Ashco Nig. Ltd & Anr V. Ward And Green & Anor (2009)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A.
In the proceeding commenced by the Respondents under the Undefended List procedure before the Kano State High Court against the Appellants, in suit no: they claimed thus:-
“(i) The sum of ?7,690.10 (Seven Thousand, Six Hundred and Ninety Pounds Sterling, Ten Shillings only) being:
(a) ?6,000.00 (Six Thousand Pounds Sterling only) cost of the batteries delivered to the Defendants.
(b) ?1,690.10 (One Thousand, Six Hundred And Ninety Thousand Pounds Sterling, Ten Shillings only) freight charges for the batteries from London to Kano or the prevailing Naira equivalent.
(ii) 21% Bank Interest thereon from the 1st day of June, 2000 till judgment and thereafter 10% bank interest until liquidation.
(iii) Cost of the action.”
The claims were supported by an affidavit of seven paragraphs which had attached to it Exhibits 1 – 7. Upon service of the writ of summons marked Undefended on the Appellants, they, in turn, on 13/12/02 filed a Notice of intention to defend together with an affidavit of four paragraphs disclosing their defence thereto and the reasons why the suit ought to be transferred to the general cause list for hearing. I would for purposes of clarity and avoidance of doubt reproduce hereunder the relevant paragraphs of the Respondents’ affidavit in support of the claim commenced under the undefended list procedure particularly, paragraph 2 sub paragraphs (i)-(x), they read:
“2. At about the hours of 12.01pm on the 14th day of May, 2002, I was informed in my office at No.10, Beirut Road, Kano by Mr. Len J. Goldman the 2nd plaintiff and I verily belief him as follows:
i. That Mr. L.J.Goldman, the 2nd plaintiff in this suit, is the Managing Director of the 1st Plaintiff company, a duly incorporated company.
ii. The 2nd defendant is the Managing Director/alter ego of the 1st defendant, a limited liability company both residing/situate in Kano within the jurisdiction of this Honourable Court.
iii. The plaintiffs made a purchase order for some quantities and types of Batteries from Messers TOSHIBA INTERNATIONAL (EUROPE) LTD to Wit:-
Code Description Quantity
6F22UG*SP-1 Manganese Battery (clock & radio) 2,400
LR14BULK Super Alkaline Loose Battery 730
LR20BULK (D) Super Alkaline Bulk Battery 2,562
R14 SP-2 Manganese Battery 2,000
R20UG SP-2 Manganese Battery 3,000
R6UGSP-4 Super Heavy Duty Battery (AA) 13,000
iv. On or about April, 2000, the defendants pleaded with the plaintiffs to direct the supply of the said various types and quantities of Batteries the plaintiffs had ordered from Toshiba International (Europe) Ltd to the defendants. The defendant assured the plaintiffs of the availability of ready market in Nigeria for the sale of the batteries and pleaded that the batteries should be supplied to the defendants who will dispose of same and remit the capital cost and freight charges to the plaintiffs.
v. Due to the existing cordial business relationship between the parties, the plaintiffs accepted the Defendants offer that all the various types and quantities of batteries due to the plaintiffs be shipped and delivered to the defendants. The code, description and quantity of the batteries were given to the Defendants.
vi. By letters dated 10th and 14th April, 2000 the 2nd Plaintiff instructed the plaintiff’s travel agent Messrs Travel World limited to receive the batteries from the manufacturers Toshiba International limited (Europe) Ltd and ship same by air to the defendants in Kano. A copy each of the letters are herewith attached and marked Exhibits 1 and 2 respectively.
vii. Sometimes in May 2000, the batteries were delivered to the defendants in Kana together with the invoice showing the value of the batteries to be the sum of ?6,000.00 (Six Thousand Pounds Sterling only) and the freight charges of ?1,690.10 (One Thousand, Six Hundred and Ninety Pounds, Ten shilling only). A copy each of the invoice and the advice of freight charges are herewith attached and marked as Exhibits 3 and 4 respectively.
viii. Few months after delivery, the defendants wrote the plaintiffs to complain of the cost of delivery, the packaging and lifespan of the batteries resulting into the defendants alleged “inability to dispose” off the batteries. The defendants then requested the plaintiffs to appoint a representative in Nigeria “to collect the entire consignment” by the end of August 2000.
