Enyibros Food Processing Co. (Nig.) Ltd v. N.D.I.C (2021)

[2021]16NWLR559

EnyibrosFoodProcessingCo.(Nig.)Ltd.v.N.D.I.C.

1.ENYIBROS FOOD PROCESSING COMPANY

(NIGERIA) LIMITED

2.CHIEF CHRISTOPHER O. ENYINWA

AND

NIGERIA DEPOSIT INSURANCE CORPORATION

AND

CHARLES NDUBUISI MBAMALU

SUPREME COURT OF NIGERIA

SC. 231/2009

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Presided)

JOHN INYANG OKORO, J.S.C.

EJEMBI EKO, J.S.C. (Read the Leading Judgment)

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

ADAMU JAURO, J.S.C.

FRIDAY, 7TH MAY 2021

ACTION – Parties to an action – Necessary parties – Who is forpurpose of joinder.

APPEAL – Appeal to Supreme Court from interlocutory decision ofCourt of Appeal – Time within which to file – Section 27(2)(a),Supreme Court Act.

APPEAL – Appeals from Court of Appeal to Supreme Court – Whereon facts or mixed law and facts – Need for leave.

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APPEAL – Extension of time to appeal – Where required – Failureto obtain – Effect.

APPEAL – Grounds of appeal – Determination of – Whether groundof law or mixed law and facts for which leave is required -Duty on counsel faced with difficulty in respect of.

APPEAL – Leave to appeal – Appeal from Court of Appeal toSupreme Court – When required – Failure to obtain – Effect of.

APPEAL – Notice of appeal – Defective and incompetent notice ofappeal – Effect of.

COURT – Court process – Amendment – Incompetent process -Whether can be amended.

COURT – Jurisdiction – Notice of appeal – Incompetent notice ofappeal – Effect of on jurisdiction of court.

COURT – Supreme Court – Appellate jurisdiction of Supreme Court- When can be invoked – Conditions for.

JURISDICTION – Notice of appeal – Incompetent notice of appeal- Effect of on jurisdiction of court.

PRACTICE AND PROCEDURE – Amendment – Incompetentprocess – Whether can be amended.

PRACTICE AND PROCEDURE – Appeal – Appeal to SupremeCourt from interlocutory decision of Court of Appeal – Timewithin which to file – Section 27(2)(a), Supreme Court Act.

PRACTICE AND PROCEDURE – Appeal – Grounds of appeal -Determination of – Whether ground of law or mixed law andfacts for which leave is required – Duty on counsel faced withdifficulty in respect of.

PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Appealfrom Court of Appeal to Supreme Court – When required –

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Failure to obtain – Effect of.

PRACTICE AND PROCEDURE – Appeal – Leave to appeal -Appeals from Court of Appeal to Supreme Court – Where onfacts or mixed law and facts – Need for leave.

PRACTICE AND PROCEDURE – Appellate jurisdiction of SupremeCourt – When can be invoked – Condition for.

PRACTICE AND PROCEDURE – Extension of time to appeal -Where required – Failure to obtain – Effect.

PRACTICE AND PROCEDURE – Notice of appeal – Defectiveand incompetent notice of appeal – Effect of on jurisdiction ofappellate court.

PRACTICE AND PROCEDURE – Parties to an action – Necessaryparties – Who is for purpose of joinder.

Issue:

Whether this appeal is competent.

Facts:

By an application made by one Charles Ndubuisi Mbamalu,described as party affected/appellant, the Court of Appeal on 2ndMarch 2009 ordered the appointment of S.O. Chinwuba & Co.,an estate agent, in respect of the property at No. 9 Nwosu Street,Achara Layout, Enugu, for the purpose of collecting rents accruingfrom the said property and to generally oversee the maintenance ofthe property.

The court also ordered that the rents collected should be paidinto an interest yielding account pending the determination ofthe appeal. The said estate agent was further ordered to render acomprehensive account of the rent so far collected from June 2001to the date of the ruling.

