appeal by the defendant having been filed without leave of the court below or of the High Court was incompetent. Accordingly, the Court could not entertain any application for extension of time within which to seek leave to appeal. It was argued that before an application for extension of time within which to apply for leave to appeal could be heard, there must be a prayer for extension of time within which to file an appeal. The following decided cases were cited in support of the submissions - Chief Lamai v Chief Orbih (1980) 5-7 SC 28; Ogundipe v Awe & others (1986) 3 NWLR (Part 30) 566; Erisi & others v Idika & others (1987) 3 NWLR (Part 66) 503; Niger Construction Ltd v Chief Okugbeni (1987) 4 NWLR (Part 67) 787; Harriman v Chief Hope Harriman (1987) 3 NWLR (Part 60) 244.

Mr Sowemimo, who was granted leave to have his motion first argued in support of his motion that said it was within the competence of the court below and in the exercise of its discretion to grant the prayers sought. Learned Counsel cited and relied on Section 221 of the Constitution 1979, and Sections 15 (1); 25(2)(a), 25(4) of the Court of Appeal Act, 1976 and Order 3 Rule 4, and Order 6 Rule 3 of the Court of Appeal Rules 1981. He referred to paragraphs 7-10 of the affidavit in support, and Ojora v Odunsi (1964) 1 All NLR 55.

In a considered ruling on 3 June 1988, the Court below unanimously dismissed the preliminary objection of the plaintiffs and granted the prayers of the defendants.

It is interesting to observe that the motions were argued together although the application by the defendant for extension of time was heard first. The court below did not give the ruling on the motion of the defendants which was heard first before hearing arguments on the preliminary objection. Having heard arguments on both issues, since plaintiff's Counsel in opposing defendants application relied on these arguments, the two issues were determined in the same ruling. The parties and the court assumed, and naturally so, that the issue of the continuance of the appeal depended upon there being a competent appeal before the Court. By the ruling granting the prayers of the defendants, it was assumed defendants appeal before the Court below was at the time of hearing competent; hence the prayers were granted. Plaintiffs appealed against the Ruling. It is this appeal that is the subject-matter of this judgment. The grounds of appeal filed and relied upon are as follows:-

"1.     The Learned Justices of the Court of Appeal erred in law by refusing to take first appellant's/respondent Notice of Preliminary Objection duly filed in court before hearing the respondent's application for extension of time within which to apply for leave to appeal.

Particulars of Error in Law

(i) The law is that where two applications are before a Court the one that has a tendency of preserving the action should be taken first.

(ii) For this rule to apply the two actions must be life actions. The rule does not apply where one of the actions is dead, for in that case there is nothing to preserve.

(iii) The interlocutory appeal lodged by the respondent against the ruling of the High Court of Port Harcourt Judicial Division dated 26 November 1986 was clearly on mixed law and fact. Since no leave was obtained the said appeal was incompetent.

(iv) The respondent's incompetent appeal should have been struck out before the hearing of the respondent's application for extension of time within which to apply for leave to appeal.

2.      The Court of Appeal erred in law in foisting respondent's application for extension of time within which to appeal and leave to appeal on an appeal that is indisputably incompetent and therefore void and in ordering that the said incompetent appeal be deemed properly filed.

Particulars of Error

(i) The interlocutory appeal lodged by the respondent against the Ruling of the High Court of Port Harcourt Judicial Division without first obtaining leave is incompetent and void for all purposes. Ex nihilo nihil fit.

(ii) An application for extension of time within which to apply for leave to appeal and leave to appeal cannot therefore be properly brought on it.

(iii) The course open to the respondent is to bring an application for extension of time within which to appeal and for leave to appeal in the Court of Appeal."

Both Counsel filed and exchanged briefs of argument in this appeal. Counsel adopted their briefs of argument and relied on them in their oral expatiation of the submissions therein.
Two issues for determination were formulated in appellants' brief of argument. Respondent is assumed to have adopted them, since he formulated no issues for determination. I reproduce hereinbelow the issues as formulated, which cover plaintiff's grounds of appeal:-

"(i) Whether the Court of Appeal was right in refusing to take first the appellant's notice of Intention to rely upon a preliminary objection and in taking first the respondents' application for extension of time, taking into consideration the crucial nature of the appellants' application.

