Central Insurance Co. Ltd. V. Emeka Okoli (2007)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR ABDULKADIR JEGA, J.C.A.
This is an appeal against the judgment of the Kano State High Court of Justice presided over by Hon. Justice A.M. Haliru in Suit No.K/795/03 wherein the learned trial Judge found the appellant liable to the respondent in the total sum of =N=15 Million claimed under two different Life Assurance Policies (Keyman & Endowment) underwritten by the appellant on the life of late Chief Cletus Okoli. The judgment was delivered on 30th July, 2004.
The facts of this case as can be seen from the totality of the records presented before this Court inclusive of the briefs are as follows –
At all material times, the appellant is an Insurance Company. The respondent is an infant/student who instituted the suit against the appellant in his capacity as the son/personal representative of one Late Chief Cletus Okoli.
The deceased Chief Cletus Okoli had procured two different Life Assurance Policies on two different dates from the appellant. Under the 1st Assurance policy (keyman), the appellant agreed to pay the sum of =N=10 Million to the named beneficiary, Magnum Trust Bank Plc upon the death of the said Chief Cletus Okoli. The keyman policy took effect from 1/5/2001 under the life endowment policy the appellant undertook to pay the sum of =N=5 Million to the beneficiary upon the death of the said Chief Cletus Okoli. The endowment policy took effect from 1/10/2002.
Chief Cletus Okoli (Re Life Assured) died on 27th February 2003. A claim was lodged on behalf of the respondent for the recovery of the total sum Assured of =N=15 Million. The cause of death was however a bone of contention between the appellant and the respondent. The appellant insisted that the deceased died as a result of acute liver failure, hepglocellular cancer, essential hypertension and other ailments which were known and expected to have been known to the deceased. The respondent’s case was that the deceased died as a result of motor accident.
The appellant repudiated the claim on the ground that the deceased breached his duty of UTMOST GOOD FAITH by concealing and misrepresenting material facts in the two proposal Forms (exhibits 17 & 18) which formed the basis of contract between the appellant and the deceased Chief Cletus Okoli.
The respondent who claimed as the first son/personal representative of the deceased Chief Cletus Okoli commenced the suit in his own name. He subsequently sought and obtained leave of the court to sue through his next friend, namely Mrs. Nkiru Okoli.
During trial, parties adduced evidence in support of their pleadings. Counsel to the parties delivered their respective addresses. Judgment was thereafter delivered on the 30th July 2004.
In the said judgment, learned trial Judge found the appellant liable to the respondent Although Magnum Trust Bank Plc the payee/beneficiary of the Keyman Policy was not a party to the suit, the sum of =N= 10 Million was adjudged payable to Magnum Trust Bank Plc by the defendant/appellant upon the production of the original Life Assurance Policy.
The appellant being evidently dissatisfied with the judgment of the trial court has appealed to this Honorable Court vides a Notice of Appeal dated 9th August 2004 and an additional grounds of appeal dated 23rd September 2004.
Upon a total number of seven grounds of appeal contained in the Notice of Appeal dated 9/8/2004 and additional grounds of appeal dated 23/9/04, the appellant formulated five issues for determination. The Issues are stated thus:-
“1. Whether having regard to the age of the respondent (infant) the respondent has or lacks the locus standi to institute the action in his name.
- Whether the learned trial Judge rightly or wrongly awarded the sum of -N=10 Million in favour of Magnum Trust Bank Plc as the beneficiary/assignee of Keyman Life Assurance Policy despite the fact that Magnum Trust Bank Plc was neither a party nor a claimant in the said suit.
- Whether the deceased Chief Cletus Okoli did or did not breach his duty of utmost good faith to the appellant.
- Whether the deceased Chief Cletus Okoli breached or did not breach the warranties in the information contained in the proposal Forms which form the basis of the contracts between the appellant and Chief Cletus Okoli.
- Whether the learned trial Judge rightly or wrongly rejected the autopsy report of Aminu Kano Teaching Hospital which showed the actual cause of death of the deceased Chief Cletus Okoli on the ground that the author of the report was not called to tender the report.”
The respondent on his part formulated three issues for determination. The Issues are stated thus:-
“1. Whether or not this action was proper in law having been initially filed by the plaintiff as infant and subsequently amended to be through his next friend by order of court.
- Whether or not the learned trial Judge was right in finding and holding that the defendant was bound by the contracts exhibits 1 & 2.