Aggrieved by the order of the Court of Appeal, the 2ndappellant herein, Chief Christopher Enyinwa, by a notice of appealdated 16th March 2009 filed on the 15th day of the order of the Courtof Appeal, containing five grounds of appeal, purportedly appealedto the Supreme Court contending, inter alia, that Messr. S. O.Chinwuba and Co, is not a person known to law, thus, cannot be

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appointed as a receiver.

In determining the appeal, the Supreme Court considered theprovisions of section 27(2)(a) of the Supreme Court Act, whichreads:

鈥�(2) The periods prescribed for the giving of notice ofappeal or notice of application for leave to appeal are

in an appeal in a civil case, fourteen days inan appeal against an interlocutory decisionand three months in an appeal against a finaldecision.鈥�

Held: (Unanimously striking out the appeal):

1.On Time within which to appeal against interlocutoryappeal to the Supreme Court –

By section 27(2)(a) of the Supreme Court Act, anappellant complaining in an interlocutory appealis to file his notice of appeal within a period offourteen days. In this case, the appeal was filedas of right, on 16 th March 2009, the 15 th day fromthe date the interlocutory decision was deliveredon 2 nd March 2009. The interlocutory appeal wouldappear to have been filed out of time and thereforeincompetent, invalid, and void ab initio. (P. 571,Paras. A-B)

2.On Condition for exercise of appellate jurisdiction bythe Supreme Court –

By the provisions of section 233(1) of the Constitutionof the Federal Republic of Nigeria, 1999 onlya competent appeal, validly filed, enures to anappellant to invoke the jurisdiction of the SupremeCourt, to hear and determine appeals from theCourt of Appeal. Thus, when an appeal appears tobe incompetent, it will be properly interrogated toensure that the Supreme Court does not proceed inan exercise that will eventually be a nullity. (C.B.N.v. Okojie (2015) 14 NWLR (Pt. 1479) 231 referred

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to.] (P. 571, paras. B -D)

3.On When leave is required to appeal from decisions ofCourt of Appeal to the Supreme Court –

By virtue of section 233(2) and of the 1999Constitution, where grounds of appeal raise issuesof fact and/or mixed law and fact, they require leaveto be first sought and obtained before the notice ofappeal could competently invoke the jurisdictionof the Supreme Court. In the instnat case, All theoriginal grounds of appeal raised issues of fact and/or mixed law and fact and they require leave firstsought and obtained. There being no such leave;the notice of appeal filed on 16 th March 2009 wasinvalid, illegal, and a nullity. (P. 572, paras. B-C)

On Treatment of a defective and incompetent noticeof appeal –

Where a notice of appeal is incompetent by reasonof it being invalid, void ab initio and illegal it cannotbe regularised. It cannot be saved by a purportedamendment. No additional ground(s) of appeal canbe hung on it to either launder or regularize it ascourts do not condone illegality, no matter whomby. In the instant case, the appellant鈥檚 notice ofappeal filed on 16th March 2009, without seekingthe leave of the Supreme Court was invalid, illegaland a nullity. [Aderibigbe v. Abidoye (2009) 10NWLR (Pt.1150) 592 referred to.] (P. 572, paras.C-F)

5.On Effect of defective and incompetent notice of appeal –

Where an incompetent notice of appeal is filed at theappellate court, the apex court inclusive, the courtis devoid of jurisdictional competence to adjudicateand determine the appeal on the merits. In theinstant case, the original notice of appeal, havingbeen filed out of time, had rendered incompetent abinitio the appeal. Despite the purported amended

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notice of appeal filed on 16 th March 2009, itwas nevertheless predicated upon an incurablydefective original notice of appeal, thus renderedincompetent. (P. 5 76, paras. B-D)

