ABRAHAM v. AMODENI (2020)

ABRAHAM v. AMODENI

(2020)LCN/14919(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/AK/253/2018

RATIO

COURT: DUTY OF COURTS TO LEGISLATIONS

For Courts are expected to take judicial notice of and interpret legislations, whether statutes or rules of Courts. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

APPEAL: ESSENCE OF NOTICE OF APPEAL

For it is known law that, a notice of appeal initiates an appeal from a lower Court to an appellate Court. To put it in other words, a competent notice of appeal is the initiating process that actuates and sustains an appeal from a lower Court to an appellate Court. Any defect therefore in a notice of appeal will render the entire appeal incompetent and the appellate Court will be robbed of the required jurisdiction to entertain the appeal either wholly or in part. See the cases of: (1) Okotie v. Olughor (1995) 5 SCNJ p. 217; (2) Adelekan v. ECU-Line NV (2006) 12 NWLR (Pt. 993) p. 331; (3) Uwazurike v. A. G. Federation (2007) All FWLR (Pt. 367) p. 60 and (4) Dingyadi v. INEC (2010) LPELR-952 (SC) p. 60 and (5) F.R.N. v. Dairo & Ors. (2015) LPELR-24303 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

APPEAL: PURPOSE OF THE PROVISION OF ORDER 7 RULE 2(1) OF THE COURT OF APPEAL RULES, 2016 RELATING TO STATING THE WHOLE OR PART OF THE DECISION OF THE COURT BELOW BEING COMPLAINED OF

The provision of Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 relating to stating the whole or part of the decision of the Court below being complained of, is simply to ensure that the particular decision of the lower Court being appealed against is specified in the Notice of Appeal of an Appellant. This is one of the indispensable requirements of a valid Notice of Appeal. It is indeed commonsensical that there ought not to be any ambiguity as to the actual decision of the lower Court an Appellant is aggrieved with in his appeal vide the Notice of Appeal. Where therefore on the face of the Notice of Appeal the particulars of the decision of the lower Court being purportedly appealed is dicey or ambiguous or indeed lacking as in the instant matter, the Notice of Appeal would not have met the requirements of law and therefore be fundamentally defective, incompetent and invalid. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

APPEAL: EFFECT OF A FUNDAMENTALLY DEFECTIVE NOTICE OF APPEAL

APPEAL: WHETHER A DEFECTIVE NOTICE OF APPEAL CAN BE CURED BY AMENDMENT

The law is further trite that such a defective Notice of Appeal being an initiating process cannot even be cured by amendment either with or without the leave of the Court. In the situation, the Court must hold that there is no proper appeal before it as the appeal had not been initiated by due process of law. On this subject, the Supreme Court per Muhammad, J.S.C. (as he then was, now CJN) made the following pointed exposition in the case of: Kente v. Ishaku & Ors. (2017) LPELR-42077:
“A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competent before it and when same is initiated by due process of the law. Failure of an Appellant to relate his Notice and grounds of appeal to the actual decision he is dissatisfied with renders the Notice of Appeal incompetent and nugatory. Because it is the foundation or substratum of the appeal, the incompetence of the notice of appeal negates the entire appeal as well. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (2) Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) p. 536; (3) CBN v. Okojie (2004) 10 NWLR (Pt. 882) p. 488 and (4) SPDC Nig. Ltd. v. Sam Royal Nig. Ltd. (2016) LPELR-40062 (SC). In FBN Plc. v. T.S.A. Industries Ltd. (2010) LPELR-1283 (SC), … this Court restated the principle thus:- “A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

CHIEF OLUSEGUN ABRAHAM APPELANT(S)

And

PRINCE SOLAGBADE AMODENI RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State sitting in Akure per Bola, J. (hereinafter referred to as “the trial Court”) delivered on the 9th of April, 2017 in Suit No. AK/264/2014.