- Whether the learned trial Judge rightly or wrongly rejected the autopsy report and if wrongly whether it occasioned a miscarriage of justice.”
On the 14th February 2007 when we heard this appeal, learned counsel for the appellant Proff. T. Osipitan, SAN informed the court that the appellant brief of argument is dated 10th March 2005 and filed same date and that the appellant Reply briefs is dated and filed on 27th October 2005. Learned SAN for the appellant adopted both briefs and urged the court to allow the appeal. Counsel for the respondent Mr. M.N. Duru also informed the court that the respondent’s brief of argument is dated 16th September 2005. Learned counsel adopted the brief and urged us to dismiss the appeal. Learned counsel for, the respondent further informed the court that he has a Notice of Preliminary Objection incorporated in the brief of argument contained in pages 2 & 3 thereof.
As stated above, the respondent incorporated a Notice of preliminary objection in his brief of argument which is at pages 2 and 3 of the brief. The Notice of preliminary objection read thus:-
“NOTICE OF PRELIMINARY OBJECTION BROUGHT PURSUANT TO ORDER 3 RULES 2(7), (8), 15(1) OF THE COURT OF APPEAL RULES AND THE INHERENT JURISDICTION OF THIS COURT.
Notice is hereby given that the respondent intends at the hearing of this appeal to urge this Honorable court to:-
(a) Strike out Ground 1 of the original grounds of appeal for being incompetent.
(b) Strike out the entire purported additional Grounds of appeal or alternatively an order striking out grounds 5, 6 & 7 of the additional grounds of appeal for being incompetent and in complete breach of the Rules of this Honorable Court.
GROUNDS OF APPLICATION
(a) The said Ground 1 of the notice of appeal is not based upon any ratio decidendi of the judgment complained about as the learned trial Judge never entered any judgment in favour of Magnum Trust Bank – pages 112 to 113 of the record.
(b) The said Ground 1 of the original Grounds of Appeal was filed with copious legal arguments and narratives in place of Particulars of error as required by the rules thus making the said ground incompetent. pages 114-115 of the record. The particulars required in a ground of appeal are not the argument or narrative that should be advanced at the hearing of the appeal of the appeal or the brief of argument -reference made to NDEFO V. OBIESIE (2001) (Pt.40) 1759; ADH V ADAH (2001)FWLR (PT.41)1815.
(c) The appellant’s Ground 1 of the original Grounds of appeal was filed without Particulars of errors instead what is stated as Particulars of errors are mere legal arguments and narratives.
(d) The purported additional grounds of appeal were never filed at all or in accordance with the Rules of this Court as there is no evidence on the records showing that it was filed and when it was so done thus breaching the mandatory provisions of Order 3 Rule 2(8) of the Rules of this honorable court – pages 120-125 of the record.
(e) No leave of court was first sought and obtained before the filing of the purported additional grounds of appeal. neither was the original notice of appeal amended in line with the decision in the case of KOREDE V ADEDOKUN (2001) 15 NWLR (PT.736) 483 AT 500.
(f) No leave of court was first sought and obtained before the filing of Ground 6 of the additional grounds of appeal being an issue that was being raised for the first time at the Court of Appeal.
(g) Much to the confusion of the respondent, Ground 7 of the purported additional Grounds of appeal encompasses the same Complaint as ground 2 of the original grounds of appeal, the same is applicable to grounds 5 of the purported additional grounds of appeal which is in essence a repetition of ground 3 of the original grounds of appeal – pages 114-121 of the record.”
Learned counsel to the respondent urged the court to grant this preliminary objection.
In response to the Notice of preliminary objection, learned SAN for the appellant submits that it was contended that grounds 5 and 7 of the additional grounds of appeal are repetitive of grounds 2 and 3 of the Notice of Appeal. The respondent consequently requests the Honorable court to strike out these four grounds of appeal.
Learned SAN contended that these four grounds deal with different issues. Assuming they cover the same issue this will not justify striking out all the four grounds. That this Honorable court can take the relevant two grounds and ignore the other two grounds. That the respondent has not cited any authority in the respondent’s brief to support the submission that repetition of grounds of appeal justifies striking out the original and additional grounds. That contrary to the respondent’s position, the authorities are to the effect that the grounds of appeal are valid even if they are repetitive – reference made to Mil. Admin, Benne State V Ukgege (2001)17 NWLR (Pt.741) 194 at 212- 213; A.G Fed. V ANPP (2003)15 NWLR (Pt.844)600 at 645.