6.On Effect of failure to seek extension of time to appealwhere required –

By the provision of Section 27(2)(a) of the SupremeCourt Act, a person intending to appeal against aninterlocutory decision of the Court of Appeal mustdo so within 14 days from the date of the decisioncomplained of. In the absence of an application forextension of time within which to seek leave to appeal,the notice of appeal is incompetent and liable to bestruck out. The failure to comply with the statutoryrequirement of filing an appeal within the prescribedtime is fundamental, and not a mere irregularity, as itdeprives the appellate court of jurisdiction to entertainor hear the appeal. In the instant case, the appeal wasfiled one day outside the 14 days prescribed periodand the appellant did not file an application for anextension of time to seek leave to appeal. [Owoh v. Asuk(2008) 16 NWILR (Pt. 1112) 113; Auto Import Exportv. Adebayo (2002) 18 NWLR (Pt.799) 554; Okereke v.James (2012) 16 NWLR (Pt. 1326) 339 referred to.](Pp. 573-574, paras. G-B)

7.On When leave to appeal is required from decisions ofCourt of Appeal to Supreme Court –

Where grounds of appeal involve questions of factsor mixed law and facts, they require the leave ofcourt before they can be validly raised. Failure toseek and obtain leave before filing the notice ofappeal containing the grounds of facts and mixedlaw and facts will render the entire process defectiveand only liable to be thrown out. In this case, the fivegrounds of appeal raised in the amended notice ofappeal were all incompetent. They were all groundsof facts or mixed law and facts which require leave

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of court before they can be validly raise. [Abubakarv. Dankwambo (2015) 18 NWLR (Pt. 1491) 213;Achonu v. Akuwobi (2017) 14 NWLR (Pt. 1584) 142referred to.] (P. 574, paras. G-H)

PER EKO J.S.C at page 571-572, para. D-B:

鈥淚 earlier reproduced the 5 original groundsof appeal in this interlocutory appeal. Ground5 is omnibus ground. It is one of pure fact,complaining that the decision appeal is againstthe weight of evidence. It requires leave firstsought and obtained to be valid.

Ground 4 is at best a ground complainingof mixed law and fact. Particular 4, forinstance, involves interrogation of facts forthe determination whether 鈥渢he affected/respondent has – shown that he is entitled tothe rent鈥�, particulars 1 & 3, in support ofthis ground 4 do not arise from the decisionappealed, which I had earlier reproduced.Particulars 2 & 3 read together would requireprobing facts to determine whether or notownership of the disputed house is in issuein the substantive appeal. The ground alsorequires leave first and obtained to be valid.

Ground 3 like ground 4, is a complaint onfacts as to whether or not the appellant didadmit in his affidavit 鈥渢hat the SupremeCourt conferred any right on the applicant/respondent in the property鈥�.

The question whether Chinwuba & Co.,appointed as a receiver, 鈥渋s a non-legal person鈥漣s one of fact. This is the core complaint inground 2.The ground is therefore one of factrequiring leave first sought and obtained to bevalid.

Ground 1 is a challenge to improper exerciseof discretion, which necessarily involves actsand circumstances, and it is at best, a questionof mixed law and fact: Ogbechie v. Onochie

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(1986) 2 NWLR (Pt. 23) 84; Metal Construction(WA) Ltd v. Migliore (1990) 1 NWLR (Pt. 126)299; C.B.N. v. Okojie (2015) 14 NWLR (Pt.1479) 231. The Court of Appeal鈥檚 discretion,vested by Order 4 rule 6 of its Rules entails itto act ju dicially and judiciously. Facts in thecircumstance remain the governing factor.鈥�

8.On Determination of whether a ground of appeal is oneof law or of facts and duty on counsel in respect of –

In deciding whether a ground of appeal involves aquestion of law, or of facts, or mixed law and facts,where leave is required, can be a difficult task.Thus, the safest thing a discerning counsel, whereconfronted with such situation, can do is to applyfor leave on the ground or grounds of mixed lawand facts. Applying for leave out of abundanceof caution would sufficiently take care of anyeventuality which may spring up while consideringthe appeal. [Stanbic I.B.T.C. Bank v. Longterm GlobalCapital Ltd. (2017) 18 NWLR (Pt. 1598) 431 referredto.] (P. 575, paras. A-C)

