ALHAJI ALI MAINA v. ALHAJI YAHAYA ABDULLAHI (2013)

ALHAJI ALI MAINA v. ALHAJI YAHAYA ABDULLAHI

(2013)LCN/6546(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of November, 2013

CA/K/237/2005

RATIO

ESSENCE OF A NOTICE OF APPEAL

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ALHAJI ALI MAINA Appellant(s)

AND

ALHAJI YAHAYA ABDULLAHI Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the decision of Hon. Justice G. I. Kurada of Kaduna State High Court in suit No. KDH/KAD/862/98, delivered on 27/5/2002.
Appellant was the defendant at the Court below and the Respondent herein the plaintiff. The plaintiff’s claim was for a declaration of title to a plot of land at No. 9 Inuwa Dada West Extension, perpetual injunction N100,000.00 (One Hundred Thousand Naira) as general damages for trespass on the land. The Respondent had counter-claim for two million Naira (N2,000,000.00) against the plaintiff (Appellant) for damages done to his building, wall, fence and so on.
At the end of the trial, the Court entered judgment for the plaintiff and dismissed the counter-claim Appellant filed the Notice of appeal on 30/5/2002, as per pages 183 to 185 of the Records of Appeal, disclosing 5 grounds of Appeal as follows:

“GROUND ONE:
The learned trial judge erred in law when he granted a perpetual injunction and awarded the sum of N100,000.00 for trespass in favour of the Respondent in the circumstances of this case.
PARTICULARS OF ERROR
a. The area or size of the land for which the perpetual injunction was granted is not known to both parties in this suit and the Court did not determine it.
b. It is not the case of the Plaintiff/Respondent that the whole plot of land disputed belongs to him he claims an unknown portion of it as his land.
c. The Plaintiff never pleaded the size of his undeveloped plot of land, if any.
d. The plaintiff/Respondent was very shaky on even the size of the portion of land he claimed to have developed – as he does not know the size of the plot he built on, does not know whether he divided the plot into two equal parts “since I am not a surveyor”.
e. No surveyor testified on his behalf.
f. The order of perpetual injunction is ambiguous and imprecise in that the portion of land it applies is not known to anybody including the Court.
g. The plaintiff never denied anywhere in his pleading or evidence that the plot of land the Defendant/Appellant built on is No. 78 Ajayi Road, Kaduna.

GROUND TWO:
The learned trial judge erred in law when he held that the plaintiff/Respondent can rely on a perceived misnomer relating to the designation of the Defendant/Appellants’ plot to turn or revive a case not proved by strong and positive evidence to one that is so proved.
PARTICULARS OF ERROR:
a. The trial court found that the Plaintiff did not establish his case on strong and positive evidence.
b. Being a case for a declaration of title to land, the Plaintiff/Respondent is, by settled law, to rely on the strength of his case and not on the weakness of the defendant’s case.
c. A misnomer, if any, relating to the proper designation of the Defendants/Appellant’s property is not such a weakness that supports the plaintiff’s case.
d. It is an undisputed case of both parties that the defendant had built on the plot of land in dispute and that the building is no plot No. 7B Ajayi Road, Kaduna – paragraphs 5 and 15 of the statement of defence and counter claim and the evidence thereof were not challenged.

GROUND THREE:
The learned trial judge misdirected himself when he relied on an issue that was neither raised by any of the parties nor addressed on by their counsel in determining the case before him.
PARTICULARS OF MISDIRECTION:
a. The issue of what the Defendant/Appellant’s plot is called – whether along Idoma or 7B Ajayi Road was never raised by the parties and trial court was not addressed on the issue,
b. Paragraph 6 of the Statement of defence and counter claim clearly averred that Ajayi Road never was.
c. D.W.3 in his evidence in chief, which was never challenged, gave evidence to the effect that the government canceled Ajayi Road.
d. Exhibit 4111B pleaded by both parties and tendered by the plaintiff’s witness categorically affirmed that the plot of land which he Defendant/Appellant’s application is being processed is No. 7B Ajayi Road while the plaintiff’s own is simply No. 9 Inuwa Wada West Extension but not Idoma Road by the official record of Ministry of Land, Kaduna State.
e. It is not disputed by rather party that both plots of land are adjacent each other- hence the unofficial name of the road assumed by both parties and later abandoned by the Defendant/Appellant for the official designation is of no assistance whatsoever to the Plaintiff/Respondent in a claim for declaration of title of land.
f. The trial judge failed to realize that a bigger plot of land could never be wholly a fraction of a smaller plot of land.

