Whether Failure to Obtain Leave to Appeal, Renders Entire Notice of Appeal Invalid


In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th day of February, 2020

Before Their Lordships
Mary Ukaego Peter-Odili
Olukayode Ariwoola
John Inyang Okoro
Amina Adamu Augie
Paul Adamu Galinje




(Lead Judgement delivered by Honourable John Inyang Okoro, JSC)

The Appellant commenced a suit against the Respondents at the Federal High Court, Port Harcourt Judicial Division, via an Originating Summons. The court delivered its judgement, in favour of the Appellant. Dissatisfied, the Respondent filed an appeal before the Court of Appeal. The Appellant also filed a Cross-appeal, against part of the decision it was dissatisfied with.

After briefs of argument had been filed and exchanged, the Appellant (as Cross-Appellant at the lower court), realised that it ought to have obtained leave of court before filing the Cross-appeal. Further to this, it filed an application for trinity prayers dated March 28th, 2006. In its ruling delivered on July 10th, 2006, the Court of Appeal dismissed the Appellant’s application. Thereafter, the Appellant filed a similar motion dated January 20th, 2007, seeking the same reliefs as contained in the application that was earlier dismissed.

The Court of Appeal, in its ruling delivered on November 7th, 2011, struck out the Appellant’s application, on the ground that the trinity prayers made in the application were similar to those made in the previous application dated March 28th, 2006, which was refused by the court. The court adjudged the application as an abuse of court process, and also held that it had become functus officio after its ruling of July 10th, 2006 refusing the earlier application.

Dissatisfied, the Appellant appealed to the Supreme Court. In its Notice of Appeal, it raised five grounds of appeal, from which it distilled four issues for determination. Briefs of Argument were filed and exchanged. The Respondent filed a Notice of Preliminary Objection, against issues two and four of the Appellant’s Issues for Determination. At the hearing of the appeal, counsel for the Appellant abandoned issues two and four; thus, conceding to the Respondent’s Preliminary Objection. The Court considered the Appellant’s remaining two issues, in its determination of the appeal.

Issues for Determination
1. Whether the Court of Appeal was right to have held that, granting of leave to appeal is not sufficient to cure the defect in the Notice of Appeal that had earlier been filed without leave, having regard to the decision of the Supreme Court in the case of WILLIAMS v MOKWE (2005) 14 NWLR (Pt. 945) 249.

2. Whether the decision of the Court of Appeal refusing leave to appeal on ground of incompetence, operates as a bar to the Appellant bringing the same application before the same court, subsequently.

On the first issue, counsel for the Appellant contended that although the Appellant had filed the Notice of Appeal without leave of court in the mistaken belief that there was no need to seek and obtain leave, the Court of Appeal ought to have regularised their position as was done by the Supreme Court in WILLIAMS v MOKWE (Supra), rather than distinguishing the case and holding that leave cannot be granted retrospectively.

Counsel for the Appellant submitted that the distinction made by the Court of Appeal was erroneous, and had made the court lose sight of the real issue determined in WILLIAMS v MOKWE (Supra). He argued further that, a single valid ground of appeal is all that is required for a Notice of Appeal to be valid, and in view of the fact that not all the grounds in the Appellant’s Notice of Appeal were invalid, the Notice of Appeal was not void ab initio, as decided by the Court of Appeal.

Conversely, Counsel for the Respondent argued that, although decisions of the Supreme Court are binding and must be followed by the Court of Appeal, where the circumstances giving rise to the decision of the Supreme Court are different from the facts of the case before the Court of Appeal, the lower court is not bound to follow the decision of the Supreme Court, but may distinguish it as appropriate. Counsel relied on ADEGOKE MOTORS v ADESANYA (1989) 3 NWLR (Pt. 109) 250.

