MODERN OIL NIGERIA LIMITED & ANOR V. MR. JOSHUA JACKSON GEORGE
(2013)LCN/5942(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2013
CA/I/125/04
RATIO
”It is trite that an issue could be raised from one or more grounds of appeal, but a ground of appeal cannot give rise to more than one issue for determination as it amounts to prolixity, which the Supreme Court and indeed this court have condemned in a plethora of cases. See, ANAEZE V. ANYASO (1993) 5 NWLR (PT. 291) 1, MADAYEDUPIN V. OLONINORAN (2013) 1 NWLR (PT. 1334) P. 175 at 195. PARAGRAPHS E-F, ANIE & ORS V. UZORKA & ORS (1993) NWLR (pt. 309) 1 at 16 PARAGRAPHS B-E and OMOYINMI V. OGUNSIJI (2008) 3 NWLR (1075) 471 at 479 to 480.” Per UWA, J.C.A.
”The Supreme Court in Okeke v. Oruh (1999) 4 SCNJ page 192 at 209 stated the position of the law thus: ‘An appellate court can only decide on issues raised on the grounds of appeal filed by the parties. If they are not related to any ground of appeal, they would become irrelevant as they go to no issue’.” Per DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. MODERN OIL NIGERIA LIMITED
2. MR. PHILIP OKOROMU Appellant(s)
AND
MR. JOSHUA JACKSON GEORGE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A (Delivering the Leading Judgment): This appeal is in respect of a dispute over a contract of employment. The legal battle between the parties began at the Otta Division of the High Court of Ogun State in suit No.HCT/16/97. After due consideration of the matter, the trial Judge delivered his judgment on the 21st day of July, 2003.
Both parties in the case were dissatisfied with the judgment and consequently both appealed to this court.
The first party to file a Notice of Appeal was the defendants in the lower court. They filed their Notice of Appeal in August, 2003, and they will hereinafter be called the Appellants in this judgment. The Plaintiff in the lower court, who will hereinafter be called the Cross-Appellant, filed his Notice of Appeal on the 15th of September, 2003.
The case of the parties at the trial court can be summarised as follows:
The Cross-Appellant (the plaintiff in the court below) was employed by the 1st appellant (1st defendant in the court below) as an Accountant/Administrative Manager on the 6th of April, 1990. In the cross-appellant’s own estimation, he discharged the functions of his office creditably, garnering in the course of his employment, salary increments in recognition of his productivity and hard work.
Things took a different turn in December 1996 when the 2nd appellant (2nd defendant in the court below) made enquires of the cross-appellant about sales accounts and missing sales books. Although the cross-appellant responded to the enquires, he was without further hearing, handed a letter of dismissal on the 31st of December, 1996, undoubtedly, a piece of news most unwelcome, more so on the eve of a new year.
The Cross-Appellant took a second look at his letter of employment and found that it established a contract of employment that did not brook any termination of his employment and one meant to last until his retirement. On their part, the appellants felt that the employment of the cross-appellant was not a permanent one but one that was from month to month. They considered that the cross-appellant was fraudulent and negligent in the performance of his duties and that he misconducted himself by not giving satisfactory answers to a query issued to him. The appellants therefore felt entitled to summarily dismiss the Cross-Appellant.
After carefully considering the case as presented by the parties, the learned trial Judge entered judgment for the cross-appellant and ordered as follows-
“1. The dismissal of the Plaintiff from the 1st defendant company is hereby declared wrongful and unlawful;
2. N13,980 (Thirteen Thousand, Nine Hundred and Eighty Naira) damages are (sic) hereby awarded in favour of the Plaintiff against the 1st defendant;
3. The defendants’ counter-claims fail and they are hereby dismissed.”
Costs of N4,000 are awarded in favour of the Plaintiff against the defendants.”
When the appeal came up for hearing on 27/11/2012, this court drew the attention of the appellants counsel O.T. Akinbiyi Esq. to the fact that the appellants Notice of Appeal was signed by Messrs ‘Seun Akinbiyi & Co. Appellants’ Counsel however saw nothing wrong with the fact that the Notice of Appeal was signed by Messrs ‘Seun Akinbiyi & Co. He insisted that the Notice of Appeal was competent. He referred the court specifically to the pronouncement of Ogbuagu JSC in the case of Ogundele & Anor. v. Agiri & Anor. (2009) 12 SC part 1 page 135 at page 165. He asserted that he has a firm known as Seun Akinbiyi & Co. and that he is able to show that the firm is registered under the law. It is noteworthy at this juncture that the Certificate of Registration of Seun Akinbiyi & Co. with the Corporate Affairs Commission if one exists was not part of the record before us.
