Mrs Uche Uba V. Edmack Nig Ltd (2007)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
At the High Court of justice, Kano State (“the lower court” for short), the respondent therein as plaintiff, commenced an action against one Samuel Uba as defendant, who died during the pungency of this appeal and was subsequently substituted by his wife Mrs. Uche Uba who now becomes the present appellant.
The reliefs claimed are stated hereinafter. They include as follows:-
“WHEREOF THE PLAINTIFF’S claims against the defendant is as follows;
1. The sum of N6,985,000 being the outstanding balance from the cost of Jincheng motor cycles purchased by the defendant from the plaintiff.
2. 10%of court rate (sic) from date of judgment until the whole judgment is liquidated.
3. Cost of the action.
The lower court after hearing the suit filed under the undefended List Procedure, found in favour of the plaintiff/respondent, when in its considered judgment delivered on 16th day of March, 2004 it held as follows:-
“The application to transfer the claim to General cause is refused. Judgment is entered for the plaintiff in the sum of N6,985,000.00 plus 10% court interest from today until the judgment sum is completely liquidated.”
Dissatisfied with the judgment of the lower court, late Mr. Samuel Uba the defendant, appealed to this court against the decision of the lower court. He timeously filed Notice of Appeal dated 16th March 2004 containing six grounds of appeal. He also with leave of this court granted on 23/3/2005 filed Additional grounds of appeal dated 20th December 2004 containing five additional grounds of appeal.
However, in view of a preliminary objection raised challenging the competence of the Notice of appeal and the grounds of appeal in both the original notice of appeal and the Additional grounds of appeal, I deem it apt to copiously reproduce below both the original Notice of appeal and the Additional grounds of Appeal as contained in the printed record for ease of reference.
ORIGINAL NOTICE OF APPEAL
TAKE NOTICE THAT: The appellant here being dissatisfied with the judgment of Hon. Justice Saka Yusuf, of Kano State High court 2 delivered on the 16th day March 2004 do hereby appeal to the court of Appeal Kaduna on grounds set out in paragraphs 3 of the NOTICE OF APPEAL, seek relief set out in paragraph 4 while address of persons to be affected is set out in paragraph 5.
1. PART OF THE DECISION COMPLAINED OF
The entire ruling of honorable court awarding judgment to the Respondent, in disregard of the Applicant’s counter claim.
2. GROUNDSOFAPPEAL
The learned judge misdirected himself in law when without any reply In form of defense by the Respondent to Appellant’s counter claim, the learned judge went ahead to hold that Exhibit S3 was “frivolous untenable and total (sic) foreign to the action.”
3. PARTICULARS OF MISDIRECTION
(a) Appellant in their (sic) notice of intention to defend, counter-claim (sic) to the sum of N1,888,200.00, which was not controverted by the Respondent in form of defence to counter claim, thus no reply Affidavit or counter affidavit was filed at all to controvert this important averment of Defendant/Appellant, but the honourable judge went ahead suo motu to formulate reasons in Respondent’s favour and made findings even when same was not put before him by parties in course of argument.
(b) The honourable judge also misdirected himself in fact when he stated that 400 pieces of jincheng machine instead of 420, which the defendant accepted as the total pieces he contracted, then the 20 pieces is above and it was the 400 pieces that aggregate to the plaintiff ‘s claim instead of 420, the excess of 20 is implied admission of the prior indebtedness of Defendant before 21st July, 2003, this was not in evidence neither was any such argument canvassed In the court. The court suo motu made an issue, out of a matter that was not in evidence nor contained in the affidavit of parties, goes to no issue and therefore finding based therein wrong.
MISDIRECTED himself to level of proof required under order 23 High court Civil Procedure Rule 1988 Kano, by deciding that the Defendant cannot deny Exhibit ALB 1 while accepting transaction as contained in Exhibit ALB2;
(i) PARTICULARS
The Defendant/Applicant in his notice of intention to defend denied knowledge of Exhibit ALB1, i.e. transaction made on 1217/03 and stated that there is already accord and satisfaction of such obligation without which the plaintiff would not have granted him further credit on 21/7/02 he even relied on Debit balance written on 21/7/03 which put clearly the extent of his debt. The honourable judge did not advert his mind to all facts, which ought to be investigated but noted that they are general denial, and thereby by such holding is in disregard of level of proof required under order 23 Kano State High Court Civil Procedure Rules of 1988.
(d) The learned judge misdirected himself in law and in fact when he held that a total of 440 pieces of Jincheng was supplied and delivered and awarded judgment base (sic) on it when there is no where in the two affidavits such was mentioned nor canvassed in court.
(e) The learned judge misdirected himself on the fact when he found as follows lithe question is whether the Defendant is to be taken seriously on the counter claim, is bonafide “lf the defendant is to be taken seriously or the counter claim why did he make further payments of over N4 Million when there was no reply to ‘Exhibit 51’ it will be disregarded, its frivolous, untenable, total foreign to the action.”
PARTICULARS
(f) A counter claim operates as a separate action in which the counter claimant becomes the plaintiff since on the face of the claim the onus has shifted to the plaintiff who become defendant by virtue of the counter claim where he files no defence nor did he controvert any of the facts as alleged will the judge be save (sic) to dismiss it as frivolous even when same has not be (sic) challenged through evidence In counter affidavit (g) The learned judge erred in law when he cited the case of MAIDEN ELECTRONICES WORKS LTD VS ATTORNEY GENERAL OF FEDERATION (1974) 9 S.C. page 43, that case is distinguishable from the present as in that case the buyer was afforded the opportunity to inspect the goods before the delivery of the goods to buyer in which case the buyer has no right of rejection.
