Union Dicon Salt Plc V. Abdulrasheed Nasiru (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal by the plaintiff/appellant against the judgment of Alogba J, sitting at the Lagos High Court Ikeja delivered on the 9th June, 2005.
The appellant was the claimant and defendant to the counterclaim at the lower court. While the Respondent was the defendant and counter-claimant. The appellant’s case is that between 2nd June, 1998 and 18th December 1998 the appellant sold and delivered on credit to the respondent at the respondent’s request various consignments of goods. As at 4th February, 1999 the respondent was indebted to the appellant in the sum of N1, 640, 000.00 being balance outstanding on the goods sold to the respondent. Appellant filed this case claiming for the amount outstanding, plus interest.
The respondent admitted the claim of the Appellant but counter-claimed from the appellant for unlawful seizure and detention of his vehicle used by him to transact his business. Respondent also counter-claimed for loss of profit expected from the use of his vehicle and the cost of the repairs affected on the vehicle after its release by appellant. The counter-claim appeared at page 7 of the record. See paragraph 13 of the statement of defence.
The appellant did not call any evidence in support of its claim but called two witnesses in its defence to the counter claim. The respondent called five witnesses including respondent himself and also tendered some documents admitted as exhibits by the court (Exhibits ‘D1’ – ‘D2’), in support of his counter-claim. At the end of the trial the learned trial Judge in a considered judgment gave judgment to the appellant in terms of the counter-claim.
The appellant being dissatisfied with the judgment on the counter-claim lodged his appeal to this court. The Notice of Appeal dated 20/06/05 was filed on 12/07/05 containing three grounds of appeal. Appellant sought and obtained leave on 4/06/07 to amend his notice of appeal. The amended Notice of Appeal was filed on 6/06/07 containing 8 grounds of appeal.
Pursuance to the Practice and Procedure of this court, briefs of argument were filed and exchanged by respective counsel. On 13/02/08 appellant sought and obtained leave of this court to file appellant’s brief out of time and same was deemed properly filed and served.
When the appeal came up for hearing on 30/4/08 appellant’s counsel Emeka Ukachi adopted appellant’s brief of argument, while respondent’s counsel Babatunde Osikoya adopted respondent’s brief filed on 5/03/08.
Out of the 8 grounds of appeal appellant formulated 6 issues, while respondent formulated two issues for determination in this appeal.
I have earlier stated that the notice of appeal initiating this appeal is dated 20th June, 2005. Same is contained at pages 364 – 367 of the printed record. I have carefully studied it and observed that it was signed in the name of a firm of solicitors. It is signed thus:
“PP
S.I. AGU & CO.
APPELLANT’S SOLICITORS
15, CATHOLIC MISSION STREET
LAGOS.”
A signature was affixed on top of S.1. AGU & CO, appellant’s solicitors.
The law is that for a notice of appeal to be valid and proper it must be signed by the appellant. It is also good if the legal Practitioner representing him signs it.
It is defective if the notice of appeal is signed in the name of a firm of solicitors. In the instant case, it is very clear that the notice of appeal was signed in the name of firm of solicitors and not a legal practitioner as defined in the Legal Practitioners Act (a person whose name appears on the roll). Both the Supreme Court and this court have held that a firm of Legal Practitioners cannot sign a process in the place of a Legal Practitioner. In other words, where a counsel is required to sign a document it is a person whose identity is ascertainable from the roll of Legal Practitioners that must append his signature. See Emmanuel Okafor & Ors V. Augustine Okeke & Ors (2007) 10 NWLR (Pt 1043) 521, at 530; New Nigerian Bank Plc V. Denclag Limited & Anor (2005) 5 NWLR (Pt 916) 573, at 582 – 583 and CIC Ltd V. Okoli (2007) 43 WRN 36.
In Okafor V Okeke supra the apex court at page 53l had this to say:-
“Since both counsel agree that J.H.C Okolo SAN & Co is not a legal practitioner recognized by the 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 LH.C. Okolo SAN & Co is incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered legal practitioner.”
As earlier stated, the notice of appeal was signed by S.I. AGU & CO, a registered law firm which is not a person registered in the roll of Legal Practitioners. Certainly, this appeal was not signed by a legal practitioner. It is settled, that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein, will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. See Uwazurike V. A.G. Federation (2007) 40 WRN 79 at 97 and Okeke Anadi V Okeke Okoli (1977) 7 SC 56 at 57.
I am mindful of the fact that on 4/6/07 appellant sought and obtained leave of this court and filed amended notice of appeal on 6/06/07. It is the amended notice of appeal that will be used in determining this appeal. However, where the original notice of appeal is found to be defective, subsequent amendment will not validate it. You cannot build something on nothing and expect it to stand. It will most certainly collapse. It is immaterial that the amended notice of appeal was filed with the leave of this court. Both the original notice of appeal and the amended notice are incompetent.
Having found and held that the notice of appeal is fundamentally defective, equally, appellant’s brief which was based on defective notice of appeal is also incompetent. I have also observed that respondent’s brief was not signed by a legal practitioner but firm of solicitors. The endorsement is as follows:-
“Babatunde Osikoya & Co
Counsel for Respondent
2nd Floor,
26, King George V Road
Onikan, Lagos.”
As earlier stated in this judgment where a counsel is required to sign a document it is a person whose identity is ascertainable from the roll of legal practitioners that must append his signature. See Okafor & ors V. Okeke & ors supra. For this reason alone respondent’s brief is incompetent and liable to be struck out. Both appellant’s and respondent’s brief are incompetent and same accordingly struck out.
By virtue of the provisions of Order 6 rule 6 of the Court of Appeal Rules, 2007 this court has power to strike out an incompetent notice of appeal. For clarity Order 6 rule 6 provides thus:-
“The court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
As there is no competent notice of appeal in this appeal, the appeal is hereby struck out under Order 6 Rule 6 of the Court of Appeal Rules, 2007. I make no order as to costs.
Each party shall bear its own costs.
Other Citations: (2008)LCN/2822(CA)