At the trial Court, the Respondent as plaintiff vide his Amended Writ of Summons and Amended Statement of Claim both dated and filed respectively on 21st of November, 2016 sued and claimed against the Appellant as defendant as follows:
a. An order of specific performance against the Defendant for the payment of the sum of Fourteen Million Naira (N14,000,000.00) being the balance of consideration mutually agreed to by the Claimant and the Defendant for two plots out of the landed property lying or situate at Alagbaka, Akure and covered by the Certificate of Statutory Right of Occupancy registered as No. 51 at page 51 in Volume 784 of the Lands Registry in the office at Akure.
b. The sum of Fifty Million Naira (N50,000,000.00) against the Defendant as general and exemplary damages for the unlawful, illegal and unconstitutional arrests

and or false imprisonments of the Claimant between September and October, 2014.
c. The sum of Five Million Naira (N5,000,000.00) being the cost of legal retainership incurred by the Claimant for the prosecution of this suit.
d. Post judgment interest at the rate of 10% per annum until the entire judgment sum is finally liquidated.

In response to the action against him, the Appellant filed his Statement of Defence dated and filed on 22nd of February, 2016 and also counter-claimed against the Respondent as follows:
i. The sum of N3,216,000.00 (Three Million Two Hundred and Sixteen Thousand Naira) being balance of the money had and received by the Claimant in respect of a transaction that has failed.
ii. 10% interest rate on the said amount since September 2014, till the said sum is finally liquidated.
iii. The costs of this litigation.

After the exchange of pleadings, the action and cross-action proceeded to trial. At the close of trial including the adoption of the written addresses of respective parties’ Counsel, the trial Court in its said considered judgment found in favour of and granted all the reliefs sought by the

Respondent save the claim for the costs of legal retainership incurred by the Respondent for the prosecution of the action.

The Appellant irked because the judgment of the trial Court was not in his favour filed this appeal against it to this Court. The Notice of Appeal of the Appellant of five grounds of appeal dated 31st of December, 2017 and filed on 3rd of January, 2018 is contained at pages 164 to 166 of the Record of Appeal.

The brief background facts of the case leading to this appeal are that, sometime in July 2014, the Appellant negotiated with the Respondent for and purchased two plots of land known as Plots 7 & 8 for an agreed sum of Sixteen Million Naira (N16,000,000). Thereafter, he issued a Keystone Bank cheque for the sum of Eight Million Naira (N8,000,000) to the Respondent as part-payment for the land with a request that the Respondent should proceed to take all necessary steps on his behalf to effect a change in the official documents relating to the land to the Appellant’s name. The Appellant issued another cheque for the sum of One Million Three Hundred and Ninety-six Thousand Naira (N1,396,000.00) for the change of

title, including payment of outstanding premiums on the land and also gave two of his passport photographs to the Respondent for the purpose.

The Respondent proceeded to write a letter to the Ondo State Lands Bureau to effect the change of name, in respect of the two plots of land, to that of the Appellant’s. He obtained the Tax Clearance Certificate for the Appellant as part of the requirements for the said change of title. The Respondent went further to obtain an application form for allocation of land from the Ondo State Ministry of Lands for the purpose of severing the two plots of land sold to the Appellant and cause to issue to him the necessary Certificate of Occupancy thereof.

However, after the aforesaid steps had been taken by the Respondent, the Appellant informed the Respondent that he was no longer willing to go ahead with the purchase of the portions of land and requested for the refund of the part-payment made by him on the ground that he wanted the money to take care of another pressing family need. He later got the Respondent arrested by the Police for failing to refund the money vide a petition to the Police through his

Solicitor. The Respondent was arrested and detained but released after he was forced to issue a Diamond Bank cheque for the sum of Five Million Naira (N5,000,000) in favour of the Appellant. Nevertheless, immediately the Respondent was released, he instructed his bankers not to honour the cheque. This led to the re-arrest of the Respondent. Again the Respondent was forced to issue another cheque for the sum of One Million Naira (N1,000,000) payable to the Appellant. In all, the Respondent was forced to refund the total sum of Six Million Naira (N6,000,000) to the Appellant. It is on the premise of the foregoing facts that the Respondent instituted the action leading to this appeal, contending that the Appellant breached the contract of sale of land and instigated his unlawful arrests, detentions and false imprisonments.

The learned counsel for the respective parties settled, filed and exchanged briefs of argument for their clients, in deference to the rules of this Court, in substantiation of their varied stances in the appeal.