A copy of the document evidencing this fact is herewith attached and marked Exhibit 5.
ix. The plaintiffs promptly appointed a representative to retrieve the batteries on their behalf and sell same but it was discovered that the defendants had dispose off the batteries instead of keeping to their earlier pledge to return same.
x. The defendants have refused and neglected to liquidate the total cost of the batteries being the sum of ?7,690.10 (Seven Thousand, Six Hundred and Ninety Pounds Ten Shilling) inclusive of freight charges.”
In an answer to the claim, the Appellants filed a Notice of Intention to defend together with an affidavit disclosing their defence thereto.
After consideration and determination of the facts presented by the parties in their respective affidavits, the learned trial Judge held at page 11 of the record thus:-
“(In the circumstance, I am satisfied that the Defendants have not shown any defence on the merit to warrant allowing to defend this suit. Therefore the defendants are denied leave to defend this suit.”
The learned trial Judge awarded the reliefs sought by the Respondents with the exception of the pre-judgment interest of 21% for lack of evidence.
Upon the Appellants’ disgust with the said judgment, they immediately filed a Notice of Appeal which was anchored originally on two grounds, but, with the leave of this Court, three additional grounds were filed then bringing the total to five, as were incorporated in the Appellants’ Amended Notice of Appeal. Out of the five grounds, four issues were propounded by the Appellants in their brief of Argument for the determination of this Court. They are:-
“i. Whether the lower court was right to have entered judgment against the Appellants for the sum of ?7,690.10 on the undefended list in the light of the affidavit evidence before the court.
ii. Whether the lower court has jurisdiction to enter judgment against the 2nd Appellant in favour of both Respondents (which are principal and agent respectively) having regard to the contract documents before the Court.
iii. Whether the lower court was right to dismiss the counter-claim/defence of the Appellants for cost of clearing batteries sent to the 1st Appellant on the basis that no receipts for same were tendered.
iv. Whether there was cogent and unambiguous evidence before the lower court to support the findings that at the time the Respondents approached its representative the batteries were not disposed off by the Appellants.
Then, reacting to the Appellants’ Brief of Argument, the Respondents firstly filed a Notice of Preliminary objection challenging the competence of the original Notice of Appeal and the Amended Notice of Appeal.
Aside from the preliminary objection raised by the Respondents, they, in the alternative, distilled two issues for consideration. They are;
“(i) Whether from the affidavit evidence before the Court, judgment was not rightly entered in favour of the Plaintiffs/Respondents against the Defendants/Appellants in this action.
(ii) Whether the Defendants’ purported expenses were proved? If yes, whether it will warrant the matter to be transferred to the General Cause List for hearing?”
I would, however, observe that there is no indication on the processes before us that issues were joined by the parties with respect to the preliminary objection raised by the Respondents in this appeal. The Appellants did not file any Reply Brief to rebut the assertions of the Respondents in their objection. Since the objection raised touches on the competency of the original Notice of Appeal, and the jurisdiction of this Court to entertain the same, it is, therefore imperative to consider it first before determining the issues propositioned by the parties.
It was submitted in respect of the first ground of objection by Learned Counsel for the Respondents, Nureini Jimoh Esq., that the Appellants’ Amended Notice of Appeal was not filed in the registry of either the lower Court or this Court. Learned Counsel referred to Order 3 Rule 2(1), (5) and (6) of the Court of Appeal Rules, the cases of Ini Re Diamond Bank (2002) 17 NWLR (Pt.795) p. 120; Onwugbufor V Okoye (1996)1 NWLR (Pt.424) 252; Fada Vs Naomi (2002) 4 NWLR (Pt.757) p. 318; Mohammed Vs Kayode (1997) 11 NWLR (Pt.530) 584; N.N.B. Plc Vs Imonike (2002) 5 NWLR (Pt.760) 294; Okotie Vs Olugbor (1995) 5 SCNJ 217; I.B.W.A Vs Pavex International (2004) 4 ECNJ 200 at 227 and Civil Procedure in Nigeria. 2nd Edition p.802 by Fidelis Nwadialo, and, then submitted that there is no Amended Notice of Appeal for this Court to determine, and, as such, the purported appeal should be struck out.