(ii) Whether the Court of Appeal was competent to foist upon a Notice and grounds of appeal that was indisputably invalid and therefore void, an application for extension of time within which to obtain leave to appeal and then to order that the said incompetent and void notice and grounds of appeal be deemed properly filed."

I shall consider the issues in the order in which Counsel have presented their arguments.

Mr Nwakanma, learned Counsel to the appellants relied on the decisions of the Court of Appeal in Alhaji Mohammed v Alhaji Musawa (1985) 3 NWLR 89; The Vice-Chancellor of ABU, Zaria & others v Alhaji Ado & another (1986) 3 NWLR (Part 31) 684, for the submission in support of the proposition that where two motions are before the Court, the motion, the determination of which may prevent the Court from hearing the substantive case before it on the merits must be first heard. Learned Counsel however distinguished the cases where the substantive action was still alive and submitted they did not apply to the facts of the instant case. In the instant case, the Notice and grounds of appeal having been filed without leave, is invalid. The appeal was therefore incompetent, no leave of Court having been obtained as required by law. The decisions of this Court in Awote & others v Owodunni & another (No 1) (1986) 5 NWLR (Part 46) 941, and Erisi & others v Idika & others (1987) 3 NWLR 503 were cited and relied upon.

Learned Counsel for the appellant submitted that if the incompetent Notice and grounds of Appeal had been struck out, the respondent reserved the right to bring a proper application in compliance with the enabling constitutional provisions. The substance of the argument of learned Counsel for the appellants is that the Court should not hear the application to correct the defect in the Notice and grounds of Appeal of the respondent because there was no valid Notice and grounds of Appeal before it.

It seems to me that it is in recognition of the defect in the filing of the Notice and grounds of Appeal that . brought the application subject matter of the ruling. The application before the Court contains prayers to the Court to extend time to enable respondent to file his notice and grounds of appeal, for leave to do so, and to deem the Notice and grounds filed as duly and properly filed.

Mr Sowemimo, learned Counsel to the respondent in his argument agrees with the proposition that where the Court has two motions relating to an action before it, it should first hear the motion, the determination of which would cure the defect of the substantive action. Pointedly, Counsel submitted that where there is, as in the instant case, a motion for dismissal of an action and another for enlargement of time, that the latter should be first heard and determined. This is because, the fate of the former depended on the result of the determination of the latter. He relied on the decision of this Court in Abiegbe & others v Ugbodume & others (1973) 1 SC 133 where this same issue arose and was determined.

Mr Sowemimo submitted that none of the decided cases cited and relied upon by learned Counsel to the appellant on the issue was applicable to the facts of this case, and therefore supported his contention.

I consider this issue a very narrow one, and the point involved for determination circumscribed and governed by decided cases. The facts are not in dispute. It is common ground that there were before the court below, on the same day, competing for hearing, (a) respondent's application, by Preliminary Objection on the grounds of incompetence of the appeal, seeking an order to dismiss the appeal of the appellant. (b) The other motion is an application by the appellant seeking an Order of Court to enlarge the time within which to appeal, leave to appeal, and deeming the Notice and grounds filed as duly and properly filed.

It was not disputed and it was common ground as disclosed from the prayers in this application that as at the time of the application there was no valid notice and grounds of appeal. Hence the prayer for extension of time to appeal, leave to appeal, and to deem the notice and grounds filed to have been duly and properly filed. But the issue before the Court below and one of the issues before us is the contention by learned Counsel to the appellant that the court below was in error to have first heard, appellant's application. It was contended that the better practice was first to hear the preliminary objection of the respondent to dismiss the Appeal as incompetent. This might have been proper and acceptable in the hay-days of technicalities, where litigation was regarded essentially as a game of chess. It was then not inconsistent with justice to take advantage of a procedural lapse even if easily remediable on the application of the adverse party. The adversary must have his pound of flesh. The procedural rules must be obeyed however unjust the result.

