KLM ROYAL DUTCH AIRLINES v. MRS JAMILA I. ALOMA
(2018)LCN/12217(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/251/2004(1)
RATIO
APPEAL: PROPER WAY TO CHALLENGE A GROUND OF APPEAL
“…its trite law that the proper way to challenge a ground of appeal is to file a motion on notice, if there are other grounds of appeal sustaining the appeal the appeal will not be struck out see ODUNUKWE v OFOMATA & ANOR (1999) LPELR 13055 (CA). Furthermore the said ground is one of law and is jurisdictional, there are plethora cases where the Apex Court has held that a jurisdictional issue can be raised at any time, see NBN LTD v SHAGAYA (1977) 5SC, 181; ONYEAMA v OPUTA (1987) 3 NWLR (60) 259.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT AND PROCEDURE: WHO CAN SIGN A WRIT
“This no doubt presupposes that the writ was being signed for the firm of Rickey Tafar & Co, now this is a firm and not a person in the standing of a Legal Practitioners registered in the Supreme Court Rolls, again, it does not qualify as envisaged in the Legal Practitioners Act. Sections 2(1) of the Act provides that; a legal practitioner is one and only if, his name is on the roll. Section 24 of the same Act provides, thus: “Legal Practitioner” means 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 proceedings.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
Justice
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
KLM ROYAL DUTCH AIRLINES Appellant(s)
AND
MRS JAMILA I. ALOMA Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
The appeal is against the Judgement of the Federal High Court dated 25th September, 2003; coram SANYAOLU J. wherein he granted the Respondents/Plaintiffs claim in its entirety.
Respondent had claimed in lower Court for; the sum of $7,765.00 (Seven thousand, seven hundred and sixty five US Dollars, #8,550.00 (Eight thousand, five hundred and fifty pounds sterling) lira 4,405 (Four Thousand Four Hundred and Five lira) $1,838.25 (One Thousand, Eight Hundred and Thirty Eight US Dollars Twenty cents) N5,000,000 (Five Million naira) and another N5,000.00 (Five Million Naira) plus interest for value of the contents of her lost baggage cost of air ticket, loss of profit and violations of her freedom and dignity.
The Appellant dissatisfied with the judgement filed an amended notice of appeal on 4th October, 2017 deemed 20th April 2018.
A brief facts of the case is that the Respondent herein bought a return flight ticket from the Appellant wherein she was to return to Lagos from Malian via Amsterdam, where there would have been a stopover for 2 hours but upon the advice of the appellant that she would return via a substitute airline she opted to return by a direct flight on Alitalia Airline.
The Respondent had two pieces of luggage already checked onto the flight going via Amsterdam in respect of which two baggage tags had been issued to her. On arrival she recovered only one bag and the other was never found .She had completed a property irregularity form PIR stating the contents in the box, 13 days later her lawyer wrote stating a much different content and different values and that she was harassed by Italian police at Milan.
Appellant filed an Appellants brief on 27/4/18. And a reply brief on 14/06/2018, while the respondent filed his brief on 28/5/18.The appellant formulated three issues for determination, thus;
i. Whether this suit which was initiated by a Writ of Summons signed on behalf of a Law firm and a Statement of Claim signed by a person who is not listed on the face of the process is not incompetent and incapable of conferring jurisdiction on the Court?
ii. Whether the Learned Judge was correct to enter judgment only upon failure of the Appellant to call opposing evidence and without evaluating or analyzing the evidence or considering applicable law?
iii. Whether the Respondent established her case (granted in toto by the Learned Trial Judge) on liability or on quantum of damages awarded?
Respondent formulates a sole issue for determination,
Whether ground one of the appellants amended notice of appeal dated 27th September 2017, filed on 4th October 2017 and deem properly filed on the 20th day of April 2018 by order of the Court is incompetent and liable to be struck out?
For the purposes of this appeal I shall adopt the Appellants issues herein.
As a preliminary, its definitely the law that the Court deals with any objections raised by the Respondent, the Respondent in this appeal filed a notice of preliminary objection dated 27th September, 2017 filed on 4th October 2017 and deemed properly filed on 20th April 2018 on the ground basically that the appellant obtained leave to amend its notice of appeal wherein he raised a fresh issue but failed to obtain leave of Court before raising it.
