BIKAY ENGINEEERING LTD V. GOVERNOR, ONDO STATE & ORS
(2010)LCN/4088(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of December, 2010
CA/B/87/2009
RATIO
NOTICE OF APPEAL: WHO CAN SIGN A NOTICE OF APPEAL
Appellant or counsel for the appellant can sign the notice of appeal as well as subsequent process in the appeal, including the brief of argument. This is so because the term appellant includes the legal practitioner representing the appellant. See Order 1 Rule 5 of the Court of Appeal Rules 2007. PER NWALI SYLVESTER NGWUTA, J.C.A.
LEGAL PRACTITIONER: WHO IS A LEGAL PRACTITIONER WITH RESPECT TO THE PERSON THAT CAN VALIDLY SIGN A BRIEF OF ARGUMENT IN HIS OWN NAME; EFFECT OF A BRIEF OF ARGUMENT SIGNED BY A FIRM
Section 24 of the Legal Practitioners Act 2004 defines a Legal Practitioner as a person entitled in accordance with the provisions of the Act to practice as a Barrister or Barrister and Solicitor either generally or for the purpose of any particular office or proceeding.See First bank Plc. v. Maiwado (2003) FWLR (Pt.151) 2001 at 2003. The person must be a natural person whose name must be on the roll of Legal Practitioners authorized by law to practice as Advocate in the Supreme Court of Nigeria. A firm of Legal Practitioners is in my humble view outside the contemplation and intendment of S. 24 of the Legal Practitioners Act (supra). A member of the firm ought to have signed the process in his own name. The appellant’s brief signed by a firm is null and void. See NNB plc. v. Dencing Ltd (2005) 4 NWLR (pt. 916) 549 CA and Okofor v. Nweke (2007) 3 SC (pt 11) 55. PER NWALI SYLVESTER NGWUTA, J.C.A.
BRIEF OF ARGUMENT: MEANING AND CONTENT OF A BRIEF OF ARGUMENT
A brief of argument is succinct statement of the propositions of law or fact or both which a party or his counsel wishes to establish in the appeal together with the reasons and authorities to substantiate them. See Emodi v. Kwentoh (1996) 2 NWLR (pt 433) 656 at 660 SC. U.A.C (Nig) Ltd v. Fasheyihan (1998) 11 NWLR (pt 573) 179 SC. A brief of argument should not contain the grounds of appeal but only the issues raised from the grounds of appeal. See Adetoun Oladeji Nig Ltd. V. Nigerian Breweries Plc. It must be filed in compliance with Order 17 Rule 2 of the Court of Appeal Rules 2007 (2007) 2 SCM 703. PER NWALI SYLVESTER NGWUTA, J.C.A.
EFFECT OF THE FAILURE TO LINK AN ISSUE IN AN APPEAL TO GROUND OR GROUNDS OF APPEAL
Moreover there is no link between the grounds of appeal and the issues in the applicant’s brief. Failure to link an issue in an appeal to ground or grounds of appeal will render the issue incompetent as a competent issue must be based on and relate to competent ground(s) of appeal. See Bater & Ors v. Barokuzo & Ors (2007) 7 SCM 192. PER NWALI SYLVESTER NGWUTA, J.C.A.
EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE WAS DISTILLED THERE FROM
The only valid ground of appeal is the one contained in the notice of appeal but that ground is deemed abandoned as no issue was distilled therefrom. See WAEC v. Adeyonju (2008) 7 SCM, 172. PER NWALI SYLVESTER NGWUTA, J.C.A.
EFFECT OF THE FAILURE TO COMPLY WITH THE STATUTORY PROVISIONS OR RELEVANT RULES OR LAWS DONATING POWER TO THE COURT ON THE JURISDICTION OF THE COURT TO DETERMINE THE APPEAL
The jurisdiction of the Court to hear appeals brought before it is conferred by statute and guided by Rules of Court. Failure to comply with the statutory provisions or relevant rules or laws will deprive the Court of jurisdiction to determine the appeal. See Uwazuruike & Ors v. A.G of the Federation (2007) 5 SCM 193. PER NWALI SYLVESTER NGWUTA, J.C.A.
