BRIGHT MOTORS LIMITED & ANOR v. HERITAGE BANK LIMITED
(2019)LCN/12544(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/218M/2002
RATIO
COURT AND PROCEDURE: WHETHER AMENDMENT CAN MAKE A DEFECTIVE NOTICE COMPETENT
“This is because the defective notice is void ab initio and cannot be remedied by a reconstruction of another notice of appeal. Once the amendment is based on a defective notice of appeal, it is dead and cannot be resurrected by any legal oxygen. This means an amendment cannot make a defective notice which is incompetent to be competent. What is wrong is wrong and who is doing it does not make what is wrong right. A defective notice of appeal cannot become competent by the ingenuity of amendment. It amounts to a Court deciding on a matter without jurisdiction. Such a matter is dead on arrival and cannot be resuscitated by any amount of legal oxygen. A defective notice of appeal is incompetent and no amount of white washing can remedy or safe the situation. The notice is dead and absolutely dead. The power of resurrection remains in the spirit realm and not in the legal realm.” PER TOBI EBIOWEI, J.C.A.
COURT AND PROCEDURE: NOTICE OF APPEAL
“There has to be a competent notice of appeal and therefore a competent appeal before any other process or step taken in the appeal can be competent and valid, for ex nihilo nihil fit. See: Ngonadi vs. Ezenwosu (1988) 6 SCNJ 88, Colito (Nig.) Ltd & Anor vs. Daibu & Ors (2009) LPELR-8216(CA) and Muhammed & Anor vs. Olawunmi & Ors (1990) 4 SCNJ 23. It is hereby struck out. Since the notice of appeal that commenced this appeal is incompetent, this appeal is equally incompetent. There can be no competent and valid appeal without a competent and valid notice of appeal. Also this Court would lack the jurisdiction to entertain and determine such an appeal as it has not been initiated by a valid legal process. This appeal is also struck out.” PER TOBI EBIOWEI, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. BRIGHT MOTORS LIMITED
2. CHIEF JOHNSON ANUMUDU Appellant(s)
AND
HERITAGE BANK LIMITED Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
The Respondent was Plaintiff in the lower Court in Suit No: LD/3257/99 wherein she is claiming the sum of N11,588,069.06 the balance of a loan facility granted to the Appellants, then Defendants. The Respondent also asked for interest. This action was filed on 8/11/99. The matter was brought by way of ex parte motion to be heard under the undefended list. The Appellants filed counter affidavit and further affidavit showing defence as required by law so that the matter be heard in the general cause list. The lower Court considered all the affidavit evidence before it and the arguments of counsel and in a considered judgment found in pages 229-245 of the record, the Court specifically in page 245 of the record held for the Respondent that is Plaintiff thus:
I hold that the facts deposed to by the defendants in support of their notice of intention to defend and then further affidavit cannot prima facie support a defence to the Plaintiffs action on merit. In the result, judgment is hereby entered in favour of the Plaintiff against the defendants jointly and severally in the sum of Eleven Million Five Hundred and Eighty-Eight Thousand sixty Nine Naira Six Kobo (N11,588,069.06) plus interest at the rate of 21% per annum for (sic) 30th September, 1999 until this day of judgment, thereafter at the rate of 10% per annum until the final liquidation of the judgment debt. The (e) leg of claims having been withdrawn remains struck out. Cost assessed at N2,500 is awarded in favour of the Plaintiff against the Defendants jointly and severally.
The Defendants dissatisfied with the judgment filed a notice of appeal on 8/9/2000 which is contained in pages 187-191 of the record. On 6/4/2002, the Appellant filed another notice of appeal which is in pages 213-217 of the record. Another notice was filed again in pages 218-219 of the records. This is the 2nd amended notice of appeal upon which the appeal is predicated. It was filed on 6/1/17. The appeal is against the decision of Hon. Justice A. Adetula Alabi of the Lagos High Court delivered on 14/7/2000.
The appeal came up for hearing on 15/11/18 and learned counsel of the Appellant Igwe C. Igwe esq., who settled the Appellants’ brief adopted same.
