IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY, THE 4TH DAY OF JULY, 2025
BEFORE THEIR LORDSHIPS:
MUHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
UWABUNKEONYE ONWOSI JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/859/2012
BETWEEN
1.OBA OLUWASEGUN ADEYEMI AJASA
2.ALHAJI AYUBA BAALE
3.ALHAJI BUHARI YUSUF
4.RASAKI YINUSA
5.ALHAJI WAKILI SADIQ
6.CHIEF MIADIU AJOSE ------------- APPELLANTS
7.ALHAJI LATEEF KADIRI
(For themselves and on behalf
of the entire Kuyasi Awuse Family
of Onigbongbo, Maryland Lagos)
AND
1.THE NIGERIAN ARMY
2.THE ATTORNEY GENERAL OF ---------------- RESPONDENTS
THE FEDERATION
3.WOOBS RESOURCES LTD
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal questions the propriety or otherwise of the Ruling of the Federal High Court (the lower Court), sitting at Lagos, Coram: S.J. Adah, J., (as he then was) delivered on the 3rd day of July, 2012. Before the lower Court, the Appellants as Plaintiffs, claimed against the Respondents, as Defendants, jointly and severally, the following reliefs as set out below:
ALTERNATIVELY
For ease of comprehension, the facts of the case before the lower Court will be stated according to the case of the Appellants as Plaintiffs and the 1st and 2nd Respondents as 1st and 2nd Defendants.
According to the Appellants, by a Government Notice No. 1547 of 25/7/60 and Gazette No. 46 of 11/8/60, the Federal Government of Nigeria compulsorily acquired for the purpose of building a Military Cantonment, 342 acres out of their family land known as Onigbongbo Community, without any form of compensation. After the said acquisition, the 1st Respondent fenced the said land in question, and proceeded to erect structures on some part of the land, using some as offices, accommodation, schools, churches, mosques, cemetery and hospital. However, sometime in 2006, the 1st Respondent entered into a commercial agreement with the 3rd Respondent for the construction of 3000 shops on the remaining undeveloped land which measured up to seventeen acres. These shops were to be used as Open Stalls, Closed Shops, Warehouses, Banking Halls, Restaurants, Cold Room, Chicken Stalls and Meat Shops. It is the case of the Appellants that upon becoming aware of the construction being undertaken by the Respondents, they wrote a letter to the 1st Respondent, through their legal practitioner, dated 6th August, 2007 wherein they demanded that the vacant land be returned to them. They claimed that the 1st Respondent via its letter dated 31st October, 2007 acknowledged the receipt of their letter and that since that acknowledgment by the 1st Respondent, the 1st and 2nd Respondents have failed to reply positively to their demand but instead continued to speed up the building of the market shops. Accordingly, the construction is now completed, the developed land is known as ‘The Nigerian Army Shopping Arena’, and series of advertisement have been made to the general public for the leasing or letting of the shops to private individuals for commercial purposes.
On their part, the 1st and 2nd Respondents stated that although the land acquired by the Federal Government of Nigeria via the Government Notice No. 1547 of 25/7/60 and Gazette No. 46 of 11/8/60 totalled 342 acres, the land acquired from the Appellants was only 233.25 acres and the remaining 108.75 acres were acquired from other individuals; and compensation was paid to all parties. Further to their case, the 1st and 2nd Respondents said that the land is still being used for public purpose and has not been converted for any private purpose. According to them, by a Concession Agreement between the 1st Respondent and the 3rd Respondent for a fixed period, an agreement was reached with the 3rd Respondent to Build, Operate and Transfer the properties to them, in their pursuit to upgrade the welfare facilities of the service personnel. They argued that this action cannot be classified as deviation from the purpose of the acquisition.
