FEDERAL GOVERNMENT OF NIGERIA v. ALHAJI ADIGUN AKINOLA
(2014)LCN/7529(CA)
RATIO
PRACTICE AND PROCEDURE: ORIGINATING SUMMON; SIGNING OF ORIGINATING PROCESSES FILED IN COURT
In the case of Okafor v. Nweke (2007) 3 SC (Pt.II) 60, the Supreme Court laid it down that originating processes filed in court are to be signed as follows:
(a) First, the signature of Counsel, which may be any contraption.
(b) Secondly, the name of Counsel that signed the process clearly written.
(c) Thirdly, who Counsel represents.
(d) Fourthly name and address of Legal Firm. per. MOJEED ADEKUNLE OWOADE, J.C.A.
COURT; POWER OF THE COURT; WHETHER COURT DOES NOT POSSESS THE RESURRECTION POWER TO GIVE LIFE TO AN APPEAL THAT IS NOT VALID
This court does not possess the resurrection power to give life to the weak, feeble and indeed crippled limps of “Desirous” – the intended Appellant herein. See also Texaco (Nig) Plc Vs. Reuben Iloka & Iloksons & Co Nig Ltd of 31st May, 2013 CA/J/280/2001. Per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering The Leading Judgment): This is an appeal against the Ruling of the Federal High Court sitting in Akure delivered by Hon. Justice I. M. Sani in Charge No.FHC/AK/50C/2012 on 27th day of November 2012.
The Appellant as complainant brought charges of reckless driving, conspiracy and dealing in adulterated or locally refined diesel product without lawful authority sundrily under the provisions of Section 343 (1)(a) and 332(1)(a) of the Criminal Code Act Cap. C. 38 L.F.N. 2004 and Section 3 (6) and 1 (17) of the Miscellaneous offences Act Cap. M17 L.F.N. 2004 against ABBAS Salami, Saheed Adewale and Tajudeen Ogunsola.
The six count charge against the said accused persons was dated 9-11-2012 and the plea of the accused persons were taken on the 13/11/2012. By a Motion on Notice dated 26/11/2012 and filed on 27/11/2012, the present Respondent as Applicant joined the Federal Republic of Nigeria and the Commandant, Nigeria Security and Civil Defence as Complainant/Respondent and part interested/Respondent respectively and prayed the court below:
1. An order of the Honourable Court directing the party Interested/Respondent to release to the Applicant the Tanker truck Registration No.XB 569 AGG/Chassis No.IMIAA08X3 YWO20089 (belonging to the Applicant) which is at the custody of the party Interested/Respondent at his base station in Akure forthwith.
2. AND for such orders as the Honourable court may deem fit to make in the given circumstances.
The grounds upon which the application was made are as follows:
1. That the case in respect of which the said tanker truck was impounded is within the jurisdiction of this Honourable court.
2. That the Applicant, the owner of the tanker-truck in issue is not an accused person standing trial before the court.
3. That the continued impoundment of the tanker truck by the party interested/Respondent is seriously destroying the business activities of the Applicant.
4. That the Applicant undertakes to produce the tanker truck whenever needed.
5. That the Applicant herein denied any responsibility or connection as regards the incident leading to seizure of his tanker truck.
At the court below, the party interested Respondent (now Appellant filed a counter-affidavit to the Applicant’s affidavit in support of motion and the parties exchanged written addresses.
In a considered Ruling delivered on 27/11/13, contained at pages 69 – 79 of the records the learned trial judge held at pages 77 – 79 thus:
“From the affidavit in support of the application, the attached Exhibit ‘A’ I am satisfied that the Applicant is the owner of the said truck and that is the only means of livelihood of the Applicant. In the circumstance, therefore it will be in the interest of justice to grant this application.
See: Nigeria Customs Service & Onyebuchi Obidite, Innocent Nwankwo & Isaac Okeja FHLR (2005) Vol.1 at page 576; Nigerian Customs Service v. Ndu Bros. Overseas Agency Ltd, FHLR (1990) Vol.1 at page 401.
However, the prosecution has the right to prosecute this case without frustration, I am therefore inclined to release the tanker truck to the Applicant on the following conditions pending the determination of the criminal charge against the accused persons.
The application succeeds and it is granted on the following conditions:
1. The Tanker Truck Registration No.XB 569 AGG Chasis No.IMIAA08X3YW020089 (belonging to the Applicant) which is at the custody of the party Interested/Respondent at his base in Akure be released to the Applicant Alhaji Adigun Akinola.
2. The Applicant shall furnish the court with either a Bank Guarantee or Bank Draft in the sum of N1,000,000 (One Million Naira) from either First Bank, Union Bank, UBA or any other reputable Bank which he stands to forfeit if he fails to produce the said truck whenever required by the court.
3. The Applicant shall produce the said Truck at anytime directed by the court.
4. That the alleged adulterated content of the Truck 10,000.00 liters of refine diesel product Registration No. XB 569 AGG be sold by way of public auction and money realized be deposited in an interest yielding account by the Registrar of this court who shall act as the Auctioneer.
5. That before the release of the said vehicle sample of the said alleged adulterated product shall be taken (if not already taken by the prosecution for analysis).
6. That there shall also be a written undertaking by the Applicant counsel to make available the said truck whenever it is required.