Submitting further on the issue, counsel for the Respondent stated that the decision in WILLIAMS v MOKWE (Supra) was inapplicable in the circumstances of the case, and the Court of Appeal was right in refusing to follow it and rightly distinguished it. He contended that in WILLIAMS v MOKWE (Supra), the court granted leave after the Notice of Appeal was filed, because the leave sought was to appeal as a party interested in a final judgement and the decision in the case did not require leave and had nothing to do with retrospective regularisation of an appeal, unlike the instant case. Counsel argued that the Appellant’s application in the instant case was premised on the nature of the part of the decision appealed against, which the Appellant labelled “Interlocutory” and which required leave of court by virtue of Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

On the second issue, it was submitted on behalf of the Appellant that a decision of court refusing extension of time to file an appeal or application for reason of non-compliance, cannot create an Issue Estoppel in a subsequent action, appeal or application. Counsel relied on the case of MERCANTILE GROUP AG v AYELA (1995) 13 NWLR (414) 450 at 465-467. He opined further that, the merit of the Appellant’s application of March 28th, 2006 was never considered by the Court of Appeal in arriving at its decision of July 10th, 2006, because the only issue that was really considered was the technical issue of failure to obtain the required leave of court before filing the Notice of Appeal. The implication of this is that the appeal was only defective in form, because a condition for instituting it had not been met; hence, the Appellant was not barred from re-filing the application.

The Respondent, on the other hand, contended that when a court refuses an application for leave to appeal, that court may or may not be functus officio depending on the nature of the decision made thereon. He argued that, where the initial application for leave was not just refused but was dismissed for lacking in merit as in this case, the court is functus officio and lacks the jurisdiction to entertain a similar subsequent application. He cited MOHAMMED v OLAWUNMI (1993) 4 NWLR (Pt. 288) 384 and submitted that the Court of Appeal was right in declining jurisdiction to entertain the Appellant’s motion of January 20th, 2007 given that a similar application of March 28th, 2006 was dismissed for lacking in merit.

Court’s Judgement and Rationale
In resolving the first issue, the Court relied on its decision in J.A. ADERIBIGBE & ANOR v TIAMIYU ABIDOYE (2009) LPELR-140 (SC) 20, Paras. D–F that a Notice of Appeal can be competent and valid, if it contains at least one valid Ground of Appeal. The Court held that, although the Respondent rightly clarified the distinction made by the Court of Appeal in the case of WILLIAM v MOKWE (Supra) and the instant case, however, the Court of Appeal was wrong when it held that the Notice of Appeal filed by the Appellant was void ab initio.

Considering that the parties, as well as the court below agreed that grounds 3 and 4 in the Notice of Appeal are competent and relate to the final decision of the trial court which did not require leave, it follows that the Notice of Appeal itself was competent, as there were two competent grounds which could sustain the appeal. The Supreme Court held, agreeing with the decision of the lower court that grounds 1 and 2 in the Notice of Appeal relating to an interlocutory decision were incompetent because leave of court was not sought and obtained before filing same; however, having adjudged grounds 3 and 4 in the Notice of Appeal to be valid, the said grounds saved the Notice of Appeal from being void ab initio, and the Court of Appeal ought to have heard the appeal on those two competent grounds.

On the second issue, the court agreed with the Respondent and held that, where a matter has been fully argued and determined on its merit, it will amount to an abuse of the court process to re-litigate the same issues already determined. The ruling of the Court of Appeal of July 10th, 2006 was final as far as the Court of Appeal was concerned, and the second application which led to the ruling of the lower court of November 7th, 2011 was indeed, an abuse of court process. The lower court having earlier decided on the same prayers in the first application, had no competence to entertain it again, as it would amount to sitting on appeal over its earlier decision.

Appeal Allowed in Part.

Dissenting Opinion
Honourable Mary Ukaego Peter-Odili, JSC gave a dissenting opinion and dismissed the appeal.

Adeyinka Aderemi with Idode Momoh Olajide and Osefan Anegbe for the Appellant.

Chief (Mrs.) A. Williams–Akinjide, SAN with E. Osagie for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)