On the grounds of appeal, learned SAN for the appellant submits that ground 2 of the Notice of appeal complains of the tendering of a document by a person who is not the maker. That the complaint in ground 7 is on the weight of evidence i.e. probative value of documents whose maker has not been called as a witness. That ground 7 also deals with the interpretation of Section 91(1) and 94 (4) of the Evidence Act especially the requirements of who is the maker of a document, who is an interested party and when is proceeding anticipated or pending.
Learned SAN adopts the appellant’s submission on repetitive nature of grounds 2 & 7 and 3 & 5 in response to the submission made in paragraph 3.01 (f) of the respondent’s brief.
On the alleged incompetence of ground 1 of the Notice of appeal, the appellant’s learned SAN contends that notwithstanding the narration in the supporting ground, the ground is still valid. That the basic test of the validity of a ground of appeal is whether it is sufficiently intelligible to convey the appellant’s complaint to the court. That the court looks at the substance and not the form of the ground.
Reference made to A.G Fed V ANPP (2003)15 NWLR (Pt.844)600 at 645.
On the submission that ground 1 is not based on any ratio of the court below, learned SAN contends that the respondent’s objection misconceives the purport of ground 1 of the Notice of appeal. That contrary to the respondent’s submission, ground 1 of the Notice of Appeal, questions the correctness of the decision of the court below on the award of =N=10 Million in respect of the Life Assurance Policy NO.3401319 when the beneficiary of the policy was not a party or claimant before the court below.
On the respondent’s submission that there was no evidence that the Notice of additional grounds of appeal was ever filed, learned SAN for the respondent contends that the additional grounds of appeal enjoys the presumption of regularity. That the respondent had the opportunity to challenge the competence of the additional grounds of appeal when leave was sought by the appellant to compile the record of appeal. That the additional grounds of appeal are part of the record of appeal. Further, the additional ground of appeal is part of the record of appeal, to effectively challenge the competence of the record of appeal, the respondent must file an affidavit – reference made to TEXACO PANAMA INC V SHELL P.D.C.N. LTD (2002)2 NWLR (PT.759)209 AT 646; SOMMER V F.H.A (1992)1 NWLR (PT.219)548.
That the additional grounds of appeal were also certified by the Registrar of the court below. The certification corroborates the fact that additional grounds of appeal were filed within the time prescribed for giving notice of appeal in the court below. Further, learned SAN for the respondent argues that it is unnecessary to obtain leave of the court to file the additional grounds of appeal for the simple reason that it was filed within 90 days prescribed for the filing of Notices/Grounds of Appeal.
That for the same reason, it is also unnecessary to amend the Notice of Appeal because the additional Grounds of appeal were filed timeously.
On the failure to obtain leave to file ground 6 of the Notice of Appeal, learned SAN for the appellant contends that this is essentially a jurisdictional question. Therefore parties or even the court suo motu can raise the point raised in ground 6. That jurisdiction is a matter of law which can be raised at any time in the trial court, Court of Appeal and Supreme Court. Reference made to GAJI V PAYE (2003)8 NWLR (PT.823)583 AT 599;. OBIAKOR V STATE (2002)10 NWLR (PT.776)612.
It is the contention of learned counsel to the respondent that ground 1 of the original grounds of appeal be struck out for being incompetent on the ground that the said ground 1 of the notice of appeal is not based upon any ratio-decidendi of the judgment complained about as the learned trial Judge never entered any judgment in favour of Magnum Trust Bank Plc.
It is pertinent here to produce ground 1 of the original grounds of appeal without its particulars and relate it to the judgment and then determine whether it constitute a ratio decidendi of the judgment complained about. Ground 1 of the original grounds of appeal without its particulars read thus:-
“The learned trial Judge erred in law in entering judgment for one MAGNUM TRUST BANK PLC and against the defendant/appellant in the sum of N=10,000,000.00 when such MAGNUM TRUST BANK PLC is not a party to the suit.”
The respondent as plaintiff at the court below in paragraphs 7 & 8 of his further amended statement of claim at pages 28-31 of the printed record pleaded thus:-
“Para. 7: The plaintiff avers that he is the first son of the Late Chief Cletus Okoli and by the native law and custom, he is the personal representative and beneficiary of the Estate of the Late Chief Cletus Okoli.