9.On Whether an incompetent process can be amended –

An incompetent process cannot be amended. Youcannot place something on nothing and expect itto stand, it will collapse. In this case, the SupremeCourt could not exercise jurisdiction over an appealbased on an incompetent notice of appeal, eventhough same was said to have been purportedlyamended. (P. 576, paras. F-G)

On Who is a necessary party for purposes of joinder –

By virtue of section 36(1) of the Constitutionof the Fedeal Republic of Nigeria, 1999, in thedetermination of civil rights and obligations, everyperson likely to be affected by the decision of acourt of law, shall be entitled to a fair hearing. Inthe instant case, Chinwuba & Co., the estate agentand valuer, whose appointment as a receiver was

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the hotshot and cynosure of the appeal, was not aparty to the appeal. Even though he was a necessaryparty, and any d ecision in the interlocutory appealwould affect him. (P. 572, paras. F-H)

Nigerian Cases Referred to in the Judgment:

Abubabar v. Dankwambo (2015) 18 NWLR (Pt. 1491) 213

Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142

Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592

Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799)554

Bronik Motors v. Wema Bank (1983) 1 SCNLR 296

C.B.N. v. Okojie (2015) 14 NWLR (Pt. 1479) 231

In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

Metal Construction (WA) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299

Ogbechi v. Onochie (1986) 2 NWLR (Pt. 23) 84

Okereke v. James (2012) 16 NWLR (Pt. 1326) 339

Owoh v. Asuk (2008) 16 NWLR (Pt. 1112) 113

Skenconsult v. Ukey (1980) 1 SC 6

Stanbic I.B.T.C. v. Longterm Global Capital Ltd. (2017) 18NWLR (Pt. 1598) 431

Foreign Case Referred to in the Judgment:

UAC v. Macfoy (1961) 3 All ER 1169

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria 1999, (asamended) Ss. 36(1), 233(1)(2)(3)

Supreme Court Act, 2004, S.27(2)(a)

Nigerian Rules of Court Referred to in the Judgment:

Court of Appeal Rules, O.4 r.6

Appeal:

This was an appeal against the order of the Court of Appeal,appointing Messers S.O. Chinwuba & Co., as a receiver in respect

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of the property in dispute in the matter. The Supreme Court, in aunanimous decision, struck out the appeal for being incompetent.

Histo ry of the Case:

Supreme Court:

Names of Justices that sat on the appeal: KudiratMotonmori Olatokunbo Kekere-Ekun, J.S.C. (Presided);John Inyang Okoro J.S.C; Ejembi Eko, J.S.C. (Read theLeading Judgment); Ibrahim Mohammed Musa Saulawa,J.S.C.; Adamu Jauro J.S.C.

Appeal No.: SC.231/2009

Date of Judgment: Friday, 7th May 2021

Names of Counsel: Prisca Ozoilesike Amah Esq – for theAppellant

Dan O. Uruakpa Esq – for the 1 st Respondent

Court of Appeal:

Division of the Court of Appeal from which the applicationwas brought: Court of Appeal, Enugu

Names of Justices that sat on the Ruling: VictorAimepomo O. Omage, J.C.A. (Presided and Read theLeading Ruling); Stanley Shenko Allagoa, J.C.A.; SidiDauda Bage J.C.A.

Appeal No.: CA/E/104/01

Date of Ruling: Monday, 2nd March 2009

Names of Counsel: Chief A.O. Mogboh, SAN (with him,B.C. Okoye [Mrs], Esq) – for the Appellant

There is proof of service on Respondent

High Court:

Name of the High Court: High Court of Anambra State,Onitsha

Name of the Judge: Ofomata, J.