It seems to me, ordinary common sense that if the course as advocated by learned Counsel to appellant was adopted and it was successful and the appeal struck out, there would be nothing left for the Court to consider in respect of the appellants' application. This was the situation in Abiegbe & others v Ugbodume (supra) and precisely what the learned trial Judge did. But the practice was deprecated by this Court on appeal. In that case this Court went on to lay down the procedure to be adopted in such cases. It was there said:-

"As earlier on stated, the Learned trial Judge decided on dealing with the application for dismissal of action dated 18 August 1969, before dealing with that of enlargement of time. With respect, we think that the Learned trial Judge, albeit within his competence, was putting the cart before the horse. If it was intended, as we are persuaded to believe by the Learned trial Judge, to exercise his discretion to deal with both applications together, we would have thought that it would have been fair and just that the application for enlargement of time should have been considered before dealing with the other one, and this is mainly because the fate of the application for dismissal depends largely on the result of the application for enlargement of time. In any case, the Learned Judge dealt with the application for dismissal and granted it and it follows, as a matter of course, that the application for enlargement of time failed ever before it was heard."

It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our Courts. Accordingly where an application is properly brought before the Court, the principle of fair hearing demands that it should be heard on its merits. (See Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587 SC). I agree entirely with the well settled proposition that where there are two motions before a Court requiring to be heard, the interest of justice demands that the motion, the determination of which, would save the substantive action should first be heard. This principle is founded on the reasoning that where the application succeeds, then the other application can be taken. If however, a preliminary objection to dismiss an action is taken during the pendency of an application to correct the errors on which the preliminary objection is based, the preliminary objection will succeed, and the action dismissed. This is because the error remains extant the question whether the error can be corrected having not been investigated. This is clearly unjust and against our concept of administration of justice.

In my view whenever a party to an action has detected an error in the proceedings which if uncorrected will adversely affect his chances, and has by application made effort to correct such errors the principles of justice demand that he should not be denied the opportunity to do so. It will be preposterous to concede to the contention that the error so detected should remain uncorrected, so that the adversary can take advantage of it.

It is important to appreciate the basic distinction between hearing an application and granting the prayers in it. Hearing an application does not necessarily mean granting the prayers sought. The prayers sought which if granted may remedy the defect in the errors, and render the preliminary objection unnecessary. If rejected, the preliminary objection can then be argued. The contention of learned Counsel for the appellant before us is predicated on the premise that there being no competent appeal, there was no jurisdiction to hear the application for extension of time which invariably rests on the existence of a valid appeal. This contention flows from the judgment of the Court below where Kolawole, JCA held:-

"Having reviewed all the cases cited by learned Senior Advocate, I dare say not a single one of those cases supports his contention that this Court is incompetent to entertain an application for extension of time within which to apply for leave to appeal. On the contrary, some of these decisions support appellant's application."

I think the contention before the Court below was one for determination of priority for hearing in the two applications before it. It is however one of the arguments of the plaintiffs that the Court was not competent to hear the application for extension of time, etc., there being no valid appeal before it.

In the exercise of its discretion to hear applications before it, the Court is guided by considerations of doing justice between the parties, and to ensure ultimately that the dispute between the parties was decided on its merits. (See Kwahwam v Elias (1960) 5 FSC 224). Where in the exercise of its discretion an application to dismiss the action was first heard resulting in the action being struck out, justice would not have been done to an applicant whose application to regularise his appeal, the basis for the application to dismiss the appeal is still pending. This will tantamount to a wrongful exercise of discretion. (See Abiegbe & others v Ugbodume & others (supra)).

In the instant case the preliminary objection was that the Court had no jurisdiction to hear the application since there was no competent appeal before the Court. This is thus raising a fundamental issue as to the vires or jurisdiction of the Court. Learned Counsel then went further to argue that there being no valid appeal, the court is not competent to entertain the application.

On examination of arguments of Counsel in the court below, it is obvious that the main ground of the contention was the incompetence of the interlocutory appeal on the ground that leave of Court was not obtained. The only point relevant to the application was the contention that the motion did not contain a prayer for extension of time within which to file an appeal.

