Continental Shipyard Limited V. Eziogoli Shipping Limited (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal against the ruling of the Federal High Court Lagos delivered by Abutu J. on 12th December, 2000 refusing the appellant’s application for striking out or dismissal of the suit. The brief facts of the case is as follows: The respondent, the owner of the vessel m/v Suwe Star sometimes in August, 1997Â Â engaged the services of the Appellant for the dry docking repairs of leakages in the propeller hub and Hull cleaning of the vessel. It was agreed between both parties vide the letter of quotation dated 25th August, 1997 written to the respondent by the appellant that the job would be completed within 7 days of docking after which the vessel will be undocked and handed over to the respondent.
The respondent, at the material time, also informed the appellant of its contracted obligation to a third party, Socomar Nigeria Limited, under a time charter party at an agreed rate of N136,000 US Dollars per voyage.
Inspite of the agreement between the parties that the job would be completed within (7) days, the vessel stayed in the custody of the Appellant beyond the agreed period and was badly damaged as a result of the negligence and inefficiency of the appellant’s subcontractor and this has resulted in damage to the Respondent consequent upon which the Plaintiff/Respondent filed a suit in the court below claiming damages for breach of contract.
The reliefs sought are as follows:-
“(1) Declaration that the neglect, refusal and or failure of the defendant to complete repairs of the vessel, m/v suwe star within a period of 7 (seven) days is in clear breach of the Agreement between the Plaintiff and Defendant as contained in the Defendant quotation of 25th August, 1997.
(2) The sum of $272,000.00 (Two Hundred and Seventy Two Thousand US Dollars) being loss of freight on the vessel for two voyages.
(3) The sum of $197,866.00 (One Hundred and Ninety Seven Thousand, Eight Hundred and Sixty Six US Dollars) being running cost in part at the rate of $2,413 .00 per day for a period of 87 days.
(4) General damages in the sum of US $50,000.00 (Fifty Thousand US Dollars).
(5) The sum of US $20,000.00 (Twenty Thousand US Dollars) being cost of this action”.
See pages 2 – 8 of the record.
The appellant brought an application praying the court below to strike out or dismiss the action on the ground that same constitutes an abuse of the court process. The learned trial Judge Abutu J. in a reserved and considered ruling delivered on the 12th  day of December, 2000 had this to say:-
“The Plaintiff no doubt has a reasonable cause of action against the Defendant which is founded on breach of contract arising from the damage done to the vessel at the time of dry docking the vessel. The action in this case is certainly not an abuse of court process.
In the result the motion fails and it is hereby dismissed. ”
Dissatisfied with the ruling, appellant filed a Notice of Appeal on 9/02/01 containing two Grounds of Appeal. See pages 33 – 35 of the record. On 15th January, 2002 this court, pursuant to an application by the Appellant granted leave to the Appellant to adduce further evidence to wit: the performance bond No. GPB/000/295/97/L executed by Goldlink Insurance Company Ltd and the appellant in favour of the Respondent.
Pursuant to the practice and procedure of this court, briefs of argument were filed and exchanged by respective counsel.
Appellant’s brief dated 30th July, 2003 was filed on 30/07/03 but same was deemed properly filed on 12/07/04. Respondent’s brief was filed on 23/05/05.
When the appeal came up for hearing there was evidence of service of hearing notice on appellant’s counsel on 21/04/08.
Appellant’s brief and reply brief were deemed argued. Respondent’s counsel adopted respondent’s brief.
From the two grounds of appeal, appellant distilled one issue for determination as follows:-
“Whether the institution of this action by the Plaintiff/Respondent to recover damages from the Defendant/Appellant was not an abuse of the process of the court when the Plaintiff had previously accepted the sum of N1 million from the defendant’s insurers in full settlement and discharge of all claims under the Performance Bond executed by the Defendant/Appellant in favour of the Respondent.”
Respondent’s counsel on the other hand formulated two issues for determination in this appeal.
