S.C.C. Nig. Ltd.& Anor. V. Mr. Levi Ekenma (Suing as Representative Plaintiff on Behalf of the Deceased’s Immediate Family Members) (2008)
LawGlobal-Hub Lead Judgment Report
AYOBODE O. LOKULO-SODIPE, J.C.A,
This appeal is against the judgment of the High Court of the Federal Capital Territory (presided over by Honourable Justice A.I. Adebukunola Banjoko) delivered on 14th June, 2005. (See pages 206- 229 of the Record). A Ruling was later delivered on 11th October, 2005 by the trial court in respect of the said judgment. (see pages 231-237 of the Record).
In the 2nd Amended Statement of Claim at pages 29-33 of the Record, the Plaintiff/Respondent disclosed that he was instituting the action before the lower court as “a representative Plaintiff” on behalf of the Immediate Family of the deceased, one Prince Stanley Ezewuodo. The plaintiff disclosed in the said 2nd Amended Statement of Claim (hereinafter simply referred to as Statement of Claim”) that he is a cousin to the deceased Prince Stanley Ezewuodo. The action was instituted under the Fatal Accident Act. It was alleged that the death of Prince Stanley Ezewuodo resulted from a fatal vehicle/pedestrian accident that occurred on 31/08/2004 between a REO Truck with Registration No. BM 435 LND belonging to the 1st Defendant and driven by the 2nd Defendant. The accident was alleged to have occurred due to the negligence of the 2nd Defendant. The Plaintiff’s claims are set out in paragraph 20 of the Statement of Claim which as earlier stated is at pages 29-33 of the Record. The paragraph reads thus: –
“Wherefore the plaintiff claims under the Fatal Accident Act of 1961, on behalf of the deceased’s immediate family members, against the 1st defendant vicariously liable for the negligence of the 2nd defendant in the causation of the fatal accident as follows:
“(1) the sum of N844,680.00 being damages for reasonable funeral expenses of the deceased person incurred by members of his immediate family.
(2) N8,000,000.00 as compensatory damages being general damages for the immediate family members of the deceased person.
(3) Alternatively to sub-paragraph 1 & 2 (sic) above, the plaintiff claims against the defendants jointly and severally the sum of N8,844,680.00 as special and general damages for the negligence of the defendants in the causation of the fatal accident.
(4) Costs of this action including professional legal fees paid to the plaintiff’s Solicitors.”
The main facts upon which the monetary claims of the Plaintiff set out above were predicated, as deducible from the averments in the Statement of Claim include (i) that the deceased was an employee of Servtrust Limited posted to Embassy of Sweden in Abuja and that he earned a monthly income of N18,129.38; N15,000.00 monthly from the sale of art/craft which he engaged in on part time basis; and N7,000.00 monthly honorarium from the family of the then Swedish Ambassador to Nigeria and which formed part of the proceeds he used in maintaining himself. The deceased who hails from the Royal family of Eze Nzewuodor Nwabiri of Okolochi in Owerri West Local Government of Imo State was said to be 27 years old at the time of his death and was at all times prior to his death, subject to the Igbo customary law and custom. The plaintiff and members of the immediate family of the deceased in the course of burying the deceased were said to have incurred the sum of N844,680.00 as ‘burial expenses’. The breakdown of the said sum was set out in the Statement of Claim. Likewise the five members of the immediate family of the deceased on whose behalf the action was instituted by the plaintiff were set out in the Statement of Claim.
The Defendants/Appellants filed a joint Statement of Defence in response to the Statement of Claim. This is at pages 23-25 of the Record. The Statement of Defence was not amended after the Plaintiff filed a 2nd Amended Statement of Claim. In the Statement of Defence, the Defendants admitted that the 2nd defendant was the driver of the REO Truck with Registration No. BM 435 LND. The Defendants not only denied that the accident involving the vehicle driven by the 2nd Defendant and the deceased Stanley Ezewuodo occurred at the scene alleged by the plaintiff, but also that the 2nd Defendant was in any way responsible for the said accident. The Defendants alleged that the said accident was due to the negligence of the deceased in crossing the road without maintaining a proper lookout. The Defendants averred that the deceased was negligent in the causation of the accident that resulted in his death. Apart from denying that the sum of N844,680.00 was spent as burial expenses on the deceased, the Defendants further averred that the plaintiff was extravagant and unreasonable in the said burial expenditure if at all the same was incurred. A Reply was filed by the Plaintiff to the Statement of Defence.