Suit No.: O/394/95

Date of Judgment: Tuesday, 20th January, 1998

Name of Counsel: O.I. Oputa – for the Plaintiff

Obi Akpudo – for the Defendant

Counsel:

Prisca Ozoilesike Amah Esq – for the Appellant

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Dan O. Uruakpa Esq – for t he 1 st Respondent

EKO, J.S.C. (Deli vering the Leading Judgment): On 2nd March,2009, the Court of Appeal (Coram: Omage, Allagoa & Bage, JJCA),sitting at Enugu made the following interlocutory order pending thedetermination of the appeal – No. CA/E/104/01:

It is hereby ordered that S. O. Chinwuba and Company,an Estate Agent and Valuer, of No. 45 Chime Avenue,New Haven Enugu be appointed a receiver in Respectof the property situation at No. 9, Nwosu Street, AcharaLayout, Enugu for the purpose of collecting all rentsaccruing from the said property with effect from fromtoday, and Generally oversee the maintenance of thesaid property. (Further) an order that all such rentscollected be paid into an interest yielding accountpending the determination of the appeal. (And further)an order for a comprehensive account of the rent so farcollected on the property from June, 2001 to date bythe defendant/respondent.

Aggrieved by this order, the defendant, as the 2nd respondentat the lower court, filed the subject notice of appeal on 16th March2009. The notice of appeal, at pages 145-148 of record, has thefollowing 5 grounds of appeal; that is-

Ground 1

The Court of Appeal erred in law by making the orderappointing a receiver.

Particulars

1.To make an order for appointment, the appointmentof a receiver, must be just and convenient in thecircumstances of the case.

2.A person in possession who claims to have legaltitle cannot be outsted through appointment of areceiver until true ownership is determined.

3.A receiver shall not be appointed where theapplicant has an alternative remedy in law.

4.A receiver shall not be appointed where the claimor writ is not so endorsed not the relief sought onappeal is not so endorsed.

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5.By appointing a receiver the court has determinedthe main issue in controversy, in the appeal.

Ground 2

The learned Justices of the Court of Appeal erred inlaw by appointing Messr. S. O. Chinwuba and Co. anon legal person as a receiver.

Particulars

1.No person unknown to law can be appointed as areceiver.

2.Messr. S. O. Chinwuba and Co. is not a legalperson.

Ground 3

The Court of Appeal misdirected itself when it held鈥渢he respondent has filed a counter affidavit andhave come to the conclusion that the submission ofrespondent has no relevance to the right which therespondent admit was given by the Supreme Court tothe applicant鈥�.

Particulars

1.The 2nd defendant/appellant did not admit inany paragraph of his affidavit that applicant/respondent has any right at all in the property.

2.The respondent/applicant also did not admit thatthe Supreme Court conferred any right on theapplicant/respondent in the respondent.

3.The only right which the Supreme Court conferredon the applicant/respondent is the right to appealas a party affected by the judgment of the HighCourt.

Ground 4

The Court of Appeal misdirected itself when it madean order for a comprehensive account of the rentcollected.

Particulars

1.A court cannot in an interlocutory applicationdetermine the substantive appeal.

2.The relief sought in the substantive appeal doesnot support this order made by the court below.

3.The substantive appeal cannot determine theissue of ownership of the house.

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4.The party affected/respondent has not shown thathe is entitled to the rent.

Ground 5

Judgment is against the weight of evidence.

The appeal was filed as of right, on 16th March, 2009 (the 15thday from the date the interlocutory decision was delivered on 2ndMarch, 2009). Section 27(2)(a) of the Supreme Court Act, 2004enjoins the appellant complaining in an interlocutory appeal to filehis notice of appeal within a period of 14 days. This interlocutoryappeal would appear to have been filed out of time and thereforeincompetent, invalid and void ab initio.

My Lords, because only a competent appeal, validly filed,enures to the appellant to invoke the jurisdiction of this court, vestedin it by section 233(1) of the Constitution, 鈥渢o hear and determineappeals from the Court of Appeal鈥�; when an appeal appears tobe incompetent, it will be properly interrogated to ensure that wedo not proceed in an exercise that will eventually be a nullity aswell: Madukolu v. Nkemdilim (1962) 1 ALL NLR 587; (1962) 2SCNLR 341; Bronik Motors Ltd & Anor. v. Wema Bank Ltd. (1983)1 SCNLR 296; CBN v. Okojie (2015) 5 – 6 SC (Pt. ii) 173; (2015)14 NWLR (Pt. 1479) 231.

