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 ‘pre-emptive’ deeming orders regularizing their notices of appeal filed prior to the grant of such leave.
The apex and court of appeal are won’t 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.