The relevant brief is the Appellant?s amended brief of argument filed on 24/10/18. The Learned Counsel to the Appellants withdrew grounds 1-9 of the grounds of appeal and argued grounds 10 & 11. In the circumstance, grounds 1-9 of the said notice of appeal are hereby struck out. Learned Counsel raised two issues for determination. They are:
1. Whether the Honourable trial Judge was right in holding that the failure to deliver the vehicles to the defendant (if established) is not a defence against the claims of the Plaintiff.
2. Whether the Honourable trial Judge was right when he disregarded the undenied facts in the Appellants? affidavit that some of the documents exhibited by the Respondent were obtained under duress and/ or by fraud.
Learned Counsel in addressing both issues submitted that the lower Court was in error in so holding. The answer counsel gave to the two issues raised above are to the negative. He relied on Muobike vs. Nwigwe (2000) 1 NWLR (Pt. 642) 620 @ 635; Diamond Bank Nig. Ltd vs. GSM Agro Allied Ind. Ltd (1999) 8 NWLR (Pt. 616) 558; Jipreze vs. Okonkwo (1987) 3 NWLR (Pt. 62) 737. It is his submission that the judgment of the lower Court be set aside.
The Respondent raised a preliminary objection to this appeal on grounds that the notice of appeal is incompetent and therefore all processes filed based on it is incompetent as every other process placed on an incompetent process cannot stand. The Respondents counsel Omohafe Theresa Opara (Mrs.) settled the brief and adopted same. Argument on the notice of preliminary objection was advanced in paragraphs 3.00-3.33 of the record. It is Counsel?s firm submission that the notice of appeal filed on 8/9/2000 found in pages 187-191 is incompetent as it was not signed by a legal practitioner within the meaning of Section 2(1) and 24 of the Legal Practitioners Act, 1990. The notice of appeal was signed by the law firm of J. O. Anumudu & Co., and not by a lawyer in the firm. This makes that notice of appeal incompetent and therefore the appeal should be struck out. He referred to Okafor vs. Nweke (2007) 10 NWLR (Pt. 1043) 521; Amos Oketade vs. Mrs. Olayinka Adewunmi & 4 Ors (2010) 8 NWLR (Pt. 1195) 63; FBN Plc. vs. Maiwada (2013) 5 NWLR ( Pt. 1348) 444 @ 482-483; The Nigerian Army vs. Sgt. Asanu Samuel & Ors (2013) LPELR-20931 (SC); Ekundayo & Anor vs. Aberuagba (2017) LPELR- 42428 (CA); SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ 337-338; Braithwaite vs. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1 @ 16,19. Based on the premise that the original notice of appeal filed on 8/9/2000 is incompetent the other notices of appeal that seeks to amend it is also incompetent as an incompetent process cannot be amended to make it competent. He submitted relying on Macfoy vs. U.A.C. Ltd (1962) AC 150; Idegwu vs. State (2015) 6 NWLR (pt. 1455) 286 @ 305; Ada vs. Hashimu & Ors (2017) LPELR – 42510.
The notice of appeal being incompetent cannot confer jurisdiction on the Court and therefore should be struck out or dismissed. This is counsel final submission on the notice of preliminary objection relying on Uwazurike vs. A.G. Federation (2007) 8 NWLR (Pt. 1035); General Electric Company vs. Harry Akande (2010) 18 NWLR (Pt. 225) 596; Aaron Okarika & 4 Ors vs. Isaiah Samuel & Anor (2013) 7 NWLR (Pt. 1352) 19; Mohammed vs. Martins Electronics Co Ltd (2010) 2 NWLR (Pt. 1179) 473 and Yisi Nigeria Limited vs. Trade Bank Plc (2013) 7 NWLR (Pt. 1357) 522.