Now, at the lower Court, the 1st and 2nd Respondents raised a preliminary objection challenging the locus standi of the Appellants whilst asking for alternative issues which delved into the crux of the case. The lower Court refused to delve into the alternative issues at the preliminary stage, and proceeded to hold that the Appellants have locus standi to pursue the suit. The 3rd Respondent on her part raised a preliminary objection on the jurisdiction of the lower Court whilst relying on Section 251 (1) (r) of the Constitution of the Federal Republic of Nigeria (1999); also arguing that the suit was statute barred whilst relying on Sections 12, 16, 17, 19 and 21 of the Limitation Law Cap L 67, Laws of Lagos State 2003. The lower Court refused the 3rd Respondent’s arguments and stated that it had the jurisdiction to entertain the suit. On the ground of the suit being statute barred, the lower Court held that the Limitation Law, Cap L 67, Laws of Lagos State 2003 was not applicable in the case as the 3rd Respondent was just a nominal party and the case was against Federal Government agencies sued as the 1st and 2nd Defendants. Therefore, the lower Court introduced the Public Officers Protection Act Cap P 41 LFN, 2004, to hold that public officers are protected from litigation over their actions if not brought within three months after the accrual of the cause of action. Therefore, the lower Court dismissed the suit for being statute barred. Disheartened by the decision of the lower Court, the Appellants approached this Court with a three-grounds Notice of Appeal filed on the 4th day of September, 2012. An Amended Notice of Appeal containing three grounds of appeal was filed on the 14th day of June, 2023.
Briefs of Argument were filed and exchanged by the parties. The Appellants’ Amended Brief of Argument, settled by Rotimi Jacobs, SAN, alongside Adebisi Adeniyi, Esq, was filed on the 14th June, 2023 but deemed 10th May, 2023 while the 1st and 2nd Respondents’ Brief of Argument, settled by P.E Okohue, Esq, was filed on 19th June, 2023. The 3rd Respondent’s Amended Brief of Argument, settled by Victor Ukutt, Esq., together with Kingsley Ebimoh, Esq., and Ibrahim C. Adamu, Esq., was filed on 4th July, 2023. On the same date, i.e., 4th July, 2023, the 3rd Respondent filed a Notice of Preliminary Objection to the competence of the appeal and also filed a Notice of Intention to contend that the decision of the lower Court be affirmed on grounds other than those relied upon by the lower Court. The Appellants’ Reply Brief to the 1st and 2nd Respondents’ Brief of Argument was filed on the 18th September, 2023 while the Appellants’ Reply Brief to the 3rd Respondent’s Amended Brief of Argument and Notice of Preliminary Objection was filed on the same date. Further on the same date, the Appellants’ Reply to the 3rd Respondent’s Notice of Intention to contend that the decision of the lower Court be confirmed on grounds other than those relied upon by the lower Court was filed. Appellants’ counsel formulated two issues for determination in the Appellants’ Amended Brief of Argument, viz:
The 1st, 2nd, and 3rd Respondents adopted the issues for determination as distilled by the Appellants. The 3rd Respondent raised her preliminary objections on two grounds to wit –
The 3rd Respondent raised a sole issue which she argued to wit –
Whether the failure to quote the part of the Ruling/Decision of the trial court the Appellants were appealing against in the Appellants’ Amended Notice of Appeal does not offend Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 and therefore renders the Appellants’ Amended Notice of Appeal incompetent, null and void and robs this Honourable Court of jurisdiction.