4. Decision of the court cannot be supported either in law or in fact, and against the weight of evidence.
5. RELIEFS SOUGHT
An order setting aside the decision of said Kano High Court 2 delivered on 15/3104 and in its transferring the matter for proof on the counter place claim such other reliefs as fit to make in the circumstances of this case.
6. PERSONS DIRECTLY AFFECTED BY THIS APPEAL AND THEIR ADDRESSES FOR SERVICE
1. UZOR NGONADI address: No 32 New Road, Saban Garl, Kano.
RESPONDENT
C/o Solicitors Abishir Chambers No 228 Sabon-Titi
APPELLANT
C/o His Solicitors Onwuneme & Co No. 7C Murtala Mohd. Way, Kano.”
PROPOSED ADDITIONAL GROUNDS OF APPEAL
GROUND1
The learned trial judge had no jurisdiction or competence to have entertained the plaintiff/Respondent’s suit on the undefended list in that there was complete NON-COMPLIANCE with the clear mandatory provisions of ORDER 23 RULES HIGH COURT(CIVIL PROCEDURE)RULES1988.
PARTICULARS
i. ORDER 23 RULE 1 (SUPRA) makes it mandatory that a writ of summons cannot be issued on the undefended list UNLESS AND UNTIL an exparte application for its commencement to that effect had been SPECIFICALLY CONSIDERED and granted by the learned trial judge.
ii. The exparte application for LEAVE that the writ be issued and placed on the undefended list was obtained on 20/1/04 while the writ of summons had already been issued on 12/01104 without PRIOR ORDER OF COURT to that effect.
iii. The writ of summons in the instant case was issued long before the learned trial judge considered the exparte application that the same be issued and placed on the undefended list.
iv. A writ of summons on the undefended list does not issue UNTIL after an application for its commencement to that effect has been firstly considered as such by the court. This is a CONDITION- PRECEDENT.
GROUND2
The learned trial judge erred in law in failing to observe that the plaintiff/respondent did not discharge the onus placed on it to prove that annexure ALB 3, ALB 4 and ALB 5 were sent, delivered and served on the appellant and this has occasioned a miscarriage of justice.
Particulars
1. The appellant in paragraph 19 of the counter affidavit and the plaintiff/respondent in paragraphs 14 and 15 of the affidavit in support of the writ of summons joined issues on whether or not annexures ALB3, ALB4 and ALB 5 were sent by the plaintiff/respondent ‘and same received by the appellant.
2. By the joinder of the issue, the plaintiff/respondent bore the onus or burden to prove by satisfactory evidence that annexures ALB 3. ALB 4 and ALB 5 were sent or delivered to the appellant.
3. The plaintiff/respondent did not establish or produce any iota of evidence in the discharge of the said burden. When there is no such evidence, the issue must be resolved against it, and the consequences are as decisive of the case as presented by the materiality of the issue.
GROUND 3
The learned trial judge erred in law in failing to call oral evidence In order to resolve the contentious dispute in the affidavit evidence of the plaintiff/respondent and the appellant, and this has occasioned a miscarriage of justice.
Particulars
i. The averments as contained in paragraphs, 9, 10, 11, 12,13,14,15,16,17,18,20 & 21 of the appellant’s counter affidavit conflicted in all material particulars with the affidavit evidence in support of the plaintiff/respondent’s writ of summons, and the conflict therein raised is fundamental.
ii. The appellant also in paragraph 19 of the counter affidavit to defend sharply disputed the contents of paragraphs 14 of the plaintiff/respondent’s affidavit on the fundamental issue of the receipt of the annexures ALB 3, ALB 4 and ALB 5. The right of action can only accrue to the plaintiff/respondent unless and until it is resolved that the appellant received annexures ALB3, ALB4 and ALB5.
iii. The learned trial judge should have demanded for oral evidence to resolve this irreconcilable conflict from the deponents or any of their witnesses that may be called or any documentary exhibit to support one of the conflicting affidavits.
GROUND 4
The learned trial judge erred In law in giving judgment for the plaintiff/respondent in the sum of N6,985,000.00,when the plaintiff’s cause of action has not accrued so as to clothe the court with the requisite jurisdiction and this has occasioned a miscarriage of justice.
PARTICULARS
i. In an action for recovery of debt like in the instant case DEMANDFOR PAYMENT must actually being (sic) shown to have been made by the plaintiff and the defendant who received the DEMAND or NOTICE failed to pay so that the cause of action would accrue.
ii. The plaintiff/respondent did not show by any iota of evidence that letters of demand for payment of the said sum of N6,985,000.00 were sent by the plaintiff/Respondent and the same received by the appellant. In fact, there was no evidence that DEMAND was actually made and received.
iii. Unless and until letters of demand for payment of the said sum N6,985,000.00 have been shown and proved that they were sent and received by the appellant, and plaintiff/Respondent’s action will not be said to have accrued and consequently, the court lacks the requisite jurisdiction to entertain the action.
GROUND5
The learned trial judge erred in law in holding:
“The application to transfer the claim to General cause List is refused, judgment is entered for the
Plaintiff in the sum of N6,985,000.00 plus 10% court interest from today until the judgment debt is completely liquidated.” and this has occasioned a miscarriage of justice.
PARTICULARS
i. The appellant contended in paragraphs 17, 18, 19 and 20 of the counter-affidavit that there was no contractual relationship between the Plaintiff/respondent and the appellant concerning the 40 Jincheng motorcycles, and as such, he was not indebted to the plaintiff/respondent in the said sum of N3,040,000.00.
ii. At paragraph 20, it was deposed thus:
“That the Defendant contends that there was no prior financial obligation from him to the plaintiff before the 21st July, 2003 as contained in paragraph3 of the plaintiff’s affidavit, even if there was one, the plaintiff would have carried it over to the new debt as he always done in the past”.