On the merit of the appeal, Respondents counsel adopted the issues raised by counsel to the Appellants. He answered the inquiry to the positive. In other words, the lower Court was right in holding that failure to deliver the vehicles to the Appellant is no defence to the action and similarly the issue of documents obtained under duress is also no defence. He relied on Kaydee Ventures Ltd vs. Minister FCT (2010) 7 NWLR (Pt. 1192) 171; Aouad vs Kessrawani (1956) SCNLR 83; Chairman EFCC & Anor vs. David Littlechild & Anor (2015) LPELR among many other cases. He finally submitted that the appeal should be dismissed.
Appellants counsel in the reply brief made submissions in reply to the notice of preliminary objection. The main thrust of his reply is that while the cases cited by the Respondent especially Okafor vs. Nweke (supra) are good authorities on the point but that the issue in this case came up before the Okafor case therefore it is not applicable. It is also counsel submission that the notice of appeal filed on 15/1/2003 is a valid notice of appeal duly signed by a legal practitioner.
The above is the address of counsel. As required by law, I will look at the preliminary objection first. I will also adopt the sole issue raised by the counsel to the Respondent in determining the notice of preliminary objection. In summary, the issue is whether the notices of appeal filed by the Appellants and their brief are incompetent and therefore liable to be struck out. The Appellant filed three notices of appeal. They were filed on 8/9/2000, 15/1/2003 and 6/1/17. All these notices of appeal were filed in this matter and therefore they carry the same appeal number. In fact, there was a fourth one filed on 28th June, 2004 but abandoned for the one filed on 6/1/17 which was further amended by the order of the Court on 10/1/17 when it was deemed. The operative notice of appeal is therefore the notice filed on 6/1/17 which was deemed on 10/1/17. This is tagged amended notice of appeal. The implication is that there is a valid notice of appeal before the Court which is sought to be amended by the current one. If there is no valid notice of appeal, the amendment will be of no moment. The logic is clear, as it is not possible to place something on nothing expecting it to stand. That is not legally possible except in a cheap magician trick. Magic has no relevance in law and cannot be accepted. Permit my use of this analogy to drive home the point I am laboring to make. The point is that a defective notice of appeal cannot be cured by an amendment as only a valid notice of appeal can be amended. Anything placed on a faulty foundation will not stand. If the foundation of a house is faulty and cannot carry the building on it, the building will collapse no matter how beautify the house is. What is required is to go back to the foundation and fortify it or rebuild it.
The foundation of any process in Court is the originating process. In this instance, the notice of appeal filed on 8/9/2000. This is the first notice of appeal filed. Without the notice of appeal, this matter has no business in the cause list in this Court. It is the notice of appeal that confers jurisdiction in this Court to handle the appeal. Therefore the notice of appeal must be properly filed and not defective. If it is defective, it ought to be withdrawn and a new notice of appeal filed. If the counsel decides to file an amendment, this cannot cure the defective notice of appeal.
What happened here is that the Appellants filed the first notice of appeal on 8/9/2000. This notice in pages 187-191 of the record was signed by the law firm of J. O. Animunu & Co. This is the law firm of the Appellants counsel representing them in the lower Court. This is defective and incompetent as the notice of appeal must be signed by a person who has the capacity to practice law as a legal practitioner in Nigeria as defined under Section 2 (1) and 24 of the Legal Practitioners Act, 1990. A notice of appeal cannot be signed by a law firm as shown in the notices of appeal of the Appellant filed on 8/9/200 and 6/4/2002 which are in pages 187-191 and 213-217 of the record respectively. These two notices of appeal are defective and therefore no appeal can be founded on them. Any process filed based on them is defective and therefore incompetent. The Appellant engaged another counsel Igwe C. Igwe Esq., who file another notice of appeal on 6/1/17 to amend the earlier ones filed. This was signed by him in person, that is Igwe C. Igwe Esq., if this was the first and only notice of appeal, the preliminary objection will not have been necessary. This 2nd amended notice of appeal is supposed to amend the original notice of appeal of 8/9/2000 which is defective. The law, as counsel to the Respondent has ably brought out which the Appellants’ counsel could not effectively deny or dislodge is that a defective notice of appeal cannot be amended.
