Prof. Vincent Nnamdi Okwuosa V. Professor N. E. Gomwalk & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

This appeal is against the decision of the Court of Appeal, Jos Division in which the judgment of the High Court of Justice of Plateau State, sitting at Jos (per A. Ahinche, J.) delivered on 5th July, 1996 in the suit No. PLD/3624/94 was set aside and struck out. The Appellant herein was the plaintiff in the said No. PLD/3624/94 wherein he claimed against the Respondents, as the defendants, jointly and severally –

“1. A declaration that he was properly appointed a professor in the Department of Zoology of the University of Jos.

2. A declaration that the said appointment was approved by the Appointment and Promotions Committee of the 20th Defendant at its 89th Meeting held on the 4th and 5th days of July, 1994 under the Chairmanship of Professor Gomwalk, the Vice-Chancellor of the University of Jos.
3. An order restraining the Defendants either by themselves or their agents or successors or privies from forcing the Plaintiff to any assessment or in any way interfering with his appointment as a Professor in the Department of Zoology of the University of Jos with special

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reference to the assessment.”

The Appellant was employed as a Lecturer in the Department of Zoology of the University of Jos in 1979. He rose to the rank of Senior Lecturer. He then proceeded to Ahmadu Bello University, Zaria, on sabbatical and at the end of the sabbatical returned to University of Jos in 1991. He later applied to Ahmadu Bello University, Zaria, to be appointed as a professor in the Faculty of Natural Sciences. He was offered the appointment by the Ahmadu Bello University. Thereafter, he submitted his letter of resignation to the University of Jos, citing as reason the fact that Ahmadu Bello University, Zaria, had appointed him a professor. University of Jos (the 20th Respondent), on verifying and confirming this information, appointed the Appellant in their Faculty of Natural Sciences on the same terms and conditions as offered by Ahmadu Bello University, Zaria. The Appellant accepted the offer from University of Jos and thereafter withdrew, with apologies, his letter of acceptance to Ahmadu Bello University, Zaria, in respect of their earlier offer. He then formally accepted the professorial Chair of the University of Jos. He

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later became the Dean of the Faculty of Natural Sciences of University of Jos. He held the deanship for the two year term and thereafter reverted to his position of a professor. On 12th October, 1994, the Appellant got a letter from the authorities of University of Jos, wherein he was required to submit his papers for assessment and promotion to the position of a Professor – a position he had held and enjoyed for over two years. He protested. The University was adamant and insisted that he must submit his papers for fresh assessment. It was at this point that the Appellant proceeded to the High Court of Plateau State for redress on the 3 reliefs aforestated. The High Court ruled in his favour. Dissatisfied, the Respondent appealed to the Court of Appeal, Jos. They were the Appellants in the appeal No. CA/J/278/98 in that Court.

On 29th April, 2003, judgment in the said appeal was entered in favour of the Respondents herein. The judgment of Plateau State High Court was consequentially set aside and struck out.

At hearing of the appeal No. CA/J/278/98 the Appellant herein, as the respondent, had raised in his brief of argument a preliminary

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objection predicated on the ground that the Notice of Appeal, dated and filed on 29th August, 1996 that activated the said appeal was fundamentally defective and incompetent, having been filed, settled or signed by some persons –

“Miskom Puepet & Co.

(Defendants/Appellant’s Solicitors)

No. 4, Barracks Road,

Jos.”

Who are not legal practitioners, enrolled to practice law in Nigeria the Supreme Court of Nigeria. The Court below had in its judgment, particularly at page 222 of the Records, acknowledged that the ground for the objection was that the appeal, before them, “was brought by a person unknown to Law”. The Court below devoted a considerable portion (not less than 13 pages) of the lead judgment to the Preliminary Objection, and at page 231 of the Records, Obadina, JCA, (whose lead judgment was unanimously concurred by the two other justices of the Court) held –

“To say that signing on the words “Miskom Puepet and Co.” should invalidate the signature is to stretch the technicality to a very ridiculous extreme that the addition of the words “and Co.” to “Miskom Puepet” on which the learned counsel signed his name would

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invalidate the signature. I see that as a mere technicality.”