The lower court in its judgment set out twelve (12) Issues for the just determination of the case. (See page 218 of the Record). The said court awarded the Plaintiff/Respondent on behalf of the immediate family of the deceased the sum of N844,680.00 being “specific damages” for funeral expenses; and the sum of N963,881.40 as general damages. This was sequel to the following findings amongst others made by the lower court – (i) that there was no evidence of contributory negligence on the part of the deceased; (ii) that the Defendants were negligent in this case; (iii) that the 1st Defendant was vicariously liable for the tort committed by the 2nd Defendant. In arriving at the general damages awarded, the lower court found the monthly ascertainable income of the deceased to be N32,129.38; and applied thirty (30) years as the years of purchase of the deceased. The sum of N50,000.00 was also awarded as costs of the action. The lower court struck out Relief 3 because it had been taken care of under Reliefs 1 and 2 (i.e. claims for funeral expenses and general damages respectively), The lower court having stated that it “must also order the way in which the damages awarded are to be shared by the dependent” ordered that “Reliefs 1 and 2 be shared according to the customary law which operates in Okolochi, Owerri, Imo State the village of the deceased”.
It is clear from the Ruling at pages 231-237 of the Record that by a motion dated 24th June, 2005 and filed on the same day, the Plaintiff/Respondent brought a motion on notice before the lower Court and therein sought for: (i) an order of the court correcting the error(s)/mistakes arising from accidental slip in the arithmetical calculations of award of general damages contained in the judgment delivered by the court in the case on the 14th of June 2005 to reflect the appropriate figure or amount based on the finding of the court; (ii) an order of court entering judgment based on the corrected amount of damages in favour of the Plaintiff, particularly under sub-head, of general damages. The grounds of the application are duly set out in the Ruling in question. The application was opposed by the party named as the Defendant/Respondent therein (now 1st Appellant).
In its Ruling in respect of the application (i.e. pages 231-237 of the Record), the lower court having first held that it was not functus officio the judgment delivered on 14th June, 2005 concluded thus:-
“The calculation of the court was to take the amount earned on a monthly basis and multiply that by (30) years and made the error of not multiplying if (sic: it) first by twelve (12) months. It is clear that to follow this procedure will take the amount far above what was even claimed and it is trite that the court is not Father Christmas. Had the calculations been correctly done, i.e. N32,129.38 x 12 x 10 years, the court will have certainly reduced the years of purchase to accommodate the claim.
As it stands the court omitted to first ascertain the annual income of the deceased before multiplying the same by thirty year (30).
Lastly on the remedy, the deceased (sic) years at ascertaining the lump sum is now reduced to 10 years at the monthly ascertainable income of the deceased which is set out at N32,129.38 x 12 x 10 years making a lump sum of N3,855,525.60. This is now the compensatory damage awarded to the Plaintiff acting on behalf of the family of the deceased.”
The Defendants/Appellants being dissatisfied with the judgment of the lower court have appealed against the same. There are two (2) Notices of Appeal filed by the Defendants/Appellants in the Record. The two Notices of Appeal are both dated and filed on 1st July, 2005. They are word for word the same save that the first one at pages 253-254 of the Record was signed by one “Mela Audu Nunghe & Esq.”, Pp. Mela Audu Nunghe & Co.; while the second one at pages 255-256 of the Record was signed by “Mela Audu Nunghe & Co.; Pp. Mela Audu Nunghe & Co,”.
I consider it necessary to re-produce the proceeding in this appeal on the 17th October, 2006 as the Enrolled Order set out in the Appellants’ brief would appear to have muddled things up a bit. It portrays the Court as having made the orders therein set out, in the application dated 17th July, 2006. This is not correct. The proceeding for the said 17th October, 2006 under the hand of O.O. Adekeye, JCA; (presiding) reads: –
“xxxxxxxxxxxxxx
Mr. Nunghe applies to withdraw the motion dated 17/7/06 and substitute that filed on 11/9/06. Mr. Osuafor does not oppose the application. Court: – Application filed on 17/7/06 having been withdrawn is hereby struck out.
Sgd JCA 17/10/06
Mr. Nunghe refers to the motion filed on 11/9/06 whereby he is asking for an order of the court to add grounds of appeal to the original grounds and deeming same as properly filed and served.
Mr. Osuafor does not oppose the application.
Mr. Nunghe refers to the proposed amended grounds of appeal attached as Exhibit A. 25 copies filed. Moves in terms of the application.
Court: – Order as prayed – leave granted to file additional grounds of appeal as per Exhibit A attached. Additional grounds filed on 11/9/06 are deemed as properly filed and served today. Parties are to file briefs – Appellants 7 days and Respondent – within 30 days of service of the Appellants’ brief: 6/12/06 for hearing of appeal.
Sgd JCA 17/10/06”
The Additional Grounds of Appeal in Exhibit ‘A’ dated 7th September, 2006 attached to the motion equally dated 7th September, 2006 and filed on 11th September, 2006 without their Particulars read thus:-
“2.The trial court erred in Law when it assumed Jurisdiction after delivering Judgment to hear further application by which it increased/reviewed the sum of money awarded as damages in favour of the Plaintiff.