In the Appellant’s brief of argument dated and filed on the 3rd of December, 2018, settled by the Appellant’s

Counsel Mr. K. O. Ijatuyi of the World Chambers, the four issues donated for determination read thus:
“1. Whether from the total and proper evaluation of the evidence adduced in this case, it can be said that the Respondent proved its case on the preponderance of evidence? (Ground 1).
2. Whether there was a valid contract of sale of land between the Respondent and the Appellant for which an Order of specific performance can lie or issue? (Ground 2).
3. Whether the trial Court was right in awarding the sum of Five Million Naira (N5,000,000.00) to the Respondent, despite the clear findings of the trial Court that it was the police that arrested and detained him (the Respondent)? (Ground 3).
4. Whether the learned trial judge had the jurisdiction to entertain and hear the Respondent’s claims as constituted at the lower Court? (Ground 4).”

The Respondent’s Counsel, Mr. F. E. Emodamori of the law firm of Emodamori & Co., settled the Respondent’s brief of argument dated and filed on the 10th of December, 2018 in which the following three issues were crafted for the resolution of the appeal:

Whether the lower Court was in the circumstances of this case robbed of jurisdiction to entertain the Respondent’s action by the mere fact that the Respondent did not join the Police as a party? (Ground 4).
2. Whether the lower Court was not right when it held that the parties had reached a binding and enforceable contract for sale or purchase of land based on the totality of evidence before the Court? (Ground 2).
3. Whether, considering the answers to issues number 1 and 2 above, the learned trial judge was not right in granting the reliefs sought by the Respondent as contained in his judgment? (Grounds 1 and 3).

At the hearing of the appeal by this Court on the 9th of September, 2020, the Appellant and his Counsel were absent from the Court despite service on the Appellant’s counsel of hearing notice for the day’s proceedings. However, the Appellant’s brief of argument having been duly filed, the appeal was thus deemed duly argued pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

On the other part, the Respondent’s Counsel Mr. I. I. Olanipekun who was present at the said hearing of

the appeal adopted the Respondent’s brief of argument in urging upon this Court to dismiss the appeal for lacking in merits and consequently uphold the judgment of the trial Court.

Although the parties herein, especially the Respondent, have not considered the competence or otherwise of the Notice of Appeal of the Appellant, this Court can on its own motion look at same being a Court of law. For Courts are expected to take judicial notice of and interpret legislations, whether statutes or rules of Courts. The consideration and determination of the merits of the appeal in the main are therefore dependent foremost on whether or not the said Notice of Appeal, the spinal cord of the appeal, is competent. For it is known law that, a notice of appeal initiates an appeal from a lower Court to an appellate Court. To put it in other words, a competent notice of appeal is the initiating process that actuates and sustains an appeal from a lower Court to an appellate Court. Any defect therefore in a notice of appeal will render the entire appeal incompetent and the appellate Court will be robbed of the required jurisdiction to entertain the appeal either wholly

or in part. See the cases of: (1) Okotie v. Olughor (1995) 5 SCNJ p. 217; (2) Adelekan v. ECU-Line NV (2006) 12 NWLR (Pt. 993) p. 331; (3) Uwazurike v. A. G. Federation (2007) All FWLR (Pt. 367) p. 60 and (4) Dingyadi v. INEC (2010) LPELR-952 (SC) p. 60 and (5) F.R.N. v. Dairo & Ors. (2015) LPELR-24303 (SC).

As I stated hereinbefore, the Notice of Appeal of the Appellant herein dated 31st of December, 2017 filed on the 3rd of January, 2018 has the following prefatorial paragraph:
“TAKE NOTICE that the Appellant being dissatisfied with the judgment of the High Court of Justice, Akure Judicial Division, Akure, Ondo State delivered by the Honourable Justice S. A. Bola dated the 9th day of April, 2017 in suit No. AK/264/2014 do hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and shall at the hearing of the appeal seek the reliefs set out in paragraph 4.” (See page 164 of the Record of Appeal).
It is thus patent from the foregoing introductory remarks that the instant appeal is against the cited decision of the trial Court in Suit No. AK/264/2014 purportedly delivered on the 9th day of April, 2017. I have