GROUND FOURS:
The trial court erred in law in holding that the case of the plaintiff/Respondent was not statute barred for want of evidence to that effect.
PARTICULARS PF ERROR:
a. The plaintiff’s case is that he left a portion of an unknown size of his land undeveloped when he developed a portion in 1983.
b. The plaintiff fenced his said plot in 1983.
c. There was no evidence or even pleading that from 1983 till date that the plaintiff did anything on the plot he claimed was left out after development in 1983.
d. The counter – claim, not challenged as the plaintiff did not file any defence to the counter – claim nor cross examine on it, it that the defendant and his predecessor-in-title “exercised all right of ownership of ownership over the 7B Ajayi Road to the knowledge of the plaintiff for over 25 years”.

GROUND FIVE:
The learned trial judge erred in law when he declined to hold that the unchallenged counter claim was proved and also refused to award the relief sought in the counter-claim.
PARTICULARS OF ERROR:
a. There was no defence filed in respect of the counter – claim.
b. The trial judge had earlier found that plot No. 9 and 7B Ajayi road are two separate plots of land.
c. The self – help adopted by the plaintiff /respondent is in respect of a building on 7B Ajayi Road, Kaduna, which by Exhibit 4111B tendered by the plaintiff/respondent is that applied for by the defendant/appellant is in possession of.”
Appellant’s Brief was filed on 8/12/06, with the leave of Court, and the following 4 issues were distilled for determination:
“(1) Since it was held that the respondent’s case was not proved by strong and positive evidence, was there weakness in the Appellant’s case the respondent could rely on to revive his case?
(2) Whether the orders of perpetual injunction and payment for trespass granted in this case relate to an unknown portion of land and thus ambiguous?
(3) Was the claim of the respondent not barred?
(4) Was the trial judge not wrong when he held that the appellant’s counter claim was self-defeating and contrary to his pleading”
The Respondent filed his Brief of argument on 22/1/2007 and formulated the following 4 issues for determination:-
“(1) Whether the Respondent discharged the burden of proof placed on him and whether the Appellant’s case supported his case?
(2) Whether the counter-claim ought to have succeeded simply because it was unchallenged?
(3) Whether the trial Court was right in granting an order of injunction against the Appellant and his agents in the circumstance of this case?
(4) Whether the Respondent’s claim is statute barred?”
The Respondent also raised a Notice of Preliminary Objection to the hearing of the appeal in the Respondent’s Brief, pages 1 and 2 thereof, Counsel said he later filed a separate Notice to that effect on 27/4/2009. At the hearing of this Appeal, on 22/10/13, the Respondent argued the said Preliminary Objection as per the Brief and urged us to strike out the Appeal.
Appellant did not file any Reply Brief and did not react to the Preliminary objection. He was not also in Court, neither his Counsel on the 22/10/2013 (when the appeal was heard), though there was evidence of service of the Notice of Hearing on him, through his Counsel on 21/10/13. At the hearing, the Respondent’s Counsel also adopted the Respondent’s brief and urged us to dismiss the appeal.
Appellant’s Brief was deemed duly argued, pursuant to Order 18 Rule 9 (4) of this Court’s Rules, 2011.
The Respondent’s Preliminary objection is to the effect that there is no valid and competent notice of appeal to sustain this appeal, because the Notice of appeal filed by the Appellant, on 30/5/2002, was not signed either by the Appellant himself or by any named legal practitioner on behalf of A.C. Amaechi & Co. He referred us to page 183-185 of the Records. He also relied on section 32 of the Court of Appeal Act 1976, on the definition of “Appellant”. He submitted that the law firm, A. C. Amaechi & Co. is not a legal practitioner within the purview of section 2 (1) and section 24 of the Legal Practitioners Act or Order 1 Rule 1 of the Court of Appeal Rules, 1981, as amended. He also relied on the cases of:
NEW NIGERIA BANK PLC VS. DENCLAG LTD (2004) ALL FWLR (Pt.228) 606 at 626; MOBIL OIL NIG. PLC VS. RABIU (2003) FWLR (Pt.149) 154 at 155; FIRST BANK OF NIGERIA PLC VS. ALH. SALAMI MAIWADA (2003 FWLR (Pt. 151) 2001 at 2011 – 2015; CHRISDON INDUSTRIAL CO. LTD. VS. AFRICAN INTERNATTONAL BANK LTD (2002) FWLR (Pt.128) 1355 at 1372 – 1374.
Though the separate Notice of Preliminary Objection allegedly filed by the Respondent on 27/4/2009 cannot be found in the Court’s file and cannot be substantiated, especially as the Respondents Brief, wherein, he argued the Preliminary Objection was filed on 22/1/2007, (about 2 years before the alleged separate Notice of Preliminary Objection to the Appeal was filed!), this Court is enjoined by law to consider and rule on any defect, apparent on the face of the Notice of Appeal or Record of appeal, the flaw in raising the objection, notwithstanding. See the case of AYOADE VS. SPING BANK PLC (2013) LPELR – 20762 (CA); GARBA VS. UMMUANI (2013) 12 WRN 76 at 95.

