ADAMAWA STATE GOVT & ANOR v. AMCON &ORS

CITATION: (2017) LPELR-43026(CA)

In the Court of AppealIn the Yola Judicial Division

Holden at Yola

ON TUESDAY, 30TH MAY, 2017Suit No: CA/YL/01/2016

Before Their Lordships:

OYEBISI FOLAYEMI OMOLEYE Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of AppealSAIDU TANKO HUSAINI Justice, Court of Appeal

Between1. ADAMAWA STATE GOVERNMENT2. ATTORNEY GENERAL OF ADAMAWA STATE - Appellant(s)

And1. ASSET MANAGEMENT CORPORATION OFNIGERIA2. ACCESS BANK (FORMER INTERCONTINENTAL BANK PLC)3. CENTRAL BANK OF NIGERIA4. ZENITH BANK5. FIRST BANK OF NIGERIA LIMITED6. GUARANTEE TRUST BANK PLC7. KEYSTONE BANK LIMITED8. UNITED BANK FOR AFRICA PLC9. DIAMOND BANK PLC10. FIRST CITY MONUMENT BANK LIMITED

- Respondent(s)

RATIO DECIDENDI

(201

7) LP

ELR-43

026(

CA)

1. APPEAL - APPEAL AS OF RIGHT: Instances where an appeal shall lie as ofright from the High Court or Federal High Court to the Court of Appeal"To qualify as an appeal as of right under Section 241 of the Constitution (asamended) the decision sought to be appealed against must fall within theambits of Section 241(1)(a)-(f), (2)of the Constitution which provides thus:-"241-(1) An appeal shall lie from decisions of the Federal High Court or a HighCourt to the Court of Appeal as of right in the following case:(a) Final decisions in any civil or criminal proceedings before the Federal HighCourt or a High Court sitting at first instance;(b) Where the ground of appeal involves questions of law alone, decisions inany civil or criminal proceedings;(c) Decisions in any civil or criminal proceedings on questions as to theinterpretation or application of this Constitution;(d) Decisions in any civil or criminal proceedings or questions as to whetherany of the provisions of Chapter IV of this Constitution has been, is being or islikely to be, contravened in relation to any person;(e) Decisions in any criminal proceedings in which the Federal High Court or aHigh Court has imposed a sentence of death;(f) Decisions made or given by the Federal High Court or a High Court-(i) Where the liberty of a person or the custody of an infant is concerned,(ii) Where an injunction or the appointment of a receiver is granted or refused,(iii) In the case of a decision determining the case of a creditor or the liabilityof a contributory of other officer under any enactment relating to companiesin respect of misfeasance or otherwise(iv) In the case of a decree nisi in a matrimonial cause or a decision in anAdmiralty action determining liability, and(v) In such other case as may be prescribed by an Act of the NationalAssembly.(2) Nothing in this Section shall confer any right of appeal-(a) from a decision of the Federal High Court or any High Court grantingunconditional leave to defend an action;(b) from an order absolute, for the dissolution or nullity of marriage in favourof any party who, having had time and opportunity to appeal from the decreenisi on which the order was founded had not appealed from that decree nisi;and(c) without the leave of the Federal High Court or a High Court or of the Courtof Appeal from a decision of the Federal High or High Court made with theconsent or to costs only."Per HUSAINI, J.C.A. (Pp. 10-12, Paras. E-E) - read incontext

(201

7) LP

ELR-43

026(

CA)

2. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Circumstances whereleave to appeal is required"... In Adeniyi Vs Oyeleye (supra), it was held that a ground of appeal that callsto question such exercise of discretion by the Courts is at best a ground ofmixed law and facts. Where an appeal involves a ground of mixed law andfacts, leave of Court is necessary as a pre-condition for a valid appeal. TheCourt held thus at page 577:-"The Appellants' application solicited for the exercise of the discretionarypowers of the lower Court, albeit judicially and judiciously. The lower Court,with the aid of the law as exemplified/manifested in its Judgment, turned downthe Appellants application or invitation to exercise its discretion in theirfavour. It is for that reason that the Appellant challenged its decision, adecision wholly based on the exercise of discretion. It is trite that a ground ofappeal that calls to questions such exercise of discretion is at best of mixedlaw and facts." See further, decisions in FBN Plc vs. Abraham (2008) 18 NWLR(Pt. 118) 172; Garuba vs. Mokhadion (2005) All FWLR (Pt. 280) 1453, OR(2005) 14 NWLR (Pt. 945) 249. Thus leave of either the trial Court or theAppeal Court is required under Section 242(1) of the Constitution of theFederal Republic of Nigeria as a precondition for appeal against a decision,where the grounds of appeal are of mixed law and facts and it does not matterwhether that decision appealed against was final or interlocutory in nature.Moreover, Appellants' application that is, the Motion on Notice placed beforethe trial Court relate to or was connected to the Garnishee Proceedingsinitiated by the 1st and 2nd Respondents against garnishee Banks to whichthe appellants are/were not involved as parties. Garnishee Proceedings are suigeneris, that is they are peculiar and special proceedings on their own and willnot admit of any outside intervention other than persons who are parties to it,unless by leave of Court. Section 83 (2) of the Sheriffs and Civil Process Actdoes not confer on the Judgment debtors, the Appellants in this appeal, theright of appeal in matters relating to Garnishee proceedings hence the Noticeof Appeal and the grounds of Appeal contained therein and filed them areincompetent, for want of leave first sought and obtained. What all these boildown to is that, there is failure of compliance with due process to render theappeal before us incompetent, for as held in Madukolu V. Nkemdilim (1962) 2SC NLR 341; Anyah Vs. Iyayi (1993) 7 NWLR (Pt. 305) 290; Kotoye Vs. Saraki(1994) 7 NWLR (Pt. 357) 414, a Court of law is only competent to exercisejurisdiction in respect of any matter only where:-"1. It is properly constituted as regards the number of its members and nomember is disqualified for one reason or the other2. The subject-matter of the case is within its jurisdiction and there is nofeature in the case which prevents the Court from exercising its jurisdiction.3. The case comes up by due process of law and upon the fulfillment of anycondition precedent to the exercise of the jurisdiction of Court." Per HUSAINI,J.C.A. (Pp. 14-17, Paras. D-A) - read in context

(201

7) LP

ELR-43

026(

CA)

3. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Effect of failure to obtainleave of Court to appeal where same is required"A Notice of Appeal is an originating process. Where a law makes provision forleave before appeal, a Notice of Appeal or appeal lodged or entered withoutleave first sought and obtained (as in the current appeal) is invalid and liableto be struck out. The appeal before us is afflicted by this virus and the sameought to be struck out."Per HUSAINI, J.C.A. (P. 17, Paras. A-C) - read in context

4. JUDGMENT AND ORDER - FINAL/INTERLOCUTORY JUDGMENT: Test fordetermining whether a judgment/order is final or interlocutory"I need to point out from the onset that a decision is FINAL if it brings to anend the right of the parties to it. In otherwords a decision is final if it disposesof the subject-matter of litigation or controversy to the extent that there isnothing left after the Judgment of the Court. Where a decision is not final, it isinterlocutory see: Gomez & Anor. Vs. C & S Society (2009) 4 - 5 SC (Pt. iii) 156,179 - 181."Per HUSAINI, J.C.A. (P. 10, Paras. C-E) - read in context

(201

7) LP

ELR-43

026(

CA)

SAIDU TANKO HUSAINI, J.C.A. (Delivering the

Leading Judgment): This appeal is against the Ruling

delivered at the Federal High Court sitting in Yola on the

18th November, 2015 in Suit No. FHC/ YL/CS/2015.