The issues are:-
(i) What was/were the cause(s) of action submitted for adjudication before the lower court and whether the causes of action are separable?
(ii) Can it be reasonably said that the payment of N1 million by the Appellant’s insurers under the performance Bond extinguished all the causes of complaint (causes of action) which arose in consequence of the breach of contract alleged by the Respondent against the Appellant as to amount to an accord and satisfaction or estoppel to bar further proceedings against the Appellant?
Before I proceed to determine the issues on merit, I find it necessary to first resolve the competency of the notice of appeal filed on 9/02/01. The issue of competence of the court to hear the appeal can be raised suo motu without prompting from either party. See Ayalogu Vs Agu (1998) 1 NWLR (Pt 532) 129 at 140 para -E. The notice of appeal dated 9/02/01Â Â and filed same date is contained on pages 33 – 34 of the record. A notice of appeal is the foundation and substratum of every appeal. Any defect thereto will render the whole appeal incompetent and the appellate court will lack the jurisdiction to entertain the appeal. See Uwazurike Vs A.G. Federation (2007) 40 WRN 79 at 97 – and Anadi Vs Okeke Okoh (1977) 7 SC 56 at 57. I have carefully studied the notice of appeal filed by the appellant on 9/02/01 initiating this appeal. It is apparent that the notice of appeal was signed by firm of solicitors. The notice was endorsed as follows:-
“ABAYOMI KUKU & CO
49, BAMGBOSE STREET,
LAGOS.
SOLICITORS TO THE APPELLANT.”
Clearly, this is a firm of solicitors and not a legal practitioner that signed the notice of appeal. Section 2(1) of the Legal Practitioners Act Cap 207 of the Laws of the Federation of Nigeria 1990 provides as follows:-
“Subject to the provisions of this Act a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the Roll.”
Section 24 of the Legal Practitioners Act defines a Legal Practitioner to be “a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.”
In the case of Okafor Vs Nweke (2007) All FWLR (Pt 368) page 1016 at 18 – 20, the Supreme Court in a case where the motion papers giving rise to the objection therein as well as the proposed notice of Cross Appeal and the appellant’s brief in support of the said motion were all signed by J.H.C. Okolo SAN & Co” held that the combined effect of the above provisions of the Legal Practitioners Act is that for a person to be qualified to practice as a legal practitioner he must have his name on the Roll otherwise he cannot engage in any form of practice in Nigeria. J.H.C. Okolo SAN & Co was found not to be a legal practitioner recognized by law and cannot legally sign and or file any process in the court. In other words, where a counsel is required to sign a document it is a person whose identity is ascertainable from the Roll of legal practitioners that must append his signature. See also New Nigerian Bank Vs Declang Limited & Anr (2005) 4 NWLR (Pt.916) 573 at 582 – 583.
In the instant case, it is obvious that the notice of appeal was not signed by a legal practitioner. The notice of appeal is therefore fundamentally defective and incompetent and liable to be struck out. Similarly, the defective nature of the notice of appeal renders both the appellant’s and respondent’s briefs incompetent and liable to be struck out notwithstanding the fact that both briefs were properly signed. It is unfortunate that this appeal cannot be heard on merit. Failure to properly initiate an appeal is beyond mere technicality. As earlier stated a notice of appeal is the foundation and substratum of every appeal. It is the duty of counsel to ensure that all processes filed in court are issued by a legal practitioner known to law. The observation made by His Lordship Onnoghen JSC while delivering the lead ruling in Okafor Vs Nweke supra is worthy of note. His Lordship at pages 532 – 533 had this to say:-
“The effect of the ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude “anything goes.”
This court is empowered by virtue of Order 6 rule 6 of the Court of Appeal Rules, 2007 to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
Having found the notice of appeal defective and incompetent there is nothing for this court to consider in the appeal other than to strike out the appeal in its entirety. The appeal is hereby struck out under Order 6 Rule 6 of the Court of Appeal Rules 2007. There shall be no order as to cost.
Other Citations: (2008)LCN/2817(CA)