On the issue for determination Whether Grounded of the Appellants amended Notice of Appeal dated 27th Sept 2017 filed on 4th October 2017 and deem properly filed in the 20th day of April 2018 by order of the Court is incompetent and liable to be struck out?
Arguing the sole issue, Respondent submitted that ground 1 of the Appellants Amended Notice of appeal dated 27th September 2017 filed on 4th October 2017 deemed on 20th April, 2018 is incompetent.
He contended that the issue is not one of those canvassed and pronounced by the lower Court and leave was not sought to raising same, he relied on FBN PLC v AKARABONG COMM BANK [2006] 1 NWLR (PT. 962) 438 OBIOHA v DURU (1994) 8 NWLR (PT. 365) 631 ONWERE v NWAZUO & ORS [2012] LPELR -20838, GBOKO v STATE [2007] 17 NWLR (PT.1063) 272, GWEDE v INEC & ORS (2014) LPELR – 23763, AHMED v MINISTER OF INTERNAL AFFAIRS OF FRN & ORS (2017) LPELR 43150, SOGUNRO & ORS v YEKU & ORS (2017) LPELR – 41905 SC ADELAKUN v ORUKU [2006] 11 NWLR 9 (PT. 992) 625 NWACHUKWU v STATE [2007] ALL FWLR (PT. 390) 1380 NEW RESOURCES INT LTD ANOR v ORANUSI (2010) LPELR 459, SHAIBU v STATE 2017 LPELR -42100. OGBU v STATE [2007] NWLR (PT. 1028) 635 at 667 PAR E-G PDP v SHERRIF & ORS 2017 LPELR 42736: OLAIFA & ORS v DAVID TANIMOMO & ORS 2017 LPELR 43252, OWOBU v OSIFO (2017) LPELR – 42436; He urges the Court to strike out the appeal.
The Appellant in reply on the issue for determination; Whether Ground one of the Appellant Notice of appeal dated 27thseptember 2017, filed on 4th October 2017 and deemed properly filed on the 20th day of April ,2018 by order of Court is incompetent and liable to be struck out
He conceded that when a party seeks to file and argue (in the appellate Court) a fresh issue not canvassed in the lower Court, he must seek leave to file and argue such issue first before it can be raised. However, he stated that this is not where it is a jurisdictional issue, as matters concerning jurisdiction can be raised at any time without leave of Court.
He relied on GAJI v PAYE (2003) 8 NWLR 583 SC, OBIAKOR v STATE [2002] 10 NWLR (PT. 776) PG 626, CCG (NIG) LTD v AMINU [2015] 7 NWLR (PT. 1459) PG 592, AHMED v MIN OF INTERNAL AFFAIRS OF FRN & ORS (2017)] LPELR 43150, NEW RESOURCES INT LTD v ORANUSI [2011] 2 NWLR (PT. 1230), That the case of EGBUCHULAM v EGBUCHULAM (2014) LPELR -22831, was cited out of context and is inapplicable. That the case is that the writ is fundamentally defective, he urged the Court to dismiss the Preliminary Objection.
RESOLUTION
The Respondent filed a Preliminary Objection filed on 4th October challenging the ground no 1 of the notice of appeal, its trite law that the proper way to challenge a ground of appeal is to file a motion on notice, if there are other grounds of appeal sustaining the appeal the appeal will not be struck out see ODUNUKWE v OFOMATA & ANOR (1999) LPELR 13055 (CA).
Furthermore the said ground is one of law and is jurisdictional, there are plethora cases where the Apex Court has held that a jurisdictional issue can be raised at any time, see NBN LTD v SHAGAYA (1977) 5SC, 181; ONYEAMA v OPUTA (1987) 3 NWLR (60) 259.
Also by virtue of Section 241 of the 1999 Constitutional (as amended) the appeal on ground of law is as of right therefore it needs no leave. The ground deals with the validity of the writ issued at the lower Court and this is a fundamental issue that goes to the root of the appeal.
In the light of the above the preliminary objection fails and is dismissed.
I shall now proceed to the merits of the appeal.
ISSUE 1
The Appellant submitted that the writ of summons and statement of claim used in the lower Court were defective and be struck out .He consented that the writ was signed for and on behalf of MESSERS RICKY TARFA & CO even though the name of a legal practitioner (Andrew M, Malgwi Esq) appears on the writ of summons, it was clear that he did not sign the signature on the Writ. He submitted that (i) the use of Fr a usage when one signs on behalf of another person. And that his name was not listed among on the signed document, and it was used against; RICKY TARFAR & CO indicating that it was signed on behalf of the law firm. (ii) The same signature that appears on the writ of summons also appears on the statement of claim signed on behalf of Andrew M. Malgwi Esq.
