NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR v. H.R.H EZE MARCEL ONYEEMUKWURU & ORS.
(2011)LCN/4278(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of February, 2011
CA/OW/69/2010
RATIO
APPELLANT: WHO IS AN APPELLANT IN AN APPEAL
The law is very clear as to who is an Appellant. Section 30 of the Court of Appeal Act defines an Appellant thus:- “Appellant” means 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. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
SIGNING AND FILING OF A NOTICE OF APPEAL NOTICE OF APPEAL: WHETHER A REGISTERED LAW FIRM CAN SIGN AND FILE A NOTICE OF APPEAL
In the appeal at hand there is no argument that the Notice of Appeal filed by the Appellant on 30/2/2009 was filed by B.C. Ofoegbu & Co., B. C. Ofoegbu & Co. is neither the Appellant nor Counsel representing the Appellant. Rather B. C. Ofoegbu & Co. is a registered law firm and whether a registered law firm such as B.C. Ofoegbu & Co. can sign a Notice of Appeal or any process at all filed in court, the Supreme Court in Okafor v. Eto (2007) 29 NSCQR 467 at 471 TO 473 states thus:- “I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal Practitioner but his name. That apart it is very clear that 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 Okolo SAN & Co. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th day of December 2005 notice of cross appeal and the Appellants’ 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 particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered Legal Practitioner.” Further at page 473 of the report the Supreme Court states:- “The simple question that arises, in view of the clear provisions of Cap 207 reproduced above is whether or not J.H.C. Okolo SAN & Co is a person entitled to practice as barrister and solicitor. It seems to me that only human beings actually called to the bar could practice law or practice by signing documents as a motion paper. The argument that it is an over adherence to technicality to annul the process improperly signed and filed by J.H.C. Okolo & Co. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with Courts rules.” The instant appeal was initiated and filed by B. C. Ofoegbu & Co. presumably a registered law firm, it therefore incurably defective as it was not initiated and filed by the Appellants or Counsel representing them, the appeal is accordingly grossly incompetent and cannot by any stretch of imagination proceed to hearing on the merit as urged by Counsel to the Appellants, the proper order to make is to strike out the appeal, accordingly this purported appeal is struck out for being grossly incompetent. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
PRELIMINARY OBJECTION: WHETHER A PRELIMINARY OBJECTION CAN STOP THE OTHER PARTY FROM TAKING STEPS TO REMEDY DEFECTS IN HIS PROCESS
…the Supreme Court held in TSOKWA OIL v. BANK OF THE NORTH (2002) 11 NWLR Pt.177 Pg.163, that a preliminary objection does not stop the other party from taking steps to remedy defects in his process. See also SHANU v. AFRI BANK PLC (2000) 10-11 SC Pg.1.In this case, instead of the Appellant’s counsel to take steps to remedy the defective notice of appeal by applying by way of motion on notice for extension of time to a file a fresh notice of appeal, filing same at the lower court, ensuring its transmission to the court of Appeal, to enable us hear speedily the substance of this appeal, he embarked on the useless exercise of conceding in his reply brief that his notice of appeal was incompetent the consequences of which is that both the litigants and this court never left the bus stop in the disposition of this appeal. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A PER MOJEED ADEKUNLE OWOADE, J.C.A
NOTICE OF APPEAL: EFFECT OF A NOTICE OF APPEAL FILED BY A REGISTERED FIRM SIMPLICITER WITHOUT AN INDICATION OF THE NAME OF THE HUMAN MIND OPERATING THE FIRM
It is indeed trite law that only human beings and not a registered firm that are actually called to the bar and entitled to practice as barristers and solicitors that are capable of signing legal documents as in the instant case, a Notice of Appeal. Where, as in this case a Notice of Appeal was filed by a registered firm simpliciter without an indication of the name of the human mind operating the firm, such a Notice of Appeal is held to be defective. See Okafor vs. Eto (2007) 29 NSCQR 467 at 471 – 473. PER MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN NATIONAL PETROLEUM CORPORATION
2. PIPELINE AND PRODUCTS MARKETING COMPANY LTD. Appellant(s)
AND
1. H.R.H EZE MARCEL ONYEEMUKWURU
2. NZE GODFREY NWAOGU
3. NZE THEOPHILUS INEKWUEME
4. CHRISTOPHER NWOKAFOR
5. AMOS AGUMA
(For themselves and as representing the People of Umuoma Autonomous Community In Ihette/Uboma L.G.A. of Imo State.) Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Federal High Court Owerri per C.V. Nwokorie, J. delivered on 1st day of December, 2008.