I think it is well settled that the court has always claimed to have the jurisdiction to decide whether it can exercise jurisdiction in respect of an issue. (See Tukur v Gov. Gongola State (1989) 4 NWLR (Part 117) 517 SC). Hence the mere raising of the issue of jurisdiction does not deprive the court from the exercise of jurisdiction. Thus in the issue before us the court below undoubtedly was entitled in the exercise of its discretion to decide, in the interest of justice and on the facts of the case before it, which of the two motions it will hear first.

In this case the Court decided to hear the application to correct the errors in the appeal. This it is perfectly entitled, in the interest of justice, to do. The Court below exercised its discretion properly. There is no basis for the interference of this Court.

The second issue relates to the competence of the court below to save an incurably defective notice of appeal. Appellant has submitted on this issue that although the Court of Appeal possesses the statutory power to grant extension of time to appeal, and for leave to appeal, where the application has been brought properly and within time, it cannot do so outside the period prescribed by law. Learned Counsel relied on Awote v Owodunni & others (supra). It was submitted that the appeal being interlocutory, leave of the Court ought to have been obtained in accordance with Section 220(1)(b) of the Constitution, 1979. Furthermore, the grounds of appeal relied being indisputably of facts, and mixed law and fact, leave of the High Court or of the Court below should have been obtained in compliance with Section 221(1) of the Constitution 1979.

It was submitted since no leave was obtained the Court below should have struck out the action before considering defendants'/appellants' application.

Learned Counsel to the respondents in his argument relied on Ojora v Odunsi (supra), Erisi v Idika (supra) and dicta therein, and Section 6(6) and 221 of the Constitution, 1979, Section 15(1) of the Court of Appeal Act, 1976 and Order 3 Rule 4 and Order 7 Rules of the Court of Appeal 1981 for his submission that the Court of Appeal could invoke its inherent jurisdiction in the making of the orders challenged.

A proper determination of this second issue requires analysis of the provisions governing the exercise of appellate jurisdiction. All exercise of appellate judicial powers are statutory. (See Onitiri v Benson (1960) 5 FSC 150; Ikechukwu & others v Nwankpa (1967) NMLR 224). There is no inherent power in a Court to exercise appellate jurisdiction over inferior courts. In our situation the exercise of appellate judicial powers of superior Courts of record have been enshrined in the Constitution, 1979.

Section 220(1) of the Constitution 1979 prescribes the circumstances of the exercise of the right and when the appeal shall be to the Court of Appeal, from the High Court as of right. The subject matter of this appeal being interlocutory, and not final, and not being a criminal proceeding or involving interpretation or application of the Constitution, or a question of fundamental right or an election to any office under the Constitution, Section 220(1) of the Constitution is inapplicable. The grounds of appeal, as has been admitted do not involve questions of law alone. Accordingly Section 221(1) of the Constitution applies, and leave of the High Court or the Court of Appeal is required before there can be a valid exercise of the right of appeal.

Section 25(1) of the Court of Appeal Act, 1976 has prescribed 14 days for the giving of notice in interlocutory appeals in civil matters. Appellant is therefore required to file his notice of appeal within the period prescribed.

An appellant may exercise his right of appeal, and to give notice of appeal within the three months prescribed in final decisions. He is required in interlocutory appeals to exercise his right of appeal by giving notice within the 14 days prescribed by the Act. (See Bowaje v Adediwura (1976) 6 SC 143; Amudipe v Arijodi (1978) 9 & 10 SC 27; Ajani v Giwa (1986) 3 NWLR 796). Leave of Court is to be sought and obtained within this period. It has been settled in decided cases that the leave of court being a condition precedent must be satisfied for there to be a valid exercise of the right of appeal. (See Bowaje v Adediwura (supra); Ajani v Giwa (supra)). Admittedly, the grounds of appeal in the notice of Appeal in the instant case contains facts only or are of mixed facts and law, and the requisite leave has not been sought and obtained, the notice so filed is invalid and of no effect. See Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718 SC; Tilbury Construction Ltd v Ogunniyi (1988) 2 NWLR (Part 74) 64 SC.