In other words, His Lordship had in doing Justice against arcane technicality, broken the nomenclature “Miskom Puepet and Co.” into segments, namely: “Miskom Puepet” followed by “and Co”, and found that the signature was over the name of the Legal Practitioner – “Miskom Puepet”, and that the additional words “and Co” to the name “Miskom Puepet” were mere surplusage. In coming to this conclusion, His Lordship had undertaken the inspection of the original case file. I also inspected the original file from the Court below. The Records of appeal duly certified by the Registrars of the two Courts below reveal that the typed Notice of Appeal has at the signature page at page 104 of the Records the following –

“(SGD)

Miskom Puepet & Co.

(Defendants/Appellants’ Solicitors)

No. 4 Barracks Road

Jos.”

The photocopied version of the original notice of appeal at pages 171-174 has at the signature page, a signature on top of the words –

“Miskom Puepet & Co.

(Defendants/Appellants Solicitors)

No. 4 Barracks Road, Jos.”

The signature spreads

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across the length of the words: “Miskom Puepet & Co” and not just only over the words: “Miskom Puepet”, contrary to the suggestion and/or finding of His Lordship. The signature of the persona who settled or signed the notice of appeal is, no doubt, the signature of simpliciter “Miskom Puepet & Co” and not that of “Miskom Puepet”. Now, the question: Is “Miskom Puepet & Co” a legal practitioner authorized by law, particularly Sections 2(1) and 24 of the Legal Practitioners Act, read together and Section 31 of the Court of Appeal Act Cap 75 LFN 1990 read together with Order 1 Rule 2 of the then extant Court of Appeal Rules to settle or sign any Court process on behalf of a litigant

The Appellant, as the respondent at the court below, objected to the competence of the notice of appeal signed by “Miskom Puepet & Co.”, and urged that the appeal be struck out. He was overruled in this Preliminary Objection. Ground 1 of the Notice of Appeal to this Court complains that the “Court of Appeal was in error when it refused to strike out the appeal on grounds of incompetence”. There are other grounds of appeal.

In all, five issues that have

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been formulated for the determination of this appeal. I will adopt the issues formulated by the Appellant, and they are –

“1. Whether there was a valid appeal before the Court of Appeal in respect of which the Court of Appeal could have exercised its jurisdiction the appeal having been brought by a person unknown to Law

2. Whether the University of Jos is an Agency of the Federal Government in respect of which only the Federal High Court could exercise jurisdiction
3. Whether the issue of estoppel arose from the pleadings
4. What was the crux of the case brought to Court by the appellant
5. Was it proper for the Court to award the sum of N2 Million Naira as damages of (sic) the appellant as plaintiff”

Issue 1 as formulated by the Respondents is simply: Was the Court of Appeal (Jos Division) in error when it held that the Respondents’ appeal before it was competent

The question whether the appeal at the Court of Appeal was or was not competent in the first place is a threshold issue. The issue being jurisdictional takes precedence over the other four (4) issues in the appeal. These other four (4) issues, in my view,

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relate only to the powers exercised in that appeal by the Court of Appeal. It is settled that where a Court has no jurisdiction, with respect to a matter before it, the juridical basis for the exercise of any power with respect to such matter is also absent. The reason is obvious. Power can only be exercised by a Court where it has jurisdiction to do so: See: BRONIK MOTORS LTD v. WEMA BANK LTD. (1983) 6 SC. 158. Power and jurisdiction are not the same. Whereas, jurisdiction is the right the Court has in law to hear and determine the dispute between the parties; power on the other hand, is the authority it has to take decisions and make binding orders with respect to the matter before it. See AJOMALE v. YADUAT (No.1) (1991) 5 SCNJ, 172 at 176. It is for this reason that the Constitution, Section 6 deals with judicial powers of Courts generally while the enabling and establishment provisions of the Constitution, dealing with each Court clearly set out the jurisdiction of each Court. For instance Section 251 pertains to the jurisdiction of the Federal High Court while Sections 240 and 233 respectively, pertain to the jurisdictions vested in the Court of Appeal

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and the Supreme Court.

