DR. BOLAJI AKINSANYA & ANOR V. FEDERAL MORTGAGE FINANCE LIMITED
(2010)LCN/3954(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/L/935M/08
RATIO
SIGNATURE: MEANING OF THE WORD ‘SIGNATURE’ AND THE IMPORTANCE OF STATING THE NAME OF THE SIGNATORY
The word ‘signature’ is defined in Black’s Law Dictionary 7th Edition at page 1387 thus: – “A person’s name or mark written by the person or at the persons direction. Any name, mark or writing used with the intention of authenticating a document.” The importance of stating the name of the signatory cannot be over – emphasized. Signature is only identifiable by the name of the signatory. Court processes must therefore be signed by a named legal practitioner. PER ADZIRA GANA MSHELIA, J.C.A.
NOTICE OF APPEAL: CONSEQUENCE OF THE NON-DISCLOSURE OF THE IDENTITY OF THE PERSON WHO SIGNED A NOTICE OF APPEAL
A notice of appeal is an originating process which activates the jurisdiction of this court. It is therefore my firm view that the non-disclosure of the identity of the person who physically signed the notice of appeal in question on behalf of appellants’ counsel is not a mere irregularity but a fundamental error. PER ADZIRA GANA MSHELIA, J.C.A.
AMENDMENT OF NOTICE OF APPEAL: WHETHER AMENDMENT OF NOTICE OF APPEAL CAN BE MADE WITH THE LEAVE OF THE COURT OF APPEAL AT ANY TIME
The rules allow the amendment of notice of appeal to be made with the leave of the Court of Appeal at any time. In other words the Court of Appeal has power to allow the amendment of a notice of appeal from time to time the appeal is filed and until at such time that it may even be ready for hearing. PER ADZIRA GANA MSHELIA, J.C.A.
DEFECTIVE NOTICE OF APPEAL: WHETHER A DEFECTIVE NOTICE OF APPEAL CAN BE CURED BY AN AMENDMENT
It is trite that a fundamentally defective notice of appeal cannot be cured by amendment. See Atuveve v. Ashamu (1987) 1 N.W.L.R. (Pt. 49) 267. It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therefrom will render the whole appeal incompetent and the appellate court will lack the requisite jurisdiction to entertain it or any interlocutory application based on the said appeal. See Uwazurike v. A. G. Federation (2007) 8 N.W.L.R. (Pt. 1035) 1 SC. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
RAPHAEL CHIKWE Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. Dr. Bolaji Akinsanya
2. Mrs. Dolapo Funlola Akinsanya Appellant(s)
AND
Federal Mortgage Finance Limited Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Ruling): The appellants/applicants, by a motion on notice dated 19/4/10 and filed same date sought for any of the following:
“1. An order of this Honourable Court granting leave to the Appellants/Applicants to regularize the Notice of Appeal dated the 6th day of November, 2006 by inserting the name of Mrs. P. A. Majemite-Dare being the Legal Practitioner who signed the Notice of Appeal for and on behalf of Chief B.O. Benson (SAN) as shown in Exhibit A attached hereto.
Alternatively:
An order to this Honourable Court granting leave to the Appellants/Applicant to amend the Notice of Appeal dated the 6th day of November 2006 as shown in Exhibit ‘A’ attached hereto.
2. AN ORDER of this Honourable Court granting leave to the Appellants/Applicants to file supplementary records of Appeal as shown in Exhibit ‘B’.
AND FOR SUCH FURTHER ORDERS that this Honourable Court may deem fit to make in the circumstances”.
The motion is supported by 16 paragraphs affidavit deposed to by one Oladehinde A. Azeez a legal practitioner in the firm of B. O. Benson Law offices counsel to the Appellant/Applicants.