That the conclusion is that the signee signed the writ of summons and statement of claim on behalf of Messrs Ricky Tarfa & co and Andrew Malgwi respectively.
He relied on a host of cases wit; GLAXO SMITHKLINE PLC v JIYA (2014) LPELR-CA/K/147/2012, GTB v INNOSONS NIG LTD (2017) LPELR 2368 (SC), NEW AGE BEVERAGE COMPANY LTD v ARAMIDE (2014) LPELR CA/L/52 2013; SHELL PET DEV CO NIG LTD v ORUWARI & ORS (2012) LPELRCA/PH/383/2009 , PDP & ORS v EZEONWUKA & ANOR LPELR -42563 (SC), ADEGBOLA & ORS v IDOWU & ORS (2017) LPLER -42105 (SC), UDO v AKPABIO & ORS (2013) LPLER 22119 (CA), OLAGBENRO & ORS v OLAYIWOLA & ORS (2014) LPELR – 22597(CA); ZARTECH LTD v OLAOGUN ENTERPRISES LTD (2016) LPELR 41927 (CA) on the Court precedents in different situations and the holding.
Therefore he submitted that the Statement of Claim dated 23rd December 1999 and the writ of summons is legally incompetent and should be struck as same was not signed by a legal practitioner.
The Respondent counsel in its brief disagreed with the Appellant that the Writ and Statement of Claim were defective, they contended that it was signed by an identifiable person by Anderw Malgwi Esq the law firm of RICKY TARFA & CO. Counsel further referred to Sections 2(1) and 24 of the Legal Practitioners Act 1990 and the case of OKAFOR v NWEKE [2007] 10 NWLR (PT. 1043) 521, SLB CONSORTIUM LTD v NNPC [2011] 9 NWLR (PT. 1252) 317, OKPE v FAN MILK PLC & ANOR (2016) LPELR – 42562, AYODELE SOLOMON FEMI & ANOR v OBA ADESOTIE ADEGBOYEGA & ANOR (2014) LPELR-CA/I/59/2013 AT 15-16.GLAXO SMITHKLINE PLC v JIYA (2014) LPELR CA/K/147/2012, GTB v INNOSON NIGERIA LTD (2017) LPELR – 42368, Counsel submitted that it is not the firm that signed but Andrew M. Malgwi Esq, that the situation is different from the instances in these cases.
Counsel drew the attention of this Court to the decision in suit SC/175/2005 HERITAGE BANK LTD v BENTWORTH FINANCE delivered 23rd February 2018 cited b the appellant that it is inapplicable.
On the issue of proof of signature he cited OSEMWENKHA v PETER OSEMWENKHA (2012) LPELR – 9580 CA THE VESSEL MV NAVAL GENT & ORS v ASSSOCIATED COMMODITY INTERNATIONAL LIMITED (2015) LPELR 25973.
On conflicting signatures, he submitted that it calls for proof and relied on HENRY ATUCHUKWU v GLORIA ADINDU (2011) LPELR-3821, THE VESSEL MV NAVAL GENTS & ORS v ASSOCIATED COMMODITY INTL LTD; FAITHU GALANDANCHI v ABDULMALIK & ANOR (2014) LPELR 23593
Appellant submitted that not having led evidence at the lower Court showing the signature is not that of the counsel Respondent cannot raise it by way of address.
The Appellant in reply on points of law submitted that on the face of the originating process it was written Andrew M Malgwi Esq of Messer Ricky Tarfa & Co but fails to state that it was signed for Messers Ricky Tarfa & co and the signees name was not indicated hereon therefore it was a case of an unknown person.
He distinguished the Appellants, cases cited especially HERITAGE which he submits differentiated substantive defect from procedural, and that it is also inapplicable in this case.
RESOLUTION
The first port of call is for the examination of the writ of summons and the statement of claim under contention and the mode of signing. Whether it indeed breached the provisions of section 2(1) and 24 of the Legal Practitioners Act.