I earlier reproduced the 5 original grounds of appeal in thisinterlocutory appeal. Ground 5 is ombibus ground. It is one of purefact, complaining that the decision appeal is against the weight ofevidence. It requires leave first sought and obtained to be valid.

Ground 4 is at best a ground complaining of mixed law andfact. Particular 4, for instance, involves interrogation of facts forthe determination whether 鈥渢he affected/respondent has – shownthat he is entitled to the rent鈥�, Particulars 1 & 3, in support of thisground 4 do not arise from the decision appealed, which I had earlierreproduced. Particulars 2 & 3 read together would require probingfacts to determine whether or not ownership of the disputed houseis in issue in the substantive appeal. The ground also requires leavefirst and obtained to be valid.

Ground 3 like ground 4, is a complaint on facts as to whether ornot the appellant did admit in his affidavit 鈥渢hat the Supreme Courtconferred any right on the applicant/respondent in the property鈥�.

The question whether Chinwuba & Co., appointed as areceiver, 鈥渋s a non-legal person鈥� is one of fact. This is the core

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complaint in ground 2.The ground is therefore one of fact requiringleave first sought and obtained to be valid.

Ground 1 is a challenge to improper exercise of discretion,which necessarily involves acts and circumstances, and it is at best,a question of mixed law and fact: Ogbechie v. Onochie (1986) 2NWLR (Pt. 23) 84; Metal Construction (WA) Ltd v. Migliore(1990) 1 NWLR (Pt. 126) 299; CBN v. Okojie (supra). The Courtof Appeal鈥檚 discretion, vested by Order 4 rule 6 of its Rules entailsit to act judicially and judiciously. Facts in the circumstance remainthe governing factor.

All the original grounds of appeal raise issues of fact and/ormixed law and fact which, by virtue of section 233(2) & ofthe 1999 Constitution, they require leave first sought and obtainedbefore the notice of appeal could competently invoke the jurisdictionof this court. There being no such leave; the notice of appeal filedon 16th March, 2009 was invalid, illegal and a nullity. Courts donot condone illegality, no matter whom by. On 15tn April, 2014 apurported amended notice of appeal filed on 11th April, 2014 wasdeemed properly filed. The said amended notice of appeal containsfive grounds of appeal ipssima verba with the offensive 5 groundsin the original notice of appeal. The purported amendment wasprocured by a fraudulent hoax played on this court. The law issettled that an appeal, incompetent by reason of its being invalid,void ab initio and illegal cannot be regularised. It cannot saved by apurported amendment that is a sham as the instant appeal is. Whena notice of appeal is invalid, void and incompetent, no additionalground(s) of appeal can be hung on it in order to either launder itor regularize it: Aderibigbe v. Abidoye (2009) LPELR -140 (SC);(2009) 10 NWLR (Pt. 1150) 592.

Both the original and the amended notice of appeal have, each,a common fundamental feature or deficiency 鈥� the said Chinwuba& Co., Estate Agent and Valuer, whose appointment as a receiveris the hotshot and cynosure of the appeal, is not a party to theappeal. There is no doubt he is a necessary party, and any decisionin this interlocutory appeal will affect him. Section 36(1) of theConstitution enjoins that in the determination of his civil rights andobligations, every person likely to be affected by the decision of acourt of law, shall be entitled to a fair hearing. The question whetherChinwuba & Co. is a juristic persona and entitled to be appointed a

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receiver would requires that he be given an opportunity to be heardand also a fresh or further evidence to prove the assertion. Leave isnecessary also necessary to prove that fact. These deficiencies areserious and fundamental. They go to the root.

This appeal, as I have been trying to demonstrate; beingincompetent, illegal and invalid, shall be, and is hereby, struck out.