The gravamen of the second issue is whether the court below could grant the application of the defendant where there was no valid notice of appeal before it. Appellants' Counsel's submission was that it could not. He relied on Awote v Owodunni (supra), where Ojemen & others v Momodu (1983) 3 SC 173; Welli & another v Okechukwu & others (1985) 2 NWLR (Part 5) 63 were cited and relied upon. He concluded that the order made granting the application was therefore incompetent. Learned Counsel to the respondent relied on Ojora & others v Odunsi (supra) and Erisi & others v Idika & others (supra) in supporting the Order made by the court below. The argument was based on the exercise by the court below of its inherent jurisdiction; and the relevant statutory provisions.

I have already held that there is nothing precluding the court below in the exercise of its discretion in choosing which one of two motions before it, the hearing of which will lead to doing substantial justice in the hearing of the substantive action, it will hear first. Indeed in the instant case the decided cases are solidly behind the court below in the exercise of its discretion to hear the application of the appellant for extension of time, etc. (See Abiegbe & others v Ugbodume & others (supra)).

This is not the real issue. The real point of the argument is that the court below went on to grant the prayers in the defective application. It is true that the only ground of defect relied upon by the respondent in the court below was the absence of leave in the filing of the notice and grounds of appeal, to the court below. The omission of the prayer for extension of time within which to appeal in the motion before the court below was raised suo motu by this Court and Counsel were given opportunity to address it and did address it on the issue, both before the Court and through subsequent written addresses.

It is therefore relevant in the determination of the issue to consider the effect of each of the defects. I shall take first the motion which was first heard by the court. I have already pointed out in this Court the distinction between the exercise of the discretion to hear an application and the jurisdiction to grant it. Whereas in the ordinary exercise of the jurisdiction, the principles of fair hearing requires that all applications properly made before the Court must be heard; the court can only grant an application and make an order in the valid exercise of its coercive jurisdiction. This is possible where there is jurisdiction to hear the matter and there is a prayer in respect of the motion or a claim for the relief granted. Hence there can only be jurisdiction to grant a relief, where such relief is one claimed by the plaintiff in his action, or the applicant in the motion before the Court. (See Ekpenyong & others v Nyong & others (1975) 2 SC 71, 80; Ochonma v Unosi (1965) NMLR 321). Accordingly where the Court in the exercise of its jurisdiction makes a largesse of a relief not claimed, our courts have been consistent in its rejection of the exercise of such powers, (see Ochonma v Unosi (supra)).

Mr Sowemimo's submission relying on Ojora & others v Odunsi & others (supra) and Erisi & others v Idika & others does not seem to me tenable in the circumstances of this case. The Court below granting the application stated as follows:-

"Having reviewed all the cases cited by learned Senior Advocate, I dare say that not a single one of those cases supports his contention that this Court is incompetent to entertain an application for extension of time within which to apply for leave to appeal. On the contrary, some of these decisions support the appellants' application."

This seems to me a misconception of the gravamen of the issues necessary for the determination of the application. A cursory examination of the arguments of Counsel to the respondent in the Court below, who is the appellant in this Court, discloses that they were based on the following considerations:-

(i) There was an incompetent appeal.

(ii) There was no prayer in the motion before the Court for extension of time to appeal but one deeming the incompetent appeal as duly filed.

(iii) There was before the Court an application for leave to take a preliminary objection on the competence of the appeal.

It is clear therefore that the attention of the court below was drawn to the omission in the prayers in the application of the appellant seeking to regularise the notice and grounds which admittedly have been filed out of time and without leave.

There is no doubt that the application of the applicant in the court below required a prayer for extension of time within which to appeal. Without this last mentioned prayer which is the foundation of the appeal the other prayers sought are also out of time, as there will be no valid notice and grounds of appeal before the Court. Accordingly, nothing can be deemed properly filed. (See Tukur v Govt. of Gongola State (1988) 1 NWLR 39).