- The learned Trial Judge erred in Law in applying purely the principles of contributory negligence in tortuous liability as against or to the exclusion of such principles that are applicable under the Fatal Accidents Act.
- The learned Trial Judge erred In Law in that it did not apply the correct principles in the assessment of damages under the Fata (sic) Accident Act.
- The Learned Trial Judge erred in Law and was unduly generous and missed the guiding principles applicable in the assessment of funeral expenses and earrings (sic).
- The Learned Trial Judge erred in Law when he computed and awarded damages to the Plaintiff over and above what was claimed by the Plaintiffs (sic).
- The learned trial Judged (sic) erred in Law when he held that the evidence of PW6 was not hearsay and consequent (sic) acted upon same thereby occasioning a miscarried (sic) of justice.
- The learned trial judge erred in law and misdirected himself when he held thus:
“I see no contradiction in these two testimonies, whether the truck swerved to the right or not and veered into the pavement does not dispute the fact that the deceased could have been standing at the bus stop.”
The appeal was entertained on 5th May, 2008. N.A. Nunghe of counsel for the Appellant in arguing the appeal relied on and adopted the Appellants’ brief of argument filed on 25/10/2006. Learned counsel also relied on and adopted “Appellants’ Reply Brief to Notice of Preliminary Objection” deemed to have been properly filed and served on 5/5/2008 in respect of the preliminary objection of the Respondent that this appeal be struck out or dismissed, as raised in the Notice of Preliminary Objection dated 27th November, 2006 and filed on the same day. The Court was urged by Appellants’ counsel to dismiss the preliminary objection and allow the appeal.
Endy Osuafor of counsel for the Respondent in arguing the appeal relied on and adopted the Respondent’s brief dated 27th November, 2006 and filed on the same day. He stated to the effect that the Notice of Preliminary Objection dated 27/11/06 and filed on the same day by the Respondent and the arguments in respect of the preliminary objection raised in the said Notice of Preliminary Objection had been incorporated into the Respondent’s brief. Learned counsel urged the Court to uphold the preliminary objection and strike out the appeal or in the alternative to dismiss it, given the arguments proffered in the Respondent’s brief.
The preliminary objection raised in the Notice of Preliminary Objection dated and filed on 27/11/2006 by the Respondent will be considered first. The objection in Question is that the Respondent will at the hearing of this appeal urge this Court to dismiss the same. The grounds of the objection are as follows:-
“(a) The entire appeal is incompetent in that the Notice of appeal filed on 1/7/2005 was neither signed by the appellants or by a legal practitioner acting on their behalf as required by law.
(b) The entire appeal brought vide the notice of appeal filed on 1/7/2005 is invalid and an abuse of court process in that the said notice of appeal was altered without the leave of the court first sought and obtained.
(c) The entire appeal is incompetent in that the notice of appeal filed on 1/7/2005 was forged and faked as Mela Audu Nunghe, Esq. the appellants’ counsel did not in fact sign it.
(d) The appellants’ brief is incompetent in that the issues argued in the appellants’ brief are not formulated from valid grounds of appeal.
Particulars of Invalidity
(i) Ground (sic) 1, 2 and 4 are based on non-existent facts.
(ii) Grounds 1 and 3 are general, vague and nebulous in nature.
(iii) Ground 5 does not relate to the decision appealed nor challenge the ratio decidendi of the decision.
(iv) Issues in the brief were argued based on “amended grounds of appeal” dated 25th October, 2006 which is (sic) not properly before the court.”
Grounds (a)-(c) of the preliminary objection directly relate to the Notice of Appeal; while Ground (d) with Its particulars relate to the Appellants’ brief of argument. I therefore intend to consider the preliminary objection under the headings of “Preliminary Objection as it relates to Notice of Appeal” and “Preliminary Objection as it relates to Appellants’ brief of argument”.
Preliminary Objection as it relates to Notice of Appeal.
In arguing the preliminary objection, Respondent counsel observed that the Notice of Appeal of 1/7/2005 had suffered serious abuse at the hands of the Appellants. In his regard, Respondent counsel said to the effect that the Notice of Appeal purportedly signed and issued by “Mela Audu Nunghe & Esq.; pp. Mela Audu Nunghe & Co.” on 1/7/05 was altered in an ignominious manner to make it appear that it was issued and signed by the Firm of “Mela Audu Nunghe & Co. pp: Mela Nunghe & Co.”. That it was with this ‘altered Notice’ that the Appellants secured an order of stay of execution from the trial court. Reference was made to pages 253-254 of the Record. Given his observation, Respondent’s counsel eventually came up with two crucial questions to be answered. They are: –
- Whether the entire appeals (sic) vide the notice of appeal filed on 1/7/05 is competent having been brought by a person unknown to law.