Undoubtedly the passage in the judgment of Ogbuagu JSC which appellants counsel placed reliance on is the following one:
“If learned counsel who appear before this court persist in this practice of signing any process of this court as & Co. without evidence of being duly registered as such, it may be obliged to disregard and discountenance such process including briefs.”
The view of his lordship above on evidence of registration seems to be all that learned counsel needed to come to the view that the registration of his firm Seun Akinbiyi & Co. is enough to make the signing of the Notice of Appeal in that name, competent. But a proper look of the above statement of his lordship in my respectful opinion shows that his lordship took a dim view of the practice of signing any process as & Co. It does seem however that his lordship’s view above also gave a leeway for the use of & Co. where a firm is registered. Unfortunately for appellants counsel, there is no evidence of the registration of Messrs ‘Seun Akinbiyi & Co. before this court. The address of Counsel on the point cannot make up for lack of evidence. See Niger Construction Ltd. vs. Chief Okugbemi (1987) 11-12 SCNJ part 133.
I am of the view that even the limited leeway given in Ogundele v. Agiri (supra) may no longer be available to counsel in the light of the more recent decision of the Supreme Court in the case of First Bank of Nigeria Plc. & Anor. v. Alhaji Salmanu Maiwada (unreported) delivered on 25/5/2012. In that case the Supreme Court made specific reference to the section in the Companies and Allied Matters Act which dealt with Registration of Business Name. Said the Supreme Court in that case:
“The general provision of the law as in Section 573(1) of the Companies and Allied Matters Act is subject to the specific provisions of Section 2(1) and 24 of the Legal Practitioners Act”.
From the above conclusion of the Supreme Court, it is clear that the fact that a firm is registered with the Corporate Affairs Commission will not entitle a legal practitioner to ignore the specific provision of Section 2(1) and 24 of the Legal Practitioners Act.
I would have thought that this court having drawn appellants counsel’s attention to the signing of the Notice of Appeal by a law firm, learned counsel ex abundamti cauteea would simply have withdrawn the Notice of Appeal and sought an extension of time to file a competent one. I think it is rather fool-hardy in the face of the firm position of the Supreme Court in the case of Okafor v. Nweke (supra) on the matter of signing a process by a law firm, for a legal practitioner to brashly and bullishly insist on the contrary.
As stated by the Supreme Court in First Bank of Nigeria Plc. V. Maiwada (supra) “Okafor v. Nweke has come to Stay”. As admonished by J.A. Fabiyi JSC in that case:
“Legal Practitioners should reframe their minds to live by it (Okafor v. Nweke) for due accountability and responsibility on their part and for the protection of our profession”.
Having insisted that his Notice of Appeal is competent and this court having found that it is not, the Notice of Appeal and all processes based on it including Appellants Brief are hereby disregarded and discountenanced. The appeal is accordingly struck out.
I will now turn to the Cross-Appeal. The cross-appellant’s brief was filed on 24/2/2006. Cross appellant’s counsel Taiwo Ojo Esq. identified 5 issues to be determined in this appeal. The issues that he identified are –
“1. Whether the learned trial judge was right in finding that 1st appellant did not justifiably dismiss the respondent;
2. Whether negligence was ever proved by the appellant against the respondent;
3. Whether appellants proved fraud against the respondent;
4. Whether there were outstanding loans unpaid by the respondent to the appellants;
5. Whether the appellants are not jointly and severally liable for the unlawful dismissal of the respondent”.
I think that in formulating the above five issues, cross-appellants counsel was merely following the issues formulated in the appellants brief. He did not generate the issues from his own ground of appeal.
The cross-appellant appears to have a sole ground of appeal which reads:
“The learned Judge erred in law when he failed to give effect to the express terms of the Letter of Appointment (Exhibit D) given to the Plaintiff by the defendant to the effect that the appointment lasts “till retirement” by treating the words “till retirement” as mere entreaty to the Plaintiff”.
None of the five issues mentioned above seem to have been derived from the above ground of appeal. The Supreme Court in Okeke v. Oruh (1999) 4 SCNJ page 192 at 209 stated the position of the law thus:
‘An appellate court can only decide on issues raised on the grounds of appeal filed by the parties. If they are not related to any ground of appeal, they would become irrelevant as they go to no issue’.
The issues raised by the cross-appellant relate to issues raised by the appellant based on an incompetent Notice of Appeal which has been struck out in this judgment. The cross-appellant himself did not formulate any issue from his own sole ground of appeal.