Mr Sowemimo has relied on Nimanteks Associations v Marco Construction (1987) 2 NWLR 267 at page 278 for his submission that the Court of Appeal had acted within its powers despite the omission in the application of the prayer seeking extension of time within which to appeal. I do not understand this case to be similar either on the facts or the applicable principle. The Nimanteks case dealt with an application for a preservation Order, a stay of execution of the judgment of a High Court. The contention was whether applicants are on the merit and form of their application entitled to a preservation Order on either the N22.68 million or the N2.6 million. The question was which of the remedies of an injunction or a stay of execution was more appropriate where the claim of the plaintiff was dismissed. Observing that it has never been doubted that the Court had the power under Section 16 of the Court of Appeal Act 1976 to make the restraining order asked for, the learned Justice of Appeal held that the fact that the suit was dismissed did not make the application for stay of execution inappropriate. In his view the substance of the application is what ought to be considered. The clear intention of the case being to suspend the execution of the judgment, the jurisdiction being asked for is equitable. The dictum of my learned brother, Nnaemeka-Agu JCA (as he then was) was cited in that case and relied upon should be read and considered within its context and the facts of the case.

The other decision cited and relied upon is Akilu v Fawehinmi (No. 2) (1989) 2 NWLR (Part 102) 122 which considered the basis of the exercise of the inherent jurisdiction of the Courts. Along with Adigun v A-G of Oyo State (No. 2) (1987) 2 NWLR (Part 56) 197; Erisi & others v Idika & others (supra) learned Counsel was relying on the exercise of inherent jurisdiction to cure the defect resulting from the omission of the prayer seeking extension of time within which to appeal.

I have already pointed out the well-settled principle that the exercise of appellate jurisdiction has always been statutory. (See Ikechukwu v Nwankpa (supra)). It is therefore not appropriate in the circumstance to resort to the exercise of inherent jurisdiction, where there is in existence enabling statutory provisions.

In my opinion, which is founded on the facts in support of the application and the specific prayers sought in the motion, the application, with the omission for the prayer seeking extension of time within which to appeal, is fundamentally defective. Time within which to appeal is by Section 25(2) of the Court of Appeal Act, 1976 fixed at 14 days from the date of the interlocutory decision. Section 25(4) gives power to the Court to extend such time in appropriate cases. This jurisdiction can only be invoked where there has been a substantive prayer to that effect in a motion on notice. In the absence of such prayer, a prayer in a motion asking the Court to deem an invalid notice of appeal as duly and properly filed cannot be a substitute after the expiration of time to appeal. This was the situation before the Court below.

Erisi & others v Idika & others (supra) relied upon by Mr Sowemimo is also clearly different. In Erisi's case the application was made within the statutory period of three months and before the appeal was entered in the Supreme Court. The period within which notice could be given had not expired.

In this appeal, the period of 14 days within which notice to appeal should be given, reckoned from 26 November 1986 to 3 June 1988 when ruling was made, expired more than 18 months from the statutory period prescribed. The Court below had therefore no jurisdiction to make any order without a substantive prayer seeking to bring the application within the jurisdiction of the Court. The court therefore cannot make a consequential Order.

Similarly distinguishable is Ojora's case. In Ojora, although appellant had initially filed a notice without leave, because he thought the order was final and not requiring leave, he ex abundanti cautella filed an application for leave and for extension of time to appeal. The Supreme Court when hearing the preliminary objection that the appeal was incompetent having been filed without leave, took into consideration the subsequent application, even if filed out of time, seeking leave to appeal out of time and extension of time to do so. The Court held that the circumstances of the case warranted granting the application. Taylor JSC, who delivered the judgment of the Court said, at page 59:-

"It is within the discretion of this Court to grant an application for extension of time to appeal if the circumstances of the case warrant it. In the particular case on appeal before us the would-be appellants are out of time because of an error in law in treating the Order sought to be appealed against as final instead of an interlocutory one, a matter which is not always free from difficulties."

His Lordship continued:-

"It is certainly in their favour that the Notice of Appeal was filed within fourteen days normally for an application for leave to appeal against an interlocutory order or judgment to be filed."