- Whether the Appellants are not in abuse of the process of this appeal when the notice of appeal purportedly signed by “Mela Audu Nunghe & Esq.” was deliberately altered without leave of court.
Respondent’s counsel in dwelling on the first of the two questions posed, stated the cardinal principle of law to be that a notice of appeal and its grounds constitute the foundation of any appeal and as such must be firm and strong enough to sustain the appeal. And that once the foundation is defective the appeal will collapse. The cases of Dr. (Mrs.) Gloria Abiola vs. Mrs. Grace Aramide Olawoye (2006) 13 NWLR (Pt. 996) 1 at 18 and New Nigerian Bank Plc vs. Denclag Ltd (2004) All FWLR (Pt. 228) 606 at 626 were cited in aid. Respondent’s counsel referred to section 31 of the Court of Appeal Act, Cap. 75, LFN, 1990 and Order 1 Rule 2 of the Court of Appeal Rules 2002 as providing for only two classes of person that can institute or initiate an appeal or be an appellant or appellants and these are – (i) a person who desires to appeal; (ii) a legal practitioner representing that person. Referring to the notice of appeal at pages 255-256 of the Record, Respondent’s counsel said it was not signed by the Appellants. He also said that the business name of “Mela Audu Nunghe & Co.” which signed the notice in question is not a person recognised by law to file an appeal as the business name of “Mela Audu Nunghe & Co.” is not a legal practitioner or a “legal representative” as defined in Order 1 Rule 2 of the Court of Appeal Rules, 2002. It was said to the effect that the Firm of “Mela Audu Nunghe & Co.” has not been admitted to practice law in the Supreme Court nor is the name on the roll. In the premises, Respondent’s counsel submitted that the said notice of appeal was fundamentally defective as it was not signed by a legal practitioner (or the Appellants) as required by law. The case of First Bank Plc vs. Salmanu Maiwada (2003) FWLR (pt. 151) 2001 at 2915 was cited in addition to that New Nigerian Bank Plc & Anor vs Denclag Ltd (supra) in aid. Respondent’s counsel further submitted that no amendment could cure the defect which has affected the notice of appeal of 1/7/05 as it is defective ab initio. Respondent’s counsel urged the Court to uphold the ground of objection under consideration and hold that the instant appeal is incompetent and strike it out accordingly.
In dwelling on the second of the two questions posed, Respondent’s counsel started off by referring to the case of Minister for Works vs. Tomas (Nigeria) Ltd (2002) 2 NWLR (Pt. 752) 740 at 785 as disclosing when a process of court can be said to be in abuse. In respect of the notices of appeal at pages 253-254 and 255-256 respectively of the Record, Respondent’s counsel observed to the effect that: –
- The Appellants attempted to use the notice of appeal at pages 253-254 of the Record purportedly Issued, Signed and filed by “Mela Audu Nunghe & Esq. PP: Mela Audu Nunghe & Co,” to secure an order for stay of execution from the trial court vide an application filed on 1/07/05 but that the Respondent challenged the processes filed in respect of the application including the original notice of appeal on the ground that they were forged.
- That the original notice of appeal filed on 1/7/05 was at pages 255-256 of the Record altered by the Appellants in abuse of court process by obliterating the word “Esq,” appearing at the signature column to read “Co.” thereby making the notice of appeal appear to have been signed by the Firm of “Mela Audu Nunghe & Co. pp Mela Audu Nunghe & Co,”.
- That it was with the battered or altered notice of appeal the Appellants secured from the lower court an order staying the execution of the judgment obtained against them to the detriment of the Respondent.
Respondent’s counsel in the light of the observations highlighted above, submitted that the issuance and filing of the original notice of appeal of 1/7/05 and its subsequent deliberate alteration without the leave of court constituted a flagrant abuse of the process of court and urged the Court to so hold. The illustration given in the book titled – Injunction and Enforcement of Court Orders by Afe Babalola (SAN) (1st Edition) at pages 78-79 was cited in aid. Respondent’s counsel further submitted that the proper order the Court should make is one dismissing the instant appeal once the Court holds that there has been an abuse of the process of court (i.e. the notice of appeal in the instant case). The case of Aruba vs. Aiyeleru (1993) 3 NWLR (pt. 280) 126 was cited in aid. The Court was therefore urged to dismiss this appeal on this ground of the preliminary objection.