A valid and competent Notice of Appeal is the necessary foundation of a civil appeal to invoke the jurisdiction of Appellate Court. See the case of OKONKWO vs. INEC (2004) 1 NWLR (pt. 854) OR (2003) LEPLR/EP-CA/E/EPT/85/2003 where the Supreme Court relying on the case of AMADI VS. OKOLI (1977) 7 SC 57, per IDIGBE JSC, at page 58, stated that.
“The Notice of appeal is very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent…”
The same view was expressed by the Supreme Court in the case of AKINLOYE VS. ADELAKUN (2000) 5 NWLR (Pt. 657) 530 at 535, where it held that:
“a valid notice of appeal is a sine qua non to the competence of an appeal”
See also BILAM DAMBAM VS. ARDO LELE (2000) 11 NWLR (Pt. 678) 413, where the Court of Appeal, per CHUKUEUEMEKA-ENEH JCA (as he then was) said:
“The crucial position of this document (Notice of Appeal) in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It (Notice of Appeal) initiates appeal and where it suffers from any serious defect the appeal itself becomes defective and subject to be struck out as incompetent.”
See also MOHAMMED VS. MARTINS ELECTRONICS COMPANY LTD (2009) LPELR – CA/K/189/M/06, where OREDOLA JCA, graphically, explained:
“A notice of Appeal is the fulcrum, foundation substratum and alpha of any appeal. It is so foundational that where it is lacking or structurally deficient, the entire appeal becomes grounded and remains on the run way like an aircraft without wings and speed to take to air for flight to its destination. Where it manages to gather little speed or momentum, the flight must be aborted or the entire journey will end in fiasco..
AGU VS. ODOFIN (1992) 3 SCNJ 161/173; IBETO VS. AMINU (2007) 5 NWLR (Pt.1028) 446; DANMUSA VS. INUWA (2007) 17 NWLR (Pt.1063) 391 and CLEV JOSH LTD VS. TOKIMI (2008) 13 NWLR (Pt. 1104) 422”
By Order 6 Rules 6 of the Court of Appeal Rules, 2011,
“The Court shall have power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
It is true that the Notice of Appeal, filed by the Appellant was not signed by the Appellant, nor by any identifiable legal Practitioner, known to law. The process was allegedly signed by
“A. C. AMAECHI & CO.
VVI Lagos Street/Keffi Road, Kaduna.” (See page 185 of the Records)
Of course, there is no legal Practitioner by that name, A. C. Amachi & Co., registered with the Supreme Court of Nigeria, to practice law. We have stated, repeatedly, that a law firm, run and operated by Lawyers, cannot, by itself, assume the functions of the lawyers that operate the firm and begin to sign letters and documents (if at all the law firm can do so) in its name without a disclosure of the name of the legal practitioner, duly registered to practice law in Nigeria, as the signatory to the particular process signed.
See the case of AGROVET SINCHO PHARM LTD. VS. ESTATE OF ENGR. DAHIRU (2013) LPELR – 20364 (CA), where this Court held:
“It must also be added that the error of omitting to state the name of a legal Practitioner, duly registered to practice law as barrister and solicitor in Nigeria’ on a process of Court meant to originate a matter can be fatal, on enquiry as to whether the person who signed the process is known to law as duly registered legal Practitioner. There can be no argument that a law firm cannot claim to qualify as a legal Practitioner, registered with Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See also BELLO VS. ADAMU (2011) LPELR 3722 (CA)”

