EMOKPAE V. STANBIC IBTC PENSION MANAGERS LIMITED: On validity of notice of appeal filed without leave where leave required. An insight into the decision of the Supreme Court therein.

Citation: (2021) 7 NWLR PT. 1776 AT 465.
Courtesy: Moruff O. Balogun Esq

Summary of Facts:
The appellant sued the respondent at the trial court claiming a declaration that the respondent was negligent in handling the application for the release of 25% of the pension fund of the appellant and an order directing the respondent to pay to the appellant, general and special damages for negligent misconduct.

The respondent denied all the allegations of the appellant. The trial court dismissed the claims of the appellant. Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal which affirmed the judgment of the trial court.

The appellant further appealed to the Supreme Court. At the Supreme Court, the notice of appeal had two grounds of appeal namely:

a) complaint against the finding of fact that the appellant failed to prove that the respondent breached its duty of care;

b) the omnibus ground of appeal, that the judgment of the Court of Appeal was against the weight of evidence.

The respondent contended that the grounds of appeal required leave first sought and granted before they could be legitimately filed in further appeal from the Court of Appeal to the Supreme Court in accordance with section 233(2) & (3) of the 1999 Constitution.

Held: Unanimously striking out the appeal.

The following issues were raised and determined by the Supreme Court.

On validity of notice of appeal filed without leave where leave required:

By the provision of section 233(2) & (3) of the 1999 Constitution, grounds of appeal being of facts or mixed law and facts without leave of either the Court of Appeal or the Supreme Court is liable to be struck out. The instant appeal being incompetent, it stood on nothing and was struck out.

On treatment of appeal that violates procedure prescribed by the Constitution:

Appellant who, purporting to exercise his constitutional right of appeal, brings his appeal in a manner flagrantly violating the Constitution cannot be countenanced. It will be ultra vires to grant to such litigant a right denied to him by the Constitution. Similarly, if exercise of the right of appeal is conditional; unless the mandatory conditions are met and fulfilled, the court acts ultra vires to entertain such appeal process.

In the instant case, the bottom-line was that the only two grounds of appeal were incompetent in view of section 233(2) & (3) of the Constitution. The two original grounds of appeal were filed in clear violation of the mandatory provision of section 233(2) & (3) of the Constitution. Consequently, there was no valid or legitimate ground of appeal existing that could sustain the appeal. The notice of appeal at the time it was filed, was fundamentally defective and void ab initio. It was accordingly struck out.

On effect of failure to obtain leave to appeal where required:

Leave of court, where it is required, is a condition precedent to the exercise of right of appeal. As such, failure to obtain such leave, will render incompetent any appeal filed, as no jurisdiction can be conferred on the appellate court. Hence, an appeal from the Court of Appeal to the Supreme Court on grounds other than grounds of law alone is incompetent and invalid unless leave of either the Court of Appeal or the Supreme Court is first sought and obtained. In this appeal, having not obtained leave of court first before filing the notice of appeal, the notice of appeal was incompetent.

On when leave required in appeal against decision of Court of Appeal to the Supreme Court:

By the provision of Order 6 Rule 5(1) of the Supreme Court Rules 1985, leave of court is required prior to bringing an appeal on a ground other than ground of law.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
09121207712 [WHATSAPP]

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