Jurisdiction, being a threshold issue, whenever it raised as an issue, has to be and must be resolved first before any other issue. At the appellate level, whenever an issue is raised whether the Court below had jurisdiction to entertain the matter before it, the challenge to jurisdiction must be resolved before any other issue. See OKOYE v. NIG. CONSTRUCTION (1991) 7 SCNJ (Pt. 2) 365 at 388.

In this appeal the issue is: Whether the Notice of Appeal that activated the appeal at the Court of Appeal was competent or incompetent The notice of appeal remains the only foundation and super structure on which the appeal rests. The incompetence of that originating process deprives the Court of jurisdiction and competence to adjudicate on it. See MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; (1962) 1 ALL NLR 587; UWAZURUIKE v. A-G FEDERATION (2007) 8 NWLR (Pt. 1035) 1 at 17. Accordingly, once the notice of appeal is defective it renders the entire appeal incompetent and all the proceedings, decisions and orders made in the appeal, no matter how well conducted, are rendered null and void. See FIRST BANK OF NIGERIA v. MAIWADA (2013) ALL FWLR

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(Pt. 661) 1433 at 1487.

The challenge to the notice of appeal at pages 101-104 (also at pages 171-174) of the Records of this appeal is not novel. The law on this point has been settled in a number of previous decisions of this Court, including OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521, which held that a notice of appeal settled or signed by a firm of solicitors or lawyers is incompetent, the firm not being a natural person or human being called to the Nigerian Bar and enrolled in the Supreme Court of Nigeria to practice law. In the OKAFOR v. NWEKE case (supra) the question was whether “JHC OKORO, SAN & Co”, who signed the notice of cross-appeal and other processes in the appeal was a legal practitioner authorized by law to sign processes on behalf of litigants In the instant case, as it was in the OKAFOR v. NWEKE case {supra), the Signature purporting to be that of “Miskom Puepet & Co” was on top of the inscription “Miskom Puepet & Co”, who is not a legal practitioner legally authorized to sign and/or file any processes in the Courts of law.

The ingenious attempt by His Lordship who prepared and delivered the leading

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decision of the Court of Appeal was a non-starter. As I earlier stated, there is nothing in the Record to suggest that the signature belonged to “Miskom Puepet” a legal practitioner, and not “Miskom Puepet & Co”, contrary to the finding by the Court below that the words “& co”, immediately after “Miskom Puepet” were mere surplusage. The four words “Miskom Puepet & Co” were conjunctive. There is nothing separating “Miskom Puepet” from the “& Co”. The finding by the Court below that the person who signed or settled the notice of appeal was “Miskom Puepet” and not “Miskom Puepet & Co” was perverse.

This case is clearly distinguishable from the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH, LAGOS AREA v. AKINDELE (1967) ALL NLR 110 in which the signature of J.A. Cole, a Legal Practitioner, was appended directly on top of his name J.A. Cole, which appeared between the signature and the words “J.A. Cole And Co”. As rightly submitted by the Appellant’s Counsel in the APOSTOLIC CHURCH case, it was held that it was J.A. Cole, a Legal Practitioner, and not J.A. Cole & Co., a non-legal practitioner, who settled and/or signed the

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process and therefore, the owner of the signature was a known legal practitioner. The Court below did in fact consider the APOSTOLIC CHURCH case in its judgment. However, on the facts it misapplied the case.

I have in this judgment, so far shown how this case is caught by the rule in OKAFOR v. NWEKE (supra) and not the rule in the APOSTOLIC CHURCH case (supra). But that is not the end of the matter. The learned counsel for the Respondents submits that at the Court below an amendment to the notice of appeal was effected without objection. Accordingly, that the amendment went to the roots and that the Appellant is estopped by conduct, having waived his objection, or consented to the amendment from now complaining that the notice of appeal was incompetent.

