ABDULKARIM ISAH v. WAMMAKO LOCAL GOVERNMENT COUNCIL & ANOR
(2019)LCN/12567(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/S/83/2014
RATIO
APPEAL: WHERE THE NOTICE OF APPEAL IS DEFECTIVE
“It is trite that where the original Notice of Appeal is defective, same cannot be cured by subsequent amendment as in the instant Appeal. In NWAIGWE & ORS V OKERE & ANOR (2008) LPELR 2095 Pages 23-24 Paragraphs E-A the Supreme Court Held:-
‘It is settled that you cannot amend a fundamentally defective document such as a Notice of Appeal as to infuse life into it. In other words a fundamentally defective Notice of Appeal cannot be cured by an amendment of same.You can only validly amend a valid Notice of Appeal not a fundamentally defective one, which in the eyes of the law is nonexistent or dead. See AWHINABI V. OTERI (1984)5 SC 38; ATUYEYE V. ASHAMU (1987) 1 SC 333 at 358.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
ABDULKARIM ISAH Appellant(s)
AND
1. WAMMAKO LOCAL GOVT. COUNCIL
2. CHAIRMAN WAMMAKO LOCAL GOVT. COUNCIL Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Ruling of the Sokoto High Court in Suit No. SS/28/2013 delivered by M. Umar Dogon Daji J on 5th December, 2013. Briefly, the facts of the case are that the 1st Respondent awarded two contracts for the construction of a cemetery at Gadawa village at the cost of N991,530:00 kobo to one Umaru Muhammad, another for the construction of Islamiyya school at Gidan Salanke at the cost of N906,353:00 kobo to one Bashir Arkilla; and the third contract for the electrification of Gidan Bawan Allah at the cost of N831,220.00 to Attahiru Marmaron Nufawa. That the Appellant bought the three contracts sometimes in 2007 from the awardees. That the Appellant completed the three contracts and was awarded with certificates of the completion of the three contracts by the 1st Respondent. That despite all these the 2nd Respondent refused to pay him. That the Appellant by a writ of summons filed Suit No. SS/28/2013 before the lower Court claiming: –
1) A declaration that the contract was lawfully and validly awarded to the awardees mentioned in the statement of claim.
2) A declaration that the Plaintiff lawfully and validly bought the contracts from the awardees.
3) A declaration that the Plaintiff has completed the contract according to specification.
4) A declaration that both the request for payment of the contracts as well as the approval for payment made from the impress of the 1st defendant was validly and lawfully made
5) An Order directing the defendants to pay the Plaintiff the sum of N2,729,103.00 (Two Million Seven Hundred and Twenty Nine Thousand One Hundred and Three Naira Only) being money for payment of contracts bought and executed by the Plaintiff for electrification of Gidan Bawan Allah, construction of cemetery at Gedawa village and construction of Islamiyya School at Gidan Salanke in Wammako local Government council respectively.
6) An Order directing the defendants to pay to the Plaintiff 21% interest on the total sum of the contracts from 2007 till final judgment.
7) An Order directing the defendants to pay to the Plaintiff 10% interest from the date of judgment till final liquidation.
8) An Order directing the defendant to pay to the Plaintiff one million Naira only general damages.
9) An Order directing the defendant to pay the Plaintiff N1,000,000 special damages.
10) Such further Order(s) as the Honourable Court may deem fit to make in the circumstances.
Issues were joined and counsel to the Respondents filed and moved a preliminary objection challenging the jurisdiction of the lower Court that the suit was Statute barred by virtue of the provisions of Section 18 of the Limitation Law Cap 80 Laws of Sokoto State 1996. The learned counsel to the Appellant responded. The lower Court delivered a Ruling on 5TH December, 2013 upheld the preliminary objection and dismissed the Suit.
Dissatisfied, the Appellant filed this Appeal. The Notice of Appeal was filed on the 16TH of December, 2013. Record of Appeal was filed on 19TH 0f June, 2014 but deemed as compiled and transmitted on 3RD of May, 2017.
Additional Record was deemed compiled and transmitted on 31ST January, 2018. Original Appellant’s Brief was filed on 19TH October, 2017 and deemed filed and served on 22/05/2018. The amended Appellant’s Brief of argument filed on 21ST September, 2018 was deemed filed and served on 6TH November, 2018.
The Respondent’s Brief of argument was filed on 12TH September, 2018; the amended Respondent’s Brief which contains the Preliminary objection was filed on 9TH November, 2018. Appellant’s reply Brief was filed on 23RD November, 2018. In the Appellant?s Brief of argument he raised one issue for determination:-
‘Whether Suit No. SS/28/2013 initiated by the Appellant is Statute Barred under Section 18 of the Limitation Law Cap. 80 of Sokoto State 1996 notwithstanding the fact that the Respondent admitted liability during negotiations’
According to counsel the provision does not apply to the instant case, he referred to the holding of the lower Court at Pages 38 and 39 of the Record of Appeal and submitted that in determining the time of the accrual of a cause of action, the originating processes must be scrutinized especially the writ of summons and the statement of claim. He referred to A/G ANAMBRA STATE V AG FEDERATION 1993 6 NWLR (Part 302) 692 at 747 and submitted that Paragraphs 10,11,12,13,14,15,16,17 and of the statement of claim in suit number SS/28/2013 showed admission of liability during negotiations hence the counting of time to make the action Statute Barred was suspended.