I can only conclude that the cross-appellant abandoned his ground of appeal. The result is that there is really nothing to decide in the cross-appeal. It has no merit and is accordingly dismissed. I make no order as to costs.
CHIDI NWAOMA UWA, J.C.A: I read in advance the draft of the judgment of my learned brother, O. DANIEL – KALIO, JCA. I agree with his reasoning and conclusion arrived at in holding that the main appeal is incompetent and striking out same.
The Notice of Appeal was purportedly signed by Messrs. Seun Akinbiyi & Co. at the hearing of the appeal this fact was brought to the attention of the learned counsel to the Appellant who was of the opinion that his firm’s name having been written beneath a signature was enough and would suffice. He argued that he would show that his firm is registered under the law but learned counsel did not show this in cause of arguing the appeal. By way of emphasis, Section 2 (1) of the Legal Practitioners Act, CAP 207 LFN 1990 states clearly who is entitled to practice as a Barrister and Solicitor in Nigeria. It provides as follows:
2(1) “Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if and only if, his name is on the roll.”
Section 24 of the same Act must be read with the above section, it defines who a legal practitioner is, it provides as follows:
“A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.”
Following the above provisions, the learned counsel to the Appellants Cross/Respondents did not show or prove that the firm Seun Akinbiyi & Co. is in the roll of barristers and solicitors in Nigeria, in line with judicial authorities in that respect. See. OKAFOR V. NWEKE (2007) 10 NWLR (pt. 1043) 521 and more recently restated in FIRST BANK OF NIGERIA PLC. & ANOR V. ALHAJI SALMANU MAIWADA (Unreported) delivered on 25/5/2012 amongst others. The purported Notice of Appeal is incompetent not having been signed by a barrister and solicitor as defined above, same is hereby struck out.
In respect of the cross appeal, Respondent the cross Appellant filed a sole ground of appeal from which he adopted the five issues formulated by the Appellant/cross Respondent.
It is trite that an issue could be raised from one or more grounds of appeal, but a ground of appeal cannot give rise to more than one issue for determination as it amounts to prolixity, which the Supreme Court and indeed this court have condemned in a plethora of cases. See, ANAEZE V. ANYASO (1993) 5 NWLR (PT. 291) 1, MADAYEDUPIN V. OLONINORAN (2013) 1 NWLR (PT. 1334) P. 175 at 195. PARAGRAPHS E-F, ANIE & ORS V. UZORKA & ORS (1993) NWLR (pt. 309) 1 at 16 PARAGRAPHS B-E and OMOYINMI V. OGUNSIJI (2008) 3 NWLR (1075) 471 at 479 to 480.
In the present case the Cross Appellant has sought to utilize five issues to resolve his sole ground of appeal which is proliferation of issues which the courts frown at. The issues are incompetent and are hereby discountenanced. I abide by the order made as to costs in the leading judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: The notice of appeal was signed by “Messrs Seun Akinbiyi and Co.” I agree with the judgment of my learned brother, Obietonbara Daniel-Kalio, J.C.A., that the said notice of appeal is incompetent see for emphasis the additional cases of Oketade v. Adewunmi (2010) 3 S.C – 140 at 146 – 147, S.L.B. Construction Ltd. v. N.N.P.C. (2011) 9 NWLR (pt.1252) 317, LASTMA v. Ezezoobo (2012) 3 NWLR (pt.1286) 49. I would strike out the notice of appeal under Order 6 rule 6 of the Court of Appeal Rules, 2011. The appeal is accordingly struck out.
The cross-appellant filed a cross-appeal with one ground of appeal. Five issues for determination were formulated for the solitary ground of appeal. Proliferation of issues for determination is bad. There should not be more than one issue for determination in respect of one ground of appeal. On the other hand, there can be more than one ground of appeal tied to an issue or a single issue for determination see Unilorin v. Oluwadare (2003) 3 NWLR (pt.808) 557, Sogbesan v. Ogunbiyi (2006) 4 NWLR (pt.969) 19, Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt.1209) 518.
The cross-appellant did not marry the single ground of appeal to any of the issues for determination. So it is impracticable to tie the ground of appeal to any of the five issues for determination. Again, I agree with the judgment of my learned brother, Obietonbara Daniel-Kalio, J.C.A., that the cross-appellant is taken to have abandoned the cross-appeal. I abide by the consequential order in respect of the cross-appeal contained in the said judgment.
Appearances
O.T. AkinbiyiFor Appellant
AND
AbsentFor Respondent