Para.8: The plaintiff avers further that to the knowledge of the defendant, the Late Cletus Okoli used the Assurance Policy and his houses in Abuja as security for loan from Magnum Trust Bank; which loan has since matured with the Bank threatening to sell off the pledged properties because the defendant has refused and or neglected to meet its obligations inspite of repeated demands.”
With the above state of pleadings, the learned trial Judge in his judgment at pages 112-113 of the printed record state thus:-
“In the circumstances, in the absence of a pre-existing inquiries to the group in the meeting reflected in exhibit 19 by the defendant, exhibit 19 lacks any impact on the claims by the plaintiff based on exhibit 1 & 2. In the circumstance, I hold that the defendant is bound by the contracts exhibited as exhibits 1 and 2 and hold the counter claim of dismissal of the plaintiff s claim based on lack of validity of the two contracts based on fundamental non disclosures by the insured lack merit. I also hold that the plaintiff has failed to substantiate any claim of -N=10,000,000.00 million damages and dismiss this claim against the defendant. In the end, the sum of N=10,000,000.00 Million for which a copy of the policy was tendered as due to the person assigned by the deceased on production of the original Policy exhibit which by exhibit 17 is Magnum Trust Bank, while Policy NO.0501419 in the Sum of=N=5 Million is assigned ‘to Emeka Okoli by virtue of exhibit 18. In the light of the nature of the contract, I decline to order any interest.”
It is settled law that a ground of appeal against a decision must not only relate to the decision but should further be a challenge to its ratio-decidendi. In SARAKI & ORS V KOTOYE (1992)3 NSCC 331, Karibi-Whyte JSC stated this rule thus:-
“It is a well established proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
See the cases of C.C.B LTD V NWOKOCHA (1998)9 NWLR (PT.564)98; ATT-GEN OYO STATE V FAIRLAKES HOTEL LTD (1988)5 NWLR (PT.92)1; REPUBLIC BANK LTD V CBN (1998) 13 NWLR (PT.581)306; ENIGBOKAN V AMERICAN INTERNATIONAL INSURANCE CO. LTD. (1994)6 NWLR (PT.348)1; FMBN V NDIC (1999)2 NWLR (PT.591)333. It is never everything that is uttered by the trial Judge in the course of arriving at a decision that can be regarded as ratio-decidendi. His reasoning while in motion may gather many imports some of which merely helped him in the decision making process and others which are of no essence. It is only the quintessence of the reasons for his decision that is at best described as the ratio-decidendi.
In the instant appeal, from the state of pleadings and judgment of the trial court, the learned trial Judge found and held that exhibits 1 and 2 are binding on the appellant and by exhibit 17 the person assigned by the deceased to be the beneficiary of exhibit 1 is Magnum Trust Bank and by sequence of events in decision making process, the learned trial Judge has to make consequential orders that will adequately accommodate Magnum Trust Bank as clearly pleaded in paragraph 8 of the statement of claim and contained in exhibit 17. This consequential order cannot by any stretch of imagination be said to constitute a ratio decidendi of the judgment of the trial court. I therefore hold that ground 1 of the original grounds .of appeal is not based upon any ratio-decidendi of the judgment complained about.’ Accordingly, the ground 1 of the original grounds of appeal is declared incompetent and struck out.
Further, learned counsel to the respondent has urged us to strike out the entire purported additional grounds of appeal or alternatively an order striking out grounds 5, 6 and 7 of the additional grounds of appeal for being incompetent and in complete breach of the Rules of this Honourable court. This is based on the ground that the purported additional grounds of appeal were never filed at all or in accordance with the Rules of this Court as there is no evidence on the records showing that it was filed and when it was so done thus breaching the mandatory provisions of Order 3 Rule 2(8) of the Rules of this Honorable court.
Also, no leave of court was first sought and obtained before the filing of the purported additional grounds of appeal neither was the original notice of appeal amended in line with the decision in the case of KOREDE V ADEDOKUN (2001)15 NWLR (PT.736)483 AT 500.
It is apparent from the printed record before the court that purported additional grounds of appeal appeared at pages 120-121. There is nothing on the face of the purported additional grounds of appeal to show that it was filed and when it was so done. Besides being additional grounds of appeal, they ought to be filed with the leave of court thereby necessitated the amendment of the original notice of appeal to accommodate the additional grounds sought to be added.
The law is that the appellant cannot urge or be heard in support of any ground of appeal not mentioned in the notice of appeal. Our courts have consistently held that the ground of appeal is analogous to pleadings in the trial court and cannot be got up inninibus by a party. Therefore an appellant may not go into any other reason for appeal other than those set forth in his grounds of appeal.