The facts leading to this appeal as follows:
The Respondents are the riparian owners of the vast area of land which situate and lying at the bank of Imo River at Umuoma in Ihitte/Uboma Local Government Area of Imo State and as riparian owners, they have, from time immemorial been exercising riparian rights over same with several economic crops; and trees and also established thereat several snail and cassava farms, fish ponds, etc from where they derive income while the stream, creeks and tributaries form their only source of portable water.
The Respondents’ case is that sometime in the month of October, 2003, they discovered substance like petroleum products floating on their vast area of land as well as several streams, creeks and tributaries which run through their land. When they sipped the water from the river, it tasted like petroleum product namely kerosene, petrol and diesel and their water became undrinkable which caused the destruction of their fish ponds, snail and cassava farms, economic trees etc. The facts of the spillage and pollution of the Respondents vast area of land economic crops and trees, etc. was promptly brought to the attention of the Appellants but the Appellants refused, failed and/or neglected to stop the pollution of the Respondents’ vast land and source of portable water despite repeated, demands. The pollution of Respondents’ vast area of land, stream, creeks and tributaries (their only source of portable water) continued unabated for several months from October 2003 to March 2004 inflicting in the process several damages, loses etc. on the Respondents.
To prove their case, the Respondents called five witnesses and tendered survey plan showing the total area heavily impacted by the said spillage and pollution valuation reports prepared by a Registered Estate Valuer, photographs clearly showing the spillage and pollution as well as dead fishes, etc. The Respondents also tendered medical reports issued to some of them affected by the pollution of their source of portable water. The Appellants did not cross examine any of the five witnesses called by the Respondents. The Appellants also did not lead any evidence in support of their pleadings despite several hearing notices issued and served on the Appellants.
Hearing in the Suit started first on the 4tn day of December 2006 before Hon. Justice S. Yahaya and the Appellants were duly represented by their solicitor. When the matter started denovo before Hon. Justice C.V. Nwokorie, the Appellants and their counsel were absent in court and the Hon. court ordered hearing notice to be issued and served on the Appellants which hearing notice was duly served on the Appellants. Thereafter, the case was adjourned to 12th day of June 2008. On 12th June, 2008, Appellants and Counsel were absent in Court and their matter was further adjourned to 2nd July 2008 for hearing with hearing notice to be served on the defendant which hearing notice was duly served. On 2nd July, 2008, Appellants and Counsel were absent and the matter was adjourned to 22nd and 23rd September, 2008 for hearing. On 22nd September, 2008, the Appellants and Counsel were absent in Court and the matter was adjourned to 21st October 2008 for hearing.
On 21st day of October 2008, hearing in the Suit commenced with Plaintiffs witness No. 1, the Appellants and Counsel were absent. Thereafter, the matter was adjourned to 4th November for continuation. The Court ordered hearing notice to be served on the Appellants and same was duly served. On the said 21st day of October 2008, the deposition on oath of the Plaintiffs witness No. 1 was duly served on the Defendants. On 4th day of November 2008, Appellants and Counsel were absent. The Plaintiffs’ witness No. 1 continued his evidence in Chief by tendering several exhibits. The Honourable Court duly observed that hearing notices have been duly issued and served on the Appellants and the Appellants refused to respond. Accordingly the Court foreclosed all the Appellants from cross examining the Plaintiffs’ witnessed No. I and the matter was adjourned to 24th November, 2008 for continuation.
On 24th November 2008, the Appellants and Counsel were absent in Court. The Plaintiffs’ witness No. 2, 3, 4 and 5 testified before the Hon. Court, at the end of which the Respondents closed their case and the matter was adjourned to 27th November and 2nd December 2008 for defence and the Court ordered a hearing notice to be issued and served on the Appellants. The said hearing notice was duly served on the Appellants.
On the 27th of November 2008, the Appellants and Counsel refused to come to Court to tender their defence in their suit. The Court thereafter received closing address from the Respondent’s Counsel and on 17th day of December 2008, the learned trial Judge delivered Judgment in the suit and granted the Respondents Claim.
Being dissatisfied with the Judgment of the trial Court, the Appellants appealed against same to this Honourable Court.
The appeal was heard on the 8th November 2010 and in line with the Rules and Practice of this Court, the Parties’ duly filed their respective briefs of argument. The Appellants’ brief of Argument is dated and filed on 24/3/10, also the Appellants filed a reply Brief dated and filed on 24/5/10.
