City Biscuit Manufacturing Company Limited & Anor V. Felix Okoli Ezeonwu (2016)
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EMMANUEL AKOMAYE AGIM, J.C.A.
This appeal No. CA/E/69/06 against the judgment of the Federal High Court of Nigeria at Enugu delivered on 10th May, 2005 by A. O. Ajekaiye J in suit No. FHC/AN/M98/1997 was commenced on 1-8-2005 by the appellant filing a notice of appeal on that date containing just one ground of appeal. With leave of this Court the notice of appeal was amended on 30/5/2006 and further amended on 4/4/2013.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellants amended brief and amended respondent’s brief.
The appellant’s brief raised the following issues for determination –
ISSUE NO. 1 ARISING FROM GROUND ONE
Whether the learned trial judge was right to grant the respondent both the main and the alternative reliefs as he claimed?
ISSUE NO. 2 ARISING FROM GROUND 2
Whether there existed before the learned trial judge, new facts and circumstances outside the ones that existed and considered by the Supreme Court before delivering its judgment tendered as Exhibit F and making the orders therein contained, to
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warrant the learned trial judge making the order of winding up the 1st appellant?
ISSUE NO. 3 ARISING FROM GROUND 3
Whether the learned trial judge was not adversely affected in his determination of this suit which thus led to miscarriage of justice when he believed that the appellant particularly, the 2nd appellant, perpetrated all the acts which the respondent highlighted in Paragraph 5 (x) of his petition, which were acts which gave rise to suit No. FHC/E/5/89 between the same parties and resolved by the Supreme Court in its judgment tendered as Exhibit F?
ISSUE NO. 4 ARISING FROM GROUND FOUR
Whether the learned trial judge’s decision to wind up the 1st appellant was not influenced by his believing that the appellants have conducted the affairs of the company in manners callously oppressive to the respondent, when no new evidence of oppression was led and shown to have occurred after the Supreme Court judgment tendered as Exhibit F?
ISSUE NO. 5 ARISING FROM GROUND FIVE
Whether the learned trial judge was right when he held that there was no proper compliance with the orders of the Supreme Court with respect to issues of
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rendition of accounts and the summoning of a meeting of the 1st appellant?
ISSUE NO. SIX ARISING FROM GROUND SIX
Whether the learned trial judge was right to have made the orders and declaration he made based on Paragraph 6 (c) (d) (e) (f) (g) (h) (k) when no cogent and compelling evidence was led to warrant the Court to make the orders and declaration?
ISSUE NO. SEVEN ARISING FROM GROUND SEVEN
Whether the learned trial judge evaluated and considered the evidence both oral and documentary led before him?
ISSUE NO. EIGHT ARISING FROM GROUND EIGHT
Whether estoppels per rem judicatam and issue estoppels arising from suit No. FHC/E/5/89 stopped or prevented the petitioner/respondent from instituting the suit now on appeal?
ISSUE NO. NINE ARISING FROM GROUND NINE
Whether the judgment of the Court is against the weight of evidence.”
The respondent’s brief raised no issue for determination, contending that no valid issue for determination can arise from an incompetent notice of appeal. The respondent had filed a notice of preliminary objection which he restated and argued at pages 4-5 of his brief. The ground for the
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objection was that the notice of appeal dated 29-7-2005 but filed on 1-8-2005 was not signed by a legal practitioner. Learned Counsel for the respondent argued that therefore it is incompetent, and robs this Court of the jurisdiction to entertain this appeal and rendered this appeal a nullity. Learned Counsel further argued that the nullity of the notice of appeal that commenced this appeal was not cured by the amendment and further amendment of the said notice of appeal. For these submissions, she relied on Alawiye v. Ogunsanya (2003) All FWLR (Pt. 668) 800 at 804, Egbe v. Adefarasin (1987) 1 NSCC (vol. 18) 1, Macfoy v. U.A.C. Ltd (1962) AC 152, Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 and Elelu-Habeeb v. A.G. of the Federation (2012)13 NWLR (Pt. 1318) 1850.
