Clev Josh Limited & Ors. V. Elder Olaniran Ifeoluwa Tokimi & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
GUMEL, J.C.A.
Upon a motion on notice dated 31/1/06, the appellants/applicants seek for the following main relief, namely:
- An order staying the execution of the judgment handed down by Honourable Justice Lambo Akanbi, sitting at the Federal High Court, Akure Division against the appellants/applicants on 2nd February, 2005 pending the determination of the appeal filed before this court by the appellants/applicants.
The motion was brought pursuant to S.18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990 and under the inherent jurisdiction of this court. It is supported by a 22-Paragraph affidavit deposed to by one Emmanuel Omosanyin, a litigation clerk in the law firm of Olukayode Ogundana and Co., solicitors to the appellants/applicants it has exhibits A, E & C attached to it. There is also a further affidavit in support. It is of 10 paragraphs and was deposed to by one Sanmi Owoeye, a legal practitioner in the law film of Olukayode Ogundana and Co. It also has 3 exhibits as annexures.
In arguing this application before us on 31/5/07, learned counsel, Mr. Kayode Ogundana introduced the main affidavit in support with its exhibits as well as the further and better affidavit together with its annexures and told the court that he was going to rely on them and some decided cases to convince the court to grant this application.
According to Mr. Ogundana, the appellants/applicants have appealed against the decision of the lower court dated 2/2/05 in suit No. FHC/AK/CS/79/2004 He referred to the notice and grounds of appeal dated 17th February, 2005 and attached to this application as exhibit B. Learned counsel went further to explain that the applicants had applied to the lower court for an order staying the execution of the judgment dated 2/2/05, but same was refused in a ruling dated 20/4/05 and attached to this application as exhibit C. It was the refusal of the lower to grant a stay of execution of the judgment that necessitated the bringing of this application.
Learned counsel, Mr. Ogundana argued that an application of this nature can be granted where the applicant shows the existence of special and exceptional circumstances. He referred to the cases of Adje Kemovorv. Onafeko (2000) FWLR (Pt.9) 1425 at 1436-1438 G-A; and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt.120) 1764 at 1772-1773 G-B; (2003) 1 NWLR (Pt. 800) 1. In addition to these decisions, learned counsel drew our attention to paragraphs 11, 12 and 13 as the exceptional or special circumstances that this court should consider to grant this application. Learned counsel also pointed out that these averments in paragraphs 11, 12 and 13 were not challenged or controverted in the counter-affidavit of the 1st respondent. He maintained that in the absence of a valid statement of account, the 1st respondent cannot prove or show his financial status.
While referring to the notice and grounds of appeal, (exh. B), Mr. Ogundana submitted that there are substantial questions of law to be decided in the appeal. He made copious references to the grounds of appeal and referred to the case of Bamaiyi v. A.-G., Federation (2001) FWLR (Pt.64) 344 at 367 A-D; (2001) 12 NWLR (Pt. 727) 468 to emphasize and underscore his view that the grounds of appeal involve substantial questions of law which also involve arguments in favour of more than one interpretation. He urged the court to grant this application.
In his response, learned counsel to the 1st respondent, Mr. Olusole Oke, went straight to the heart of the matter. Though he had filed a counter-affidavit and a further and better counter-affidavit and both had documents attached thereto, he chose to attack the competence of the appeal itself.
According to Mr. Oke, this application lacks merit. He added that it is a complete affront to the position of the law on the issue.
He went further to explain that any application for stay of execution must be predicated on a valid and competent notice of appeal. Mr. Oke pointed out that the relevant notice of appeal in exhibit herein falls short of the provisions of Sections 240 and 241 of the Constitution of the Federal Republic of Nigeria, 1999. He referred to exhibit B and highlighted that it is ex-facie incompetent because it is addressed as an appeal from the Federal High Court, Akure to the same Federal High Court, Akure. He added further that exhibit has failed to comply with O.3 r. 2(1) of the Court of Appeal Rules, 2002 and Civil Form 3 in Schedule 1 to the Rules.
