ODOFIN V. AGU 5

• Pages: 520-535

520

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NIGERIAN SUPREME COURT CASES

[19921 1 N.S.C.C.

ODOFIN V. AGU

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5

1.

PETER ADEBOYE ODOFIN

2.

OLATUNJI ONOKE

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APPELLANTS

V.

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10

1.

CHIEF AGU

2.

JIMOH ONI

APPEAL No. SC. 101/1989.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

0 LATAWU RA,



J.S.C.

A KPATA ,



J.S.C.

BABALAKIN,

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J.S.C.

27th March, 1992.

Appeals - Appellate jurisdiction - Nature and sources of - Leave to apppeal sought out of

time - Court ofAppeal granting ex

-

tension of time to appeal in the absence of application

therefor - Propriety of - Effect on jurisdiction of court - Leave to appeal - S.25(1) Court

of Appeal Act - Nature of provisions of - Notice of appeal - Importance of

Jurisdiction - Essential elements for exercise of - Appellate jurisdiction - Source of -

Whether can be inherent - Court's jurisdiction to hear a matter - Whether can be waived

by parties.

Legal Practitioners - Incomplete record of appeal - Duty of counsel in relation thereto.

Legislation - Court of Appeal Act, section 25(1) - Nature and purport of

Practice and Procedure - Application for extension of time within which to apply for leave

and for leave to appeal - Whether competent where applicant has not applied for

extension of time to file notice of appeal and time within which to appeal has expired

- Judicial power - When exercised - Court awarding relief not claimed by a party -

Propriety of

Words and Phrases - "Consequential order" - Meaning of

ISSUES:

1.

What are the essential elements for the exercise by a court of its jurisdiction?

2.

What is the nature and purport of the provisions of section 25(1) of the Court

of Appeal Act, 1976.

3.

What is the source of an appellate jurisdiction?

4.

What is the importance of a Notice of Appeal?

RESPONDENTS

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20

25

30

35

40

45

50

ODOM V. AGU

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521

FACTS:

In a suit commenced in the Akoko South Grade I Customary Court in Ondo

State, the plaintiff's claimed the defendants the ownership of a parcel of land,

5

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damages for trespass and an injunction. After hearing evidence adduced by both

parties, the plaintiffs were granted title over the land in dispute and awarded

damages for trespass on 30/9/83.

On 16/5/85 the defendants' appeal to the High Court was dismissed. And

having failed to seek leave to appeal within the statutory period of three months,

10 the defendants on 4/10/85 applied to the Court of Appeal for extension of time

within which to seek leave to appeal and for leave to so appeal. However, the

defendants did not apply for extension of time within which to appeal.

In its ruling delivered on 21/10/85, the Court of Appeal granted the defendants

leave to appeal and extended time within which to appeal against the judgment of

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the High Court. On

11/1

1

/

8

5

Notice of Appeal was filed pursuant to the Court of

Appeal Order (i.e. nearly six months after the judgment appealed against), and on

7/12/88 the Court of Appeal allowed the appeal of the defendants and set aside

the judgment of the High Court.

The plaintiffs, being dissatisfied, appealed to the Supreme Court against the

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judgment of the Court of Appeal, on ground

inter alia,

that the prayer for extension

of time to appeal was granted

suo Motu

and gratuitously.

HELD:

1.

One of the essential elements for the exercise by a court of its jurisdiction is

that "the subject matter of the case is within its jurisdiction, and there is no

feature in the case which prevents the court from exercising its jurisdiction."

The other element is that "the case comes before the court initiated by due

process of law, and upon fulfillment of any condition precedent to the exercise

of jurisdiction."

(See

p.525,

lines 42 - 46).

2.

The provisions of section 25(1) of the Court of Appeal Act, 1976, with the

expression "shall give notice of appeal or notice of his application for leave to

appeal" are clearly mandatory. Effect must be given to the words. Thus except

where the court has enlarged the time pursuant to an application properly

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brought before it seeking to enlarge the periods to appeal in a civil cause or

matter, the period prescribed in section 25(1)(a) applies. (See

p.527, lines

49-50 & p.528, lines 1-8).

3.

The exercise of appellate jurisdiction is entirely statutory. An appellate court

derives its jurisdiction from the statute creating it and other enabling statutory

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powers.. There can therefore not be an inherent jurisdiction outside the statute.

Thus the provisions of section 6 of the Constitution 1979 which deal with

inherent powers is of assistance only where there is a valid exercise of

jurisdiction.

(See p.527, lines 19 22).

45 4. The Notice of Appeal is without doubt the foundation of an appeal. Where an

application to appeal is made out of time, a notice of appeal made out of time

will require a prayer for enlargement of time within which to file such notice of

appeal. In the absence of a notice of appeal there is no appeal before the

court.

(See p.528, lines 24-29).

50 5. The competence vel non of a court is a legal condition which cannot be waived

by the parties. Where the condition of want of competence exists, it is a

fundamental defect fatal to adjudication. it is not a mere irregularity which can

be cured by considerations of substantial justice. (See

p.529, lines 8-12).

25

30