scrutinized the entire Record of Appeal also supposedly compiled and transmitted to this Court on the 8th day of August, 2018 regarding the appeal (I will return to this subject later on in this judgment) and I am unable to locate therein the said decision being appealed against by the Appellant.
The provision of Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 relating to stating the whole or part of the decision of the Court below being complained of, is simply to ensure that the particular decision of the lower Court being appealed against is specified in the Notice of Appeal of an Appellant. This is one of the indispensable requirements of a valid Notice of Appeal. It is indeed commonsensical that there ought not to be any ambiguity as to the actual decision of the lower Court an Appellant is aggrieved with in his appeal vide the Notice of Appeal. Where therefore on the face of the Notice of Appeal the particulars of the decision of the lower Court being purportedly appealed is dicey or ambiguous or indeed lacking as in the instant matter, the Notice of Appeal would not have met the requirements of law and therefore be fundamentally defective, incompetent and invalid.

In the eyes of the law, a fundamentally defective Notice of Appeal is dead on arrival (DOA) or brought in dead (BID) at the time of its purported filing at the Registry of this Court and it is in fact, nonexistent. In the instant appeal, the Notice of Appeal of the Appellant predicated on a non-existing decision of the trial Court is thus utterly and fundamentally defective. The law is further trite that such a defective Notice of Appeal being an initiating process cannot even be cured by amendment either with or without the leave of the Court. In the situation, the Court must hold that there is no proper appeal before it as the appeal had not been initiated by due process of law. On this subject, the Supreme Court per Muhammad, J.S.C. (as he then was, now CJN) made the following pointed exposition in the case of: Kente v. Ishaku & Ors. (2017) LPELR-42077:
“A Court is only competent to adjudicate in a matter when among other conditions, the subject matter of the suit, here the appeal, is competent before it and when same is initiated by due process of the law. Failure of an Appellant to relate his Notice and grounds

of appeal to the actual decision he is dissatisfied with renders the Notice of Appeal incompetent and nugatory. Because it is the foundation or substratum of the appeal, the incompetence of the notice of appeal negates the entire appeal as well. See the cases of: (1) Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (2) Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) p. 536; (3) CBN v. Okojie (2004) 10 NWLR (Pt. 882) p. 488 and (4) SPDC Nig. Ltd. v. Sam Royal Nig. Ltd. (2016) LPELR-40062 (SC). In FBN Plc. v. T.S.A. Industries Ltd. (2010) LPELR-1283 (SC), … this Court restated the principle thus:- “A notice of appeal in the process of appeal is a very important document as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower Court is a question which touches on jurisdiction of the appellate Court. If no proper notice has been filed, then there is no appeal for the Court to entertain.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In the instant appeal, there is no question that the Appellant failed to relate his Notice of Appeal to the actual decision of the trial Court he is dissatisfied with, thereby rendering the said Notice of Appeal incompetent and nugatory. Concomitantly, the Appellant’s incompetent Notice of Appeal has incurably infected and corrupted the entire appeal of the Appellant to the terminal of nullity. See also the cases of: (1) Atuyeye & Ors. v. Ashamu (1987) LPELR-638 (SC); (2) Uwazurike & Ors. v. A. G. Federation (Supra) and (3) Okpe v. Fan Milk Plc. & Anor. (2016) LPELR- 42562 (SC).

Furthermore, it is pertinent to state that, as hereinbefore adverted, the Notice of Appeal under scrutiny was purportedly filed on the 3rd day of January, 2018. However, the Record of Appeal was supposedly compiled and transmitted on the 8th day of August, 2018 by the Registrar of the trial Court. Pursuant to the mandatory provision of Order 8 Rule 1 of the Court of Appeal Rules (Supra), the Registrar of the trial Court has sixty days after the filing of a notice of appeal, to compile and transmit the Record of Appeal to this Court. However, the Record of

Appeal in this appeal was purportedly transmitted two hundred and seventeen days after the Notice of Appeal was filed, that is, one hundred and fifty-seven days out of time, in defiance of the aforementioned provision of the rules of this Court. The Appellant also failed to take advantage of the provision of Order 6 Rule 9(1) of the same Rules to regularize the situation. Under Order 6 Rule 9(1), this Court may enlarge the time provided by the Rules for the doing of anything which the Rules apply. The Appellant did not file any application in this regard, rather, he went ahead to file the Appellant’s brief of argument.
The Courts insist that parties must abide by the Rules of Courts and they always take exception to flagrant breach of their rules. For strict compliance with the Rules of Court makes administration of justice quicker and easier. There is thence the necessity for all litigants to comply with the Rules of Court. This has been the settled position of the Courts in their various strata. The Apex Court per Agbaje, JSC (of blessed memory) way back in the case of: Onifade v. Olayiwola & Ors. (1990) LPELR-2680 had the following to say on this point:

“Rules of Court must prima facie be obeyed. (See Ratnam v. Cumarasamy (1965) 1 W.L.R 8.). It is the Court which can extend an indulgence to a party in a case before it can depart from the rules. See Finding v. Finding (1939) 2 All E.R. 173 at 177. The Courts have an inherent jurisdiction to ensure compliance by litigants with the rules of Court and to strike out any process not filed in compliance with the relevant rules. See Reichel v. Magrath (1889) 14 App. Cas. 665; Huntly v. Gaskell No. 1 (1905) 2 Ch. 655; Nixon v. Loundes (1909)2 I R.R. I.”
Sequel to the foregoing, in the eyes of the law, the Record of Appeal purportedly compiled and transmitted on the 8th day of August, 2018 not properly so done in line with the provision of the Rules of this Court is equally nonexistent. Consequently, the supposedly filed Appellant’s brief of argument was in perpetuity of an error in law. What is more, by the provision of Order 4 Rule 10 of the Rules of this Court, an appeal shall only be deemed to have been entered in this Court when the Record of Proceedings in the Court below has been received in the Registry of this Court

within the time prescribed by the Rules or within the time extended by this Court.
The effect of all the above stated situations is that the Appellant herein has utterly failed to comply with the provisions of the law, yea, the rules of this Court pertaining to the filing of his Notice of Appeal as well as the compilation and transmission of the Record of Appeal. These are serious irregularities which have rendered this appeal nugatory and indeterminable.

Having indeed held that the Notice of Appeal itself is incompetent, all the processes purportedly issued pursuant to same are a nullity. One cannot place something upon nothing and expect the something to stand.
It is arguable that the error in the Notice of Appeal could be ascribed to the Appellant’s Counsel and not the Appellant personally, however since the error goes to the root of the appeal and the adjudicatory jurisdiction of this Court on the appeal, it is an inexcusable error. The incompetent Appellant’s Notice of Appeal is therefore incapable of kick-starting the adjudicatory power of this Court over his intended appeal. Moreover, this Court, under the provision of

Order 7 Rule 6 of the Court of Appeal Rules (Supra), has power “suo motu” to strike out any incompetent notice of appeal. See the cases of: (1) Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) p. 63; (2) Onyemelukwe v. N.A.C.C. (1995) 4 NWLR (Pt. 381) p. 44 at p. 56; (3) Khalil v. Yar’ adua (2003) 16 NWLR (Pt. 847) p. 446 at p. 459; (4) C. C. B. v. Ekperi (2007) 3 NWLR (Pt. 493) p. 509; (5) First Bank of Nig. v. Abraham (2008) 2 NSCQR p. 1058 at p. 1076 and (6) Ned & Ors. v. Edi & Ors. (2009) LPELR-3826 (CA).
The Notice of Appeal herein dated 31st of December, 2017 purportedly filed on 3rd of January, 2018, being incompetent deserves to be and is hereby struck out along with all the processes that have been issued in the purported appeal.

The parties are accordingly ordered to bear their respective costs for the prosecution and defence of the ill-fated purported appeal.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having had the privilege of reading the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA which was served on me, I agree with the reasoning and conclusion arrived at therein.

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The Notice of Appeal that kick-started this appeal having discovered to be incompetent, rendered the appeal with the processes connected to the Notice of Appeal barren. Failure of a good foundation, obviously affected the structure placed on it.

Parties to bear their individual costs of prosecution and defence of the purported appeal.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA, in Appeal No: CA/AK/253/2018.
I agree with the reasoning and conclusion therein.

Appearances:

Mr. I. I. Olanipekun with him, Mr. A. A. Solagbade For Appellant(s)

The Appellant and his Counsel were absent For Respondent(s)