In the Appellants’ Reply brief to the Respondent’s Notice of Preliminary Objection, Appellants’ counsel submitted that the said Notice was misconceived, frivolous and had been overtaken by events in the process of hearing this appeal. Dwelling further on the preliminary objection, Appellants’ counsel submitted that the Respondent missed the point in raising the issue that the appeal is “Incompetent having been brought by a person unknown to law”. Mela Audu Nunghe according to Appellants’ counsel is to the knowledge of the Respondent a legal practitioner and is duly registered as Mela Audu Nunghe & Co.; a Firm of Legal Practitioners and thereby entitled to practice as such under the Legal Practitioners Act Cap. 207, LFN, 1990. Reference was made to sections 2, 4, 7 and 24 of the Act in this regard. Appellants’ counsel disclosed that Mela Audu Nunghe Esq., who is registered as Mela Audu Nunghe & Co., is also duly registered under the registration of business name for Individuals with Certificate Number 829683 dated 29th January, 1992. He also said that the signature on the notice of appeal has copiously and severally been expressly identified as that of Mr. E,M. Asawalam Esq., a counsel in the Chambers of Mela Audu Nunghe & Co. pages 120, 121, 123, and 138 and “other processes (which were not specified)” were referred to in this regard.
Appellants’ counsel said it was therefore a misconception to say that the notice of appeal was signed by a person unknown to law or faked or forged in any way. Appellants’ counsel said to the effect that the cases of New Nigerian Bank Plc & Anor vs. Denclag and First Bank Plc & Anor vs. Alhaji Salmanu Maiwada cited by the Respondent were distinguishable from the instant case as the Firm of Hamman & Co. was not registered as a legal practitioner under any of our Laws. The cases of Gomwalk & 19 Ors vs. Okwosa (Appeal No. CA/J/278/98 delivered on 29/04/2003 – unreported); City Engineering Nigeria Ltd vs. Nig Airport Authority [1999] 11 NWLR pt 65 P. 76 @ 89; and Alaribe vs. Nwankpa [1999] 4 NWLR Part 600 P. 551 @ 565-566 were further cited in the List of Additional Authorities filed by Appellants’ counsel on the issue at hand. Furthermore, Appellants’ counsel submitted that a competent appeal was pending before the Court as this Court on 17th October 2006 granted leave to the Appellants to file additional grounds of appeal and briefs of arguments with which they complied. He urged the Court to overrule the preliminary objection and hear the appeal on the merit given its peculiar circumstances.
I have earlier stated in this Ruling that two (2) Notices of Appeal were filed by the Defendants/Appellants having regard to the pages 253-254 and 255-256 respectively of the Record. The two Notices of Appeal are both dated and filed on 1st July, 2005. I have also earlier said that the two Notices of Appeal are word for word the same save that the first one at pages 253-254 of the Record was signed by one “Mela Audu Nunghe & Esq,”, Pp. Mela Audu Nunghe & Co.; while the second one at pages 255-256 was signed by “Mela Audu Nunghe & Co.; Pp. Mela Audu Nunghe & Co.”. Indeed, it is worthy to observe that the fee of N200.00 paid in respect of each of the Notices of Appeal bear the same receipt number – 2005383640 issued on 01-07-05.
The Respondent’s counsel given his submissions hereinbefore highlighted has depicted a situation that it was consequent to the objection raised against the use of the processes filed in respect of an application for stay of execution of the judgment of the lower court filed by the Appellants and dated 1/7/05 on the ground that the said processes were forged (and which processes included the original Notice of Appeal purported signed by “Mela Audu Nunghe & Esq.,”) that the said notice of appeal was altered by the deletion of ‘Esq.’ as it appeared therein with “Co.” being substituted therefore. Suffice it to say that if it the alteration of the Notice of Appeal at pages 253-254 of the Record purportedly signed by Mela Audu Nunghe & Esq., actually occurred in the circumstances depicted by Respondent’s counsel and at the point in time he alleged, then it is incomprehensible how the allegedly altered Notice of Appeal could have been filed on 01-07-05 being the date of filing of the two Notices of Appeal as shown on their faces. In this regard it is to be noted that the first counter affidavit in which the Respondent alleged that the notice of appeal purportedly signed by Mela Audu Nunghe & Esq., was a forgery in that the signature thereon is not that of Mela Audu Nunghe was filed on 22/9/05. (See page 98 of the Record). As earlier stated the two Notices of Appeal in the Record were both filed on 1/7/2005. What I therefore find the Record to glaringly disclose, is that the Appellants had filed the two Notices of Appeal therein prior to the filing before the lower court of any counter affidavit by the Respondent in respect of any of the Appellants’ applications for stay of execution of judgment. This the Appellants did for reasons best known to them. This finding clearly knocks out the bottom of the tenuous arguments advanced by Respondent’s counsel that either of the Notices of Appeal in the Record was altered talk less of being altered without the leave of court first being obtained. Ground (b) of the grounds of the preliminary objection therefore fails.