In addition, the depositions in the affidavit in support of the application provided substantial reasons why the extension of time should be granted. It is obvious that appellants in the Ojora case, as in the instant case, demonstrated promptly the desire to appeal against the interlocutory decision. But whereas the appellant in the Ojora case took positive steps to bring his application for extension of time by making the necessary application, the application in the instant case lacked the substantive enabling prayer. Thus, the Court below could only have validly considered the other prayers in the application after it had considered and granted the prayer for extension of time within which to appeal. It is the substantive prayer which vests jurisdiction in the court to consider and grant the other prayers sought. Leave of Court to appeal obtained after the statutory period, or an appeal filed thereon, without an order for extension of time to appeal granted on a prayer for that purpose seems to me worthless.

The court below was therefore in error when it proceeded to grant the prayers in applicants' motion which did not contain the fundamental prayer for extension of time within which to appeal. It clearly had no powers to exercise its discretion to make the orders on the prayers sought, since it had no jurisdiction to make the orders. In my view the orders made were a nullity. I so declare them.

For the reasons I have given above, the appeal succeeds and is allowed. The orders of the Court of Appeal extending time for the defendant to apply for leave to appeal against the ruling of late Okara, J of the Rivers State High Court, sitting at Port Harcourt on 26 November 1986, and deeming the notice and grounds of appeal as duly and properly filed is hereby declared a nullity.

Furthermore, since the three grounds of appeal filed against the ruling have been admitted as based on facts or mixed law and facts, and were filed without leave, the notice of appeal is a contravention of Section 220(1)(b) and 221(1) of the Constitution 1979, and is consequently incompetent.

I hereby strike out the grounds of appeal also. There being no extant ground of appeal on which the notice of appeal is based, it is hereby struck out.

The plaintiff is entitled to the costs of this appeal, which I assess at N1 000 in this Court and N500 in the Court below.

Kawu, JSC:- I have had the advantage of reading, in draft the lead judgment of my learned brother, Nnaemeka-Agu, JSC, which has just been delivered. I entirely agree with him and for the reasons set out in the said judgment, I too will allow the appeal and set aside the decision of the court below. I abide by all the consequential orders made in the lead judgment, including the order as to costs.

Wali, JSC:- I have had a preview of the lead judgment of my learned brother, Nnaemeka-Agu, JSC. I entirely agree with his conclusions.

For the same reasons stated in the lead judgment, I also allow the appeal and subscribe to the consequential orders made thereafter.

Omo, JSC:- I have been privileged to read, in draft, the judgment of my noble Lord Nnaemeka-Agu, JSC, just delivered. I entirely agree with his conclusion that this appeal be allowed and his reasons for arriving at that conclusion.

Respondent's Counsel in the court below, the learned senior advocate, was quite right when he insisted on his submission, which the court below (per Kolawole, JCA) described variously as "astonishing", "extraordinary" and "appears rather stranger than fiction", that the court below cannot entertain the application before it unless it includes a prayer for extension of time within which to appeal. This is because leave to appeal cannot be granted in respect of an appeal which has ceased to exist, time within which to file it having expired vide Chief Lamai v Chief Orbih (1980) 5-7 SC 28.

The need for such a prayer cannot be overridden by deeming a notice and grounds of appeal wrongly filed as properly filed, as in the present case. The notice and grounds of appeal filed on 26 November 1986 and the additional grounds, subsequently filed by the defendant/respondent, are defective because the grounds of appeal therein canvassed are of mixed law and facts, and were filed without prior leave either of the High Court or the court below. To deem such documents properly filed as at the date of filing them, is to fly in the face of the provisions of Section 25 of the Court of Appeal Act 1976 which sets out the time within which such documents should be filed. The only proper order to make, pursuant to a proper application granted, is to deem such documents properly filed with effect from the date of the order extending time vide Erisi & others v Idika & others 1987 4 NWLR 503. Even where the application is made, within the three month period, to the Court of Appeal, without detracting from the decision in Erisi's case, a deeming order effective from the date of extension is, in my view, to be preferred.