Arguing her appeal at pages 5-9 of the 3rd Respondent’s Brief, the 3rd Respondent argued that the Appellants’ Amended Notice of Appeal contravened Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 because it does not contain the part of the Ruling/Decision of the lower Court which the Appellants claimed they are appealing against since their Amended Notice of Appeal contained ‘PART OF THE DECISION OF THE LOWER COURT COMPLAINED AGAINST’. According to the 3rd Respondent, the Notice of Appeal is the Originating process used to activate the jurisdiction of this Court to determine an appeal. She stated that the rule was clear about the contents of the Notice of Appeal which proceeds to inform the court and the Respondents whether the appeal is against the whole or part of the decision of the lower Court. She maintained that where a part of the decision of the lower Court is complained of, such part must be stated and that in the instant appeal, the Appellants failed to do so. The 3rd Respondent submitted that the Appellants are also mandated by the law to clarify the ‘exact nature of the reliefs sought’. However, according to the 3rd Respondent, the Appellants failed to comply with this provision of the Court's Rules. Relying on the case of Emokpae vs. Stanbic IBTC Pension Managers Ltd (2021) LPELR-53383 (SC) @ 2-3 paras. C, the 3rd Respondent drew the attention of this Court to the decision of the Apex Court when it was faced with a similar situation to this. She argued that the Amended Notice of Appeal failed to give an adequate notice of what the appeal is all about, thereby affecting the validity of the Amended Notice of Appeal and, by extension, the jurisdiction of this Court to proceed to hear the appeal. Relying on Etim Edet & Anor v. Attah Ochinke & Anor – CA/C/165/2020 (Unreported), Ndifon vs. COP (2022) LPELR-20931 (SC), and Owners Charterers the MV Cape Breton vs. Ganvic Nig. Ltd (2022) 3 NWLR (Pt. 1816) @ 31, amongst others, the 3rd Respondent maintained that the non-compliance was fundamental and that this Court can suo motu decline jurisdiction to entertain the instant appeal. She concluded by stating that the Appellants’ Amended Notice of Appeal is incompetent, thereby making the instant appeal incompetent and thus should be struck out.
The Appellants in response argued that the instant appeal has sufficiently given the 3rd Respondent notice of what the Appellants’ complaint are, as the grounds of appeal are clearly stated. According to the Appellant, the Courts have moved away from the era of technicalities with a positive attitude towards substantial justice. They relied on Maker S. Co. Ltd vs. Access Bank (Nig) Plc (2002) 7 NWLR (Pt. 766) 447 @ 471, and Aigbobahi vs. Aifuwa (2006) 6 NWLR (Pt. 976) 270 @ 294 amongst others to contend that the Courts are no longer given to technicalities but to the justice of the case at hand. The Appellants, in an attempt to differentiate Emokpae vs. Stanbic IBTC Pension Managers Ltd (2021) LPELR-53383(SC) @ 2-3 paras. C from the instant appeal submitted that the Supreme Court did not strike out the appeal on the account of non-compliance with Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 but on the non-compliance with Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria (1999). They argued further that the Supreme Court proceeded to examine the grounds of appeal in order to ascertain if any of them could sustain the appeal. Furthermore, the Appellant maintained that in Oseyomon vs. Ojo (1993) 6 NWLR (Pt. 299) @ 344 this Court did not strike out the entire appeal on account of the failure to specify the part of the judgment that was appealed against. The Appellant concluded by submitting that they took the time to differentiate the main appeal from the cases being relied upon and urged this Court to be guided by the above decisions because the instant appeal contains the grounds of appeal wherein the complaints of the Appellants are, and that is the very essence of the Notice of Appeal. The Appellants urged this Court to discountenance the 3rd Respondent’s preliminary objection.
Resolution of the Preliminary Objection
It is trite law that a Notice of Appeal is an originating process which evinces the Appellant’s intention to challenge the decision of a lower Court. It is filed and duly served on the Respondent(s) in accordance with the Rules of Court. Being the foundation upon which the appellate jurisdiction is invoked, the validity of the notice is critical. Where the Notice of Appeal is found to be incompetent, defective, or fundamentally flawed, it renders the appeal a nullity. In such a situation, there can be no valid appeal properly before the appellate Court, and any proceedings predicated upon such a defective notice are liable to be struck out for want of jurisdiction. See Ajose-Adeogun & Anor vs. Olojede & Ors (2024) LPELR-62730 (SC) @ 14-15 paras. C-C; Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562(SC) @ 7-9 paras. A-A; and Barde vs. FCE, Pankshin (2024) LPELR-62754 (SC) @ 26 paras. C.