The filing of more than one Notice of Appeal by an aggrieved party is not prohibited by law. This is because an aggrieved party can file two or more Notices of Appeal ex abundantia cautela. It is however also clear that when an aggrieved party files more than one notice of appeal, the party definitely cannot prosecute the appeal in question upon all the notices of appeal so filed. The party is expected to withdraw the superfluous one or ones and prosecute the appeal on the one he finds most appropriate. See in this regard the decision of this Court in HON. ABRAHAM ADEOLU ADELEKE V. OYO STATE HOUSE OF ASSEMBLY &. ORS (2006) All FWLR (Pt.319) 862 in which some of the decisions of the Supreme Court on the issue were applied. It would appear glaring from the Record of Appeal and arguments in the Respondent’s brief that the Respondent takes the instant appeal to be predicated on the Notice of Appeal at pages 255-256 of the Record and that, it is this very Notice of Appeal, the Respondent by the preliminary objection taken out in this appeal is challenging its competence. The Appellants too, has left no one in doubt that the instant appeal is founded on the Notice of Appeal signed by “Mela Audu Nunghe & Co,” at pages 255-256 of the Record. In this regard it is to be noted that the Record not only shows that the stay of execution of the judgment of the lower court which the Appellants secured was predicated on the appeal as founded on the Notice of Appeal signed by “Mela Audu Nunghe & Co.,” but also that the Appellants in their Reply brief to the Respondent’s Notice of Preliminary Objection left no one in doubt that they had jettisoned the Notice of Appeal purportedly signed by “Mela Audu Nunghe & Esq.,” and therefore limited their submissions to the Notice of Appeal taken out by the Firm of “Mela Audu Nunghe & Co.,” said to have been signed by Asawalam Esq.,. The Appellants apparently jettisoned the Notice of Appeal purportedly signed by “Mela Audu Nunghe & Esq.,” because they have somehow conceded that the signature above the name of “Mela Audu Nunghe & Esq.” is indeed not that of Mela Audu Nunghe but is that of E.M. Asawalam Esq. (see paragraph 1.02 of Appellants’ Reply brief to Respondent’s Notice of Preliminary Objection). Ground (c) of the grounds of the preliminary objection therefore also fails as It is glaring that the instant appeal is not predicated or founded on the Notice of Appeal dated 1/7/05 purportedly signed by Mela Audu Nunghe & Esq.,.
The issue raised in Ground (a) of the grounds of the preliminary objection is simple and straightforward: and it is whether or not the Notice of Appeal at pages 255-256 of the Record signed by the Firm of Mela Audu Nunghe & Co., (which as earlier stated is the Notice of Appeal upon which the instant appeal is founded) is competent? I have read the cases relied upon by both learned counsel in aid of their respective stand on this issue. The issue as to whether or not it is competent for a Firm of legal practitioners to sign a Notice of Appeal would appear to come up intermittently before the appellate courts. I will now refer to some cases in which the issue was considered in recent times. The first of the cases is that of MISS ESTHER THOMAS V. MR. DAVID MAUDE [2007] All FWLR (Pt. 361) 1749. In the case, this Court held to the effect that (i) a Notice of Appeal filed by a Firm of legal practitioners in their business name and purportedly signed by the said Firm is not competent and is fundamentally defective, null and void and liable to be struck out. This is because while an Appellant himself or a legal practitioner who is registered on the Roll of legal practitioners and duly authorised to practice as an Advocate in the Supreme Court of Nigeria can sign and file a notice of appeal in civil matters, a Firm of legal practitioners is not so authorised to act; (ii) that the position would however be different if it is shown on the face of the Notice of Appeal that the legal practitioner whose signature appears on the process signed the same for and on behalf of the Firm by endorsing his name under his signature; and (iii) that the defect in a Notice of Appeal signed by a Firm of legal practitioners in its own name cannot be cured by the filing of additional grounds of appeal or Amended Notice of Appeal signed by a person qualified and duly registered to practice law granted pursuant to an application in that regard as the inherent defect in the original notice of appeal rendered it defective ab initio. The case under reference was decided by the Kaduna Division of this Court on 19th July, 2006 and therein the provisions of sections 2(1) and 24 of the legal Practitioners Act Cap. 207 LFN, 1990; and Order 1 Rule 2 and Order 3 Rules 2(7) and 15 of the 2002 Rules of the Court of Appeal were considered. Furthermore, the decisions in the cases of New Nigerian Bank Plc vs. Denclag (2004) All FWLR (Pt. 228) 606 (cited by Respondent’s counsel); Global Trans-Oceanico SA vs. Free Enterprises Nig. Ltd (2001) FWLR (pt. 40) 1706; and Regd. Trustees, Apostolic Church vs. Akindele (1967) NLR 110 were applied.