The appellants had by the Motion on Notice dated the 16th

November, 2015 and filed on the 17th November, 2015

sought:-

1. An Order of Court vacating the Order nisi granted

in favour of the Judgment Creditors dated 21st day of

October, 2015 attaching the account of the Judgment

debtors with the Garnishees.

2. An Order of Court declining to make Order nisi

dated 21st October, 2015 Order absolute on the

ground that, the Judgment debtors/Applicants have

filed a Motion for restoration of its Appeal before the

Court of Appeal, Yola Division.

3. Any other Order(s) as the Honourable Court may

deem fit to make in the circumstance of this case.

The appeal to this Court was necessitated by the order of

the Federal High Court (hereinafter referred to as the

“Trial Court”), dismissing the Application, the Motion on

Notice, referred to above. In the Notice of Appeal filed on

the 27th November, 2015 the Appellants

1

(201

7) LP

ELR-43

026(

CA)

have appealed on two (2) grounds.

Upon the transmission of record of appeal to this Court on

the 1st January, 2016, the Appellants and the 1st and 2nd

respondents respectively, in compliance with the rules of

Court, filed and exchanged their briefs of argument in

terms of:-

1. The Appellants’ Brief of argument dated the 13th

April, 2016 and filed on the 27th April, 2016 but

deemed filed on 18th May, 2016.

2. 1st and 2nd Respondents’ brief of argument dated

and filed on the 1st November, 2016 but deemed on

the 8th December, 2016

2a. The 1st and 2nd Respondents’ brief in support of

Preliminary Objection dated and filed on the 21st

November, 2016

3. The Reply to the 1st and 2nd Respondents’ brief of

argument dated and filed on the 16th December,

2016.

The 3rd – 10th Respondents did not file any brief.

Submissions made relative to the Appeal are contained in

the Appellants’ brief of argument at pages 4-9. The only

issue distilled by counsel in the brief is whether the

Appellants by law, are entitled to be heard in

garnishee proceedings before the Court below, if yes,

were they accorded fair

2

(201

7) LP

ELR-43

026(

CA)

hearing?

The Response of the 1st and 2nd Respondents are

contained in their brief of argument at pages 2 – 8. Like the

Appellants, the 1st and 2nd Respondents framed just one(1)

issue at page 2 of their brief for determination of Court

thus:-

“Whether the learned trial Judge of the lower Court

denied the Appellants the (sic) fair hearing of their

Motion on Notice dated 16th November, 2015 before

the lower Court.”

The Appeal came up on the 2nd March, 2017 for hearing.

Mr. Bola Olotu was first heard, in relation to issue raised by

him surrounding the Preliminary Objection. He had earlier

given a Notice to that effect, of his intention to raise and

rely on the said Preliminary Objection dated and filed on

1st November, 2017. Learned Respondents’ counsel

referred us to the grounds upon which the objection is

predicated and adopted his argument or submissions as

per his brief of argument on this point dated 21st

November, 2016 and filed same date as at paragraphs 1.1

to paragraph 1.13, pages 1 – 16 of his brief of argument.

The Response to the Preliminary Objection is contained in

the reply brief at paragraphs 1.3 to

3

(201

7) LP

ELR-43

026(

CA)

1.8, pages 3 to 6 of the Reply brief. Mr. Konleganyiga,

Senior State Counsel, Ministry of Justice, Adamawa State,

similarly adopted his argument in response to the

Preliminary Objection to urge us dismiss same.

In relation to the main Appeal, is the brief of argument of

which the learned Appellants’ counsel also adopted, in

urging us to resolve the sole issue formulated by the

Appellants in their favour and set aside the ruling of the

trial Court and allow this appeal.

Mr.Bola Olotu, learned counsel for the 1st and 2nd

Respondents referred us to the brief of argument filed on

their behalf on the 1st November, 2016. He adopted same

in his response to the appeal. He urged us to dismiss the

appeal.