In arguing the application learned counsel Senior Counsel submitted that the application was brought to regularize the Notice of Appeal dated the 6th day of November 2006 by inserting the name of Mrs. P. A. Majemite-Dare being the Legal Practitioner who signed the Notice of Appeal for and on behalf of Chief B. O. Benson (SAN) as shown in Exhibit ‘A’ attached hereto. The learned Senior Counsel conceded that the Notice of Appeal was signed on his behalf. It was however his contention that the situation in the case of Okafor v. Nweke (2007) 3 SC (Pt. 11) 55 is different from the case at hand. He argued that in the case at hand B. O. Benson (SAN) is a Legal Practitioner and the person who signed on his behalf is also Legal Practitioner. Whereas in Okafor v. Nweke (supra) the process was signed in the name of a law firm who is not a legal practitioner recognized by the law.
The notice of Appeal dated and filed 6th November 2006 sought to be amended had the endorsement as follows:
” Sgd.
F Chief B.O. Benson SAN
Appellant’s Counsel
B. O. Benson Law Office
50, Ogunlana Drive
Surulere, Lagos”.
For a notice of Appeal to be valid and proper it must be signed by the appellant. It is also as good if the Legal Practitioner representing him signs it. It is apparent on the face of the notice of appeal that B. O. Benson SAN, the said solicitor to the appellant did not sign the notice of appeal. As indicated supra it was signed “for” the solicitor by a person who neither indicated his name nor his designation. The question now is whether the notice of appeal signed for B. O. Benson SAN is valid. There is no doubt that where a letter or document signed ‘for’ or “on” behalf of another, it should be ascribed to the person on whose behalf it was written.
See: Edet v. Chief of Air Staff (1994) 2 NWLR (Pt 324) 41 at 65 – 66 paragraphs 4-6.
In the case of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 the applicants filed a motion seeking for extension of time to seek leave to cross appeal, leave to cross appeal and an extension of time to file notice of cross-appeal against the judgment of the Court of Appeal, Enugu Division delivered on 25th January, 2001. The motion was signed “J.H.C. Okolo, SAN & Co. applicants counsel 162 B Zik Avenue, Enugu. Other processes including the proposed notice of cross appeal were similarly signed in the same law firm’s name. The 1st – 3rd respondents challenged the competence of the application and the other processes filed by the applicants on the ground that the law firm that signed the processes is not a legal practitioner. The Supreme Court after considering arguments by counsel had this to say at page 533, paragraphs G -H thus: –
“Legal practitioners have formed the habit of signing court processes in their partnership or firms name without indicating the name of the practitioner signing the process, such documents are incompetent and are liable to be struck out. In the instant case, the processes filed in the application, particularly the motion on notice filed on 19th May 2005, the proposed notice of cross appeal and the applicants’ brief of argument in support of the motion were incompetent in that they were not issued by a legal practitioner known to law.”
The facts and circumstances of the instant case are clearly similar with those in Okafor v. Nweke supra notwithstanding the fact that the instant case concerns signature “for B.O. Benson” while Okafor v. Nweke deals with signing in the name of law firm. The bottom line issue in both cases is failure to sign the relevant processes by a legal practitioner known to law.
The word ‘signature’ is defined in Black’s Law Dictionary 7th Edition at page 1387 thus: –
“A person’s name or mark written by the person or at the persons direction. Any name, mark or writing used with the intention of authenticating a document.”
The importance of stating the name of the signatory cannot be over – emphasized. Signature is only identifiable by the name of the signatory. Court processes must therefore be signed by a named legal practitioner. It is also worthy of note that section 2 (1) of the Legal practitioners Act, Cap 207 of the Laws of Federation of Nigeria 1990, did not say that what should be in the roll should be the signature of the legal practitioner but his name. This court expressed similar views in the case of Peak Merchant Bank Ltd. v. N.D.I.C. Appeal No. CA/L/572/05 (unreported) judgment delivered on 14th May, 2010. At page 9 of the lead judgment which was prepared by me, I stated thus: –
“I am of the firm view that any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in the chambers. Nobody is saying that a junior counsel in chambers cannot sign or file process on behalf of a principal partner but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person.”