Exhibit 5.2 completely shows that as at 21-07.03 the debt balance was N16,000,000.00 buttressing the appellant’s contention otherwise it would have been specifically stated that the debit balance was N19,000,000.00 if there had been an existing debt of N3,040,000.00 at the material time.
iii. By paragraphs 7,8,9,10,11,12,13,14 and 15 of the counter affidavit, the appellant raised trial issues in the nature of set- off, variation of contract and breach of contract by the plaintiff/respondent, and non- indebtedness to the plaintiff/respondent. These averments require further investigation by the court to unearth the veracity or otherwise of the same. The facts deposed to by the appellant in the counter-affidavit at the trial were not controverted and uncontradicted.
iv. The whole averments in the counter-affidavits raised substantial questions of fact, and the alleged facts are such that would require the appellant to interrogate or cross-examine the plaintiff or its witnesses on the affidavit.
Dated 20th day of December 2004 pp. Vincent I. Asika Chambers Solicitors to the Appellant 5 Civic Centre Road, Kano”
But before I consider the appeal I think there is a need to give its brief history. On 25/1/07 when the appeal was fixed for hearing after the learned counsel to the parties filed their respective briefs of argument, the learned counsel argued their appeal. Judgment was thereupon reserved. Then Mr. M.I. Ikpe, learned counsel for the respondent wrote the court to intimate it that Mr Samuel Uba the original appellant had died long before the appeal was argued. He also stated that he had earlier advised the appellant’s counsel Mr. Vincent Asika to take steps to substitute his client with someone else but Mr Asika remained adamant. Sequel to that, the court summoned the parties counsel to verify the information. When the court convened on 17/4/2007, the learned counsel for the Respondent appeared in court while the appellant’s Counsel Mr. Asika, did not appear in court even though he was duly served. He also did not file any application to substitute the deceased appellant (his client). The appeal was thereupon further adjourned to 6/6/07 to enable the appellant’s counsel appear to verify the information that the appellant (his client) had died. Before the adjourned date, the appellant’s and respondent’s learned counsel filed each separate motion seeking to substitute Mr. Samuel Uba (hereinafter called the deceased) with another person dated 25-4-07 and 9-5-07 respectively.
Both motions were adjourned to 12-6-07 for hearing. On 12-6-2007 the appellant’s counsel withdrew the motion he flied earlier and it was accordingly struck out, while the motion filed by the respondent’s counsel seeking to substitute Mr. Samuel Uba (the deceased appellant) with his wife was taken and granted. This court thereupon ordered that the deceased appellant Mr. Samuel Uba be substituted by his wife Mrs. Uche Uba (hereinafter referred to as “the appellant.”)
The facts which gave rise of this appeal as could be gleaned from the various affidavits filed by the parties are simply thus:-
On 12th July 2003 Mr Samuel Uba the plaintiff at the lower court (hereinafter called “the deceased appellant” in this appeal) bought forty number of Jinchang 125 motor cycles from the Defendant (as respondent herein) at a total cost of N3,040,000 by way of credit sale. Again on 21/7/2003 the deceased appellant went back to the respondent and purchased another set of four hundred and twenty (420) motor cycles at a total cost of N26,145,000 also on credit sale and the two sets of transactions were reduced into writing. The written sale agreements were annexed to respondent’s claim and marked as annexures ALBI & ALB2 respectively which were duly signed by the deceased appellant. The plaintiff/respondent paid an initial deposit of N10,000,0000 (ten million Naira only).
It was agreed by the parties that upon payment of such deposit, delivery of the motor cycles was to be made by the plaintiff/respondent immediately. Such delivery was however not made by the plaintiff/respondent immediately and as at the time he made such delivery i.e. three weeks after the payment of the deposit by the defendant/appellant, the market value of Jinchang motor cycles dropped considerably to N57,000.00 each, which caused substantial loss of profit to the defendant/ appellant. At that point in time the defendant/appellant had secured contract for supply of such brand of motor cycles to the Niger State government. In order not to take the risk of losing such contract due to affluxion of time, the appellant paid additional deposit of N=12,200,OOOto= the respondent, making the total deposit to jerk up to N22,200,000. Thereupon, the defendant/appellant delivered two containers to the business premises of the defendant/appellant and on opening the packs in which the parts of the motor cycles were packaged, it was discovered that most of the parts of the motor cycles to be assembled were missing and incomplete thereby making it difficult to assemble the motor cycles. These discoveries of missing parts were later brought to the notice of the plaintiff/respondent by the defendant/appellant in writing. According to the defendant/appellant, when the plaintiff/respondent refused or neglected to replace the missing parts of the motor cycles and in order not to lose the contract he secured with Niger State government, he decided or resorted to buying the missing parts/components from the market at his own expense and supplied the motor cycle to the Niger State government.
It is sequel to that, that the plaintiff/respondent filed a writ of summons under the undefended list procedure claiming the settlement of balance of the cost of motor cycles he supplied to the defendant to the tune of N6,985,000.As I said above, the lower court found in favour of the plaintiff/respondent and entered judgment as per his claims against the appellant/defendant.
Dissatisfied with the lower court’s judgment, the defendant appealed to this court.
Briefs of argument were filed and exchanged by parties. The appellant’s brief of argument dated 20th March, 2005 was deemed filed on 1814/2005. The appellant also on 10/3/2006 filed Appellant’s Reply Brief dated 8th March, 2006. Upon being served with the Appellant’s brief, the Respondent filed Its Brief of Argument on 19/7/2005.