I felt I should first address the issue raised and arising from

the Preliminary Objection of the 1st and 2nd Respondents

and return to the appeal in due course if there is the need

for it. Eight (8) complaints were laid. That is to say, the

Preliminary Objection is predicated on those grounds set

out in the Notice of Objection. They are as follows:-

i. No leave of Court was obtained by the Appellants

before appealing against the 18th November,

4

(201

7) LP

ELR-43

026(

CA)

2015 ruling of the lower Court which was not a final

decision

ii. No leave of Court was obtained by the Appellants

against the 18th November, 2015 ruling of the lower

Court being a decision on the exercise of discretion,

thus mixed law and facts.

iii. The Appellants’ Notice of Appeal is not dated.

iv. Ground one in the Appellant’ Notice of Appeal is

on mixed law and facts, and no leave of Court was

obtained to appeal on that ground.

v. Ground two in the appellants’ Notice of Appeal is

on the exercise of the lower Court’s discretion, thus

on mixed law and facts of which no leave of Court was

obtained to appeal on that ground.

vi. The Appellants formulated and raised their sole

and only issue for determination from incompetent

grounds of appeal.

v i i . The Appe l lants ’ so le and on ly i s sue

raised/formulated for determination did not arise or

emanate from any of the grounds of appeal

viii. The Appellants’ brief of argument does not

contain any competent issue for determination.

It has been argued that the ruling of the 18th November,

2015 delivered at the trial Court is not a final decision but

5

(201

7) LP

ELR-43

026(

CA)

an interlocutory decision of the trial Court of which leave of

the High Court or this Court was required to appeal that

decision under Section 241 of the Constitution of the

Federal Republic of Nigeria. It is argued that the ruling of

the trial Court refusing the request of the Appellants to

vacate the order nisi or decline from making the order nisi,

absolute was an interlocutory ruling or decision and the

need becomes even more compelling to obtain leave where

the grounds of appeal raise issues of mixed law and facts.

Decisions in Adeniyi Vs. Oyeleye (2014) All FWLR (Pt.

726) 538, 577; NWD & Limited V. UFT Engr. Ltd

(2011) All FWLR (Pt. 566) 572; UBE Plc Vs. Gombe

Oil Seed Processor Ltd (2003) All FWLR (Pt. 163)

112 were cited and relied upon. Leave not having been

obtained the appeal on grounds of mixed law and facts and

issues derived from those grounds, it is argued, were also

incompetent. The case of Jev. Vs. Iyortyom (2014) All

FWLR (Pt. 747) 749, 770-771 was cited and relied on.

Learned Respondents’ counsel further submitted that a

close look at the lone issue distilled by the Appellants will

reveal that the issue was neither derived from any of

6

(201

7) LP

ELR-43

026(

CA)

the grounds of appeal nor the ratio decidendi of the

decision appealed against. To this end therefore, the issue

so formulated was/is incompetent, relying on Reiders

Jacks Vs. INEC (2009) All FWLR (Pt. 464) 1638; Daily

Times of Nigeria Plc Vs. D.S. Ltd (2014) All FWLR (Pt.

713) 1978.

Learned Respondents’ counsel’s final submission is that the

brief of argument in which the lone incompetent issue was

canvassed is itself incompetent. We were urged to uphold

the Preliminary Objection and decline jurisdiction to hear

the appeal.

Mr. Konleganyiga, learned counsel for the Appellants

referred us to the proceedings of the trial Court held on the

18th November, 2015, in particular the order drawn up

at pages 53 and 55 of the record on the finality of the

order so made by the trial Court. He argued that the order

nisi earlier made by the trial Court became absolute after

the dismissal order in respect of the application, the

Appellants had filed in that Court. Consequently, an appeal

lodged or entered after an order nisi had become absolute

was an appeal against the final decision of the trial Court.

In those circumstances he argued, leave of Court

7

(201

7) LP

ELR-43

026(

CA)

was not necessary to appeal that decision or order. He

referred us to Section 241 (1) of the Constitution. He cited

and relied on the decision in Union bank Plc vs. Boni

Markus Industries Ltd (2005) 13 NWLR (Pt. 943) 654.