The second case to which I wish refer in respect of the issue under consideration is yet another one decided by this Court. It is the case of UNITY BANK PLC. V. MR. AKINLABI S. OLUWAFEMI (2007) All FWLR (pt. 382) 1923. In the case, the Court in overruling the preliminary objection challenging the notice of appeal filed therein on the ground of its incompetence as it was signed by a Firm of legal practitioners; held the Issue to be one of “mere technicality” and in this regard relied on the Supreme Court case of Augusta Cole vs. Sergius Olatunji Martins & Anor (1968) 1 All NLR 161. This Court in the case under reference further said to the effect that the Supreme Court, since the decision in Augusta Cole case, has consistently harped on the need to discard technicality where adherence to it would be at the expense of doing substantial justice, It is to be noted that in the case under reference decided by the Jos Division of this Court on the 13th December, 2006, the cases of New Nigerian Bank Plc vs. Denclag (2004) All FWLR (pt, 228) 606; Global Trans-Oceanica SA vs, Free Enterprises Nig. Ltd (2001) FWLR (pt, 40) 1706; and Regd. Trustees, Apostolic Church vs. Akindele (1967) NLR 110 applied in the case of MISS ESTHER THOMAS V. MR. DAVID MAUDE (supra), were not applied. Indeed the decision of this Court in the case of MISS ESTHER THOMAS V. MR. DAVID MAUDE (supra) was not brought to the attention of the Court in the case of UNITY BANK PLC V. MR. AKINLABI S. OLUWAFEMI (supra). I have said this much, because it is clear from the case of UNITY BANK PLC V. MR. AKINLABI S. OLUWAFEMI (supra) as reported in the Law Report cited by me, that My Lord Abba Aji, JCA; who presided over the instant appeal was in the panel that decided the said case of UNITY BANK PLC V. MR. AKINLABI S. OLUWAFEMI (Supra).
The third and last of the cases to which I wish to refer in respect of the issue under consideration is that of EMMANUEL OKAFOR & ORS V. AUGUSTINE NWEKE & ORS. (2007) All FWLR (Pt.368) 1016 decided by the Supreme Court on 9th March, 2007. I consider it appropriate to quote the relevant portion of the Lead Ruling delivered by Onnoghen, JSC; in extenso. At pages 1025-1027 His lordship stated thus: –
“There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed notice of cross-appeal and appellants’ brief in support of the said motion were all signed: J.H.C. Okolo SAN &. Co. learned senior counsel for the appellants does not dispute this but stated that since there is a signature on top of J.H.C. Okolo SAN &. Co. It is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izuogu v. Emuwa supra and Banjo v. Eternal Sacred Orders of Cherubim &. Seraphim also supra.
However, section 2(1) of the legal Practitioners Act, Cap. 207 of the laws of the Federation of Nigeria, 1990 provides thus: xxxxxx
From the above provision, It is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be: xxxxxxxxxxxxxxxxx
The combined effect of the above provisions is that for, a person to be qualified as a legal practitioner, he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J.H.C. Okolo SAN & Co. is a legal practitioner recognized by the Law?
From the submissions of both counsel, It is very clear that the answer to that question is in the negative. In other words, both senior counsel agree J.H.C. Okolo SAN & Co. is not a legal practitioner and therefore cannot practice law as such by say, filing processes in the courts of this country. It is in recognition of this fact that accounts for the argument of, learned Senior Advocate for the applicants that to determine the actual person who signed the processes, evidence would have to, be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. Okolo SAN & Co. actually belongs to J.H.C. Okolo SAN who is a legal practitioner on the roll. I had earlier stated that the law does not say that what should be on the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned Senior Advocate claims to be his really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. SAN & Co. is not a legal practitioner recognized by law, it follows that the said J.H.C Okolo SAN & Co. cannot legally sign and/or file any process in the courts and as such, the motion on notice filed on 19th December, 2005, notice of cross-appeal and applicants’ brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo SAN & Co. are incompetent in law and particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered legal practitioner.
In arriving at the above conclusion which is very obvious having regard to the law, I have taken into consideration the Issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required of the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged.”
Oguntade, JSC; who like the other learned Justices of the Supreme Court in the panel, agreed with the reasoning and conclusion in the lead Ruling, said to the effect that the habit legal practitioners had formed in signing legal processes in their partnership or firm name without an additional indication therein of the name of the practitioner who is the member of the partnership or firm handling the matter or issuing the process in question, was either right or wrong and cannot be justified on the excuse that the practice has been followed for a long time. His Lordship further expressed the view that it was clear from the provisions of Cap. 207 in section 24 that only human beings actually called to the Bar could practice or practice by signing court processes and that the argument that it is an over adherence to technicality to annul the process improperly signed in the name of a partnership or firm of legal practitioners fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. And that it would have been quite another matter if what is in issue was a mere non-compliance with court rules.