Learned counsel to the Appellants Mr. L. C. Ofoegbu adopted the two brief’s of argument. Counsel to the Appellant urged the Court to strike out the appeal since they have made fundamental mistake to enable the Appellants file proper appeal.
Learned counsel to the Respondents Mr. L.C. Ugorji informed the court that the Respondents’ brief of argument is dated 23/4/10 and filed on 23/4/10. Counsel further informed the Court that they filed a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2007, the Notice of Preliminary objection is dated 22/4/2010 and filed on 23/4/2010. Counsel informed the court that submissions on the preliminary objection are incorporated in the brief of argument. Counsel adopt the brief of argument and the submissions on the preliminary objection and urged the court to strike out the appeal as being grossly incompetent.
Learned counsel for the Appellants on behalf of the Appellants formulated three Issues for determination. The Issues are.
1. whether it was proper for the Trial court after allowing an amendment by the Respondents on 12/6/2008 to adjourn the matter without ordering that hearing notices should be issued and served on the Appellants and their Counsel since they were not in court on 12/6/2008 and the court was to hear the case De novo.
2. Whether the Hon. Trial Judge was right in foreclosing the Appellants from cross-examining PW1 on the evidence he gave and deposition he filed in Court on 21/10/2008 when this deposition known to the Court was filed in Court on 21/10/2008 and un served on the Appellants and their Counsel.
3. Whether or not the orders of Court of 12/5/2008 and 24/11/2008 regarding service of hearing notice for the defence to open on 27/11/2008 and 2/12/2008 were obeyed and if not obeyed whether Court could proceed with the case thereafter.
Learned Counsel for the Respondents submitted one Issue for determination which read thus:-
Whether having regard to the facts and circumstances of this case, the Appellants were denied fair hearing.
The Respondents through their Counsel L.C. Ugorji filed a Notice of Preliminary Objection pursuant to Order 10 Rule I of the Court of Appeal Rules 2007. The Notice is dated, 22nd April 2010 and filed on 23/4/2010. The Notice ns incorporated in the brief of Argument read thus:-
Notice is hereby given that at or before the hearing of this appeal, the Respondents shall raise a Preliminary Objection that this appeal be dismissed on the following grounds:-
a) The grounds of appeal are founded on an incompetent notice of appeal.
b) The notice and grounds of appeal is not filed by an Appellant within the meaning of Section 30 of the Court of Appeal Act Cap 36 Laws of the Federation of Nigeria, 2004.
c) The sole ground contained in the original notice of appeal having been abandoned rendered the Notice of Appeal bare.
In arguing the Notice of Preliminary objection learned counsel for the Respondents referred to the Notice of Appeal filed by the Appellants at pages 185 – 187 of the records of Proceedings, learned counsel for the Respondents submits that, the Notice of Appeal was signed by “B.C. Ofoegbu & Co.” That Section 30 of the court of Appeal Act cap C36 Laws of the Federation of Nigeria, 2004 defines an Appellant as follows:-
“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.”
Learned Counsel for the Respondents contends that the Notice of Appeal filed in this Suit was signed by B. C. Ofoegbu & Co. That it does not admit any argument that B. C. Ofoegbu & Co. is mere business name. It does not also admit any argument that the mere fact of registering a business name does not confer legal or Juristic Personality on the business name so registered.
Counsel to the Respondents argues that B. C. Ofoegbu & Co. is not a legal or juristic person and therefore has not legal capacity to sign a notice of appeal. And not being a legal or juristic person cannot qualify as a legal Practitioner within the provisions of Section 2(1) of the legal Practitioners Act Cap 11 Laws of the Federation, 2004 which define a legal Practitioner as follows:-
“Subject to the provisions of this Act, a person shall be entitled to practice as Barrister and Solicitor if an only if, his name is on the roll.”
That is has not been shown that B. C. Ofoegbu & Co. is a name on the roll. Reference made to FIRST BANK PLC V. MAIWADA (2003) FWLR (PT.151) P.2001 AT 2014 – 2015; THOMAS V. MAUDE (2007) ALL FWLR (PT.361) 1749 AT 1763; OKAFOR V. ETO (2007) 29 NSCQR 467.