The said respondent’s brief is dated 12/7/2005.
In the appellant’s brief of argument, the following seven issues for determination were proposed. They are;
1. Whether the learned trial judge had jurisdiction to entertain the plaintiff respondent action and give judgment therein when the mandatory provision of ORDER 22 RULE 1 Kano State High Court (Civil Procedure) Rule 1988 was not complied with.
2. Whether the onus or burden placed on the plaintiff/respondent to prove the receipt of annexures ALB 3, ALB 4 and ALB 5 by the appellant was discharged, and or whether there was any evidence placed before the lower court in proof of showing that annexures ALB 3, ALB 4, and ALB 5, the letters of demand attached to the plaintiff/respondent’s affidavit in support of writ of summons, were sent or delivered to and received by the appellant.
3. Whether or not the plaintiffs/respondent’s action has accrued in the absence of any evidence that letter of demand and or notice for payment of the sum of N6,985,000 were sent or delivered to and received by the appellant.
4. Whether the learned trial judge was justified to have entered judgment in favour of the plaintiff/respondent when there were sharp conflicts in the affidavits of the appellant and respondent and which conflicts did any oral (sic) or documentary evidence not resolve.
5. Whether the learned trial judgment was right in law when he refused to transfer the plaintiff/respondent’s action or claim to the general cause list.
6. Whether the learned trial judge was justified in disregarding the appellant’s counter claim.
7. Whether the learned trial judge was right in law to have made a case for the plaintiff/respondent In the Respondent’s Brief of Argument, four issues were formulated for the determination of the appeal which are also set out below:-
a. Whether the trial court assumed Jurisdiction properly and competently having satisfied itself that the respondent counsel fulfilled the condition of seeking and obtaining the leave of court before the suit was placed and issued under the undefended List procedure (issue distilled from ground I of the Appellant’s Additional Ground of Appeal dated2011212004)
B.Whether the appellant’s frivolous, baseless and incompetent counter claim is a defence on the merit to the respondent’s claim under the undefended list procedure. (This issued is distilled from grounds A -E of the Appellants Original Grounds of Appeal)
c. Whether a demand of pre-action notice is a condition precedent or sine qua non to commencing an action arising out of a simple contract of credit sales in an action under the undefended list procedure. (The issue is encompassed in grounds 2 and 4 in the Appellant’s Additional Grounds of Appeal).
d. Whether there are material facts in the appellant’s notice of intention to defend which contradict or controvert the respondent’s claim to qualify as a defence on the merit to warrant a transfer of the respondent’s claim to the general cause list. (This issue is en-compassed in Grounds 3 & 5 of the Appellant’s Additional Grounds of Appeal and Grounds A, C and D of the Original Grounds of Appeals)
Now coming to the treatment of the appeal, it will be pertinent at this stage to state that the learned counsel for the Respondent has on 1917/2005 filed Notice of Preliminary Objection dated 1217/2005. In the said Notice of preliminary objection, he based his objection on the following seven grounds.
1. The Appellants Original Notice of Appeal and the Additional Grounds of appeal filed with leave of this court dated 23/3/05 are both incompetent because they were not signed by legal practitioners but firm of legal practitioners.
2. The Appellants Issue No 1 for determination distilled from Ground I of the Additional Grounds of Appeal, is Incompetent because it is a fresh or new issue for which leave of this Honourable Court was not first sought and obtained before being raised and argued.
3. Ground 4 is a repetition of Ground 2 of the Additional Grounds of Appeal which is an abuse of court process and as such, incompetent.
4. Ground 5 is a repetition of Ground 3 of the Additional Grounds of Appeal which is an abuse of court process and as such, incompetent.
5. Ground B of the Appellant’s original Notice of appeal incompetent for being without particulars and is narrative, conclusive and contrary to the Honourable Court argumentative rules of this
6. Ground E is a repetition of Ground A of the original Notice of Appeal which is an abuse of court process and as such incompetent.
7. Grounds D and G of the original Notice of appeal are incompetent for being without particulars of errors complained against and also are argumentative.
The respondent’s counsel also argued the preliminary objection on pages 4 to 9 of his brief of argument. Also in keeping with the provisions of order 3 Rules 15 of the Court of Appeal Rules 2002, he respondent’s counsel with leave of this court also moved the said objection when we set to hear the appeal.
Similarly, the learned counsel for the respondent also filed “Notice of Intention to contend that Part of the judgment of the lower court which dismissed the appellant’s counter-claim be Affirmed on another ground other than those relied upon by the court filed by him pursuant to Order 3 Rules 14 (2) of Court of Appeal Rules2002. This latter Notice was also argued in the respondent’s Brief of argument vide pages 10 to13 thereof.
Starting with the preliminary Objection, the learned counsel for the respondent submitted that the two notices of appeal filed by the appellant are incompetent because they fall short of the required standard of filing a competent appeal in this court.
This, according to the learned counsel, is because the un-dated Original Ground of Appeal filed on 16/3/2005 at the lower court was signed by the firm of ONWUNEME & CO. Also the Additional GROUNDS OF APPEAL dated 20/1212004 was signed by the firm of “VINCENT I ASIKA CHAMBERS”. For these reasons, the learned respondent’s counsel argued that both the Original notice of appeal anthe Additional Grounds of appeal filed by the appellant’s counsel are incompetent as none of them was signed by a registered legal practitioner. He said they both suffered incurable defect which makes them incompetent. He heavily relied on the decisions of New Nigerian Bank Plc Vs. Denclag Ltd (2004) All FWLR(pt.228) 606 at 626; The Registered Trustees of the Apostolic Church, Lagos Area Vs. Rahman Akindele (1967) NLR 118 at 120 and UAC Ltd Vs. Macfoy (1962) AC 160. He finally submitted on this point, that the two notices of appeal are defective and therefore void ab initio and can not stand, adding that anything done in their pursuance is also void including the appellant’s briefs of argument. He finally argued that there is nothing before this court from the appellant’s appeal which this court should consider and act on. He urged that this appeal be dismissed in its entirety.