This is because the defective notice is void ab initio and cannot be remedied by a reconstruction of another notice of appeal. Once the amendment is based on a defective notice of appeal, it is dead and cannot be resurrected by any legal oxygen.
This means an amendment cannot make a defective notice which is incompetent to be competent. What is wrong is wrong and who is doing it does not make what is wrong right. A defective notice of appeal cannot become competent by the ingenuity of amendment. It amounts to a Court deciding on a matter without jurisdiction. Such a matter is dead on arrival and cannot be resuscitated by any amount of legal oxygen. A defective notice of appeal is incompetent and no amount of white washing can remedy or safe the situation. The notice is dead and absolutely dead. The power of resurrection remains in the spirit realm and not in the legal realm.
Let me take a little excursion to some case law in this con. The Respondent counsel has done quite a good job on this. I will however add a few cases of mine. In City Biscuit Manufacturing Co Ltd & Anor vs. Ezeonwu (2016) LPELR-41520 (CA), this Court per Agim, JCA at pages 6-9 held:
?It is settled by a long line of judicial decisions that only a person who is registered to practice as a legal practitioner in Nigeria, in that his name is on the roll of legal practitioners, can competently and validly sign or issue a Court process or any legal document on behalf of some other person. Therefore a Court process signed or issued by a person who is not a legal practitioner on behalf of a party in a case is incompetent and void.? See for example Okafor & Ors vs. Nweke & Ors. (2007) 3 SC (Pt. 11) 55, Unity Bank PLC vs. Denclag Ltd & Anor (2012) LPELR-9729 (SC), First Bank of Nigeria PLC & Ors vs. Maiwada & Ors (2012) LPELR-9713 (SC), N.N.B. PLC vs. Denclag LTD & Anor (2004) LPELR-5942 (CA) and Bello v. Adamu & Ors (2011) LPELR-3722 (CA).
Therefore, it is of fundamental importance that the identity of such person who signed or issued a Court process be certain and obvious on the face of the process so as to show beyond conjecture that he is a legal practitioner. If the identity of the signatory of a Court process is not certain or obvious on the face of the said Court process, it cannot be said or assumed that such a signatory is a legal practitioner. The identity of a signatory of a Court process can be made certain and obvious on the face of the Court process by writing the name of the signatory beneath the signature and then followed by the name of the law firm or if the signature is on top or in the midst of several names, then one of the said names can be ticked as an indicator that he is the maker of the signature or his name can be written beside the signature.”
His Lordship went on to further say:
‘Where the identity of the signatory of a Court process is not certain or obvious on its face as in this case, the process has been held to be incompetent and invalid as it cannot be said or assumed that the unidentified and unknown signatory is a legal practitioner. The fact that the name of a law firm is written under the signature as appellant’s counsel, is of no moment, because the preponderance of judicial authorities do not accept the presence of the name of the law firm that is acting for the party as an indicator that the unidentified and unknown signatory is a legal practitioner and do not accept that a law firm is a legal practitioner as prescribed in S. 2(1) and S. 24 of the Legal Practitioners Act. See: SLB Consortium Ltd vs. N.P.C. (2011) LPELR-3074 (SC), Okafor & Ors vs. Nweke & Ors (supra), Unity Bank PLC vs. Denclag Ltd & Anor (supra) and F.B.N. PLC & Ors v. Maiwada (supra).
His lordship did not just end there but went on directly on the issue and said;
In the light of the foregoing, I hold that the notice of appeal that commenced this appeal is incompetent and void. The invalidity of the notice that commenced this appeal is not cured by the amendment and further amendment of the said notice and the fact that the said amended and further amended notices of appeal were signed by identified persons who are legal practitioners. It is settled law that a void notice of appeal cannot be validated or regularized by amendment. The nullity is incurable.
