Feb 11, 2020

Originating processes and Notices of appeal; a precis of the Supreme Court’s decision in Ani v Otu







Originating processes and Notices of appeal can no longer be deemed validly filed and served; a precis of the Supreme Court’s decision in Ani v Otu (2017) 12 NWLR (Pt. 1578) 30 @ 71



From time immemorial, various appellants have inundated the appellate courts with applications for extension of time to appeal together with ‘preemptive’ deeming orders regularizing their notices of appeal filed prior to the grant of such leave.




The apex and court of appeal are wont to deeming such notices of appeal as valid, subject to satisfaction of settled factors as laid down by the courts over the years. With the age long precedents on deeming of notices of appeal, the question of its propriety seemed settled so much that it didn’t attract any special attention from the courts. Unequivocally, in Incar Nigeria Plc v Bolex Enterprises Nig. Ltd (2001) 12 NWLR (Pt. 728) 646, the Supreme Court appeared to have impliedly approved of the practice thus:



“A notice of appeal filed out of time will require a prayer for enlargement of time within which to file such notice of appeal. It is only after that prayer is granted that the Court may deem the notice of appeal already filed as duly and properly filed.”



This remained the judicial consensus/norm on deeming of notices of appeal until the 2017 decision of the same supreme court to the contrary in Anthony Asuquo Ani v Ekpo Okon Abasi Otu (2017) 12 NWLR (Pt. 1578) 30 @ 70.



In that case, the appellants filed a suit at the high court of Cross River State challenging the nomination and selection of the Ekpo Abasi Otu (1st respondent) as Obong of Calabar. The high court found in favour of the appellant and granted all the reliefs sought. On appeal, the Court of Appeal set aside the decision of the High Court and that necessitated another appeal to the Supreme Court.



Consequent upon filing a notice of appeal against the judgement of the court of appeal, the appellants filed an application at the Supreme Court for (1) an order extending time to seek leave; (2) leave to appeal; (3) order extending time within which to appeal; (4) leave to Appeal of grounds of mixed law and facts; (5) order deeming the record of appeal as valid; (6) order deeming the notice of appeal as valid; (7) order deeming the appellants’ brief as valid.



In addition to their respective counter affidavits to the appellants’ motion, the two sets of respondents filed preliminary objections to the hearing of the appeal (which notice of appeal hasn’t even been regularized at the time of the objections).



In the leading ruling read by Amina Adamu Augie, JSC, the Apex court granted only the four reliefs seeking extension of time and leave to appeal while the three prayers seeking deeming orders were refused.



Emphatically, Paul Adamu Galinje, JSC at page 70- 71 para H- B held that:



“However, the deeming order sought by the applicant in respect of the record of Appeal, notice of Appeal and brief of argument cannot be granted. A notice of appeal cannot be deemed as having duly filed and served because it is a document which by definition commences an appeal. The documents which a court can deem are those which parties exchange between themselves during the course of proceedings, such as statement of claim or defence and briefs of argument and not those which require the signature of the registrar for their validity. The time for transmission of the record of Appeal and the filing of briefs of argument can only begin to run after the appeal is filed.”



Although a concurring judgement, it possesses the force of the leading judgement. See the Supreme court’s statement on concurring judgement in Ziakade Akpobolokemi v Capt. Emmanuel Iheanacho (2016) LPELR -40563(CA) thus:



"A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned.



It is now no longer in doubt that, the recent supreme court’s decision in Ani v Otu (supra) represents a paradigm shift from, not only the procedural possibility/practice of deeming notices of appeal as valid but also all other originating processes including writs of summons, originating summons/motions and petitions, what however remains unclear is the effect of the courts’ subsequent reliance on such deemed originating processes during trial or further proceedings.



Conclusively, there’s no gainsaying that the decision of the apex court is final, however in the author’s respectful opinion, if it could be shown at the time of adoption of addresses on the deeming prayer that, the said originating process was in fact, signed by the registrar upon filing, then such a process ought to be taken to have passed the test laid down in his lordship’s concurring judgement since the whole essence of a deeming order is to expedite proceedings and downplay technical justice in favour of substantial justice. 



On the whole, until the apex court takes another look at the erstwhile convenient and expedient practice of deeming originating processes as valid, it remains inarguable that a notice of appeal, like its counterpart originating processes cannot be deemed validly filed and served.



Olumide Babalola, managing partner, Olumide Babalola LP.


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