Replying on this vital point, the learned counsel for the appellant in his Reply Brief dated 8th March 2006 and filed on 10/3/2006 firstly pointed out that the appellant never at any point in time filed two notices of appeal as alleged by the respondent. He referred to pages54 to 58 of the record of appeal where a Notice of appeal dated 16/3/2004 was filed by the appellant.
He submitted however, that on 24/12/2004 the appellant upon receipt of the record of appeal filed an application for leave to file and argue additional grounds of appeal as contained in Exhibit C attached to the application. And on 23/3/2005 the application mentioned above was granted by this court and the said Exhibit C was deemed property filed and served.
He also submitted that the Additional Grounds of Appeal whether filed within the time prescribed by law or out of time but with leave of court could not be regarded as a distinct Notice of Appeal. He cited and relied on the case of The Registered Trustees of Amore Vs. Awoniyi (1994) 7 NWLR (pt.355) 154. The learned appellant’s counsel further submitted that the respondent’s counsel was wrong in suggesting that the appellant’s Additional Grounds of’ Appeal was a distinct Notice of Appeal. He denied that there was any Notice of Appeal filed on 16/3/05 by ONWUNEME& CO. He said in the circumstance, the appellant’s additional grounds of appeal as contained in exhibit C would be deemed to form part of the original grounds of appeal in the Notice of appeal originally filed on 16/3/04.
It is contended by the learned counsel, that the Notice of Appeal filed on 1613/2004 complied substantially with the provisions of Order 3 Rules (2) (3) and (4) of rules of this court and therefore competent, notwithstanding any inelegance in the manner it was drafted or couched. He argued that by virtue of Order3 Rules 2(1) (2) and (3) and Civil form 3, a notice of appeal can either be signed by the appellant counsel, his solicitors or counsel.
The learned counsel insisted that the appellant herein signed the Notice of Appeal and gave his address care of his Solicitors as shown in the record of appeal and that would suffice. He added that there was no evidence that the Notice of appeal filed on 16/3/2004 was signed by the firm of “Onwuneme & Co.” and no evidence was adduced by the respondent to support his assertion that the firm of “0nwuneme &Co.” signed the Notice of Appeal other than the appellant.
The learned counsel for the appellant proceeded to submit that wherever the word or phrase ‘pp’ is used in form of a name in a document, it simply means that the document is signed on behalf of that name. That is to say, a different person signed for that name or office.
He referred to Oxford Dictionary page 11. He also referred to the motion filed by him earlier seeking leave to file additional grounds of appeal and the exhibit annexed to it (i.e. the “proposed additional grounds of appeal”) where the phrase “pp” appeared in front of “Vincent I. Asika Chambers” after the document had been signed and he stressed that there was a signature appearing on Exhibit C and that such said Exhibit did not bear the office stamp of the Chambers as would suggest that it was signed by the firm of ‘Vincent I. Asika Chambers’ He said in this circumstance, it would be correct to say that it was signed by V. I. Asika who is the counsel handling this appeal, notwithstanding the fact that Mr. V. I. Asika did not write his name since he Is a legal practitioner in the firm of Vincent I. Asika Chambers. The learned counsel argued that the case of New Nigerian Bank PLC VS .Den Clag (supra) is not relevant to the instant appeal. He finally submitted that both the original Notice of appeal and the additional grounds of appeal are competent and urged me to so hold. He finally submitted that the first leg of the preliminary object is not well taken and should therefore be struck out.
From the arguments advanced by the learned counsel for both parties, I think the first leg of the preliminary, Objection is centered on two points, namely:-
a. Whether the Original Notice of appeal dated 16/3/2004was personally signed by the appellant or the firm of Onwuneme and Co. and whether such notice is competent, and
b. Whether the additional Ground of appeal is another Notice of appeal or whether the said additional ground of appeal signed by Vincent I Asika chambers is competent.
The two points highlighted above will be considered by me together. I have copiously reproduced above the original notice of appeal dated 16/3/2001and the Additional Grounds of Appeal for ease of reference and clarity. As there is controversy on whether or not the original notice of appeal was actually signed by the deceased appellant (Mr. Samuel Uba), I have taken pains to thoroughly check the original/Master file of this appeal. The result of this exercise is that I have not been able to see any original notice of appeal that was actually signed or thumb printed by the appellant herein or even signed or thumb printed by any body for that matter or by any body on behalf of any firm of legal practitioners. All the copies of the said notice filed as contained in the master file are the same with the one in the notice of appeal on contain the record appeal (pages 54-57) copiously reproduced supra in the fore paragraphs of this judgment. That is to say, the Notice of appeal marked “sgd APPELLANT” c/o HIS SOLICITORS Onwuneme & Co. of No 7C Murtala Mohammed Way, Kano.
Order I Rule 2 of the Court of Appeal Rules 2002 defines an appellant thus:-
“Appellant” means any person who desires to appeal or appeals from decisions of the court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf”.