The preliminary objection of the Respondent as it relates to the incompetence of the Notice of Appeal upon which the instant appeal is founded (i.e. the Notice of Appeal at pages 255-256 of the Record) has glaringly raised the very same issue that was considered in each of the three cases cited hereinbefore. It is obvious on the face of the Notice of Appeal in question that it was taken out and filed by the Firm of Mela Audu Nunghe & Co. The name of the practitioner who is a member of the Firm of Mela Audu Nunghe & Co. handling the matter or that signed the Notice of Appeal is not indicated therein. The spirited efforts of the Appellants’ counsel in providing the identity of the counsel in the Chambers of Mela Audu Nunghe & Co. who signed the Notice of Appeal by referring to pages of the Record only goes to confirm that the Notice of Appeal on its face portrays itself as having been signed by Mela Audu Nunghe & Co. or on its behalf and not by any particular legal practitioner on behalf of the said Firm of legal practitioners. From the decision of the Supreme Court in the case of EMMANUEL OKAFOR &. ORS V. AUGUSTINE NWEKE &. ORS (supra), it is clear as crystal that a Firm of legal practitioners is not a legal practitioner given the provisions of sections 2 and 24 of cap. 207, LFN 1990 and therefore cannot legally sign and/or file any process in the courts. I do not think it can be successfully argued that a Notice of Appeal is not a process of court. The decision of this Court in the case of MISS ESTHER THOMAS V. MR. DAVID MAUDE (supra) on the question of the incompetence of a Firm of legal practitioners to sign a Notice of Appeal in civil matters although earlier in time is therefore not in conflict with that in EMMANUEL OKAFOR & ORS V. AUGUSTINE NWEKE &. ORS (supra). Furthermore, I simply do not see how I can now properly have recourse to the doctrine of substantial justice and thereby treat the signing of the Notice of Appeal upon which the instant appeal is founded by the Firm of Mela Audu Nunghe & Co. as “mere technicality” as was done in the case of UNITY BANK PLC V. MR. AKINLABI S. OLUWAFEMI (supra) which though decided later in time to the case of MISS ESTHER THOMAS V. MR. DAVID MAUDE (supra) was however decided earlier in time to the case of EMMANUEL OKAFOR & ORS V. AUGUSTINE NWEKE II ORS (supra). This is in view of the pronouncement of the Supreme Court in the said case of EMMANUEL OKAFOR & ORS V. AUGUSTINE NWEKE II ORS (supra) to the effect that the matter of the incompetence of a Firm of legal practitioners signing a process of court in its own name transcends one of technicality and that court will do well to ensure that laws are strictly enforced and observed.
In conclusion and from all that has been said above in relation to Ground (a) of the grounds of the preliminary objection, I hereby uphold the preliminary objection of the Respondent challenging the competence of the Notice of Appeal dated 1/7/05 issued and filed by the Firm of Mela Audu Nunghe & Co. upon which this appeal is founded inasmuch as the said Firm of Mela Audu Nunghe & Co. which signed and filed the said Notice of Appeal is not a legal practitioner recognised by law (see sections 2(1) and 24 of the Legal Practitioners Act, cap. 207, LFN, 1990) and therefore cannot legally sign and file the said process in the courts.
Appellant’s counsel disclosed that this Court granted the Appellants leave to file additional grounds of appeal as well as brief of argument in this appeal on 17th October, 2006 and that they have compiled. He urged that the appeal should be heard on the merit given its peculiar circumstances. May I observe that similar argument was put up in the case of MISS ESTHER THOMAS V. MR. DAVID MAUDE (supra) and the Court made it clear therein that leave granted by the Court to an Appellant to file additional grounds of appeal to grounds contained in a fundamentally defective Notice of Appeal or to amend the ground therein contained (such as a Notice of Appeal Signed by a Firm of legal practitioners is) cannot be cured by the granting of such leave and/or compliance with the order in that regard as the Notice of Appeal is void ab initio. I am incomplete agreement with this. After all it is indisputable that a Notice of Appeal is the court process that forms the very foundation of an appeal. The law is also that one cannot put something on nothing and expect it to stand. An appeal founded on a Notice of Appeal that is signed and filed by someone not so empowered by law to do so, definitely is no Notice of Appeal. It is a still-born. Therefore nothing based on it can properly have life. The incompetence of the Notice of Appeal upon which the instant appeal is founded therefore has not been remedied by the order of this Court granting leave to the Appellants to file additional grounds of appeal and their brief and cannot be so remedied. This appeal is therefore incompetent.
The success of the preliminary objection challenging the competence of the Notice of Appeal upon which the instant appeal is founded in my view has not only put paid to the consideration of the preliminary objection challenging the competence of the Issues formulated by the Appellants for determination on the ground that they have not been derived from valid grounds of appeal but also a consideration of the appeal on the merit.
This appeal having been found incompetent as it is founded on a Notice of Appeal that is void ab initio is accordingly struck out pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007.
I make no order as to costs.
Other Citations: (2008)LCN/2882(CA)