RAISING ISSUES SUO MOTU: DUTY OF THE COURT TO AFFORD THE PARTIES AN OPPORTUNITY TO ADDRESS IT ON AN ISSUE THAT WAS NOT RAISED BY THE PARTIES BEFORE REACHING A DECISION ON THE POINT
… I am of the humble view that since none of the parties raised the issue, the parties ought to have been given the opportunity to address the court, before reaching a decision on the point. Okorodudu v. Okoromadu (1977) 3 SC 21:Odiase &anor v. Agho &ors (1972) 1 All NLR (Pt. 1) 170; Olusanya v. Olusanya (1983) 1 SCNLR (Pt.136) 136: Kuti v. Balogun (1978) 1 SC 37. PER CHINWE E. IYIZOBA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
BIKAY ENGINEERING LTD Appellant(s)
AND
1. GOVERNOR, ONDO STATE
2. COMMISSIONER FOR LANDS HOUSING AND TRANSPORT, ONDO STATE
3. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE ONDO STATE Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): Endorsed on the writ of summons dated 30th September, 2005 and issued at the Registry of the High Court of Justice Akure Ondo Judicial Division and reproduced in the amended statement of claim dated 17th November 2005 is the appellant’s claim against the respondents:
“The plaintiff’s claim against the defendants jointly severally is the sum of N100,000,000.00 (One hundred million naira) being special and general damages for breach of contract against the defendants on an agreement with the plaintiff dated the 1st day of February, 2002 awarded the design, supervision and contract management for the rehabilitation of Ilutitum – Omotosho Roads Ondo State of Nigeria to the plaintiff. The defendants had refused or neglected to fulfil the contract despite repeated demands.”
See page 10 of the records.
If the amended statement of claim dated 17th November, 2005 was filed in Court, the record does not indicate the date it was filed. Be that as it may, the summary of the claim in paragraph 16 of the amended statement of claim is the same as the one in paragraph 16 of the original statement of claim dated, and filed on 10th October, 2005.
The Plaintiff in the court below is the appellant and the defendants are the respondents herein.
The respondents entered appearance and in the statement of defence dated 17th January, 2006 and filed on 19th January, 2006 they not only denied the plaintiff’s claim but described the action as “frivolous, vexotious, gold digging” and urged the trial Court to dismiss it with substantial cost against the plaintiff (now appellant).
The reply to the statement of defence dated and filed on 6th March, 2006 is by far more voluminous than either the original statement of claim or the amended statement of claim. An equally voluminous amended reply to the statement of defence was dated 17th November, 2006 but if it was filed the filing date was not indicated in the record.
The appellant opened its case on 21/1/2008 before Olateru Olagbegi then Chief Judge of Ondo State. Appellant rested his case on the testimony of Engr. Abiola lfederu, its Managing Director. The respondents called two witnesses. DW1. Engr. Benson Otegbeye, the Director of Civil Engineering, Ministry of Works, Ondo State and DW2 Engr. Akinbode Stephen Makanjuola is the Principal Resident Engineer in charge of the construction of Ilutitum – Omotosho road.
Learned counsel for the parties addressed the court and in its reserved judgment of 28th October 2008, the trial Court reviewed the evidence on each side, considered the address of learned counsel for the parties and concluded thus:
“From the totality of the evidence adduced in this case the plaintiff has failed to discharge the burden of proof placed on it in this case. It has also failed to establish the fact that it is entitled to any damages in its claim for the alleged breach of contract. Consequently I find no merit whatsoever in the present case and some is hereby dismissed. I shall make no order as to cost.”
See page 69 of the records.