Learned counsel, Mr. Oke continued to take on exhibit B when he pointed out further that it was signed by Olukayode Ogundana and Co. This signature, according to Mr. Oke, is neither that of any of the appellants nor their counsel. He added that by his appearance in court, learned counsel to the appellants/applicants is Mr. Olukayode Ogundana and not Olukayode Ogundana and Co. Learned counsel Mr. Oke submitted that in the circumstance of this application, Olukayode Ogundana and Co. is not the name of counsel to the appellants but the law firm of counsel to the appellants. Learned counsel urged the court to strike out the notice and grounds of appeal in exhibit B for being invalid and incompetent and to also refuse the application for stay for not having been predicated on a valid and competent appeal.
For whatever it was with, Mr. Oke of counsel argued that by virtue of S.135 (1) and (2) of the Evidence Act, Cap. 112, LFN, 1990, it was not for the 1st respondent to satisfy the court of its financial buoyancy, rather, it was for the appellants/applicants to show to the court that they would be able to satisfy the judgment debt if the appeal was decided against them. He pointed out that this financial buoyancy can be satisfied by exhibiting a statement of account. He drew the attention of the court to the 3rd applicant and argued that we should take judicial notice of its status as a Bank and to also take judicial notice of the fact that Banks in this country can go under and become distressed. He added that 3rd appellant can enjoy a presumption in favour of its financial buoyancy; the 1st and 2nd appellants/applicants cannot and should not enjoy that favourable presumption of financial buoyancy.
On the financial buoyancy of the 1st respondent, learned counsel referred to exhibits 2, 3 and 4 attached to the counter-affidavit and exhibits 1, 2, 3 and 4 attached to the further counter-affidavit as well as paragraph 3 of the counter-affidavit. He maintained that in the unlikely event that the appeal succeeds and it was allowed, the 1st respondent has presented good and enough evidence to make a refund of the judgment debt.
Mr. Oke explained that paragraphs 13, 16, 17 and 18 of the affidavit in support do not show any exceptional or special circumstances. He added that exceptional circumstances are dependant on the facts and special circumstances of each case. He urged the court to so hold. He concluded his arguments by submitting that the grounds of appeal are common place. They do not involve any recondite points. He urged the court to discountenance all the cases cited by Mr. Ogundana as they do not apply to the facts and circumstances of this case. He also urged that this application be dismissed with substantial costs.
The 2nd, 3rd and 4th respondent were duly served with all the relevant processes of this court in respect of this application. They however, did not avail themselves of the opportunity to participate in the hearing of this application. They also did not file any processes.
In his reply on points of law, learned counsel Mr. Ogundana conceded that the notice of appeal was headed “In the Federal High Court. He also conceded that the heading did not comply with the relevant rules of this court. He submitted that this was an error and no more than an irregularity that should not affect the substance of the appeal itself. He submitted that this irregularity should not fetter the discretion of this court in its desire to do justice. He referred to the cases of Maska v. Ibrahim (1999) 4 NWLR (Pt. 599) 415 at 419; and also Nwani v. Buhari (2005) All FWLR (Pt. 281) 1803 G-H. He urged the court to discountenance all the arguments of Mr. Oke and to grant this application.
I have carefully considered this application and its supporting facts as contained in the main affidavit together with all the annexures thereto. I have also read and considered the averments in the counter affidavit and further counter-affidavit also together with all the attached documents. I have also considered the arguments of respective learned counsel as well as the decided cases and the rules of this court they referred to.
In deciding an application of this nature, it is desirable to set the ball rolling by underscoring one of its basic and underlying guiding principles. The point must be made at the beginning that the grant of a stay of execution is made at the discretion of the court.
The power of this court to order a stay of execution, being discretionary must therefore be exercised, judicially and judiciously. A court is said to have exercised discretion judicially and judiciously if it was so exercised in favour of an applicant who has made out in his affidavit evidence before that court some special or exceptional circumstances as to sway the mind of the court to exercise the discretion in his favour. It may be reiterated that the guiding principles for the grant or refusal of an application of this nature are so well defined. The law on the subject is well settled. Our law reports are replete with numerous decisions on the subject.
Suffice it to say that in deciding whether or not to grant an application for stay of execution, a court must at least consider and answer some key questions. These include –
- Whether there is a valid and competent pending appeal;
- Whether the applicant has shown by credible evidence that there are special or exceptional circumstances to warrant the grant of the application; and
- Which of the competing rights and balance of convenience of the lights of the parties would support the grant; etc.