The appeal appears to be gagging appeal designed only tofrustrate the substantive appeal No. CA/E/104/01. Accordingly,in view of the implicit abuse of the court鈥檚 process in thismisadventure, the appellant at the lower court, who herein is the1st respondent deserves to be indemnified in cost. The appellantsin this interlocutory appeal are hereby ordered to pay, as costs, thesum of N1,000,000.00 to the said appellant (NDIC) at the lowercourt who herein is the 1st respondent.

KEKERE-EKUN, J.S.C.: I have had a preview of the judgmentof my learned brother, Ejembi Eko, JSC just delivered. I agree withthe reasoning and conclusion reached therein.

The precursor to this appeal is an interlocutory rulingdelivered by the lower court on 2/3/2009 at the instance of oneCharles Ndubuisi Mbamalu, described as 鈥減arty affected/appellant;鈥渨hereby it ordered the appointment of S.O. Chinwuba & Co.,an estate agent, in respect of the property at No. 9 Nwosu Street,Achara Layout, Enugu, for the purpose of collecting rents accruingfrom the said property and to generally oversee the maintenance ofthe property. The court also ordered that the rents collected shouldbe paid into an interest yielding account pending the determinationof the appeal. The said estate agent was further ordered to render acomprehensive account of the rent so far collected from June 2001to the date of the ruling.

The 2nd respondent, Chief Christopher Enyinwa, was unhappywith the ruling and appealed to the lower court vide a notice ofappeal filed on 16/3/2009 containing 5 grounds of appeal.

By Section 27(2)(a) of the Supreme Court Act, a personintending to appeal against an interlocutory decision of the courtbelow must do so within 14 days from the date of the decisioncomplained of.

In the instant case, the appeal was filed one day outside the

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14 days prescribed. In the absence of an application for extensionof time within which to seek leave to appeal, the notice of appealis incompetent and liable to be struck out. The failure to comply withthe statutory requirement of filing an appeal within the prescribedtime has been held to be fundamental, and not a mere irregularity, asit deprives the appellate court of jurisdiction to entertain or hear theappeal. See: Owoh & Ors. v. Asuk & Anor. (2008) 16 NWLR (Pt. 1112)113; (2008) LPELR – 2883 (SC) @ 19 E-G; Auto Import v. Adebayo &Ors. (2002) LPELR – 643 (SC) @ 15 A-E; (2002) 18 NWLR (Pt. 799)554; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339.

In the circumstances, I agree with my learned brother, EjembiEko, JSC, that this appeal is incompetent. It is hereby struck out. Iabide by the order on costs.

Appeal struck out.

OKORO, J.S.C.: I have read in its draft form the lead judgmentof my learned brother, Ejembi Eko, JSC just delivered. I am inagreement with my learned brother that this appeal is bereft ofmerit and deserves an order of dismissal.

In this appeal, the court below granted an application by theparty interested, Charles Ndubuisi Mbamalu, appointing S. O.Chinwuba and Company, Estate Agent and Valuer as receiver inrespect of property situate at No.9, Nwosu Street, Achara Layout,Enugu. Aggrieved by that order of court contending -, inter alia,that Messr. S. O. Chinwuba and Co, is not a person known to law,thus, cannot be appointed as a receiver.

A careful perusal of the notice of appeal filed by the appellantwould reveal that apart from the fact that the said S. O. Chinwubaand Co; is not made a party to this appeal, which would haveafforded it the opportunity to state its own side, the 5 grounds ofappeal raised in the amended notice of appeal are all incompetent.They are all grounds of facts or mixed law and facts which requireleave of this court before they could be validly raised. Failure toseek and obtain leave before filing the notice of appeal containingthe grounds of facts and mixed law and facts has rendered the entireprocess defective and only liable to be thrown out.

See Abubakar v. Wankwambo (2015) 18 NWLR (Pt. 1491) 213;Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142 SC. They arehereby struck out.