There has to be a competent notice of appeal and therefore a competent appeal before any other process or step taken in the appeal can be competent and valid, for ex nihilo nihil fit. See: Ngonadi vs. Ezenwosu (1988) 6 SCNJ 88, Colito (Nig.) Ltd & Anor vs. Daibu & Ors (2009) LPELR-8216(CA) and Muhammed & Anor vs. Olawunmi & Ors (1990) 4 SCNJ 23. It is hereby struck out.
Since the notice of appeal that commenced this appeal is incompetent, this appeal is equally incompetent. There can be no competent and valid appeal without a competent and valid notice of appeal. Also this Court would lack the jurisdiction to entertain and determine such an appeal as it has not been initiated by a valid legal process. This appeal is also struck out.
Similarly in Wema Bank Plc vs. Awotunde & Ors (2010) LPELR-9148 (CA), this court per Uwa, JCA at pages 12- 14 held:
‘The big question is: can a defective Notice of Appeal be cured by an amendment as I stated earlier in this Ruling each case should be considered on its own peculiar circumstances in regard to the Applicability of Rules of Practice. No doubt, Order 7 Rule 10 (1) permits the enlargement of time provided by the Rules of this Court for the doing of anything to which the Rules apply. This Rule would be applicable if the validity of the original Notice is not in question, that is, a valid Notice of Appeal’.
In the case of Amadi vs. Okolie (1977) 7 S.C. 57 AT 58 Idigbe JSC (of blessed memory) had this to say in respect of defective Notices of appeal: ‘The notice of appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent and in any appropriate case it will not hesitate to do so’. Also see the case of Tukur vs. Gov. Gongola State (1988) 1 NWLR (PT.68) 39 and NWANWATA vs. ESUMEI (1988) 8 NWLR (PT.563) 650.
The position of the Notice of Appeal in our appeal system is akin to the position the writ of summons occupies in ordinary civil action. It initiates the appeal and where it suffers from any defect the appeal itself becomes defective and subject to be struck out as incompetent.? See: Dambam vs. Lele (2000) 11 NWLR (PT.678) 413.
A Notice of appeal is a condition precedent to effectively appeal against any appealable decision. If a Notice of Appeal is defective, then the Court of Appeal lacks the legal competence to entertain it, as rightly argued by the learned counsel to the 2nd and 4th Respondents respectively. If there was originally an invalid or incompetent Notice of Appeal filed on 23/08/06 having been signed by the firm of Musibau Adetunbi & Co., that is not a legal practitioner in the roll of practitioners as barrister and solicitor, then afortiori there would be no notice of appeal capable of being amended in line with the application sought to validate the earlier notice.” See: Olanrewaju vs. B.O.N. Ltd (1994) 8 NWLR (PT. 364) 622. “Such defective Notice of Appeal as in the present case cannot be cured by the leave to amend the Notice, and by filing an amended Notice of Appeal reflecting the amendment sought as has been done by the Applicant in this case. The case is different, where a valid notice is sought to be amended with the leave of Court, if filed outside the statutory period.”
His Lordship went on to emphasis that sentiment has no place in law in these words:
‘Therefore, the argument of counsel that if this appeal is struck out the litigant suffers for the sins of counsel, in my opinion, counsel should be more careful if not meticulous, concerning documents to be filed in Court, otherwise the litigant will continue to suffer and pay for the sins of counsel and mistakes of typist. It is unfortunate, in a situation such as this, where the root of the appeal is defective; the litigant has to pay the price of the sins of counsel and/or typist whatever the case may be. There is nothing this Court can do to save the situation; the law must take its course. In Odunze vs. Nwosu (Supra) it was held per Chukwuma-Eneh, JSC at Page 28 thus: ‘Once the Notice of Appeal is vitiated in anyway the appeal becomes incompetent and liable to be struck out. See: also Kolawole vs. Alberto (1989) 2 SC (PT.111) 187. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.’
In Olowokere vs. African Newspapers (1993) 5 NWLR (PT. 2951) 583, it was held that where a notice of appeal is a nullity, the effect is that there was never an appeal lodged or filed, ab initio.