The position or contention of the Appellant supported by a number of dicta of this Court in several authorities including AWHINAWHI v. OTERI (1984) 5 SC. 38; ATUYEYE v. ASHAMU (1987) 1 SC 333 at 358; NWAIGWE v. OKERE (2008) 5 SCNJ 2556 at 274, is that a fundamentally defective notice of appeal can not be cured by an amendment of same and that only a valid notice of appeal can be amended

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subsequently. Appellant’s counsel further submits that the mere fact that Mr. G. S. Pwul of counsel to the appellants, now Respondents herein, filed an amended Notice of Appeal upon leave sought and granted does not cure the malaise of the original Notice of Appeal.

The Court of Appeal Rules makes it mandatory that the Notice of Appeal shall be signed by either the appellant or his Legal representative, which in the same Rules is defined as meaning “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in any proceedings before the Court”.

Section 24(1) of the Court of Appeal Act provides that where a person desires to appeal to the Court of Appeal, he shall give Notice of appeal in such manner as may be directed by the rules of Court subsisting within the period. Both Section 24(1) of the Court of Appeal Act and the relevant provisions of the Court of Appeal Rules directing the manner the Notice of Appeal shall be filed are not only mandatory, they have been incorporated by reference into Section 243(b) of the 1999 Constitution as amended. This provision of the Constitution

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further directs that the “right of appeal to the Court of Appeal from the decisions of High Court conferred by this Constitution shall be exercised in accordance with any Act of the National Assembly and the rules of Court for the time being in force regulating the powers, practice and Procedure of the Court of Appeal”. The Legal Practitioners Act, which in Section 2 (1) thereof provides that “a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll”, also an Act of the National Assembly Section 243 of the Constitution refers to. All these provisions are mandatory.

The consequence of flouting the mandatory or imperative provisions of the Constitution and statutes is that the act, proceedings or decisions done in such violation are illegal, null and void. This Court in IFEZUE v. MADUGHA & ANOR. (1984) 5 SC. (1984) ALL NLR 256 stated that a mandatory or imperative enactment must be obeyed or fulfilled exactly. The effect of failure to strictly comply with a statutory mandatory requirement relating to the procedure of commencing a proceeding or trial is that on appeal the trial or proceeding will be

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declared a nullity. See KAJUBO v. THE STATE (1988) NWLR (Pt. 73) 721. Such defect is regarded as an illegality, and not a mere irregularity. See: THE STATE v. GWONTO (1983) ALL NLR 109 (1983) 3 SC. 62; SANMABO v. THE STATE (1967) NMLR 3IX at 316-317. Thus, as it was held in MADAYE DUPIN v. OLONINORAN (2013) 1 NWLR (Pt. 1334) 175, non-compliance with conditions precedent for initiating an action vitiates the action ab initio. See also ODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350; ATUYEYE v. ASHAMU (supra); UWAZURUIKE v. A.G. FEDERATION (Supra); AJUWA v. S.P.D.C. NIG. LTD. (2008) 10 NWLR (Pt.1094) 64; MADUKOLU v. NKEMDILIM (supra).

The Respondents, through their counsel, contend that an amendment goes to the roots and that upon leave granted to them to amend the offensive notice of appeal whatever defect there was in the original notice of appeal had been cured thereby. He had sought to distinguish NWAIGWE v. OKERE (2008) 5 SCNJ. 236 from the instant case on the grounds that in NWAIGWE v. OKERE (supra) the amendment effected in the notice of appeal was done ex proprio motu by the Customary Court of Appeal and secondly, that the amendment was itself

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incompetent, having being done one year after the judgment without an order for extension of time within which to do so.

In the NWAIGWE v. OKERE case (supra) the only ground of appeal in the notice of appeal to the Customary Court of Appeal from the decision of the Customary Court complained that “the decision was altogether unwarranted, unreasonable and can not be supported having regard to the evidence on the record”. The Customary Court of Appeal upon realizing the defect in the only ground of appeal suo motu amended the ground of appeal by insertion of the word “weight of” immediately before evidence. The purported amendment did not include an order extending time within which a valid notice of appeal could be filed. The decision of this Court in NWAIGWE v. OKERE (supra) was predicated on.