See also Section 31 of Court of Appeal Act 1981 which defines a legal representative. By Section 24 of the Legal Practitioners Act, a legal practitioner must be a non-juristic person but a natural person who should sign processes on behalf of a party. See the case of Tate Industries Plc Vs. Devcon M.B Ltd (2004) 17 NWLR (pt.901) 182 per Onalaja JCA Rahman Vs. Akindele (1967) All NLR 118 at 1201121; FBN Plc and Anor Vs. Alh. Salman Maiwada (2003) FWLR (pt.151) 2001 at 2044.
Again, Section 2(1) of Legal Practitioners Act Cap 207 LFN defines who is qualified to be a legal practitioner as follows:
“Subject to the provisions of this Act a person shall be entitled to practice as barrister, and Solicitor if and only if his name is on the roll.”Also by the provisions of Section 24 of Legal Practitioners Act Cap 207 LFN, a legal practitioner is a person who is entitled to practice in accordance with the provisions of the Act, as a Barrister and solicitor either generally or for the purposes of any particular office or proceedings.
It is well settled law that in criminal appeals only the appellant can validly sign Notice of appeal See Ralph Uwazurike Vs. A.G. of Federation (2007) 2SCNJ 369. This is unlike in civil appeals where an appellant can validly sign a Notice of appeal or his counsel/legal practitioner acting on his behalf. In the instant appeal as I observed above, the original Notice of appeal was neither signed by deceased appellant nor by any legal practitioner acting on his behalf. This serious defect, to my mind renders the original notice of appeal incurably defective from whichever way one looks at it. It is therefore incompetent.
Now, even if I am to agree with the submission of the appellant’s counsel that the original notice of appeal was duly signed by the firm of ONWUNEME& Co, the question is ‘Could that validate the original notice of appeal dated 16/3/20041. I do not think so. As can be discerned or deciphered from the original Notice of appeal set out above, only “psgd” was appended thereon on top of, the name and address of the said firm. No name of counsel who allegedly or purportedly signed it was written thereon. This, ipso facto means that it was only endorsed or authenticated by the firm alone. The firm of ONWUNEME& Co is not competent to issue a Notice of appeal. In the case of New Nigerian Bank Plc Vs. Denclag Ltd (2004) All FWLR (Pt.228) 606 (also reported in (2005) 4 NWLR (Pt.916) 549). I had this to say on page 626:-“From these pieces of facts highlighted above, it is clear that IBRAHIM HAMMAN & Co is not competent to issue the Notice of Appeal since the said firm that signed and issued it is not a registered legal practitioner who is competent to issue a Notice of Appeal. See Section 2(1) of the Legal Practitioners Act 1990 LFN.
See also Section 24 of the same Act which defines a “Legal Practitioner’”. Having not been issued by a registered Legal practitioner, the original Notice of Appeal issued, signed and filed by the said firm is incompetent, invalid and null and void, since it was issued by a person not authorized by law to issue it. The said Notice of Appeal is also incurably defective.”
See also the case of Registered Trustees of Apostolic Church, Lagos Area Vs. Rahman Akindele
(1967) NLR 118 at 120. There is no gainsaying that ONWUNENE& Co is not a legal practitioner within the meaning of the term “legal practitioner” “or Solicitor” as provided in Sections 2 and 24 of Legal practitioners Act 1990 Cap 207, as would qualify it (i.e. the firm) to sign, issue and file the original Notice of appeal dated 16/3/2004 even if it is taken that same was really signed by the said firm. In the same case of New Nigerian Bank Plc Vs. Denclag Ltd and Anor, I also had this to say on pages 582 to 583 Paragraphs F.B of the a second citation.
“Only an appellant himself or his legal practitioners who is registered in the roll of legal practitioners and authorized to practice as an advocate in the Supreme Court of Nigeria can sign and file a Notice of Appeal. A firm of legal practitioners is not authorized to so act. In the instant case, the Notice of appeal with which the appeal was commenced was signed by a firm of legal practitioners which is not authorized to so act. In a circumstance, the Notice of Appeal is fundamentally defective, null and void.
It is my judgment therefore, that the original Notice of appeal dated 16/3/2004 is defective, null and void, it being issued and filed by a firm of legal practitioners which is not authorized to so act. It ought to be stuck out. I accordingly do same.
On the other point raised in the first leg of the preliminary objection with regard to the additional
Notice of appeal dated 20/12/2004, I am in entire agreement with the learned counsel for the appellant that such process can not be regarded as a Notice of appeal distinct from the original Notice of appeal dated 16/3/2004. As its name implies, it is additional ground of appeal which was filed with leave of this court and not a second notice of appeal as suggested by the learned respondent’s counsel. Or at best, it can be regarded as an Amended Notice of Appeal. This would therefore not mean that the appellant filed two distinct notices of appeal.
It is clear as crystal that the Additional Grounds of Appeal dated 20/12/2004 was signed, issued and filed by the firm of VINCENT I. ASIKA CHAMBERS, Solicitor to the Appellant of No 5 Civic Centre Road Kano. The name of the legal practitioner, solicitor or counsel who signed or issued it was also not stated on top of the name of the firm that issued it. It will therefore suffer the same fate with the original Notice of Appeal since it was also not signed or issued by a registered legal practitioner. As I said earlier, a firm of legal practitioners is not authorized or competent to issue or sign a Notice of appeal and at the same time additional grounds of appeal could as well not be issued or signed by a firm of legal practitioners which can not be regarded as legal practitioner registered in the roll of legal practitioners. Also the additional grounds of appeal must have its root from the original Notice of Appeal dated 16/312004. Now even if the additional Ground of Appeal was duly and properly issued or signed by a named legal practitioner, it will not cure its defect. This is because its source or root which is obviously the original Notice of appeal is incompetent and incurably defective ab initio. In the case of Global Trans Oceanic S. A. vs. Free Enterprises Nigeria Ltd (2001) 5 NWLR (pt 706) 426, the Supreme Court stated thus at page 438 per Kalgo JSC.