However by virtue of the Rules an appellant may apply for leave to argue a ground not mentioned in his notice of appeal. Order 3 Rule 2(5) of the Court of Appeal Rules 2002 clearly states thus:-
“The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the court may deem just.”
This procedure is mandatory for an appellant wishing to urge on alien grounds.
There is nothing before the court to show that the appellant has complied with the provisions of Order 3 Rule 2(5) of the Rules of this Court thereby enabling it to file the purported additional grounds of appeal contained at pages 120-121 of the printed record. I therefore find and hold that the purported additional grounds of appeal mentioned as grounds 5, 6 and 7 are incompetent and in breach of the Rules of this court as contained in Order 3 Rule 2(5). The said additional grounds 5, 6 and 7 are accordingly struck out.
The notice of appeal initiating this appeal is dated 9th August 2004 and is contained at pages 114-118 of the printed record. I have carefully studied it and observed that it was signed in the name of a Firm of Solicitors. It is signed thus:-
“FEMI OLORUNYOMI & CO
(APPELLANT SOLICITORS)
NO.1 BEIRUT/POST OFFICE ROAD
AHMADU DANTATA HOUSE
3RD FLOOR KANO.”
An illegible signature was affixed on top of FEMI OLORUNYOMI & CO, APPELLANT SOLICITORS.
The law is that for a notice of appeal to be valid and proper it must be signed by the appellant. It is also as good if the legal practitioner representing him signs it. See Order 1 Rule 2 of the Rules of this Court, 2002.
It is defective if the notice of appeal is signed in the name of a Firm of Solicitors. In AMALGAMATED PRESS OF NIGERIA V MOLADE, UNREPORTED, LD/57 A/65 OF 25/8/65, it was decided that a notice of appeal which is signed in the name of a Firm of Solicitors is defective and that only an appellant or a legal practitioner as defined in the Legal Practitioners Act (a person whose name appears on the roll) can sign a notice of appeal. And in FIRST BANK PLC V MAIWADA (2003) FWLR (PT.151)2001, the Firm, David M. Mando & Co signed a notice of appeal without any particular legal practitioner appending his signature as a duly enrolled person on behalf of the Firm. This court held that the Firm could not competently sign on behalf of a party.
In the instant appeal, an illegible signature was affixed on top of the Law Firm of FEMI OLORUNYOMI & CO.
There is nothing whatsoever to indicate that illegible signature is a name of a duly registered legal practitioner.
It is therefore apparent and beyond dispute that the Notice of appeal dated 9th August 2004 contained at pages 114-118 of the printed record was signed by FEMI OLORUNYOMI & CO. which is not a known person enrolled to practice law line Nigeria. It is beyond dispute that under Order 1 Rule 2 of the Rules of this Court, only an appellant or a legal practitioner who is registered in the roll of legal practitioners and authorized to practice as an advocate in the Supreme Court of Nigeria that can sign and file a notice of appeal that initiate the process of appeal.
Certainly in the appeal at hand, the Notice of appeal was signed by FEMI OLORUNYOMI & CO, a registered law Firm which is not a person registered in the roll of legal practitioners. Accordingly, this appeal’ has not been initiated in accordance with the provisions of Order 1 Rule
2 of the Court of Appeal Rules 2002.
In the final analysis, having found and held that the additional grounds of appeal mentioned as grounds 5, 6 & 7 are incompetent and in breach of the Rules of this Court as contained in Order 3 Rule 2(5), the Notice of preliminary objection succeeds and it is hereby upheld. And the additional grounds of appeal mentioned as grounds 5, 6 & 7 are hereby struck out.
Also having found and held that this appeal has not been initiated in accordance with the provisions of Order 1 Rule 2 of the Court of Appeal Rules, 2002, and this goes to the competence of the appeal, it will not be necessary to go further to consider the arguments in support of the issues for determination distilled by the parties to the appeal. See ONYEMAH V EGBOCHALAM (1996) NWLR (PT.448)255; NEPA V ANGO (2001)15 (PT.737)627.
As there is no competent Notice of Appeal in this appeal, the appeal is hereby struck out under Order 3 Rule 2(7) of the Court of Appeal Rules 2002.
I make no order on costs. Each party shall bear its own costs.
Other Citations: (2007)LCN/2366(CA)