Applicant was aggrieved and in a notice of appeal dated 10th November, 2008 and filed on 14th November, 2008 he appealed to the Court on one ground of appeal hereunder reproduced:
“The decision is against the weight of evidence. Further grounds of appeal will be filed on receipt of proceedings from the lower Court.”
See page 72 of the records.
In compliance with the applicable rules the parties through their respective learned counsel, filed and exchanged briefs of argument.
Applicant’s brief dated 11th March 2009 and filed on 18th March 2009 was signed by Chief J. I Oguntoyibo & co Plaintiff/Applicant’s Solicitors.”
The applicant’s brief settled by Akinladapo Ogunleye, Solicitor -General, Ministry of Justice Akure Ondo State was dated 12th May 2009 but filed on 1st June 2009 out of time. The same was deemed properly filed and served on 11th November 2010 on application of learned counsel for the respondents.
My Lords, arising from the applicant’s brief of argument are two threshold issues:-
(1) Is the applicant’s brief of argument signed by “Chief J. I Oguntoyibo & Co Plaintiff/Applicant’s solicitors” valid?
(2) Is there a competent appeal before the Court?
A resolution of the two issues will determine whether or not the merit vel non of the appeal can be considered.
Issue one above is on the signature on the appellant’s brief of argument. Though the notice of appeal was signed by
“Chief J. I Oguntoyibo, Chief J.I Oguntoyibo & Co, Barrister and Solicitors, 21 New Hospital Road, Akure”
the applicant’s brief of argument was signed by “Chief J. I Oguntoyibo & Co, Plaintiff/Applicant’s Solicitors” Chief J. I Oguntoyibo who signed the notice of appeal is distinct and separate from Chief J. I Oguntoyibo & Co who signed the brief of argument. Appellant or counsel for the appellant can sign the notice of appeal as well as subsequent process in the appeal, including the brief of argument. This is so because the term appellant includes the legal practitioner representing the appellant. See Order 1 Rule 5 of the Court of Appeal Rules 2007.
Section 24 of the Legal Practitioners Act 2004 defines a Legal Practitioner as a person entitled in accordance with the provisions of the Act to practice as a Barrister or Barrister and Solicitor either generally or for the purpose of any particular office or proceeding.See First bank Plc. v. Maiwado (2003) FWLR (Pt.151) 2001 at 2003.
The person must be a natural person whose name must be on the roll of Legal Practitioners authorized by law to practice as Advocate in the Supreme Court of Nigeria. A firm of Legal Practitioners is in my humble view outside the contemplation and intendment of S. 24 of the Legal Practitioners Act (supra). A member of the firm ought to have signed the process in his own name. The appellant’s brief signed by a firm is null and void.
See NNB plc. v. Dencing Ltd (2005) 4 NWLR (pt. 916) 549 CA and Okofor v. Nweke (2007) 3 SC (pt 11) 55. Appellant herein has no valid brief of argument.
Issue 2 raises the property vel non of the appeal itself. Appellant filed the omnibus ground of appeal and indicated an intention to file further grounds of appeal on receipt of the record of proceedings. However the only other grounds of appeal are the four grounds listed in the brief of argument. At the date of filing of the brief on 18/03/2009 the appellant could not have filed additional grounds of appeal without leave of Court first sought and obtained.
See Order 17 r. 2 Court of Appeal Rules 2007. In any case only the appellant’s brief was assessed for filing and paid for. In order words the appellant’s grounds was not properly filed or filed at all.
A brief of argument is succinct statement of the propositions of law or fact or both which a party or his counsel wishes to establish in the appeal together with the reasons and authorities to substantiate them.
See Emodi v. Kwentoh (1996) 2 NWLR (pt 433) 656 at 660 SC.
U.A.C (Nig) Ltd v. Fasheyihan (1998) 11 NWLR (pt 573) 179 SC.
A brief of argument should not contain the grounds of appeal but only the issues raised from the grounds of appeal.
See Adetoun Oladeji Nig Ltd. V. Nigerian Breweries Plc.