“1. The holding that by virtue of Section 247 of the Constitution, 1999 only appeals on questions of customary law could be entertained by the Customary Court of Appeal, and that the only ground of appeal complaining about finding of fact was in law not capable of involving the jurisdiction of the Customary Court of Appeal, and

2. The Constitution

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having restricted the appellate and supervisory jurisdiction of the Customary Court of Appeal to only “civil proceedings involving questions of customary law”; a ground of appeal, and the only ground of appeal for that matter, in the notice of appeal to the Customary Court of Appeal complaining that the decision of the Customary Court was against the evidence at weight of evidence was ultra vires the jurisdiction as vested by the Constitution.

3. That on the basis of ex nihilo nihil fit, since there was no valid or competent notice of appeal in the first place, no valid grounds of appeal could be subsequently added to the incompetent notice in order to revive and oxygenate it.”

The notice of appeal from the date of its filing was incompetent and dead on arrival.

On the principles of law on which this Court predicated the decision in NWAIGWE v. OKERE (supra) the distinction the Respondents are latching unto is clearly one without a difference. There is clearly no difference or distinction between six and half a dozen. In the instant case, like in NWAIGWE v. OKERE (supra), the notice of appeal is in law invalid, null and void ab initio.

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Accordingly, on the principle of ex nihilo nihil, at no additional grounds of appeal can be added to an invalid notice of appeal that is void ab initio. And as Lord Denning had put in U.A.C. LTD v. MACFOY (1961) 3 ALL E.R. 1160. You can not place something upon nothing and expect it to stand. A fundamentally defective notice of appeal is incurably bad and is one that was dead on arrival.

The law is now settled, as can be seen from the decision of this Court in MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE (2001) 17 NWLR (Pt. 741) 194; (2001) 9-10 SC. 180, that where an act is void ab initio it can not be validated by subsequent acts, which are even valid. In this case it was held that since the purported retirement of the respondent was void ob initio, the subsequent acceptance of the payment of three months salary in lieu of notice would not operate either on principles of waiver or estoppel by conduct to validate the act that was void ab initio. This authority of the MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE (supra) has, in my firm view, settled against the Respondents their contention that the Appellant was estopped from complaining that the

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original notice of appeal was incurably defective and a nullity when he did not oppose the application for amendment of the notice of appeal by addition thereto of additional grounds of appeal. This argument is untenable, in view of NWAIGWE v. OKERE (supra); MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE (supra). In any case, there is a distinction between an amendment to permit additional grounds of appeal, which is innocuous, and a contentious amendment to alter illegality to Legality retrospectively.

The original notice of appeal signed and filed by “Miskom Puepet & Co.”, an entity or persona who is not a legal practitioner enrolled to practice law in Nigeria, was void ab inltio. It was an incompetent process that could not be regularized retrospectively. Accordingly, all proceedings, decisions and orders of the Court below predicated on it in the appeal No. CA/J/278/98 are all a nullity. In the eye of the law, the said fundamentally defective notice of appeal never existed, and binds no one whatsoever. See ADEFULU v. OKULAJA (1996) 9 NWLR (Pt. 475) 668 at 591; EKWULUGU v. A.C.B. (2005) 6 NWLR (Pt. 975) 30 at 40; N.I.W.A. v. S.P.D.C. (NIG.) LTD.

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(2007) ALL FWLR (Pt. 361) 1727 at 1747.

The totality of all that I have been labouring to say on this issue is that there is substance in this issue 1 argued by the parties herein. The issue is accordingly resolved in favour of the Appellant. There is no further use in the circumstance for me to consider the remaining issues since on this issue, my firm view is that the notice of appeal signed and filed by “Miskom Puepet & Co” on 29th August, 1996 was ab initio incompetent. Doing so is now totally academic without any utilitarian value. The Court below proceeded on that invalid and incompetent notice of appeal to entertain the appeal. The notice of appeal, incompetent, is hereby struck out. All proceedings, decision and orders made in the appeal No. CA/J/278/96 are hereby set aside. Costs at N300,000.00 shall be and are hereby awarded in favour of the Appellant and against the Respondents.

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