He urged us to dismiss the Preliminary objection.

On the Issue of the Notice of Appeal not dated, we were

urged to invoke the inherent powers vested in this Court

and do substantial justice without succumbing to technical

justice.

I have given thought and careful consideration to those

submissions made by learned counsel on both sides in their

briefs. I have pondered for a while. I felt a chronicle of the

events leading to this case on appeal will go a long way in

shedding light on the question before us for consideration.

It all began with the Judgment delivered at the trial Court

o n t h e 3 r d N o v e m b e r , 2 0 1 4 i n s u i t N o .

FHC/YL/CS/2014. The 1st and 2nd Respondents had

commenced action in the undefended list against the

appellants and obtained Judgment against them at the close

of hearing. By that Judgment, the Appellants were ordered

to pay to the 1st and 2nd Respondents the total sum of Five

hundred and thirty Three Million, one

8

(201

7) LP

ELR-43

026(

CA)

hundred thousand Six Hundred and Seventy Four Naira

(533, 100, 674.00) as liquidated money demand. Pursuant

to that Judgment, the 1st and 2nd respondents in the bid to

realize the fruits of the Judgment initiated Garnishee

Proceedings in the same Court against the banks, namely,

Central Bank of Nigeria, CBN; Zenith International Bank

Plc; First Bank of Nigeria Limited; Guarantee Trust Bank

Plc; Keystone Bank Ltd, United Bank for Africa Plc;

Diamond Bank Plc and FCMB Limited. These are the same

banks named or labeled as the 3rd – 10th Respondents in

this Appeal, that is, the Garnishee Banks. The Federal High

Court heard the exparte application dated and filed on the

19th November, 2014 and at the sitting of the 21st

October, 2015 granted same and the Court made the

Garnishee Order nisi attaching the accounts of the

Appellants in those Banks. The Court further directed all

the Garnishee Banks to appear before it on 18th

November, 2015 to show cause why the order nisi

should not be made absolute.

On the 17th November, 2015, just a day before the

appointed date of hearing, the appellants that is (1)

Adamawa State Government and (2) Attorney-General of

Adamawa

9

(201

7) LP

ELR-43

026(

CA)

State, through their counsel filed a Motion on Notice at the

Registry of the said Federal High Court, Yola. This is the

same application of which the ruling of the Federal High

Court has given rise to this Appeal. The propriety of the

appeal before us is the subject-matter covered by the

respondents, Preliminary Objection. Is the ruling of the

Federal High Court appealed against a FINAL decision or

an interlocutory one?

I need to point out from the onset that a decision is FINAL

if it brings to an end the right of the parties to it. In

otherwords a decision is final if it disposes of the subject-

matter of litigation or controversy to the extent that there

is nothing left after the Judgment of the Court. Where a

decision is not final, it is interlocutory see: Gomez &

Anor. Vs. C & S Society (2009) 4 – 5 SC (Pt. iii) 156,

179 – 181.

To qualify as an appeal as of right under Section 241 of the

Constitution (as amended) the decision sought to be

appealed against must fall within the ambits of Section

241(1)(a)–(f), (2)of the Constitution which provides thus:-

“241-(1) An appeal shall lie from decisions of the

Federal High

10

(201

7) LP

ELR-43

026(

CA)

Court or a High Court to the Court of Appeal as of

right in the following case:

(a) Final decisions in any civil or criminal

proceedings before the Federal High Court or a High

Court sitting at first instance;

(b) Where the ground of appeal involves questions of

law alone, decisions in any civil or criminal

proceedings;

(c) Decisions in any civil or criminal proceedings on

questions as to the interpretation or application of

this Constitution;

(d) Decisions in any civil or criminal proceedings or

questions as to whether any of the provisions of

Chapter IV of this Constitution has been, is being or

is likely to be, contravened in relation to any person;