In other words, there is no Notice of Appeal to amend. In the present case therefore, the Notice of Appeal filed on 23/08/06 was defective and incompetent having been signed by the firm of Musibau Adetunbi & Co., that is not a barrister and solicitor in the roll of legal practitioners. An incompetent Notice of Appeal has the effect of there being no Notice of Appeal, and if there is no Notice of Appeal there is nothing to seek leave to amend and I so hold. In the same vein, the amended Notice of Appeal sought to be deemed as properly filed and served as sought in prayer (2) of the motion paper is incompetent, as an incompetent notice cannot be cured by amendment.
The Supreme Court in a number of cases has added its loud and finality voice to this issue. I will refer to one or two cases. In Okwuosa vs. Gomwalk & Ors (2017) LPELR-41736 (SC) at pages 13-15 held:
‘The Court of Appeal Rules makes it mandatory that the Notice of Appeal shall be signed by either the appellant or his Legal representative, which in the same Rules is defined as meaning “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in any proceedings before the Court.”
Section 24(1) of the Court of Appeal Act provides that where a person desires to appeal to the Court of Appeal, he shall give Notice of appeal in such manner as may be directed by the rules of Court subsisting within the period. Both Section 24(1) of the Court of Appeal Act and the relevant provisions of the Court of Appeal Rules directing the manner the Notice of Appeal shall be filed are not only mandatory, they have been incorporated by reference into Section 243(b) of the 1999 Constitution as amended. This provision of the Constitution further directs that the “right of appeal to the Court of Appeal from the decisions of High Court conferred by this Constitution shall be exercised in accordance with any Act of the National Assembly and the rules of Court for the time being in force regulating the powers, practice and Procedure of the Court of Appeal.” The Legal Practitioners Act, which in Section 2 (1) thereof provides that “a person shall be entitled to practice as a barrister and solicitor if, and only if his name is on the roll”, also an Act of the National Assembly Section 243 of the Constitution refers to. All these provisions are mandatory. The consequence of flouting the mandatory or imperative provisions of the Constitution and statutes is that the act, proceedings or decisions done in such violation are illegal, null and void.
This Court in Ifezue vs. Mbadugha & Anor. (1984) 5 SC. (1984) ALL NLR 256 stated that a mandatory or imperative enactment must be obeyed or fulfilled exactly. The effect of failure to strictly comply with a statutory mandatory requirement relating to the procedure of commencing a proceeding or trial is that on appeal the trial or proceeding will be declared a nullity. See KAJUBO vs. THE STATE (1988) NWLR (Pt. 73) 721. Such defect is regarded as an illegality, and not a mere irregularity. See: The State vs. Gwonto (1983) ALL NLR 109 (1983) 3 SC. 62; Sanmabo vs. the State (1967) NMLR 3IX at 316-317. Thus, as it was held in Madaye Dupin vs. Oloninoran (2013) 1 NWLR (Pt. 1334) 175, non-compliance with conditions precedent for initiating an action vitiates the action ab initio. See also Odofin vs. Agu (1992) 3 NWLR (Pt. 229) 350; Atuyeye vs. Ashamu (supra); Uwazurike vs. A.G. Federation (Supra); Ajuwa vs. S.P.D.C. NIG. LTD. (2008) 10 NWLR (Pt.1094)64; Madukolu vs. Nkemdilim (supra).
Specifically on the issue in the preliminary objection in this case, the apex Court went on to say:
‘This authority of the MILITARY ADMINISTRATOR BENUE STATE vs. ULEGEDE (supra) has, in my firm view, settled against the Respondents their contention that the Appellant was estopped from complaining that the original notice of appeal was incurably defective and a nullity when he did not oppose the application for amendment of the notice of appeal by addition thereto of additional grounds of appeal. This argument is untenable, in view of Nwaigwe vs. Okere (supra); Military Administrator, Benue State vs. Ulegede (supra). In any case, there is a distinction between an amendment to permit additional grounds of appeal, which is innocuous, and a contentious amendment to alter illegality to Legality retrospectively.