He argued in respect of ground No.2 that Ward & Green and Mr. L.J. Goldman who were originally described as the Appellants in the original Notice of Appeal were however designated as the Respondents in the Amended Notice of Appeal without any formal order of amendment of the description.
With regard to the original Notice of Appeal, learned Counsel for the Respondents, argued that the original Notice of Appeal was brought by a Law Firm to wit: M.A. Bello & Co. He submitted that by Order 1 Rule 2 of the Rules of this Court, only the Appellants or a legal practitioner representing them can sign their Notice of Appeal. He referred to the cases of FBN Vs Maiwada (2003) FWLR (Pt.151) 2001 and NBN Vs Denclag (2004), All FWLR (Pt.228)606 and stated that a firm of legal practitioners had been held not to be an enrolled legal practitioner under the Legal Practitioners Act. Counsel then submitted that the original Notice of Appeal was defective. The Appellants redrafted the Notice of Appeal and corrected the error without any leave of this Court to effect such correction. He said that the order made by this Court on the 8th February 2005 for amendment was only for raising additional grounds of appeal and allow a point of jurisdiction to be raised afresh. He contended that the original Notice of Appeal was incompetent ab initio and unamended to date, and, there is nothing upon which to place the Amended Notice of Appeal. He further argued that that unilateral amendment of the Notice of Appeal without prior application for leave before this Court to amend both the title and the signatory to the Notice, harmers on the root of the Notice of Appeal.
Further, Counsel contended that grounds 1 and 4 of the Amended Notice of Appeal raised fresh issues for which leave of this Court ought to have been obtained before raising the same. He submitted that the issues whether the claim was liquidated or unliquidated, and, the identity of the Respondents’ representatives were not raised in the affidavit filed along with the Appellants’ Notice of Intention to defend. He cited the cases of North-South (Nig.) Ltd vs. F.G.N. (2002) 17 NWLR (Pt.797) 639 and Wayo vs. J.S.C. Benue State (2006) All FWLR (Pt.302) 66 in support. On ground No. (v), Counsel cited the cases of Udoete v. Heil (2002) 13 NWLR (Pt.783) (Pt.64) and Stirling Civil Eng. (Nig) Ltd vs. Yahaya (2002) 2 NWLR (Pt.750) P.1, and submitted that the Particulars i.e., (iii), (iv) (v) and (vi) to Ground I of the Amended Notice of Appeal were argumentative and constituted a conclusion of the argument.
Furthermore, learned Counsel contended that Ground 2 of the Notice of Appeal is defective. He argued that the particulars thereto, i.e., (i), (ii) & (iii) are fishing for facts and or issues which were conflicting and exclusive to one another. They are hypothetical. He said that the issue raised in Particular No. (ii) as to the date on the receipt and the effective date of sale is a non issue, not raised or canvassed at the Court below, and, that the Appellants failed to seek the leave of this Court to raise the new issue. He referred to Stirling Civil Eng. (Nlg) Ltd vs. Yahaya (supra} and submitted that once a Particular to a Ground of Appeal is defective, the Ground is incompetent.
With respect to ground No.(vii) of the preliminary objection, learned Counsel contended that Ground 3 of the Notice of Appeal and the Particulars thereto were defective for being argumentative and complaining on behalf of the 2nd Respondent who had not complained against the decision. He quoted an excerpt from Nwadialo on Civil Procedure in Nigeria and urged the Court to strike out the Ground. He also cited Balogun vs. Labiran (1988) 3 NWLR (Pt.80) p. 66.
With regard to ground No. (viii), Counsel submitted that Ground 5 of the Grounds of Appeal only challenged the reason for the decision and not the decision itself. It did not attack failure to exhibit the actual receipt of payment but the rightness of the reason for the judgment, especially, Particulars (a), (c), (d) & (e). He said that particular (f) did not flow from the said Ground 5 of the Grounds of Appeal nor from the decision since the failure to exhibit the receipts of payments made by the Appellants were canvassed at the Court below. He referred to p. 8, lines 4 – 5 of the record of proceedings.