The writ was signed thus;
Signed
Fr Messers Rickey Tarfa & Co,
This Writ was issued by Andrew Malgwi Esq of
(on another line)
This no doubt presupposes that the writ was being signed for the firm of Rickey Tafar & Co, now this is a firm and not a person in the standing of a Legal Practitioners registered in the Supreme Court Rolls, again, it does not qualify as envisaged in the Legal Practitioners Act. Sections 2(1) of the Act provides that; a legal practitioner is one and only if, his name is on the roll.”
Section 24 of the same Act provides, thus:
“Legal Practitioner” means 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 proceedings.”
In FIRST BANK v MAIWADA (2012) LPELR-9713(SC) the Apex Court held:
It is indeed clear in my humble opinion that the interpretation of the above provisions is that it is the human person legally trained or termed a legal practitioner that is meant under those legislations above and only such persons and not a firm or group in the firm of legal practitioner come within the ambit of those two sections of the law. Therefore for the purpose of the authorizing signature, it is either the litigant himself or the human person who is the legal practitioner that can sign. per PETER-ODILI, J.S.C
Therefore being the initiating process in the matter it is crucial; ADEKEYE JSC held thus;
“The Notice of Appeal is the foundation and substratum of every appeal. Any defect will render the whole appeal incompetent and the Appellate Court will lack the required jurisdiction to entertain it. Once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider. It is the Notice of Appeal which gives the Court jurisdiction to hear an appeal. Any defect in the Notice of Appeal goes to the root of the appeal and robs the Court the jurisdiction to hear the appeal. UWAZURIKE v A-G FEDERATION (2007) 8 NWLR (PT.1035) PG11 A G FEDERATION v GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PT.618) PG. 187.” PER ADEKEYE, J.S.C.
Therefore, the writ is defective and cannot stand. See NKEMDILIM v MADUKOLU (1967) ANLR 1.
The statement of claim at page 10 of the record also has the same endorsement, only that it is signed by the same person who signed the writ but it has thus;
Signed
from Andrew
M.Malgwi Esq
Messers Rickey Tarfa& co
…
Again it signs for another but the other is a known legal practitioner but who exactly signed for this known practitioner is not known. Appellant counsel has contended that its the signature of the Andrew Malgwi, fortunately and unfortunately, another process at page 17 the Reply to statement of Defence is clearly and unequivocally signed and underneath is the same Malgwi Esq, the signature is different from that on the first two processes mentioned above. (writ and statement of claim) again, I see the appellants brief filed in this appeal it was signed by same MALGWI ESQ and it tallies with the signature on the reply, one does not need a pair of glasses to identify and differentiate the signatures therein, they are as clear as 7up. I would not succumb to the Respondents submission that one needs evidence to say its not his signature, upon a simple comparison it is sure different.
But then what is the effect? this in line with the decision in HERITAGE BANK LTD v BRENTHWORTH recently decided by the Apex Court on 23rd February 2018 and termed procedural it is defective but does not go to the root and substantial which goes to the root and cannot be waived; EKO EJEMBI JSC held;
The purport of the above is that, a defect in the originating process is within the ambits of substantial jurisdiction, while a defect in other processes is within the ambits of procedural jurisdiction. Thus while the later can be waived, the former can at most definitely not be waived. It is the Respondent herein had its originating process signed by a law firm ,thereby rendering the process defective and thus affecting the substantial jurisdiction of the case and cannot be waived.
Therefore, I am bound by the above decision and the Court lacks jurisdiction, the Statement of Claim is struck out while the Writ of Summons having been the originating process is defective and affects the substantial jurisdiction of the Court. The Preliminary Objection in issue 1 is upheld.
Under the forgoing the remaining issues have been rendered academic the Court having no jurisdiction to entertain same, in the circumstances. Suit FHC/L/CS/17/2000 is hereby struck out, and appeal based on it must fail also. Appeal is struck out.
There shall be no order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: The reasons proffered in the lead judgment by his Lordship, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, are in accord with my thoughts, on the appeal, hence I am of the same opinion, that the defect in the respondent’s originating process at the Court below, had affected the substantial jurisdiction of that Court, in entertaining the action. The said suit No. FHC/CS/17/200 is, accordingly struck out.
I have nothing more useful, to add.
Each side to bear own costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO. J.C.A just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances:
I. A. OnyebuchiFor Appellant(s)
Andrew MalgwiFor Respondent(s)
