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ISSUE OF COMPETENCE SHOULD BE RAISED VIA NOTICE OF APPEAL

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HEYDEN PETROLEUM LIMITED v. TOP LEADER SHIPPING INC (2018) LPELR-46680(CA) stated: “A preliminary objection that an appeal should not be heard and determined on the merit is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other since without competence there is really no basis for adjudication and decision on the merit by a Court. Thus an issue bordering on the competence or incompetence of the entire grounds of appeal in an appeal is one which can validly be raised by means of a notice of preliminary objection and not by way of motion of notice.”

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INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED

Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand.

– K.B. Aka’ahs, JSC. SPDC v Agbara (2019) – SC.731/2017(R)

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WHERE A NOTICE OF APPEAL IS DEFECTIVE

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain. See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt.1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt.882) 488, Olanrewaju v BON Ltd (1994) 8 NWLR (pt.364) 622, Abubakar v Waziri (2008) 14 NWLR (pt.1108) 507.

— J.I. Okoro, JSC. Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)

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FILING OF TWO NOTICES OF APPEAL IS NOT INCOMPETENT

The phrase “…after the notice of appeal” does not envisage multiple notices of appeal. There are similar provisions in the High Court and Court of Appeal Rules. In any case, it is an affront to logic and common sense to argue that an appellant can file more than one notice of appeal without indicating on which one he relies. Be that as it may, the mere fact of filing multiple notices of appeal does not render the appeal incompetent, Akuneziri v. Okenwa (2000) 12 SC (Pt. 11) 25, First Bank of Nigeria Plc. v. T.S.A. Industries Ltd. (2010) 4-7 SC (Pt. 1) 242. The 1st respondent read the appellants’ brief and made a decision to rely on one of the two notices filed within time. Not only was the 1st respondent not misled by the two notices of appeal, he did not disclose any injury he suffered for which he could seek redress. He cannot be heard to argue that another respondent elected to rely on the other notice of appeal.

— N.S. Ngwuta JSC. Yaki (Rtd) & Anor. V. Senator Bagudu & Ors. (SC.722/2015, 13 Nov 2015)

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LEAVE FOR EXTENSION OF TIME TO FILE AN APPEAL MAY ONLY BE GRANTED UPON APPLICATION BY A PARTY

The periods of time within which to give a notice of appeal against the decision of the Court below to this Court may be extended by the Court at the instance of a person/s who intend/s to appeal to the Court in both civil and criminal cases, in deserving cases. A valid and competent Notice of Appeal can be given or filed after the expiration or outside the periods of time stipulated under the provisions of Section 27 (2) of the Act, when and only if, the periods of the time was extended by the Court, as a condition precedent. Accordingly, the prior permission or leave of the Court, by way of extension of the relevant period of time within which to give the notice of appeal, is necessary and required for the validity and competence of a notice of such an appeal to the Court. Without the prior permission first sought and obtained by an Appellant for extension of time to appeal before giving or filing a Notice of Appeal in the Court, a purported Notice of Appeal given or filed after the expiration or outside the limited period of time, would be fatally and incurably, invalid and incompetent, thereby depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal. See Amadi v. INEC (2012) LPELR – 7831 (SC), Awhinashi v. Oteri (1984) 5 SC, 38, Enweliku v. State (1970) 1 Ail NWLR, 57, Peba v. State (1980) 8 – 11 SC, 76.

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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A NOTICE OF APPEAL IS AN INITIATING PROCESS

A notice of appeal is an initiating process by which a higher Court is invited to review the decision of a lower Court to determine whether on a proper consideration of the facts placed before the Court and the applicable law to the said facts, the lower Court arrived at a correct decision … The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal. Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended. See Popoola vs. Adeyemo (1992) 8 NWLR (pt. 257) 1 SC, Abidoye vs Alawode (2001) 13 WRN 71 SC.

— W.S.N. Onnoghen, JSC. SPDC v Agbara (2019) – SC.731/2017(R)

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PARTIES IN NOTICE OF APPEAL SHOULD BE SAME IN AN APPLICATION SUBSEQUENTLY BROUGHT ON SAME SUIT

The Notice of Appeal which is the foundation of this application has four parties as respondents, whereas the application has only three parties, exclusive of the Chief Registrar of the Federal High Court who is the 4th respondent in the Notice of Appeal. The Chief Registrar shouldn’t have been excluded/omitted from the application before us, as, if the appeal is supposed to involve the Chief Registrar, then the Chief Registrar is supposed to be involved in the application. The parties in both processes should be the same, and none should be excluded unless it has been formerly withdrawn. In this respect I endorse the submission of Chief Olanipekun. SAN on the issue of the parties, and I agree that the applicant cannot change the parties in the notice of appeal in this application.

— A.M. Muktar, JSC. Shinning Star Nig. Ltd. v. AKS Steel Nigeria Ltd. (2011) – SC. 101/2010

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