See Gov. of Oyo State v. Akinyemi (supra); and also (2003) 1 NWLR (Pt.800) 1; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 4 SCNJ 174; (1988) 2 NWLR (Pt. 77) 383; and Ajomale v. Yaduat (No.2) (1991) 5 SCNJ 178; (1991) 5 NWLR (Pt. 191) 266.
An appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant court.
Where the notice is defective, there cannot be said to be any appeal on which the powers of the appellate court could be invoked. It goes without saying therefore that whether particular processes as filed would satisfy the requirements of the relevant rules of court with regards to a valid notice of appeal is as much a procedural issue as well as a jurisdictional issue. It could be surmised that appellate jurisdiction cannot be invoked on the basis of a defective or invalid notice of appeal. It is only a valid and competent notice of appeal that can effectively kick-start the appellate process and jurisdiction.
Learned counsel to the 1st respondent, Mr. Oke has challenged the competence of the notice of appeal as contained in exhibit B attached to the main affidavit in support of this application. Learned counsel challenged exhibit B principally on 2 grounds. The first ground is that it is headed “In the Federal High Court” and the, 2nd ground is that it was not signed by any of the 3 appellants/applicants or their counsel. Upon these 2 grounds, Mr. Oke submitted that the notice of appeal in exhibit B should be discountenanced and struck out for being invalid and incompetent.
Learned counsel to the appellants/applicants conceded that there was an error on the face of exhibit but he urged the court to treat the error as a mere irregularity which could be cured by the court in the overall interest of substantial justice devoid or shorn of any technicalities. In my view, it is very important to resolve this issue first and foremost before any other issue or aspect of this application.
Let me then proceed to answer the very formidable and crucial question whether there is valid and competent notice of appeal in exhibit B.
A very good starting point to assist in the answering of this crucial question, in my view would be Order 3 r. 2 (1) of the Court of Appeal Rules, 2002. It provides thus:-
“Order 3 r. 2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “notice of appeal”) to be filed in the registry of the court below which shall set forth 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) and shall state also the exact nature of the relief sought and 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 it shall also have endorsed on it an address for service.”
This provision no doubt lays down the foundation of an appeal.
The marginal note to O. 3 r. 2(1) refers to Civil Form 3 in the 1st schedule to the 2002 rules for guidance as to the content of a notice of appeal.
Civil Form 3 requires that an appeal to this court from the Federal High Court, High Court of a State, Sharia Court of Appeal or Customary Court of Appeal etc must be headed “In the Court of Appeal”. It has been conceded by learned counsel, Mr. Ogundana that the notice of appeal in exhibit B was headed “In the Federal High Court”. There is an apparent mix-up which has engendered a non-compliance with O. 3 r. 2(1) and Civil Form 3 by the appellants/applicants herein. This type of mix-up is not altogether unknown or unheard of. In the case of Addis Ababa v. Adeyemi (1976) 12 SC 51 in an appeal from the High Court of Lagos State, the Supreme Court considered inter alia the effect of a notice of appeal to the Supreme Court, which was wrongly headed: “In the High Court of Lagos State: In the Ikeja Judicial Division”. The Supreme Court held that such a notice of appeal was fundamentally defective and incurable that it ought to be struck out. However, the same Supreme Court graciously subsequently overruled itself. In the case of Surakatu v. Nigeria Housing Development Society Ltd. & Anor. (1981) 4 SC 26, the Supreme Court held that a wrongly headed notice of appeal may be allowed in order to do substantive justice by hearing the appeal on the merits. In overruling itself, the Supreme Court clearly stated that Addis Ababa v. Adeyemi was no longer good law. See Surakatu (supra) as per Fatayi-Williams, CJN at page 32.
In Nwani v. Buhari (supra), a notice of appeal that did not fully comply with O. 3 r.2(1)(supra) in that the names of all the parties directly affected by the appeal and their addresses were not contained in the notice of appeal, as only the names and addresses of respondents were contained therein and address of the appellant was not included was held to be a mere irregularity that can be condoned.
On the basis of the Supreme Court’s decision in Surakatu (supra), the wrong heading of the notice of appeal herein can be treated as an irregularity that ought to be condoned. The 1st leg of the objection of learned counsel to the 1st respondent, Mr. Oke must be totally rejected as a misconception and also because it does not represent the state of the law.
