ALHAJI RASAQ ABIODUN ABIJOH V. CHIEF GANIYU OLAYIWOLA FAGBOHUN & ANOR.
(2010)LCN/4041(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of November, 2010
CA/I/M.194/2006
RATIO
NOTICE OF APPEAL: WHETHER A DEFECTIVE NOTICE OF APPEAL WOULD DEPRIVE THE APPELLATE COURT OF JURISDICTION TO ENTERTAIN AND/OR ADJUDICATE ON THE APPEAL
There is no doubt that a Notice of Appeal is the foundation and substratum of every Appeal and any defect thereto or therein will render the whole Appeal incompetent, thus depriving the Appellate Court of jurisdiction to entertain the appeal or any interlocutory application based on the said Appeal. In Uwazurike vs. A.G. Federation (2007) 8 NWLR (1035) 1. The Supreme Court held that the failure by any appellant to comply with the statutory provision or requirement prescribed by the relevant laws or rules under which such Appeals may be competent and proper before the court, would deprive the Appellate Court of jurisdiction to entertain and/or adjudicate on the Appeal. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A,
WHETHER A PUBLIC DOCUMENT MAY ONLY BE PROVED BY THE PRODUCTION OF A CERTIFIED TRUE COPY THEREOF
The Notice of Appeal qualifies as a public document within the meaning of Section 109 (a) (iii) of the Evidence Act. The only means by which a public document may be proved is by production of a Certified True Copy thereof. See Section 112 of the Evidence Act. See: Dagaci of Dere vs. Dagaci of Ebwa (2006) 7 NWLR (979) 382; Anatodu vs. Iweka II (1995) 8 NWLR (415) 547. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A,
WHETHER A COURT CAN SUO MOTU MAKE REFERENCE TO THE CASE FILE BEFORE IT AND MAKE USE OF ANY DOCUMENT IT FINDS NECESSARY
On the authority of Fumudoh vs Aboro (1991) 9 NWLR (214) 210 @ 229 E, the law is trite that a court can suo motu make reference to the case file before it and make use of any document it finds necessary. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A,
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ALHAJI RASAQ ABIODUN ABIJOH – Appellant(s)
AND
1. CHIEF GANIYU OLAYIWOLA FAGBOHUN (For himself and on behalf of Oganla Family
2. WEMABOD ESTATE LTD – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A, (Delivering the Leading Ruling): This is a Motion on Notice dated and filed on 17/12/09 on behalf of the Appellant/Applicant for the following order:
“Relisting this Appeal/Notice of Appeal struck out on 25th November 2009 on the ground that the Appellant’s counsel was not present in Court to convince the Court that the Notice of Appeal was signed by Appellant’s counsel and or that the Notice of Appeal was not signed.
And such further Order or Orders as the Court may deem fit to make in the circumstances.”
It is brought pursuant to Order 7 Rules 1 and 20 of the Court of Appeal Rules 2007 and supported by a 14-paragraph affidavit deposed to by one Adebayo Babatunde, Law Clerk in the chambers of J.O.A. Ajakaiye Esq. learned Counsel for the Applicant. Attached to the application are two exhibits: applicant’s counsel’s office copy of the original Notice of Appeal marked Exhibit A and a certified true copy of the record of proceedings of this court for 25/11/09 marked Exhibit B’.
In reaction to, the application one Babatunde Akintola, litigation clerk in the chambers of Messrs Adeniyi Akintola, SAN & Co, deposed to a 10-paragraph counter-affidavit on behalf of the 1st respondent.
The facts that gave rise to this application as can be gathered from the supporting affidavit are that on 20th October 2009 this court drew the Applicant’s counsel’s attention to the fact that the Notice of Appeal contained in the record of appeal was unsigned. The court was consequently of the view that there was no Appeal before it. Learned counsel for the Appellant sought to convince the court that the original Notice of Appeal filed at the registry of the Oyo State High Court, copies of which were forwarded to this court, was duly signed.
The Appeal was adjourned to 25/11/09 to enable learned counsel satisfy the court that the Notice of Appeal was signed.
It is averred in paragraphs 4 – 14 thus:
4. “That counsel to the appellant pleaded with the Court that the Notice of Appeal he filed at the Lower Court and of which copies were sent to the Court of Appeal were duly signed and the Appeal was adjourned to 26th November 2009 to enable him satisfy the Court that the Notice of Appeal was signed.
5. That because the date of adjournment was erroneously recorded as being 26th November, 2009, counsel did not attend Court on 25th November, 2009 when the Appeal was struck out for him to show the Court the signed Notice of Appeal.
6. That it was Chief Oye Esan, that phoned our office on 25th November, 2009 to inform counsel to the Applicant that the appeal was struck out on the ground that the Notice of Appeal was not signed.
7. That counsel to the Applicant informed me and I verily believe that the Notice of Appeal will not have been accepted for filing by the Lower Court if it was not signed.