Counsel to the Respondents urge the court to hold that the Notice of Appeal initiating this appeal is not filed by an Appellant within the meaning of Section 30 of the court of Appeal Act cap 36 laws of the Federation of Nigeria, 2004. Counsel for the Respondents further submits that this appeal was initiated by Notice of Appeal dated 3rd day of February 2008 and filed on 4th day of February, 2009 and containing a sole ground of Appeal. That in arguing this Appeal, the appellants. On the 24th March 2010 filed their Brief of Argument and in the said Brief, the Appellants, abandoned the sole ground of Appeal.
Counsel argues that an original appeal is governed by the provision of the Court of Appeal Act whilst the filing of the additional grounds of appeal is governed by the court of Appeal Rules, non compliance with the Act is fatal whilst with the Rules is a mere irregularity; reference made to MKPAT ENIN L.G. v. PIKK (NIG) LTD. (2004) ALL FWLR (PT.236) 287 AT 303-305.
Further counsel to the Respondents submits that a Notice of Appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the origination process which sets the rolling for the proper, valid and lawful commencement of an appeal. A Notice of Appeal can be competent and valid if it contains at least one valid ground of appeal. A bare Notice of Appeal without any Ground or Grounds of Appeal is valueless and incompetent. That where the Sole Ground is abandoned and or struck out, there would be no more valid Notice of Appeal. The act of abandoning and/or striking out the sole ground of appeal contained in the notice of appeal rendered the notice of appeal bare and it is the law that a bare notice of appeal is valueless and incompetent. It is incurably defective and the defect cannot be cured by amendment. Granting leave to file and additional ground or grounds cannot cure the vice reference made to ADERIBIGBE V. ABIDOYE (2009) 38 NSCQR (PT.2) 806 AT 829 – 831.
That the Appellants having abandoned the sole ground of Appeal contained in the original Notice of Appeal rendered the said Notice of Appeal incompetent and therefore the additional grounds filed all become naughty as one cannot build something on nothing and expect it to stand. That there was no subsisting notice of appeal upon which to place the additional grounds. Reference made to IGRUBIA V. IGRUBIA (2009) ALL FWLR (PT. 471) 856 AT 870.
Counsel to the Respondent urged us to uphold the preliminary objection and dismiss this appeal in its entirety for being grossly incompetent.
In his reply to the submissions on the Notice of Preliminary Objection, learned Counsel to the Appellants submits that the Notice of Appeal was given by the Appellants by their counsel and signed by their counsel B. C. Ofoegbu who trades in the name of B. C. Ofoegbu & Co.
Learned Counsel for the Appellants concede that the NOTICE OF APPEAL filed on 3/2/2009 and the amended Notice of Appeal filed on 22/3/2010 are all defective in that they were not filed by the Appellants’ counsel B. C. Ofoegbu but rather by B.C. Ofoegbu and Co. B.C. Ofoegbu & Co. is not a person enrolled to practice as a Solicitor and Advocate. Counsel for the Appellants argues that the implication is that there was never a competent appeal before the Court in that a condition precedent had not been complied with and this Court lacked Jurisdiction. Reference made to MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; AIINAM (NIG.) LTD. V. LEVENTIS MOTORS LTD. (1990) 5 NWLR (PT.151) 458.
Counsel for the Appellants contends that since the Preliminary is taken before the hearing of the main appeal in which case the merit or demerits does not come up for consideration and the fact that it is raised or argued in the Respondents brief does not alter the nature of the objection. Counsel to the Appellants finally states that he accepts that the Notice of Appeal is incompetent and that this Court has all the discretions to permit this unfortunate case and indeed Appeal be heard on its merit.
In the instant Appeal, learned Counsel for the Appellants has submitted thus:-
“I have to concede that the NOTICE OF APPEAL filed on 3/2/2009 and the amended Notice of Appeal filed on 22/3/2010 are all defective in that they were not filed by the Appellants’ Counsel B.C. Ofoegbu but rather by B. C. Ofoegbu & Co. B. C. Ofoegbu & Co. is not a person enrolled to practice as a Solicitor and Advocate. Further learned Counsel for the Appellants states:-
In summary, I accept that the NOTICE OF APPEAL is incompetent and this Hon. Court has all the discretions to permit this unfortunate case and indeed Appeal be heard on its merits.”
Learned Counsel for the Appellants by his showing and admission in his reply brief of argument has stated that the Notice of Appeal filed on 3/2/2009 and the amended notice filed on 22/3/2010 are all defective and incompetent in that they were not filed by the Appellants Counsel B.C. Ofoegbu but rather by B. C. Ofoegbu & Co., and B. C. Ofoegbu & Co. is not a person enrolled to practice as a Solicitor and Advocate.