It must be filed in compliance with Order 17 Rule 2 of the Court of Appeal Rules 2007 (2007) 2 SCM 703.
Moreover there is no link between the grounds of appeal and the issues in the applicant’s brief. Failure to link an issue in an appeal to ground or grounds of appeal will render the issue incompetent as a competent issue must be based on and relate to competent ground(s) of appeal.
See Bater & Ors v. Barokuzo & Ors (2007) 7 SCM 192.
In summary the issues in the appellant’s brief are incompetent as they are not linked to any ground of appeal. The grounds of appeal in the appellant’s brief were not filed with or without leave of Court and therefore are incompetent.It makes no difference that the respondent’s counsel agreed with the issues raised by the appellant as the said agreement cannot confer validity on a process that is incompetent.
The only valid ground of appeal is the one contained in the notice of appeal but that ground is deemed abandoned as no issue was distilled therefrom. See WAEC v. Adeyonju (2008) 7 SCM, 172.
The jurisdiction of the Court to hear appeals brought before it is conferred by statute and guided by Rules of Court. Failure to comply with the statutory provisions or relevant rules or laws will deprive the Court of jurisdiction to determine the appeal. See Uwazuruike & Ors v. A.G of the Federation (2007) 5 SCM 193.
For the foregoing the appeal is incompetent and ipso facto the Court has no jurisdiction to hear and determine it.
The appeal is hereby struck out. Each party to bear its costs.
CHINWE E. IYIZOBA, J.C.A.: It is now settled law that court processes requiring the signature of a legal practitioner cannot be signed by a law firm as such a law firm does not qualify as a person entitled to practice as a Barrister and Solicitor. See Section 2(1) and 24 of the Legal Practitioners Act. See also the following cases; Oke tade v. dewunmi & 4 Ors (2010) 2-3 SC (Pt.1) 140; Ogundele v. Agiri (2009) 12 SC (Pt.1) 135 @165 per Ogbuagu JSC;N.N.B Plc v. Denclag Ltd [2005] 4 NWLR (Pt.9156) 549 at 582;Okafor v. Nweke [2007] 10 NWLR (Pt. 1043) 521.
Quite recently an article in This Day Newspaper of Tuesday, November 30, 2010 pages x and xi captioned “Court nullifies Auditor’s Report Signed in Firm’s Name” discussed the judgment of a Federal High Court in suit No.FHC/L/CS/373/2010 Unegbu v. KPMG Professional Services & Guinness Nigeria Plc where the court, applying the Supreme Court judgment in Okafor v. Nweke {supra} held inter alia that the first defendant, an accounting firm is not a person enrolled or entitled to be enrolled as a chartered accountant or an auditor within the meaning of Section 8 of the ICAN Act and was therefore not competent to sign any financial documents required by law to be signed by an auditor. There is a plethora of authorities on this issue. It is therefore quite surprising that some legal Practitioners still refuse to take note of the statute and case law on the point but continue to fall into this self created trap to the detriment of their clients.
However I am of the humble view that since none of the parties raised the issue, the parties ought to have been given the opportunity to address the court, before reaching a decision on the point. Okorodudu v. Okoromadu (1977) 3 SC 21:Odiase &anor v. Agho &ors (1972) 1 All NLR (Pt. 1) 170; Olusanya v. Olusanya (1983) 1 SCNLR (Pt.136) 136: Kuti v. Balogun (1978) 1 SC 37.
Subject to the above, I agree with the reasons and conclusions reached in the judgment of my learned brother Ngwuta J.C.A. I also hold that the appeal is incompetent. I abide by the order as to costs.
MOORE A. A. ADUMEIN J.C.A: I concur.
Appearances
Chief J. I Oguntoyibo Esq.For Appellant
AND
F. S. Akinnibosun Esq. Asst. Director Civil Litigation, Ministry of Justice Ondo StateFor Respondent