The original notice of appeal signed and filed by “Miskom Puepet & Co.”, an entity or persona who is not a legal practitioner enrolled to practice law in Nigeria, was void ab inltio. It was an incompetent process that could not be regularized retrospectively. Accordingly, all proceedings, decisions and orders of the Court below predicated on it in the appeal No. CA/J/278/98 are all a nullity. In the eye of the law, the said fundamentally defective notice of appeal never existed, and binds no one whatsoever. See Adefulu vs. Okulaja (1996) 9 NWLR (Pt. 475) 668 at 591; Ekwulugo vs. A.C.B. (2005) 6 NWLR (Pt. 975) 30 at 40; N.I.W.A. vs. S.P.D.C. (NIG.) LTD (2007) ALL FWLR (Pt. 361) 1727 at 1747.
The totality of all that I have been labouring to say on this issue is that there is substance in this issue 1 argued by the parties herein. The issue is accordingly resolved in favour of the Appellant. There is no further use in the circumstance for me to consider the remaining issues since on this issue; my firm view is that the notice of appeal signed and filed by “Miskom Puepet & Co” on 29th August, 1996 was ab initio incompetent. Doing so is now totally academic without any utilitarian value. The Court below proceeded on that invalid and incompetent notice of appeal to entertain the appeal. The notice of appeal, incompetent, is hereby struck out.
Finally on my case, law excursion on this point, the apex Court per Onnoghen, JSC (as he then was) held in Odoemen A. Nwaigwe & Ors vs. Nze Edwin Okere NSCQR Vol. 34 2008 page 1325 @ 1353 as follows:
‘It is settled law that you cannot amend a fundamentally defective document such as notice of appeal so as to infuse live 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 also Union Bank Plc. vs. Branksome properties Ltd (2007) LPELR-8800 (CA).
The above Supreme Court authority has put the matter beyond any doubt and dispute. The notice of appeal filed on 8/9/2000 which is defective ab initio could not have been cured by the notice of appeal filed on 6/1/2017. I could appreciate the frustration of Learned Counsel for the Appellant.
He was not the counsel that filed the two earlier notices of appeal that were defective. His attempt to remedy the notice of appeal is an exercise in futility. Too bad. He tried begging the issue by submitting that the decision in Okafor’s case came after the notice of appeal was file and so it cannot retrospectively be applied. This argument with due respect to counsel cannot fly at all. It is clear from all the line of cases which is settled beyond any dispute that since the 2nd amended notice of appeal cannot stand on its own but on the original notice of appeal filed on 8/9/2000 which is defective, it cannot cure the defect by the said amendment.
The order of this Court is obvious which is that the notice of appeal filed on 6/1/17 which is supposed to amend the notice of appeal of 8/9/2000 cannot stand, not even on one leg. It collapses and falls like the popular children story of ‘Solomon Granddy’ since the original notice of appeal was defective. The preliminary objection succeeds. The notice of appeal been incompetent is hereby struck out. With the notice of appeal stuck out, the appeal is standing on nothing. All the processes filed, in this instance, the Appellants? brief has nothing to stand on. The appeal therefore fails and it is dismissed on that ground alone.
On whether based on the above, there is need to address the merit of the appeal peradventure my finding above is wrong; I do not see the need to proceed further on this appeal on the merit as doing so will amount to addressing the merit of the defence put forward by the Appellant on the pursuit to make the case to be head on the undefended list. The success of the preliminary objection renders the hearing of the appeal in the merit unnecessary. See; Njemanze vs. Njemanze (2013) 8 NWLR (Pt. 1356) 376; Afribank (Nig.) Plc vs. Akwara (2006) LPELR ? 199(SC); Udenwa & Anor vs. Uzodinma & Anor (2013) 5 NWLR (Pt. 1346) 94.
The objection of the Respondent succeeds and this appeal is struck out on the ground of incompetence. I award (N100,000.00) One Hundred Thousand Naira cost in favour of the Respondent against the Appellants.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The Notice of Appeal is the originating process for an appeal. For it to pivot and give vim to an appeal, it has to be competent.