Lastly, Counsel contended that issues Nos 1, 3 & 4 presented by the Appellants for determination are incompetent as they failed to flow from the Grounds of Appeal, and, too, for arising from incompetent Grounds of Appeal. He stressed that Ground 5 from which issue No.4 arguably flowed bordered on the question whether Exhibits P01 and P02 attached to the Appellants’ affidavit in support of their Notice of Intention to defend were truly, receipts of payment or evidence of expenses incurred by the Appellants in the clearance of the goods. He stated that under issue No.4, the Appellants were showing the conflicts in the parties’ affidavit evidence and the need for oral evidence to be had. He stated that issue 4 did not arise from any of the five Grounds of Appeal. It touched only on the expenses, but, did not portray any conflicts in the affidavits. He further argued that issue No.3 is also incompetent and invalid. Not only did it flow from defective Grounds of Appeal Nos. 4 & 2, it is, also, the law that invalid Ground of Appeal cannot be argued together with an incompetent Ground of Appeal, meaning, that once anyone of the two Grounds of Appeal is incompetent, the other Grounds is tainted and the issue for determination arising therefrom is incompetent.
Counsel further argued that issue No.3 which relates to the Appellants’ purported counter-claim for cost of clearing the goods is at variance with Grounds 2 & 4 of the Notice and Grounds of Appeal which talked about the time, the Respondents’ representatives arrived late September, 2000 to repossess the goods, whereas, the Appellants had actually disposed of the goods according to the receipts dated 16/15/2000, 22/9/2000 and 16/10/2000. He finally cited the cases of Bello vs. Udoye (2004) FWLR (Pt.225) 63/82; Gwandu vs. Gwandu (2004) All FWLR (Pt.229) 841/862; Famoni VS. Bukar (2004) All FWLR (Pt.198) 1210/1251 and CCB vs. Onwucheka (1998) 8 NWLR (Pt. 562) 377. He then urged that this appeal be struck out.
As I observed earlier, the Appellants did not file any Reply Brief to answer to the salient and fundamental issues raised by the Respondents in their Notice of preliminary objection and their arguments adumbrated in their Respondents’ Brief. It is also, remarkable that on the date of hearing of this appeal, when one Kenneth Nkwocha Esq. appeared on behalf of the Appellants and adopted the Appellants’ Brief, he did not deem it necessary to make any reference whatsoever, either directly or in passing to the said preliminary objection raised by the Respondents and which was equally moved in the open Court with the leave of the Court by their Counsel, Nureini Jimoh Esq.
Be that as it may, I will firstly proceed to consider the points as were raised and argued by the Respondents’ Counsel.
With regard to the first ground of objection, I must state that a cursory look at the record of proceedings of this Court with respect to this appeal No. CA/K/99/04, which I am entitled to examine, revealed that on the 8th February, 2005, this Court sat with Hon. Justice Mahmud Mohammed, P.J.CA (as he then was) presiding and Hon. Justices Baba Alkali Ba’aba, JCA and Stanley Shenko Alagoa, JCA, and, entertained the Motion on Notice dated 14th June, 2004 but filed on the 15th June, 2004 by the Appellants praying this court for the following orders;
“1. An Order of this Honourable Court granting leave to the Appellants/Applicants to amend their Notice of Appeal dated 11th June, 2003 by the addition of (3) three new grounds of Appeal as contained in the attached schedule marked as Exhibit “A”.
- An Order deeming the attached Amended Notice of Appeal (Exhibit “B”) containing five grounds of Appeal and dated the 7th day of May, 2004 as properly filed and served appropriate filing fees duly assessed having been paid.
- An Order granting leave to the Appellants/Applicants to raise on appeal a new issue of jurisdiction based on ground 3 of the amended Notice of Appeal at the hearing of this appeal.