The 2nd attack on the competence of exhibit B is that it was not signed by any of the appellants or their counsel. The provision in civil form 3 (supra) is that a notice of appeal shall be signed by the appellant. This requirement of signature has further been provided for in Order 4 r. 4 (1) of the Court of Appeal Rules. It provides:-
Order 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 provisions of paragraphs (5) and (6) of this rule.”
“4(6) In the case of a body corporate where any notice or other document is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document assigned by the secretary, clerk, manager, or legal representative, of such body corporate.”
It does not admit of any argument that it is the appellant who must sign a notice of appeal by the combined effect of Order 3 r. 2 (1) and Order 4 r.4(1) of the Court of Appeal Rules. However, a representative of an appellant can sign on its behalf if the appellant is an artificial person or corporate body. An appellant’s solicitor or counsel can also sign the notice of appeal. In the instant case, the notice of appeal was duly signed before it was filed. It is very easy to see that it was signed but who signed it, is the million Naira question that must be answered.
In the recent case of Uwazurike v. A.-G., Federation (2007) 8 NWLR (Pt.1035) 1, the Supreme Court reviewed a number of earlier decisions and decided on the effect and meaning of the provisions of O.4 r. 4(1) (supra). At page 13 D-E of the report, His Lordship Ogbuagu, JSC, put emphasis on the expressions “Every notice of appeal” … “shall be signed by the appellant himself in O.4 r.4(1).
He underlined them and held that it is not in doubt and it does not admit of any argument or speculation that Order 4 r. 4(1) is a clear and unambiguous mandatory provision.
I have taken a very hard look at exhibit B herein. Though there is a clear signature on it but there is no certainty which of the 3 appellants put its name on that signature. The 1st and 3rd appellants/applicants are corporate entities. Ordinarily, they are not capable of appending their signatures to a document. Here then comes O.4 r.
4(6) to the rescue to enable a duly authorized person to sign a notice of appeal to enable a corporate body to satisfy the requirement of O.4 r.4(1). The 2nd appellant/applicant apparently is a natural person.
There does not appear to be his name or signature against the space for which a signature is required. Equally, the signature does not say that it was that Mr. Olukayode Ogundana learned counsel who argued this application. I agree with the suggestion of learned counsel, Mr. Oke for the respondent that the law film Olukayode Ogundana and Co., who purportedly signed exhibit B on behalf of the appellants, is not capable of doing that in compliance with O.4 r. 4(1). I therefore hold here that the notice of appeal exhibit B herein was not signed by any of the appellants/applicants herein or their counsel. Exhibit B is therefore defective having failed to comply substantially with O.3 r. 2(1) and O.4 r. 4(1) of the court of Appeal Rules.
In the case of Dada v. Dosunmu (2006) 14 LRCN 2440 at 2468-2469; (2006) 18 NWLR (Pt. 1010) 134, the Supreme Court held that where a rule of court has clearly and unambiguously provided for a particular act or situation, the court have a duty to enforce the act or situation and here, the issue of doing substantial justice does not and should not arise. According to the Supreme Court, a Party who failed to comply with a rule of court has himself to blame and he cannot be heard to canvass the omnibus ground of doing substantial justice. The Supreme Court held further that the role of the court is to apply the principles of substantial justice according to law and such principles cannot be applied outside the law or in contradiction of the law. The court then went on to emphasize that a court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party.
The decision of the Supreme Court in Uwazurike (supra) is that the provisions of Order 4 r. 4(1) of the Court of Appeal Rules are mandatory and as such must be obeyed in compliance and not in breach. The court also held that failure to comply with O.4 r. 4(1) renders a notice of appeal filed to be fundamentally defective and incompetent. An incompetent notice of appeal is liable to be struck out. In consequence of this decision, the notice of appeal, exhibit B herein, is hereby struck out for being incompetent.
The application for stay of execution not having been predicated on a valid and competent notice of appeal is incompetent and ought not to be granted. I would therefore not bother to go into the merits or otherwise of this application and same is hereby struck out for being incompetent. Application lacks merit and it is refused. I order for N2,500.00 costs in favour of the 1st respondent against all the appellants.
Other Citations: (2007)LCN/2472(CA)