(e) Decisions in any criminal proceedings in which

the Federal High Court or a High Court has imposed a

sentence of death;

(f) Decisions made or given by the Federal High Court

or a High Court-

(i) Where the liberty of a person or the custody of an

infant is concerned,

(ii) Where an injunction or the appointment of a

receiver is granted or refused,

(iii) In the case of a decision determining the case of

a creditor or the liability of a contributory of other

officer

11

(201

7) LP

ELR-43

026(

CA)

under any enactment relating to companies in respect

of misfeasance or otherwise

(iv) In the case of a decree nisi in a matrimonial

cause or a decision in an Admiralty action

determining liability, and

(v) In such other case as may be prescribed by an Act

of the National Assembly.

(2) Nothing in this Section shall confer any right of

appeal-

(a) from a decision of the Federal High Court or any

High Court granting unconditional leave to defend an

action;

(b) from an order absolute, for the dissolution or

nullity of marriage in favour of any party who, having

had time and opportunity to appeal from the decree

nisi on which the order was founded had not appealed

from that decree nisi; and

(c) without the leave of the Federal High Court or a

High Court or of the Court of Appeal from a decision

of the Federal High or High Court made with the

consent or to costs only.

As indicated earlier in this Judgment, proceedings which

gave rise to this appeal were initiated vide the Motion on

Notice filed at the Federal High Court over which the

Appellant had sought for an order of Court to vacate an

earlier order nisi granted in favour of

12

(201

7) LP

ELR-43

026(

CA)

the 1st and 2nd Respondents on the 21st October, 2015

and to decline to make the order nisi, absolute. Those

requests of the Appellants were clearly directed on the trial

Court to exercise its discretion one way or the other in

favour of the Appellants but the trial Court in its wisdom

dismissed that application as can be found at page 53 of the

record. The appeal to this Court is thus an appeal against

the exercise of discretion by the trial Court in terms of the

order/ruling of the 18th November, 2015.

My Lords, permit me, I will elucidate further by reference

to the grounds of appeal contained in the Notice of Appeal.

Grounds 1 and 2 together with the particulars state thus:-

“GROUND ONE

The Hon. Trial Court erred in law when it failed or

neglected to consider issue raised in Exhibit “A” A

Motion on Notice for restoration of Appeal

PARTICULARS OF ERRORS

(i) The appellants have filed a Motion for restoration

of their appeal and same was already served on the

Respondents.

(ii) The Court failed to consider the Exhibit “A”

attached to the Motion of 16th September, 2015 but

proceeded to struck out

13

(201

7) LP

ELR-43

026(

CA)

(sic) the said Motion.

GROUND TWO

The Hon. Trial Court erred in law and fact when it

stated that, the application, motion on notice dated

16th November, 2015 ought not to be filed before her

by the appellants. And that it is unusual despite

subsisting suit No. FHC/YL/CS/12/2015.

PARTICULARS OF ERROR

(i) The Hon. Trial Court, shot (sic) out the appellants

by striking out Motion filed on the 16th November,

2015.

(ii) The right of the appellants in respect of their

motion on Notice dated 16th November, 2015 was not

considered properly by the Hon. Court.”

Those grounds no doubt are complaints made against the

trial Court in the exercise of her discretionary powers. In

Adeniyi Vs Oyeleye (supra), it was held that a ground of

appeal that calls to question such exercise of discretion by

the Courts is at best a ground of mixed law and facts.

Where an appeal involves a ground of mixed law and facts,

leave of Court is necessary as a pre-condition for a valid

appeal. The Court held thus at page 577:-

“The Appellants’ application solicited for the exercise

of the discretionary powers of the lower Court, albeit

judicially

14

(201

7) LP

ELR-43

026(

CA)

and judiciously. The lower Court, with the aid of the

law as exemplified/manifested in its Judgment, turned

down the Appellants application or invitation to

exercise its discretion in their favour. It is for that

reason that the Appellant challenged its decision, a

decision wholly based on the exercise of discretion. It

is trite that a ground of appeal that calls to questions

such exercise of discretion is at best of mixed law and

facts.”