- And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
On the said date, one Taiwo Abe Esq., appeared for the Appellants/Applicants, while Nureini Jimoh Esq., appeared for the Respondents. The said application was moved by Taiwo Ade Esq without the minutest objection by Nureini Jimoh, Esq. Consequent upon that, this Court on the said 8/2/04 granted leave to the Appellants/Applicants to amend their Notice of Appeal dated 11th June, 2003 by adding three new grounds of appeal as contained in Exhibit ‘A’ attached to the affidavit in support of the application. It was further ordered on the said 8/2/05 that the attached Amended Notice of Appeal – Exhibit ‘B’, containing five grounds of appeal be deemed as having been properly filed and served on the same date. The Applicants were also granted leave to raise a new issue of jurisdiction based on ground 3 of the Amended Notice of Appeal.
As I stated earlier, the said orders of this Court were made in the presence of the Respondents’ Counsel without any objection whatsoever, and, the orders still subsist. Learned Counsel in his arguments in this appeal, never informed this Court that the said orders, particularly, the one deeming the Amended Notice of Appeal attached as Exhibit ‘B’ to the affidavit in support of the said motion, was appealed against or had been set aside by an order of this Court or the Supreme Court. It is trite that an order or a judgment of court remains valid and legally binding until it is set aside by due process. Since the order made by this Court on 8/2/05 deeming the Appellants’ Amended Notice of Appeal annexed as Exhibit ‘B’ as having been properly filed and served on that 8/2/05 still subsists, it means therefore, that the first ground of objection by the Respondents’ Counsel who was physically present when the said orders were made by this Court, is not only, baseless, frivolous, but, irritable. Accordingly, the first ground of objection by the Respondents is not countenanced, and it is hereby overruled. With regard to the second ground of objection touching on the amendment of the designation of the parties and the suit number, it should firstly be noted that this issue was not countered or set aright by the Appellants as to whether it obtained the leave of the court before those alterations were made. It is trite that a party has the ultimate right to alter, add or delete any fact in the process filed by him in the Court. The law gives him the liberty in a civil suit to amend his process. The procedure for amendment of any process is by way of motion. By the Court of Appeal Rules, Notice of Appeal may be amended by or with leave of the Court of Appeal at any time. What this postulates is that, Notice of Appeal may be amended by the Court itself, i.e., suo motu, or on its own motion, or on the application of the Appellant. Whenever there is such an application or such an amendment was effected by the Court suo motu, there is absolute need for a formal order or formal amendment to be made. It should be recognized that even though the court may on its own motion amend the notice of appeal, the power so to do is circumscribed by the rules of fair hearing. The court must invite both parties to address it on the contemplated amendment. Having stated this, it is, therefore, instructive to note that there is no where in the record of proceedings of this Court that any leave was obtained by the Appellant to amend the descriptions ascribed to the parties. The Amended Notice of Appeal filed in this Court now, described Ashco Nigeria Ltd and Alh. Aminu S. Hanga as Appellants on the one hand and Ward and Green and Mr. L.J. Goldman as Respondents on the other hand, whereas, in the original Notice of Appeal the Appellants in the Amended Notice of Appeal were described as the Respondents, and, the Respondents therein were shown as the Appellants. There was, also an alteration to the suit number as was rightly observed by Nureini Jimoh Esq. It is clear on the record of proceedings of this Court that on 8/2/05 when leave to amend the Notice of Appeal was sought for, and, obtained, no leave was obtained to correct or amend the capacities in which the parties appeared to have appealed or were appeal against and the suit number of the said suit at the High Court.
However, it must be emphasized that even though no leave was obtained to amend the description/capacities of the parties, the alterations, in my view, did not affect the substratum of the appeal. It did not touch the foundation of the Notice of Appeal, and as such cannot vitiate the same as to render it incompetent and, in any case, it has to be observed that even though no specific prayer was made by the Appellants to amend the description of the parties and the suit number of the case at the lower court erroneously stated, this Court on the said 8/2/05 deemed the said Amended Notice of Appeal with all those amendments as having been properly filed and served. I would, for emphasis refer to the case of Maska vs. Ibrahim (1999) 4 NWLR Part 599 p. 415, where it held per Onnoghen, J.C.A. (as he then was);
“That an error on the heading of appeal will not vitiate the hearing of the appeal or the merits, more so, where the error has not occasioned miscarriage of justice”.
