NOTICE OF APPEAL- WHETHER A FAILURE TO STATE THE EXACT RELIEFS SOUGHT IN A NOTICE OF APPEAL WILL RENDER IT INCOMPETENT
Topic starter July 10, 2020 11:41 am
"The High Court (Civil Procedure) Rules 1991 of Adamawa State High Court more especially Order 43 Rules 1 and 2 (1), (2) and (3) provides :-
Every appeal shall be brought by notice of appeal which shall be lodged in the lower court within 30 days of the decision appealed from and served on all other parties affected by the appeal within that period.
1) The notice of appeal shall set out the reference number of the proceedings in which the decision complained of was given, the names of the parties, the date of such decision and the grounds for appeal in full.
2) Where the appellant complains only of a part of the decision, the notice of appeal shall specify the part complained of; otherwise the appeal shall be taken to be against the decision as a whole.
3) The notice of appeal shall give an address within the Judicial Division in which is situated the lower court appealed from, to which notices may be sent for the appellant, and such notices may be sent to him by registered post.
4) The notice of appeal shall be in Form 107 in appendix may be varied to suit the circumstances of the case but so that no variation of substance shall be made.
From the provision of the Rules of the Adamawa State High Court as reproduced above, it is not mandatory to state the exact nature of the relief sought in the Notice of Appeal as argued by the learned counsel to the Appellant while arguing issue one at paragraphs 4.01 to 4.13 of the Appellant’s Brief.
Furthermore, in the case of Mohammed v. A.B.U. Zaria (2014) 7 NWLR (Pt. 1407) 500 at 528 Paras. C-G it was held that:
It is interesting to note that even though the wording of Order 6 Rule 2(1) appears mandatory, it has been severally held that failure to list the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal. Further it was stated by the Supreme Court that failure to state exactly the nature of the relief sought in the notice of appeal will not invalidate a notice of appeal to render it incompetent…..See Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126
The first issue is therefore resolved in favour of the Respondent and against the Appellant."
PER A. M. BAYERO, J.C.A. IN IBRAHIM YAKUBU V ELISHA YAKUBU
suit no: CA/YL/69/2018
Legalpedia Electronic Citation: (2020) Legalpedia (CA) 93211
Topic starter July 10, 2020 11:42 am
Summary Of Fact:
The Plaintiff/Appellant before the Area Court Maiha instituted an action for declaration of title to land against the Defendant/Respondent. The Appellant called three witnesses in proof of his claim, while the Respondent called five witnesses for his defence. Judgment of Senior Magistrate Court, Maiha was tendered and admitted as Exhibit ‘A’. The court delivered its judgment in favour of the Appellant. Dissatisfied, the Respondent appealed to the Upper Area Court No. 1 Mubi where the appeal was dismissed. The Respondent further appealed to Adamawa State High Court sitting in Mubi in its Appellate jurisdiction. The lower court set aside the decisions of both the Area Court Maiha and the Upper Area Court Mubi and ordered for the enforcement of the judgment of Senior Magistrate Court Mubi. The Appellant being dissatisfied with the decision of the lower court filed this appeal with the leave granted by this Court. The Appellant’s contention herein is that the Notice of Appeal filed by the Respondent at the High Court did seek any relief, hence the court lacked jurisdiction to hear the appeal on a defective Notice of Appeal.