The fons et origo of an appeal is the Notice of Appeal. It is the foundation and substratum of every appeal. Any defect in the Notice of Appeal will render the appeal incompetent and the appellate Court will lack jurisdiction to entertain the appeal. See UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14, OLOWOKERE vs. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT. 295) 593 and OLAREWAJU vs. BON (1994) g NWLR (PT 364) 622.
The original Notice of Appeal in this matter was taken out by J. O. ANUMUDU& CO. This is a Law Firm. It is not a legal practitioner. It is only legal practitioners within the meaning of Sections 2 , 24 of the Legal Practitioners Act that can sign processes for filing in Court. The Notice of Appeal signed in the name of J. O. ANUMUDU & CO., is therefore incompetent. The authorities are legion. I will mention a few. See SLB CONSORTIUM LTD vs, NNPC (2011) 9 NWLR (PT 1252) 317, BRAITHWAITE vs SKYE BANK (2013) S NWLR (PT. 1346) 1 und OKWUOSA vs. GOMWALK (2017) 9 NWLR (PT. 1570) 259. The Latinism is ex nihilo, nihilft: out of nothing, nothing comes: MANAGEMENT ENTERPRISES vs. OTUSANYA (1987) LPELR (1834) 1 at 74 and IN RE: OTUEDON (1995) LPELR (1506) 1 at 16.
The incompetent and defective Notice of Appeal did not activate the jurisdiction of this Court. The appeal was dead on arrival.
It is for the foregoing reason that I am allegiant to the more elaborate reasoning and conclusion in the leading judgment of my learned brother, Ebiowei Tobi JCA, which I was privileged to read in draft that the appeal ought to fail. I abide by the consequential orders made in the leading judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege in draft, the leading judgment just delivered by my learned brother, EBIOWEI TOBI, J.C.A. and I agree with the reasoning and conclusion contained therein.
The law is now well settled that only a legal practitioner recognised by law can sign or issue a Court process or any legal document on behalf of some other persons. See Section 2(1) and 24 of the Legal Practitioners Act; OKAFOR v NWEKE (2007) 10 NWLR (PT. 1043) 521 (SC); FBN LTD v MAIWADA (2013) 5 NWLR (PT. 1348) 444; SLB CONSORTIUM LTD v NNPC [2011) 9 NWLR (PT 1252) 317 where the Apex Court established the position of the law. Incidentally, it remains to be said that an originating process, like a Writ of Summons or Notice of Appeal, not signed or issued by a legal practitioner known to law cannot be amended. Any purported of such incompetent process is invalid and a complete waste of time. See UNITY BANK v KAY PLASTICS (NIG.) LTD & ANOR (2018) LPELR – 44977 (CA).
In the instant case, the fact on record shows that the initial Notice of Appeal filed on 8th September, 2000 was not signed by a legal practitioner, but purportedly by the law firm of J. O. Anumudu & Co. This is improper and the Notice of Appeal is evidently incompetent and such further attempt by the Appellant to amend the defective Notice of Appeal cannot be countenanced.
Meanwhile, it is the submission by the Appellants’ counsel that the law as stated in OKAFOR by the Supreme Court cannot apply to the instant case since the Notice of Appeal herein was filed before the decision of the Apex Court in that case. This submission is not only misconceived, it is as well not well founded. It is noteworthy that the decision of the Supreme Court in OKAFOR was the consequence of the construction of the provision of Section 2(1) and 24 of the Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990, a law in existent before the defective Notice of Appeal was purportedly filed. It is the law that was allegedly not complied with by the Appellant and not the decision in OKAFOR and it is of no moment that application of the law came alive by the judicial interpretation in OKAFOR.
It is as a result of the foregoing that I also come to the conclusion, in the same term as the leading judgment that the Notice of Appeal is Incompetent and the appeal is hereby struck out.
Appearances:
IGWE C. IGWE, Esq.For Appellant(s)
O. T. OPARA (MRS.)For Respondent(s)