See, also, the case of L.S.P.D.C. Adeyemi – Bero (2002) 1 NWLR Part 748 p.268 where it was held that the fact that an applicant mis-stated the date the judgment of the trial Court was given in its Notice of Appeal would not vitiate the said Notice of Appeal as to render it incompetent and therefore, unamendable. It was further remarked in the said case that blunders must, in the course of preparing a case take place from time to time. This is so because infallibility is not the virtue of any man. But such blunders that might have been so committed must never be exploited to the point of getting the person committing the blunder to incur the penalty of not having dispute between him and his adversary determined on the merits of the case. I, therefore, overrule the second ground of objection.
The third ground of the objection which is very fundamental and critical is that the original Notice of Appeal was brought by a Law Firm to wit: PP: M.A. Bello & Co. It is instructive to note that the Court of Appeal Rules in force as at the time the Notice of Appeal was filed by the Appellants in this appeal was the Court of Appeal Rules, 2002. It has to be restated that since the Court of Appeal Rules 2002 was repealed by the 2007 Rules of this Court, it is the law in existence at the time a cause of action arose that must be applied in determining jurisdiction and other relevant issues in a case. A law that comes into effect thereafter becomes irrelevant and will not be reckoned with in the course of deciding any breach of the rights and obligations of the parties. See NEPA Vs Atukpar (2001) 1 NWLR (Pt.693) 96. I must however, state that it became necessary to restate the above principle because under the 2007 Court of Appeal Rules, there seems to be no mandatory requirement that the Notice of Appeal shall be signed by the appellant or his legal representative. I have also been opportune to come across the provisions of the 2002 Court of Appeal Rules which dealt with Civil Appeals, particularly Order 3 Rules 1-7, and was unable in all sincerity, to ascertain where it was mentioned that in civil appeals, every notice of appeal shall be signed by the appellant or his legal representative or legal practitioner or any person as the case may be. It is only in respect of the notice to be filed by a person upon whom a notice of appeal had been served, i.e., the respondent that Order 3 Rule 7(2) required that such notice may be signed by the respondent or his legal representative. No such requirement was made of the Appellant or his legal representative in respect of the Notice of Appeal filed in civil appeals.
No mistake however shall be made of the stance of the said Rules with respect to Notice of Appeals filed in criminal appeals. Order 4 Rule (1) of the 2002 Court of Appeal Rules stated thus:-
“4.(1) This Order shall apply to appeals to the Court from any Court or tribunal acting either in its original or its appellate jurisdiction in criminal cases, other than Court martial and to matters relating thereto.”
It is clear as crystal that Order 4 of the Court of Appeal Rules 2002 applied only to criminal appeals. No mention whatsoever was made of its applicability to civil appeals to this Court from any court. The provision is very clear as to the extent of its application. It is only in Order 4 Rule 4(1) of the Court of Appeal Rules, 2002 which applies to appeals to this Court in criminal cases that there was a mandatory requirement thus:
“4(4)(1) – Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraphs (5) and (6) of this Rule.”
I will, however state that in Order 3 Rule 2(1) it was not specifically provided in the body of the Rules that the Notice of Appeal shall be in Form 3 or that it shall ordinarily be made in writing by the appellant by completing Form 3 in the appendix to the Rules.
It is the law that Forms in Schedules are inserted merely as examples and for convenience. They are to be followed implicitly so far as the circumstances of each case admit. See the case of Egolum vs. Obasanjo (1999) 7 NWLR (Pt.611) 355.
The significance of the above authority is that the notice of appeal to be filed in the Registry of the court below in so far as civil appeals are concerned shall comply essentially with the stipulations stated in full and in explicit terms in Order 3 Rule 2 (1) of the Court of Appeal Rules, 2002. They are:
(a) The grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such Part).
(b) The exact nature of the relief sought and
(c) The names and addresses of all parties directly Affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and
(d) It shall have endorsed on it, an address for service.