“Where a Notice of Appeal is defective in that there is no competent and valid grounds of appeal in it, such defective Notice of Appeal can not be cured by the filing of amended grounds out of time. The Court of Appeal can strike out the appeal itself under Order 3 Rule 2 (7) of the Court of Appeal Rules 1981. (Atuyeye vs. Ashamu (1987) 1 NWLR (pt 49) 285 referred to)”
The resultant effect of what I am saying is that where a Notice of Appeal is defective, such defect can not be cured by filing of amended or additional grounds of appeal. The leave given to the appellant by the court pursuant to which he filed the additional grounds appeal will not cure the defect in his original Notice of Appeal since you can only amend or add on what Is In existence.
In the instant case there is nothing to be amended.
Since the original Notice Is incompetent, it could not be amended or added to, even at the time the leave was granted. It is a well settled principle of law which is also in accord in with the law of reason, that you can not build something on or from nothing. See UAC vs. MACFOY (1962) AC 160. A defective Notice of Appeal is dead as it is incapable of resuscitation, II Ex nihilo nihilo fit”
As I said earlier, the original Notice of Appeal dated 16/3/2004is incurably defective and incompetent. It is accordingly stuck out by me. Similarly, the additional grounds of appeal is equally defective and ought also to be struck out since the root from which it originated or on which it was based, has also been struck out for being fundamentally defective, null and void. In view of the incompetence of the original Notice of Appeal, it will be superfluous to consider the other legs of the preliminary objection raised by the respondent.
Thus, in the light of the foregoing, the first leg of the preliminary objection succeeds and is accordingly upheld.
The law is well settled, that where a preliminary objection challenging the competence of an appeal is upheld, 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 Onigemeh Vs. Egbochualam (1996) NWLR (pt 448) 255; NEPA vs. ANGO (2001) 15 NWLR(pt 737) 627 and the recent case of Ralph Uwazurike and others Vs AG of Federation. (2007) 2 SCNJ 369
On the whole, having upheld the respondent’s preliminary objection for the aforementioned reasons, the original Notice of appeal filed in this appeal is incompetent. The appeal is therefore hereby struck out under Order 3 Rule 2(7) of the Court of Appeal Rules 2002. There is no order as to costs, so each party should bear his or its own costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the opportunity to read in advance a draft copy of the judgment of my learned brother, Sanusi, JCA just delivered. I entirely agree with the reasoning and conclusions reached therein. The following comments are by way of emphasis.
The facts leading to this appeal have been comprehensively set out in the lead judgment. The appellant, being dissatisfied with the judgment of the trial court filed a notice of appeal dated 16/3/04. Subsequent to leave granted by this court on 23/3/05 the appellant filed 5 additional grounds of appeal dated 20/12/04. The parties duly filed and exchanged their respective briefs of argument.
The appellant formulated 7 issues for determination while the respondent formulated 4 issues. In addition the respondent filed a notice of preliminary objection dated 12/7/05, which he argued in his brief. The appellant duty filed a reply brief in response to the preliminary objection.
Pursuant to Order 3 Rule 14(2) of the Court of Appeal Rules 2002 the respondent further filed a respondent’s notice to contend that the part of the judgment of the trial court dismissing the appellant’s counter claim be affirmed on grounds other than those relied upon by that court.
At the hearing of the appeal, learned counsel for the respondent argued his preliminary objection first and accordingly adopted his brief of argument in respect thereof.
Thereafter both learned counsel adopted their respective briefs with respect to the merits of the substantive appeal.
Having raised and argued a preliminary objection to the hearing of the appeal, the objection must be considered and resolved one way or the other before delving into the merits of the substantive appeal.
The reason for this is clear. In the event that the preliminary objection succeeds, if it goes to the root of the appeal, it would be unnecessary to consider the issues formulated for the determination of the appeal. See: Uwazurike Vs A. G, Federation (2007)8 NWLR 1 at 18 AC; A.N.P.P Vs Returning Officer. Abia South District (2005) 6 NWLR (920)140.
The grounds of the objection as contained in the notice dated 12/7/05 and filed on 19/7/05 are as follows:
1. “The Appellant’s original Notice of Appeal and the Additional Grounds of Appeal filed with the leave of this Court dated 23/3/05 are both incompetent because they were not signed by Legal Practitioners but firms of legal practitioners.
2. The Appellant’s issue No. 1 for determination distilled Ground 1 of his additional grounds of appeal, is incompetent because it is a fresh or new issue for which leave of this Honourable Court was not first sought and had before being raised and argued.
3. Ground 4 is a repetitionof ground 2 of the additional grounds of appeal which is an abuse of court process and as such, incompetent.
4. Ground 5 is a repetition of Ground 3 of the additional grounds of appeal which is an abuse of court process and as such, incompetent.
5. Ground B of the Appellant’s original notice of appeal is incompetent for being without particulars, and is narrative, conclusive and argumentative contrary to the rules of this Honourable Court.
6. Ground E is a repetition of Ground A of the original notice of appeal which is an abuse of court process and as such, incompetent.
7. Ground 0 & G of the original notice of appeal are incompetent for being without particulars of the errors complained against and also are argumentative.”