The appellants did not respond to this objection and they did not file their reply brief. Be that as it is, this Court has a duty in law to consider if the objection has merit having regard to the facts of this case and the law.
Before I delve into the merits of this appeal, let me deal with this preliminary objection that touches on the competence and validity of the notice of
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appeal that commenced this appeal.
At the foot of the notice of this appeal is a signature. Immediately beneath the signature is the name EZEBUILO UMEADI & CO. which is referred to therein as “appellants counsel”. No name of any legal practitioner listed as a member of Ezebuilo Umeadi & Co. There is nothing in the said notice of appeal identifying the signatory of the notice.
It is settled by a long line of judicial decisions that only a person who is registered to practice as a legal practitioner in Nigeria, in that his name is on the roll of legal practitioners, can competently and validly sign or issue a Court process or any legal document on behalf of some other person. Therefore a Court process signed or issued by a person who is not a legal practitioner on behalf of a party in a case is incompetent and void. See for example Okafor & Ors v. Nweke & Ors. (2007) 3 SC (Pt. 11) 55, Unity Bank PLC v. Denclag Ltd & Anor (2012) LPELR-9729 (SC), First Bank of Nigeria PLC & Ors v. Maiwada & Ors (2012) LPELR-9713 (SC), N.N.B. PLC v. Denclag LTD & Anor (2004) LPELR-5942 (CA) and Bello v. Adamu & Ors (2011)
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LPELR-3722 (CA). Therefore, it is of fundamental importance that the identity of such person who signed or issued a Court process be certain and obvious on the face of the process so as to show beyond conjecture that he is a legal practitioner. If the identity of the signatory of a Court process is not certain or obvious on the face of the said Court process, it cannot be said or assumed that such a signatory is a legal practitioner.
The identity of a signatory of a Court process can be made certain and obvious on the face of the Court process by writing the name of the signatory beneath the signature and then followed by the name of the law firm or if the signature is on top or in the midst of several names, then one of the said names can be ticked as an indicator that he is the maker of the signature or his name can be written beside the signature.
Where the identity of the signatory of a Court process is not certain or obvious on its face as in this case, the process has been held to be incompetent and invalid as it cannot be said or assumed that the unidentified and unknown signatory is a legal practitioner. The fact that the name of a law
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firm is written under the signature as appellant’s counsel, is of no moment, because the preponderance of judicial authorities do not accept the presence of the name of the law firm that is acting for the party as an indicator that the unidentified and unknown signatory is a legal practitioner and do not accept that a law firm is a legal practitioner as prescribed in S. 2(1) and S. 24 of the Legal Practitioners Act. See SLB Consortium Ltd v. N.P.C. (2011) LPELR-3074 (SC), Okafor & Ors v. Nweke & Ors (supra), Unity Bank PLC v. Denclag Ltd & Anor (supra) and F.B.N. PLC & Ors v. Maiwada (supra).
In the light of the foregoing, I hold that the notice of appeal that commenced this appeal is incompetent and void.
The invalidity of the notice that commenced this appeal is not cured by the amendment and further amendment of the said notice and the fact that the said amended and further amended notices of appeal were signed by identified persons who are legal practitioners. It is settled law that a void notice of appeal cannot be validated or regularized by amendment. The nullity is incurable. There has to be a competent notice of appeal
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and therefore a competent appeal before any other process or step taken in the appeal can be competent and valid, for ex nihilo nihil fit. See Ngonadi v. Ezenwosu (1988) 6 SCNJ 88, Colito (Nig.) Ltd & Anor v. Daibu & Ors (2009) LPELR-8216(CA) and Muhammed & Anor v. Olawunmi & Ors (1990) 4 SCNJ 23. It is hereby struck out.
Since the notice of appeal that commenced this appeal is incompetent, this appeal is equally incompetent. There can be no competent and valid appeal without a competent and valid notice of appeal. Also this Court would lack the jurisdiction to entertain and determine such an appeal as it has not been initiated by a valid legal process. This appeal is also struck out.
The appellants shall pay costs of 100,000.00 naira to the respondent.
Other Citations: (2016)LCN/8836(CA)