Also in the case of SLB CONSORTIUM LTD. VS. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court said:
“It has been argued that COLE VS. MARTINS (Supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it, because in law a business name is not accorded legal personality… it is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, ADEWALE ADESOKAN & CO. is not a legal person. It can only function as – ADEWALE ADESOKAN (Trading under the name and style of ADEWALE ADESOKAN & CO.), per ONNOGHEN JSC”
Applying the above principles of law to this Appeal, the Notice of Appeal filed, as per pages 183 185 of the Records of Appeal, purportedly signed by A. C. AMAECHI & Co, having not disclosed the name of a legal Practitioner, known to law, as the signatory, remains a worthless tissue of paper which cannot invoke the jurisdiction of this Court to consider the Appeal, and has to be struck out. OKAFOR vs. NWEKA (2007) ALL FWLR (Pt.368) 1016; NEW NIGERIA BANK VS. DEDANG LTD. (2005) 4 NWLR (Pt.916) 573; See also the case of DANLAMI ABDULLAHI & ANOR. VS. ABATI ABUBAKAR & ANOR. CA/K/58/2008, an unreported decision of this Court, delivered on 16/9/2013 (page 10 thereof).
Sadly, that seems to be the fate of this appeal too, as the same is incompetent. It is accordingly struck out.
Parties to bear their respective costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the privilege of reading in advance the final draft of this judgment just delivered by my learned brother, Mbaba, J.C.A. It is now fundamental that a person who was not called to the Nigerian Bar and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria in accordance with the Legal Practitioners Act, cannot in law sign any legal process on behalf of a party to a suit. It is obvious that A. C. Amaechi & Co. which signed the Appellant’s Notice of Appeal is not a legal person known to law; therefore, it is not qualified to sign the Notice of Appeal in this appeal on behalf of the Appellant. That being so, the Notice of Appeal filed herein is fundamentally defective and cannot be cured by any amendment. This was enunciated in Okafor vs. Nweke (2007) 10 NWLR part 1043 p.521, per Onnoghen, J.S.C. See also, Ashco Nig. Ltd & anor vs. Ward and Green & Anor (2010) 3 NWLR part 1181 p. 302 and the most recent supreme court case of SLB Consortium Limited vs. Nigerian National Petroleum Corporation (2011) 9 NWLR part 1252 page 317. Accordingly, the Notice of Appeal filed herein is hereby struck out for being defective.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has ably resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
The fate of this appeal turned on the competence of the notice of appeal filed by the Appellant to ignite the jurisdiction of this Court to entertain the appeal. The notice of appeal was not issued or signed by the Appellant himself or by a legal practitioner. It was issued and signed by an entity called A. C. Amaechi & Co. The law stipulates that such a process must be signed either by the Appellant himself or by his legal practitioner who must be a person so recognized and registered to practice law as a barrister and solicitor in Nigeria. The entity A. C. Amaechi & Co is not such a registered legal practitioner. The law as settled by a long line of Supreme Court decisions is that such a process nor signed by the Appellant or a registered legal practitioner is a nullity and it is void ab initio and being the originating process of this appeal, it cannot sustain the appeal. It is a requirement of substantive law, and not of procedural law, and thus it cannot be waived and it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by such signing of the court process and it is an issue that can be raised even at the Supreme Court for the first time Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt.1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (pt.1252) 317, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt.1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt.1348) 444, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481 and Okarika Vs Samuel (2013) 7 NWLR (Pt.1352) 19.
The option available to the Appellant to have saved this appeal was to have taken advantage of the decision of the Supreme Court in Unity Bank Plc Vs Denclag Ltd (2012) 18 NWLR (Pt.1332) 293 to the effect that such a process can be rectified and amended. The Appellant did not do so. This appeal is incompetent and it is liable to be struck out. I abide the order striking out this appeal in the lead judgment and also the order as to costs.

Appearances

A. C. Amaechi Esq.For Appellant

AND

Gabriel Didam Esq.For Respondent