A careful examination of the grounds of objection shows that the first ground raises a fundamental issue that goes to the competence of the entire appeal. It is contended by the respondent that both the original notice of appeal filed on 16/3/04 and the additional grounds of appeal filed with the leave of this Court on 23/3/05 are incompetent because they were not signed by legal practitioners. In support of his contention learned counsel for the respondent relied on:
New Nigeria Bank Plc Vs Denclag Ltd (2004) ALL FWLR 606 at 626: and Registered Trustees of the Apostolic Church. Lagos Area Vs Rahman Akindele (19671 NLR 118 at 120. He submitted that as the original notice of appeal is defective and void ab initio, nothing could be placed on it and be expected to stand, including the Appellant’s brief of argument, which is based thereon. He cited the case 01U.A.C. Ltd Vs Mcloy (1962) A. C.160.
In response the appellant noted that only one notice of appeal was filed, with additional grounds of appeal subsequently filed with leave of Court. He noted further that no notice of appeal was filed on 16/3/05 as stated by learned counsel for the respondent.
Learned Counsel for the appellant contended that the notice of appeal was duly signed by the appellant in compliance with the provisions of Order 3 Rule 2(1), (2) and
(3) of the Court of Appeal Rules. He referred to the record of appeal and contended that the appellant signed the notice of appeal and supplied the name of the firm of Solicitors representing him. I.e. The firm of Onwuneme & Co, He submitted that the Court is bound by the record before it.
With regard to the additional grounds, of appeal, learned counsel submitted that the application for leave to file additional grounds of appeal and the additional grounds of appeal annexed thereto were signed with the prefix “pp” before “Vincent 1.Asika Chambers,” He argued that without viva voce evidence to the contrary, there is nothing to suggest that the signature above “pp Vincent I. Asika Chambers” is not that of a legal practitioner, He distinguished the facts of the instant case from the authority of New Nigeria Bank Plc Vs Denclag on the ground that neither the original notice of appeal nor the additional grounds of appeal were signed by Onwuneme & Co. and Vincent I. Asika Chambers respectively but by the appellant himself in respect of the notice of appeal, and by Mr. V. I. Asika, legal practitioner in the case of the additional grounds of appeal.
It is trite that the notice of appeal is the foundation of the entire appeal. It is the key that gives the appellant access to the appellate court. If the notice of appeal is defective it taints every subsequent step taken by the appellant and renders the entire proceedings incompetent.
It cannot be over emphasized that care must be taken to ensure full compliance with the law in the issuance of a notice of appeal.
Under Order 3 Rules 2 of the Court of Appeal Rules, the form of a notice of appeal in a civil cause or matters provided for in Civil Form 3: By that form the notice of appeal must be signed by the Appellant. The Appellant is defined in Order 1 Rule 2 as “any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal and includes a legal practitioner representing such a person in that behalf.”
(Underlining supplied).
Order 1 Rule 2 defines “legal representative” as “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the court.” Sections 2 and 24 of the Legal practitioners Act Cap 207 LFN 1990 provide:
“2(1) 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.”
24. “legal practitioner” means a person entitled in accordance with, the provisions of this Act to practice as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.” (Underlining supplied).
It follows from the legal provisions reproduced above that for the notice of appeal in a civil cause or matter to be valid and competent it must be signed either by the appellant himself or his legal practitioner.
Learned counsel for the appellant has argued quite strenuously that the notice of appeal herein was signed by the appellant himself. The notice of appeal, which was filed on 16/3/04 can be found at pages 54 – 57 of the printed record.
The signature portion is reproduced hereunder:
“SGD
APPEPPANT (sic)
C/o His Solicitors
Onwuneme & Co.
No. 7c Murtala Mohd.
Way, Kana.”
The notice of appeal is purportedly signed by the appellant. However, two factors are immediately apparent on the face of the record. Firstly, the name of the appellant is not stated. The document merely bears the description “Appellant.” Secondly there is no signature above the word “Appellant.” The letters “Sgd” suggest that the document is a copy of the original, which was duly signed by the appellant. For this reason, recourse had to be made to the original case file to determine whether indeed the original copy of the notice of appeal filed at the trial court was signed by the Appellant. Upon careful examination of the original case file it was found that the signature portion of the notice of appeal is the same as appears at page 57 of the printed record.
As learned counsel for the appellant rightly submitted, the court is bound by its record. The only possible conclusion to be drawn is that the notice of appeal filed on 16/3/04 was neither signed by the appellant nor his legal practitioner. It is therefore incurably defective. See New Nigeria Bank Plc Vs Danclag Ltd (2005) 4 NWLR (916) 549 at 573 H; Adakanya Vs F.R.N. (2005) 15 NWLR (949) 433.
The additional grounds of appeal filed with the leave of this court on 22/3/05 were premised upon a defective notice of appeal and are therefore equally defective and cannot stand. My learned brother, 8anusi, JCA aptly stated the effect of a defective notice of appeal upon subsequent proceedings in New Nigeria Bank Plc Vs Denclag ‘E2’80″Ltd {supra] at 574 D thus:
“Where a notice of appeal is fundamentally defective there is -no foundation for the appeal and therefore there is no appeal before the court. The appeal then collapses for being devoid of necessary foundation,”
In conclusion, the notice of appeal at pages 54 – 57 of the record not having been signed by either the appellant or his legal practitioner is incurably defective. The present appeal is therefore incompetent.
For these and the more detailed reasons contained in the lead objection judgment the first ground of the preliminary objection is upheld. Both the notice of 16/3/04 and the additional grounds of appeal filed with leave of this court on 22/3/05 are accordingly’ struck out. The appeal is hereby struck out pursuant to Order 3 Rule 2(7) of the Court of Appeal Rules 2002.
The parties shall bear their respective costs.
Other Citations: (2007)LCN/2466(CA)
