Judgment
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Notice of Appeal at pages 373 – 375 of the Records has two grounds of appeal namely: – the complaint against the finding of fact that “the Appellant failed to prove that the Respondent breached its duty of care”, and the omnibus ground of appeal complaining that the judgment of the Court of Appeal (the lower Court) was against the weight of evidence. Both grounds are complaints against the lower Court’s findings of fact.
The grounds require leave first sought and granted before they could be legitimately filed in the further appeal to this Court from the lower Court, an intermediate Court. Section 233(2) & (3) of the Constitution is mandatory. A ground of appeal against concurrent findings of fact requires leave first sought and granted before filing.
These two grounds of appeal, being grounds of pure facts against the decision of the Court of Appeal, an intermediate Court, filed in defiance or insubordination of the provisions of Section 233(2) & (3) of the Constitution, are incurably defective – no leave having been first sought and granted before they were filed are incompetent.
1
The incompetence of the Notice of Appeal vitiated the appeal predicated thereon. Appellant who, purporting to exercise his constitutional right of appeal, brings his appeal in a manner flagrantly violative of the Constitution cannot be countenanced. It will be ultra vires to grant to such litigant a right denied to him by the Constitution. Similarly, if exercise of the right of appeal is conditional; unless the mandatory conditions are met and fulfilled, the Court acts ultra vires to entertain such appeal process.
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