8. That counsel to the Appellant/Applicant also informed me and I verily believe that after the adjournment of 20th October, 2009 he approached the Court Registrars to provide the Court with a copy of Notice of Appeal sent to the Court of Appeal before Records were complied for verification.
9. That counsel to the Appellant/Applicant also informed me and I verily believe that he also approached the Lower Court for a Certified True Copy of the Notice of Appeal but that he was informed that the case file for the Appeal from which the Record of Appeal was made out was forwarded to the Court of Appeal for verification of documents in the Record of Appeal including the original Notice of Appeal filed.
10. The Appellant (sic) counsel informed me and I verily believe that he expected the counsel to the Respondents to informed (sic) the Court that the Notice of Appeal served on them were duly signed.
11. That it is unfortunate that registrars did not make available to Court the said signed copy.
12. That our office copy of the Notice of Appeal is attached hereto and marked Exhibit A.
13. That a certified true copy of the proceedings of 25th November 2009 on the appeal is attached hereto marked Exhibit B.
14. That it is in the interest of justice that the Appeal be listed for hearing and for it to be decided on merit and not on technicalities. ”
In paragraphs 7 (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) of the counter affidavit, it was averred on behalf of the respondent as follows:
7(v) That contrary to the deposition contained in paragraph 4 of the supporting Affidavit, the court adjourned the Appeal to 25th November 2009 to enable the appellant address it on the competence of an unsigned Notice of Appeal.
(vi) That on 25th November 2009 when the Appeal came up neither the appellant nor his counsel were in court. (vii) That contrary to the deposition contained in paragraph 10 of the supporting Affidavit, our F.A. Aofalaju of counsel who was in court on the said 25th November 2009, in the interest of justice drew the attention of the court to the fact that the copy of the Notice of Appeal dated 8th June 2005 served on the 1st respondent was duly signed by counsel to the Appellant.
(vii) That this Honourable Court presided over then by Ogunbiyi, JCA was of the opinion, and rightly too that the processes in the court’s file are what the court will work with and not the processes served on parties and/or counsel.
(ix) That thereafter, counsel to the 1st respondent was called upon by this honourable court to address it on the competence or otherwise of an unsigned Notice of Appeal.
(x) That counsel thereafter addressed this court on the incompetence of an unsigned Notice of Appeal and asked the court to strike out the unsigned Notice of Appeal.
(xi) That thereafter this honourable court consequently struck out the said unsigned Notice of Appeal with N30,000.00 Thirty Thousand Naira Only) cost in favour of the 1st respondent.
(xii) That in view of the depositions contained in paragraphs 7 (vii), (viii), (ix), (x) and (xi) above the deposition contained 14 paragraph 10 of the supporting Affidavit is false in all its entirety.”
At the hearing of the application on 4/10/2010, Mr. J.O.A. Ajakaiye, learned Counsel for the Applicant submitted that there is a presumption that every document contained in the record has been properly prepared. He relied on the case of Agbareh vs. Nimra (2008) LRCN Vol. 158, 325 @ 352 F & 353A – F. He submitted that since the court is bound by its record it ought to have satisfied itself from the record as to whether or not the Notice of Appeal was signed. He referred to the averments in the supporting affidavit as to the steps taken to ensure that the original signed Notice of Appeal was brought before the court. He was of the opinion that since learned counsel for the 1st respondent had admitted that the copy served on him was signed, the Court ought to have adjourned the matter to afford him an opportunity to satisfy it on the issue. Relying on the authorities of Ohiaeri vs Akabeze (1992) 2 SCNJ (Pt. 1) 76 @ 90-91 and Esiri vs Idiaka (1987) 9-11 SC 170 @ 184 lines 20 – 30, he submitted that appeals should be heard on their merits. He urged the court ought to grant the application in the interest of justice.
In reaction to the above submissions, Mr. Oyeniyi Ajigboye, learned counsel for the 1st respondent relied on the counter affidavit filed, particularly paragraphs 1 – 7 and B (i) and (ii). He submitted that the parties to an Appeal are bound by the record of appeal. He submitted that from the supporting affidavit it is apparent that the Applicant admits that the copy of the Notice of Appeal contained in the Record of Appeal is unsigned. He argued that a defective Notice of Appeal cannot initiate an appeal. That the court having struck out the defective Notice of Appeal on 25/11/09 cannot make an order for it to be relisted. He contended that there is no Appeal before the court, which could be relisted. He submitted that the application is an abuse of court process, as there is no law supporting the relisting of an Appeal of this nature. He urged the court to strike out the application as it lacks jurisdiction to hear and determine the appeal. He asked for substantial costs.
There is no doubt that a Notice of Appeal is the foundation and substratum of every Appeal and any defect thereto or therein will render the whole Appeal incompetent, thus depriving the Appellate Court of jurisdiction to entertain the appeal or any interlocutory application based on the said Appeal. In Uwazurike vs. A.G. Federation (2007) 8 NWLR (1035) 1. The Supreme Court held that the failure by any appellant to comply with the statutory provision or requirement prescribed by the relevant laws or rules under which such Appeals may be competent and proper before the court, would deprive the Appellate Court of jurisdiction to entertain and/or adjudicate on the Appeal.