The facts in that case are on all fours with the case under consideration.
A notice of appeal is an originating process which activates the jurisdiction of this court. It is therefore my firm view that the non-disclosure of the identity of the person who physically signed the notice of appeal in question on behalf of appellants’ counsel is not a mere irregularity but a fundamental error. See: Okafor v. Nweke (supra) and Suit CA/L/572/2005 Peak Merchant Bank Limited v. N.D.I.C. (unreported) judgment delivered on 14th May 2010.
Having pronounced that the notice of appeal dated 6th of November, 2006 is fundamentally defective the next question to resolve is whether it can be amended? Applicants’ counsel had asked the court for leave to amend the notice of appeal by inserting the name of the counsel he claimed signed the notice of appeal on his behalf. The reasons averred in support of the application are contained in paragraphs 3 – 11 of the affidavit in support. The rules allow the amendment of notice of appeal to be made with the leave of the Court of Appeal at any time. In other words the Court of Appeal has power to allow the amendment of a notice of appeal from time to time the appeal is filed and until at such time that it may even be ready for hearing. It is trite that a fundamentally defective notice of appeal cannot be cured by amendment. See Atuveve v. Ashamu (1987) 1 N.W.L.R (Pt. 49) 267. It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therefrom will render the whole appeal incompetent and the appellate court will lack the requisite jurisdiction to entertain it or any interlocutory application based on the said appeal. See Uwazurike v. A. G. Federation (2007) 8 N.W.L.R. (Pt. 1035) 1 SC. In the circumstance this application cannot be granted. Failure to properly initiate an appeal is beyond mere technicality. Since there is no valid notice of appeal to activate the jurisdiction of this court, the said notice of appeal filed on the 6th of November 2006 ought to be struck out for being incompetent. The appeal is accordingly struck out pursuant to order 6 rule 6 of the Court of Appeal Rules, 2007. No order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I have had the privilege of reading in advance the ruling just delivered by Mshelia, JCA and I agree completely with both her reasoning and conclusions. This court is bound not only by the decisions of the Supreme Court but also its own decisions except where given per incuriam. We are not only bound by the decisions of the Supreme Court in Okafor vs. Nweke (2007) 10 NWLR (Pt. 1043) 521 and Oketade vs. Adewumi & 4 Ors. (2010) 2-35C (Pt.1) 140 but by our own decision in CA/L/572/2005 – Peak Merchant Bank Ltd. vs. N.D.I.C. (unreported) delivered on 14-5-2010.
I also dismiss this application and strike out the incompetent notice of appeal. There is no order as to costs.
ADAMU JAUKO, J.C.A.: I have had a preview of the lead ruling just delivered by my learned brother, Mshelia JCA. I am in complete agreement with the reasoning and conclusions contained (herein, which I also adopt as mine.
The notice of appeal dated 6th November, 2006 was signed by an undisclosed person for Chief B.O. Benson SAN. As the name of the signatory was not disclosed it cannot be ascertained whether the signatory is a legal practitioner or not, as the roll of practitioners contains names. The said notice of appeal was neither signed by the appellant nor legal practitioner known to law, hence in incompetent. See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521, Oketade v. Adewunmi & 4 Ors (2010) 2 – 3 SC (Pt.1) 140. As the said notice of appeal is incompetent, the application to regularise it cannot be granted as you cannot build something on nothing and expect it to stand. See Macfoy v. UAC Ltd (1962) AC 152.
The application to regularise the notice of appeal is not granted and the said notice of appeal dated 6th November, 2006 is hereby struck out for being incompetent pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007. There will be no order as to costs.
Appearances
Chief B. O. Benson (SAN) with I. O. Benson Esq. and A. Azeez Esq.For Appellant
AND
Respondent not represented.For Respondent