The law is very clear as to who is an Appellant. Section 30 of the Court of Appeal Act defines an Appellant thus:-
“Appellant” means 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.”
In the appeal at hand there is no argument that the Notice of Appeal filed by the Appellant on 30/2/2009 was filed by B.C. Ofoegbu & Co., B. C. Ofoegbu & Co. is neither the Appellant nor Counsel representing the Appellant.
Rather B. C. Ofoegbu & Co. is a registered law firm and whether a registered law firm such as B.C. Ofoegbu & Co. can sign a Notice of Appeal or any process at all filed in court, the Supreme Court in Okafor v. Eto (2007) 29 NSCQR 467 at 471 TO 473 states thus:-
“I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal Practitioner but his name. That apart it is very clear that 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 Okolo SAN & Co. cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th day of December 2005 notice of cross appeal and the Appellants’ 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 particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered Legal Practitioner.”
Further at page 473 of the report the Supreme Court states:-
“The simple question that arises, in view of the clear provisions of Cap 207 reproduced above is whether or not J.H.C. Okolo SAN & Co is a person entitled to practice as barrister and solicitor. It seems to me that only human beings actually called to the bar could practice law or practice by signing documents as a motion paper. The argument that it is an over adherence to technicality to annul the process improperly signed and filed by J.H.C. Okolo & Co. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with Courts rules.”
The instant appeal was initiated and filed by B. C. Ofoegbu & Co. presumably a registered law firm, it therefore incurably defective as it was not initiated and filed by the Appellants or Counsel representing them, the appeal is accordingly grossly incompetent and cannot by any stretch of imagination proceed to hearing on the merit as urged by Counsel to the Appellants, the proper order to make is to strike out the appeal, accordingly this purported appeal is struck out for being grossly incompetent.
N30,000.00 costs is awarded to the Respondents against the Appellants.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR JCA. I am in complete agreement with his reasoning and conclusions. I will add a few words.
This appeal as taken has been a colossal waste of time and resources of this court and the litigants. Where a preliminary objection is raised in the Respondent’s brief or filed in accordance with Or 10 r 1 of the Court of Appeal Rules 2007, and arguments thereof are incorporated in the Respondents’ brief of argument, and the Appellant has done nothing to clear it up and make the suit or appeal competent before it is set down for hearing, then the preliminary objection must be argued before the substantive suit. See UBA v. UJOR (2001) 10 NWLR Pt.722 Pg. 589.
Also the Supreme Court held in TSOKWA OIL v. BANK OF THE NORTH (2002) 11 NWLR Pt.177 Pg.163, that a preliminary objection does not stop the other party from taking steps to remedy defects in his process. See also SHANU v. AFRI BANK PLC (2000) 10-11 SC Pg.1.
In this case, instead of the Appellant’s counsel to take steps to remedy the defective notice of appeal by applying by way of motion on notice for extension of time to a file a fresh notice of appeal, filing same at the lower court, ensuring its transmission to the court of Appeal, to enable us hear speedily the substance of this appeal, he embarked on the useless exercise of conceding in his reply brief that his notice of appeal was incompetent the consequences of which is that both the litigants and this court never left the bus stop in the disposition of this appeal.
The Respondents’ brief including the preliminary objection was filed on 23/04/2010 and the appeal was eventually heard on 8/11/10, a period of more than six months sufficient to enable the Appellant’s counsel regularize his appeal to make it competent. With the greatest respect, I do not think that was good practice.
The appeal is grossly incompetent and it is hereby struck out. I abide by all the consequential orders.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment just delivered by the learned brother ABDUL-KADIR JEGA, JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders, It is indeed trite law that only human beings and not a registered firm that are actually called to the bar and entitled to practice as barristers and solicitors that are capable of signing legal documents as in the instant case, a Notice of Appeal.
Where, as in this case a Notice of Appeal was filed by a registered firm simpliciter without an indication of the name of the human mind operating the firm, such a Notice of Appeal is held to be defective. See Okafor vs. Eto (2007) 29 NSCQR 467 at 471 – 473. For these reasons and the fuller reasons contained in the leading judgment of my learned brother JEGA J.C.A. I also strike out the appeal.
Appearances
Mr. B. C. OfoegbuFor Appellant
AND
Mr. L. C. UgorjiFor Respondent