It is not in dispute that the Notice of Appeal contained at pages 106 – 109 of the record is unsigned. The document is endorsed as a certified true copy of the original. Learned counsel for the Applicant has argued that there is a presumption that any document included in the record of Appeal has been properly prepared. He relied on the case of Agbaren vs. Nimra (supra) at 352 J and 353 A – F. The Supreme Court in that case held that the record of Appeal binds the parties until the contrary is proved and went further to hold that the presumption of its genuineness is however rebuttable. See also: Alhaji Nuhu vs Alhaji Ogele (2003) 18 NWLR (852) 251 @ 272; (2003) 12 SCNJ 158 @ 172. In the instant case, the presumption is that the unsigned Notice of Appeal contained in the record is a certified true copy of the original Notice of Appeal filed at the lower court. It is the contention of learned counsel for the Applicant that the original Notice of Appeal was signed and that it was an omission on the part of the registry, of the lower court to have included an unsigned copy in the compilation of the record. The onus is certainly on him to rebut the presumption.
On 20/10/09 this Court adjourned the matter to 25/11/09 to afford the applicant an opportunity to satisfy it that the Notice of Appeal filed at the Lower Court was indeed duly signed. In paragraph 5 of the supporting affidavit it is averred that learned counsel who represented the Applicant on 20/10/09 erroneously recorded the date of adjournment as 26/11/09 instead of 25/11/09 and was therefore not present to address the court on 25/11/09 when the Notice of Appeal was struck out. It is clear from the record of proceedings of 25/11/09 (Exhibit B attached to the supporting affidavit) that the Applicant and his counsel were absent and there was no explanation for their absence before the court. The court was satisfied from its record that learned counsel for the Applicant was aware of the date. In the absence of learned counsel to address the court on the competence of the Notice of Appeal, this court rightly struck out the Notice of Appeal filed on 8/6/05 for being unsigned and therefore incompetent. Contrary to the submission of learned Counsel for the Applicant, there was no basis for a further adjournment of the matter on that day.
The issue in contention is whether the Applicant has satisfied the court that J.O.A. Ajakaiye, of counsel, duly signed the original copy of the Notice of Appeal, which was copied into the record. The applicant has attached as Exhibit A to the supporting affidavit a photocopy of an office copy of the Notice of Appeal purportedly duly signed. The Notice of Appeal qualifies as a public document within the meaning of Section 109 (a) (iii) of the Evidence Act. The only means by which a public document may be proved is by production of a Certified True Copy thereof. See Section 112 of the Evidence Act. See: Dagaci of Dere vs. Dagaci of Ebwa (2006) 7 NWLR (979) 382; Anatodu vs. Iweka II (1995) 8 NWLR (415) 547. For Exhibit A to rebut the presumption that the Notice of Appeal was unsigned it ought to have been duly certified as such by the registrar of the Lower Court. It has not been so certified.
It is averred in paragraph 9 of the supporting Affidavit that the Applicant’s counsel office copy of the Notice of Appeal could not be certified because the original notice of appear had been forwarded to this court along with the case file for verification of documents in the Record of Appeal. Learned counsel for the applicant in his submission urged the court to look into its records to ascertain the correct position. On the authority of Fumudoh vs Aboro (1991) 9 NWLR (214) 210 @ 229 E, the law is trite that a court can suo motu make reference to the case file before it and make use of any document it finds necessary. In this regard, I have carefully examined the case file forwarded to this court by the Lower Court and the Record of Appeal herein. There is no trace of a signed copy of the Notice of Appeal filed on 8/6/09. There is therefore a presumption that the unsigned Notice of Appeal contained at pages 106 – 108 of the record is a Certified True Copy of the document filed at the Lower Court. The Applicant has failed to rebut this presumption. This court is bound by its record. It follows therefore that the Applicant has failed to satisfy this court that there is a competent Notice of Appeal, which could be relisted. The application accordingly lacks merit and is hereby dismissed.
Costs of N20,000.00 are awarded in favour of the 1st respondents.
STANLEY SHENKO ALAGOA, J.C.A.: I have read before now the Ruling just delivered by my learned brother Kekere-Ekun, J.C.A. I agree with the reasoning and conclusion reached therein that the application lacks merit and should be dismissed. I dismiss same and abide by the order on costs awarded in the lead Ruling.
MODUPE FASANMI, J.C.A.: I have had the privilege of reading before now the lead ruling delivered by my learned brother K.M.O. Kekere-Ekun, J.C.A. I agree with the reasoning and conclusion reached therein. The application lacks merit and same is accordingly dismissed by me, I abide by the order of costs awarded in the lead ruling.
Appearances
J.O.A. Ajakaiye Esq., For Appellant
AND
Oyeniyi Ajigboye For Respondent