He cited the case of SHELL PETROLEUM DEVELOPMENT COMPANY V. FARAH (1995) NWLR (Part 382) Page 185-186 and opined that the Appeal should be allowed and the Judgment of the lower Court should be set aside. He urged the Court to remit the case back to the Chief Judge of Sokoto High Court to be assigned to another judge for retrial.
In his response Respondent?s counsel raised a sole issue for determination:-
‘Whether or not the Appeal No. CA/S/83/2014 is competent in view of the fact that the Notice of Appeal upon which it was predicated contained vague and imprecise grounds of Appeal’.
Counsel referred to the 1st, 2nd and 3rd grounds of Appeal of the Appellant as contained in the Notice of Appeal filed on 16th December, 2013 and contained at Pages 40-41 of the Record of Appeal and submitted that the grounds are vague and imprecise as the main body of the ground, aside the particulars do not reveal in precise terms the main complaint of the Appellant against any part of the decision of the lower Court apart from tagging the ground with different appellations as the judgment was against evidence, ‘Error in law’, ‘Miscarriage of justice’ and ‘Omnibus ground’.
He referred to Order 7 Rules 2(3) and 3 of this Court?s Rules 2016 and GOVERNOR OF IMO STATE & ANOR V. IWUNZE (2018) LPELR 44005 (CA) Pages 11- 12 Paragraphs D-B, E.E.C. LTD. V. GUJBA (2017) LPELR 43275 Page 5 Paragraphs A-E and submitted that the Appellant must as a matter of law state the main grouse encompassing his complaint against the decision challenged on Appeal.
That the Appellant’s Notice of Appeal is bereft of competent grounds of Appeal as such it is incompetent and liable to be struck out. He referred to ONWUKA V ONONUJU & ORS (2009) LPELR 2721 (SC) Page 27 Paragraphs D-F and submitted that a Notice of Appeal that lacks a single valid ground of Appeal is an empty shell, that any Appeal predicated on such Notice of Appeal is incompetent in law.
According to counsel, the amendment made by the Appellant to the Notice of Appeal does not cure the defect in the notice. Counsel cited ADA V HASHIMU (2017) LPELR 42510 Pages 6-10 Paragraph F-A (CA) and stated that where the original Notice of Appeal is defective it cannot be cured by subsequent amendment as in the instant Appeal. According to counsel, all the grounds of Appeal in this Appeal are incompetent and he urged this Court to strike it out and dismiss the Appeal.
I will proceed to determine the Preliminary objection and see whether it can be sustained or not. The Appellant has via a Motion filed on 21/09/2018 sought and obtained leave to amend his Notice of Appeal, same was granted on 6/11/2018. Part of the amendment sought in that application was to remedy the defect inherent in the initial Notice of Appeal filed on 16/12/2013 by the inclusion of proper grounds of Appeal as can be observed from the notice filed on 21/09/2018.
It is trite that where the original Notice of Appeal is defective, same cannot be cured by subsequent amendment as in the instant Appeal. In NWAIGWE & ORS V OKERE & ANOR (2008) LPELR 2095 Pages 23-24 Paragraphs E-A the Supreme Court Held:-
‘It is settled that you cannot amend a fundamentally defective document such as a Notice of Appeal as to infuse life into it. In other words a fundamentally defective Notice of Appeal cannot be cured by an amendment of same.You can only validly amend a valid Notice of Appeal not a fundamentally defective one, which in the eyes of the law is nonexistent or dead. See AWHINABI V. OTERI (1984)5 SC 38; ATUYEYE V. ASHAMU (1987) 1 SC 333 at 358.’
It therefore follows that the amendment made by the Appellant on the Notice of Appeal is of no moment and cannot cure the defect inherent in the original Notice of Appeal. All the grounds of Appeal together with the issues distilled from them are incompetent. I therefore uphold the preliminary objection. The Appeal is accordingly struck out.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the judgment just rendered by learned brother Abdullahi Mahmoud Bayero, JCA. I agree with therein and the conclusion that the Notice of Appeal is fundamentally defective and has but only a non-starting value. It also renders the entire process incompetent.
The incompetent appeal is accordingly struck out. I adopt the Orders made in the judgment.
FREDERICK OZIAKPONO OHO. J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in dismissing this Appeal for reason of being incompetent due to the filing of an incompetent Notice of Appeal. I abide by the consequential Orders made by Court.
Appearances:
S.S. Auta, Esq.For Appellant(s)
A.Y. Abubakar, Esq.For Respondent(s)