See further, decisions in FBN Plc vs. Abraham (2008) 18

NWLR (Pt. 118) 172; Garuba vs. Mokhadion (2005)

All FWLR (Pt. 280) 1453, OR (2005) 14 NWLR (Pt.

945) 249. Thus leave of either the trial Court or the Appeal

Court is required under Section 242(1) of the Constitution

of the Federal Republic of Nigeria as a precondition for

appeal against a decision, where the grounds of appeal are

of mixed law and facts and it does not matter whether that

decision appealed against was final or interlocutory in

nature.

Moreover, Appellants’ application that is, the Motion on

Notice placed before the trial Court relate to or was

connected to the Garnishee Proceedings initiated by the 1st

and 2nd Respondents against

15

(201

7) LP

ELR-43

026(

CA)

garnishee Banks to which the appellants are/were not

involved as parties.

Garnishee Proceedings are sui generis, that is they are

peculiar and special proceedings on their own and will not

admit of any outside intervention other than persons who

are parties to it, unless by leave of Court. Section 83 (2) of

the Sheriffs and Civil Process Act does not confer on the

Judgment debtors, the Appellants in this appeal, the right

of appeal in matters relating to Garnishee proceedings

hence the Notice of Appeal and the grounds of Appeal

contained therein and filed them are incompetent, for want

of leave first sought and obtained. What all these boil down

to is that, there is failure of compliance with due process to

render the appeal before us incompetent, for as held in

Madukolu V. Nkemdilim (1962) 2 SC NLR 341; Anyah

Vs. Iyayi (1993) 7 NWLR (Pt. 305) 290; Kotoye Vs.

Saraki (1994) 7 NWLR (Pt. 357) 414, a Court of law is

only competent to exercise jurisdiction in respect of any

matter only where:-

“1. It is properly constituted as regards the number of

its members and no member is disqualified for one

reason or the other

2. The subject-matter of the

16

(201

7) LP

ELR-43

026(

CA)

case is within its jurisdiction and there is no feature

in the case which prevents the Court from exercising

its jurisdiction.

3. The case comes up by due process of law and upon

the fulfillment of any condition precedent to the

exercise of the jurisdiction of Court.

A Notice of Appeal is an originating process. Where a law

makes provision for leave before appeal, a Notice of Appeal

or appeal lodged or entered without leave first sought and

obtained (as in the current appeal) is invalid and liable to

be struck out. The appeal before us is afflicted by this virus

and the same ought to be struck out. We uphold the

Preliminary Objection of the Respondents, hence the

Appeal No. CA/YL/01/2016 is struck out.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the

privilege of reading in draft form the leading judgment just

delivered by my learned Brother, Saidu Tanko Husaini, JCA,

in this appeal.

I agree with His Lordship that the condition precedent to

the commencement of the appeal not having been fulfilled,

the appeal is tainted with incompetence. I also strike out

the appeal for that reason.

I abide by the consequential order

17

(201

7) LP

ELR-43

026(

CA)

made in the said leading judgment. I do not award costs in

the appeal.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now in

draft the judgment just delivered by my learned brother

Husaini JCA. I am in complete agreement with the

reasoning and conclusion of my learned brother that the

appeal is incompetent and should be struck out.

For the same reason, I too strike out the Appeal No:

CA/YL/01/2016.

18

(201

7) LP

ELR-43

026(

CA)

Appearances:

U. J. Konleganyiga (Senior State Counsel I,Adamawa State) For Appellant(s)

Bola Olotu with him, Joseph Williams for the 1stand 2nd Respondents.L. D. Nzadon for the 5th Respondents.P.R. Ajumegor for the 7th & 9th Respondents ForRespondent(s)

(201

7) LP

ELR-43

026(

CA)