NALSA & TEAM ASSOCIATES V. N.N.P.C.

• Pages: 660-682

660

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NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

For the same reasons advanced in the lead judgment of my learned brother,

Uche Omo, J.S.C., I

too hereby dismiss this appeal with N1,000.00 costs to the

respondents.

Appeal dismissed.

NALSA & TEAM ASSOCIATES V. N.N.P.C.

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NALSA & TEAM ASSOCIATES

V.

NIG. NAT. PETRO. CORP.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,

KAWU,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALL,

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J.S.C.

OMO,

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J.S.C.

APPELLANT

RESPONDENT

APPEAL No. SC. 133/1988.

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15th November, 1991.

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Appeals - Failure to file interlocutory appeal within the time prescribed therefor by the 1979

Constitution of Nigeria and failure to seek leave to appeal out of time - Effect of -

Appeal on grounds of facts or mixed law and facts - Need to obtain leave - Effect of

failure so to do.

Practice and Procedure -

Notice of preliminary objection to the competence of an

interlocutory appeal on grounds of failure to obtain leave to appeal as required by law

- Motion for extension of time to seek leave to appeal - Which should be heard first.

ISSUES:

1.

What is the effect of failure to apply for extension of time to appeal when the

time to appeal has expired?

2.

As between a notice of preliminary objection to the competency of an

interlocutory appeal on grounds of failure to obtain leave to appeal as required

by law and motion for extension of time to seek leave to appeal, which should

be heard first?

FACTS:

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The appellant claimed against the defendant the sum of N500,000.00 as special

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and general damagesfor breach of preparation of the designs forthe respondent's

eight storey office block, in a Port Harcourt High Court. On the date fixed for trial,

the respondent was absent and not represented. A default judgment was entered

against the respondent. The judgment was later set aside by the Court of Appeal,

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which remitted the case for trial before another judge. The respondent in their

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amended statement of defence for the first time raised the issue that the appellant's

claim was statute barred vide section 11 of the Nigerian National Petroleum

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NALSA & TEAM ASSOCIATES V. N.N. P.C.

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661

Corporation Decree, 1977. The appellant also filed an amended statement of claim.

The learned trial judge

Okara, J.

ruled that the respondent had waived his right to

rely on the limitation of the action. Without seeking the leave of the court the

respondent appealed to the Court of Appeal on the ground,

inter alia,

that the Court

5 of Appeal erred in law in holding that it was estopped from raising the plea of

statutory bar as a result of an agreement. The appellant contended that the

grounds of appeal were of mixed law and fact. He filed a notice of preliminary

objection to the competence of the appeal on the ground that the respondent did

not obtain the leave of the Court to file the interlocutory appeal as required by

10 section 15(2) of the Court of Appeal Act, 1976 and section 221

(1)

of the 1979

Constitution of Nigeria as amended. Both motions came up for hearing on the

same date. The issue was which of Mem should be taken first. After hearing the

Counsel on the issue, the Court of Appeal ruled that the one praying the Court for

extension of time to apply for leave would be taken first. This application was

granted. Thereafter, without any consideration to the appellant's application for

15 leave to take a preliminary objection, it dismissed

it.

Dissatisfied, the appellant appealed to the Supreme Court, arguing,

inter alia,

that the Court of Appeal erred in law I:0 foist upon a notice and grounds of appeal

that was invalid and void, an application for extension of time within which to obtain

leave to appeal. The Supreme Court

suo motu

raised the issue of the omission of

20 the prayer for extension of time within which to appeal in the respondent's motion

and invited counsel to address it and they did.

HELD :

1. Without a prayer asking the Court to invoke its statutory power to extend time

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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 had power to

deem any invalid or incompetent notice of appeal as having been duly filed. A

leave of Court to appeal obtained after the statutory period to appeal has

expired or an appeal filed therecn is useless where there is no extension of

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time to appeal or a prayer therefore upon which the Court could extend time.

In the instant case, the Court of Appeal was in error when it proceeded to

exercise its discretion in favour of the respondent upon a motion without a

prayer for extension of time within which to appeal.

(See p. 670, lines

33-44).

35 2. 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

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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

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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.

(See p.668, lines 16 - 28).

3. Where the complaint in the preliminary objection as in this case, is to the effect

that the Court has no jurisdiction to hear the appeal at all or that there is no

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competent appeal before the court, then a fundamental issue which goes to

the vires of the Court has been raised. When such is the case, one of two

factual situations may arise. The respondent's motion may be one which is