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[2021]16NWLR575

I understand that the line between what constitute groundof law and ground of mixed law and facts may be so slim suchthat counsel may be unable to discern one from the other. Whenfaced with such a situation, my advise is to reiterate the words ofmy learned brother Sanusi, JSC in the case of Stanbic IBTC Bankv. Longterm Global Capital Ltd and Anor. (2017) 18 NWLR (Pt.1598) 431 at 452 where he stated that:

鈥淚t is usually difficult to out rightly determine whethera ground of appeal is purely one of law alone or isof mixed law and fact. Where a counsel is confrontedwith such difficulty, the safest thing for him to do, isapply for leave on the ground or grounds of mixed lawand facts:鈥�

Applying for leave out of abundance of caution wouldsufficiently take care of any eventuality which may spring up in thecourse of considering the appeal.

In the final analysis, all I have laboured to say above is thatthis appeal is incompetent and is hereby struck out. I abide by theconsequential orders made in the lead judgment, that relating tocosts, inclusive.

SAULAWA, J.S.C.: I have had a preview of the judgment justdelivered by my learned brother, the Hon. Justice Ejembi Eko, JSC.Unhesitatingly, I concur with the reasoning eloquently reached inthe lead judgment, to the conclusive effect that the instant appeal isimplicitly an abuse of court鈥檚 process.

Most instructively, the instant appeal is against the interlocutoryruling of the Court of Appeal Enugu Judicial Division, Coram:VAO Omage, JCA, SS Alagoa, JCA and S. D. Bage, JCA (as hethen was). The ruling in question was evidently on the face of therecord of appeal pages 141- 144) delivered on 02/03/2009.

Curiously, however, the original notice of appeal (pages145 -148) was filed, paid for and stamped in the court below on16/03/2009. That was on the 15th day the ruling appealed against wasdelivered 02/03/2009. Undoubtedly, by virtue of the provisions ofsection 27 of the Supreme Court Act, 2004, that originatingnotice of appeal was filed out of the statutory 14 days allowed. Seesection 27 of the Supreme Court Act) 2004:

27 where a person desires to appeal to the Supreme Court heshall give notice of appeal or notice of his application

NigerianWeeklyLawReports8November2021(Okoro,J.S.C.)EnyibrosFoodProcessingCo.(Nig.)Ltd.v.N.D.I.C.(SaulawaJ.S.C.)

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576

for leave to appeal in such manner as may be directedby the rules of court within the period prescribed bysubsection of this section that is applicable to thecase.

The period s prescribed for the giving notice of appeal(2)or notice of application for leave to appeal are _

in an appeal in a civil case, fourteen days in anappeal against an interlocutory decision and three(a)months in an appeal against a final decision. 鈥�

The original notice of appeal having been filed out of time,is rendered incompetent ab initio. By implication, the purportedamended notice filed on 16/032009, having been predicated uponan incurably defective original notice of appeal, is equally renderedincompetent. The law is well settled beyond per adventure, thatwithout a competent notice of appeal, an appellate court, the apexcourt inclusive, is devoid of jurisdictional competence to adjudicateand determine the appeal on the merits. See Madukolu v. Nkemdilim(1962) 1 All NLR 595 @ 597; (1962) 2 SCNLR 341; Sken Consultv. Ukey (1980) 1 SC 6 @ 26.

Hence, having adopted the reasoning and conclusion reachedin the lead judgment as mine, I too hereby strike out the appeal andabide by the order in regard to costs.

JAURO, J.S.C.: I had the opportunity of reading before now adraft copy of the lead judgment just delivered by my learnedbrother, Ejembi Eko, JSC. I completely agree with the reasoningcontained therein and the inevitable conclusion that the appeal isgrossly incompetent and ought to be struck out.

This court cannot exercise jurisdiction over an appeal basedon an incompetent notice of appeal, even though as in the instantappeal, same was said to have been purportedly amended. It is tritethat an incompetent process cannot be amended. You cannot placesomething on nothing and expect it to stand, it will collapse. UAC v.Macfoy (1961) 3 ALL ER 1169; In Re: Apeh & Ors (2017) LPELR- 42035 (SC); (2017) 11 NWLR (Pt. 1576) 252.

In conclusion, the appeal is accordingly struck out for beingincompetent. I abide by the order as to costs made in the leadjudgment.

Appeal struck out.

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