For other requirements, see, also, Order 3 Rules 2(2), (4), (5), (6) and (8).
It is only in respect of the criminal appeals that the Appellant was required to sign the notice of appeal. This was also entrenched by the Supreme Court in its recent case of Ralph Uwazurike Vs A-G, Federation (2007) 8 NWLR (Pt.1035) 13-14 paras H-B and 15 paras C – H. A careful examination of the original Notice of Appeal in the instant appeal clearly showed that a given person signed the same but PP: M.A. Bello & Co. The said signature was compared with the signature appended on the affidavit filed in support of the Motion on Notice for stay of execution filed by the Appellants in this Court on the 11th June, 2003, and it tallied with the said signature appended by the deponent thereon namely; Jonathan Nyikyam, a Legal Practitioner working in the law firm of Messrs M.A. Bello & Co. This fact was acknowledged by the Respondents at paragraph 4(ii) of their counter-affidavit deposed to by one Oluwakemi Ige (Miss), a Litigation Secretary in the office of Messrs Gafar & Co, Solicitor to the Respondents filed on 28/10/04. It seems clear that the identity of the Legal Practitioner to wit: Jonathan Nyikyam, in the chambers of M.A. Bello & Co, who signed the said original Notice of Appeal, PP: M.A. Bello & Co, is not in doubt.
It should be noted that many cases had, in the past, been decided on this point as to who should sign a Notice of Appeal in civil appeals. See N.N.B Plc vs. Denclag Ltd (2005) 4 NWLR Part 916 p. 549 referred to by Counsel for the Respondents, Clev Josh Ltd vs. Elder Olaniran Ifeoluwa Tokimi (2008) 13 NWLR Part 1104 p. 422 where Ralph Uwazurike vs. A.G. Federation (2007) 8 NWLR Part 1035 p. 1 was referred to, Buhari vs. Yabo (2006) 17 NWLR Part 1007 p. 162 and the earlier Supreme Court decisions in the Registered Trustees of Apostolic Church vs. Akindele (1967) 5 NJCC p. 117, (1967) 1 ALL NLR p. 110 and Cole vs. Mattins & anor (1968) All NLR p. 217, that seemed to support the view that a Notice of Appeal can be signed in the name of a law firm.
However, the most recent Supreme Court decision in the case of Emmanuel Okafor vs. Augustina Nweke (2007) 10 NWLR Part 1043 p. 521 has finally put to rest the conflict in the previous decisions of the various Courts on this issue and has finally also made its stance clearer. In the said case, Onnoghen, J.S.C., had the following to say;
“The law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart (it is very clear that by looking at the documents) the signature which learned Senior Advocate claims to be his really belongs to J.H.C.OKOLO SAN & CO. or was appended on its behalf since it was signed on top of that name. Since both Counsel agree that J.H.C. OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO SAN & CO cannot legally sign any/or file any process in the Courts and as such the Motion on Notice filed on 19th December) 2005) Notice of Cross Appeal and Applicants Brief of Argument in support of the said Motion all signed and issued by the firm known and called J.H.C. OKOLO SAN & CO are incompetent in law particularly as the said firm of J.H.C.OKOLOSAN & CO is not a registered legal practitioner”.
Also, it needs to be mentioned that the said original Notice of Appeal in this appeal was amended with the leave of this Court. The said Amended Notice of Appeal was then signed PP: Mohammed Bello Adoke. However, it has long been established that once there is no valid Notice of Appeal, no amount of ingenuity by way of amendment can be used or employed to save the invalid Notice of Appeal, for one cannot put something on nothing, it is bound to collapse. So, notwithstanding the amendment already made, the original Notice of Appeal is still invalid, it cannot, in any form or manner, cure the fundamental defect in the original Notice of Appeal which is void ab initio.
In the final analysis and for all the reasons I have given above, particularly, in the light of the Supreme Court decision in Okafor vs. Nweke (supra), this appeal will be and is hereby struck out for lack of competence.
I make no order as to costs.
Other Citations: (2009)LCN/3420(CA)