As an originating process, the Notice of Appeal has a form with which it must be and what should be contained therein. Order 7 Rule 2(1) of the Court of Appeal Rules, 2021 provides thus:
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called "the Notice of Appeal") to be filed physically or electronically in the Registry of the lower court, which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the lower court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for (sic: service?) on such parties.
From the above provisions of the Rules, the Notice of Appeal shall set out the grounds of appeal, and it shall also state whether the whole or a part of the decision is being appealed against. It provides a further requirement, where a part of the decision is being appealed against, then such part shall be specified together with the exact nature of the relief sought and the names and addresses of all the parties directly affected by the appeal. All these shall be accompanied by a sufficient number of copies for such parties. My Lords, I appreciate the industry put forth by the 3rd Respondent for the preliminary objection and the industry put forth by the Appellants against this preliminary objection. The keywords that ran through each argument, though contradictory, are the issue of ‘the justice of this appeal’. Therefore, I will proceed to resolve this preliminary objection in the interest of justice.
Now, the law is trite that generally, when the word "shall" is used in a statute, it is interpreted to be mandatory. However, whether it is used in a mandatory or directory sense depends on the context in which it is used. See Aliyu vs. Namadi & Ors (2023) LPELR-59742 (SC) @ 52 paras. A; Ibrahim & Ors vs. Akinrinsola (2022) LPELR-59633 (SC) @ 8-11 paras. F; BPS Construction & Engineering Co. Ltd vs. FCDA (2017) LPELR-42516 (SC) @ 34-35 paras. G. In the above provision of the Rules of this Court, the word ‘shall’ was used repeatedly to connote a mandatory application of whatever rule followed suit. Thus, every single requirement stated in this provision of this Rule is intended to be mandatorily followed to the letter. I have taken my time to carefully peruse the Appellants’ Amended Notice of Appeal, particularly at page 2 wherein Paragraph 2 is contained. I can see that under PART OF THE DECISION OF THE LOWER COURT appealed against’, the Appellants simply wrote: ‘PART OF THE RULING’, without specifying which part of the ruling they are appealing against. This Amended Notice of Appeal leaves one in confusion as to which part of the ruling of the lower Court the Appellants are appealing against, because upon reading the ruling of the lower Court as contained at pages 172-199 of the Record of Appeal, I found that the lower Court took several decisions. Thus, the phrase ‘part of the ruling’ as stated in paragraph 2 of the Amended Notice of Appeal, failed to specify which of the many decisions of the lower Court the Appellants are complaining about and therefore does not satisfy the requirement of Order 7 Rule 2(1) of the Court of Appeal Rules, 2021. The said Rule which was very precise in adding in parenthesis ‘in the latter case specifying such part’. To ‘specify’ according to the Merriam Webster Dictionary 1828 means to ‘name or state explicitly or in detail’, thus, the framers of this particular part of the Rule were very precise on the requirement of the contents of the Notice of Appeal. The Appellants’ Amended Notice of Appeal has failed to fulfil this requirement of the law, as it is inherently vague and speculative.
