NALSA & TEAM ASSOCIATES v NIGERIAN NATIONAL PETROLEUM CORPORATION (SC 133/1988) [1991] NGSC 9 (15 November 1991)

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