Going forward, the 3rd Respondent in arguing the instant preliminary objection relied on Ayi Emokpae vs. Stanbic IBTC Pension Managers Ltd (2021) LPELR-53383(SC) @ 2-3 paras. C, to support her argument. The Appellants, on the other hand, tried to differentiate the instant appeal from the case cited and, in a bid to save their Amended Notice of Appeal, derailed in their interpretation of the decision of the Supreme Court in the case. I understand the need to do that by the Appellants, but I must first call their attention to the decision of the Supreme Court. In the above-stated case, the Supreme Court held thus –
"In part 2 of the Notice of Appeal, the part requiring the appellant to show the part of the decision of the lower Court complained of, the Appellant herein stated that he was complaining against "part of the decision not allowed". Which part if I may ask? He gave no particulars of the "part of decision not allowed". He left it to speculation as to that "part of the decision not allowed". This ambiguity defeats the very essence of fair hearing, particularly audi alteram partem, requiring the respondent to have particulars and notice of the complaint in the case he is going to meet in order that he must adequately prepare for and against it. As it is presently constituted, the Notice of Appeal in part 2 thereof is not explicit as to whether the "decision not allowed" includes the trial Court's decision which the Supreme Court has no jurisdiction to entertain, or that portion of the lower Court's decision the appellant cannot complain of as of right. In the Relief Sought, the Appellant merely sought the "setting aside of part of the judgment of the Court of Appeal granting the last relief claimed by the Appellant". The last relief claimed at the trial by the Appellant against the Respondent was the claim for damages for negligence against the defendant. There were no particulars of the damages claimed by the Appellant herein against the Respondent. The question: which damages did he seek for negligence against the Respondent? Again this Court lacks jurisdiction to entertain complaints against or from the decision of a Court of first instance: Section 233(1) of the Constitution." Per Eko, JSC.
Before the Supreme Court proceeded to talk about the breach of Section 233 (2) and (3) of the 1999 Constitution as argued by the Appellants, it ensured that it held a firm decision on the action of the Appellant in the above case and held that the action of the Appellant was ambiguous. The Apex Court held thus, – ‘This ambiguity defeats the very essence of fair hearing, particularly audi alteram partem, requiring the respondent to have particulars and notice of the complaint in the case he is going to meet in order that he must adequately prepare for and against it.’ Therefore, the differentiation by the Appellants of the above-cited appeal with the present appeal does not hold any weight. I tend to lean more towards the interpretation given by the 3rd Respondent of the decision of the Supreme Court. I will then go a step further to state that since the Appellants’ Amended Notice of Appeal is ambiguous in the way it is structured and thereby defeats the very essence of fair hearing, particularly audi alteram partem, it will be in the interest of justice to strike out this appeal. See Etim & Anor v. Ochinke & Anor (2023) LPELR-60221 (CA) @ 6-11 paras. D, and Incorporated Trustees of the NMA v. Ikenna & Ors (2024) LPELR-73240 (CA) @ 33-36 paras. E. I would have tilted towards the Appellants’ argument that the Courts have moved away from the era of technicalities with a positive attitude towards substantial justice; however, justice in itself is subjective. That aside, the nature of the document in question begs that substantial justice would be that the doctrine of fair hearing as entrenched in the Constitution of the Federal Republic of Nigeria (1999) is followed to a fault, especially since the right of the Respondents is at stake. The Supreme Court in Ayi Emokpae vs. Stanbic IBTC Pension Managers Ltd (supra) was not blind to the presence of the grounds of appeal, as at the time it proceeded to pronounce that the absence of the precise particulars in the Notice of Appeal offends the essence of fair hearing. The issue of the breach of fair hearing is too grave to be sacrificed on the altar of the presence of the grounds of appeal. There is indeed a reason why the framers of this rule framed it the way they did. The foundational nature of the Notice of Appeal and its might in the institution of an appeal is another factor to heavily consider in making a decision. Also, I would like to clarify the notion of the Appellant that this defect is a mere technicality, and hold that it is more about the substantive compliance with the Rules of this Court, which ensures fair notice and fair hearing, than it is an issue of technicality as canvassed by the Appellants. Substantial justice does not mean overlooking fundamental defects; form and substance are inseparable when it comes to originating processes. You cannot run a race with a broken starting block. No matter how meritorious your grounds of appeal may seem, if the vehicle of appeal is flawed, the journey ends before it begins.
Therefore, I am constrained to hold that the Appellants’ Amended Notice of Appeal is incompetent, thereby rendering this appeal incompetent. Accordingly, I strike out the instant appeal.
All parties shall bear their respective costs.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Rotimi Jacobs, SAN, with Ayuba Olokotobi for the Appellants.
P.E. Okohue with N.L. Egwey for the 1st & 2nd Respondents.
I.C. Adamu for the 3rd Respondent.