Dissatisfied with the above Ruling the party Interested Respondent filed a Notice of Appeal containing two (z) grounds of appeal before this court on 3/12/13.
Appellant’s brief of argument dated 14/3/2014 was filed on 18/3/2014. Respondent’s brief of argument incorporating preliminary objection dated 11/4/2014 was fled on 14/4/2014. Appellant thereafter filed a Reply brief dated 24/4/2014 on 25/4/2015.
In arguing the Notice of preliminary objection, Learned counsel for the Respondent submitted that the Appellant’s appeal is incompetent such that no jurisdiction is vested in this Honourable court of Appeal to entertain the same. That it is on record that the Appellant’s brief is filed and predicated on a Notice of Appeal dated and filed on 3/12/13. The said notice of appeal was not signed as required by law.
He submitted that an unsigned notice of appeal cannot be the basis and foundation of a competent appeal. In other words, an unsigned notice of appeal is no appeal upon which a brief of argument can legally be predicated.
Learned Counsel for the Respondent submitted that by the combined effect of the Legal Practitioners Act and order 17 Rule 4 (1) (2) (4) & (6) of the court of Appeal Rules 2011, the Appellant’s notice of appeal SHALL be signed by the Appellant or a legal practitioner enrolled to practice in Nigeria by the Supreme Court before filing the same.
Applying these provisions to the case at hand, said Counsel, there is no doubt that the originating process having not been properly initiated, the action is incompetent and any appeal arising from such an incompetent process is also incompetent.
He referred to the cases of Okafor v Nweke (2007) 3 (Pt.II) 60; The Registered Trustee of Apostolic Church Lagos v Akindele (1967) NMLR 213 at 265.
He submitted that the fatal effect of the signing of an originating process by a law firm or by filing same without signing it is that the entire suit is incompetent ab-initio. It was dead at the point of filing. And, that this highlights the painful realities that confront a litigant when counsel fails to sign processes as stipulated by law. The originating process, as in this case is fundamentally defective and incompetent.
He further submitted that once it cannot be said who signed a process it is incurably bad, and rules of court cannot override the law.
In the instant appeal, said counsel, the originating process (i.e. Notice of Appeal) was not signed at all. It is a mere document that has no legal value. It cannot be looked into and or considered by the court, nor can any court process be predicated on it. Hence, the Appellant’s brief of argument predicated on the fundamentally defective notice of appeal is ‘nothing’ as something cannot be placed on nothing and expect it to stand.
He referred to the case of UAC v. Mcfoy (2006) WRN 185. He urged us to uphold the preliminary objection and strike out the appeal.
Learned Counsel for the Appellant attended to the submissions of the Respondent’s Counsel on the preliminary objection in his Reply brief. He argued in essence that this court being a court of justice should eschew technicalities. That, the court has an unfettered discretion to entertain the appeal in the interest of justice. He referred to the judgment of the Supreme Court (per Pats Acholonu JSC of blessed memory) in the case of Associated Discount House Ltd V Amalgamated Trustees Ltd. (2006) 5 SC (pt.1) 32 and urged us to discountenance the objection in the interest of justice moreso that failure to comply strictly with the provision of Order 17 Rule 4 (1) Court of Appeal Rules 2011 will not prejudice the Respondent in any way.
In the case of Okafor v. Nweke (2007) 3 SC (Pt.II) 60, the Supreme Court laid it down that originating processes filed in court are to be signed as follows:
(a) First, the signature of Counsel, which may be any contraption.
(b) Secondly, the name of Counsel that signed the process clearly written.
(c) Thirdly, who Counsel represents.
(d) Fourthly name and address of Legal Firm
In the instant case, the Appellant’s notice of appeal at pages 83 – 85 of the record of appeal does not contain any signature at all and in fact does not contain any of the above requirements. The notice of appeal was neither signed by the Appellant nor counsel representing the Appellant. Obviously, it could be safely said that there is no notice of appeal, this appeal was never initiated, in fact the appeal does not exist in law or in fact.
I do agree with the learned counsel for the Respondent that by the combined effect of the provisions of the Legal Practitioners Act and order 17 Rule 4 (1) (2) (4) & (6) of the Court of Appeal Rules 2011, an unsigned notice of appeal as in the instant case is incompetent. It is a mere document that has no legal value, it cannot be looked into and or considered by the court nor can any court process be predicated on it.
This appeal was dead at the point of filing. It is fundamentally defective and the appeal is incompetent ab-initio. The Respondent’s Notice of preliminary objection is upheld and succeeds.
In-spite of my above ruling. I am enjoined to consider the merit of the appeal so that the Supreme Court may have the benefit of the opinion of the Court of Appeal if there is further appeal on this matter.
Learned Counsel for the Appellant nominated a sole issue for determination to wit:
Whether the trial judge was right to have ordered the release of the truck to the Applicant when he was aware that the said truck is an Exhibit the prosecution wishes to tender during trial of the accused persons to prove its case.
The Respondent adopted the sole issue formulated by the Appellant for determination in this appeal.
Learned Counsel for the Appellant submitted that the trial judge ought not to have released the truck to the Respondent when the said truck has been listed as an Exhibit the Appellant will tender at the trial. He referred to paragraphs 10, 15, 21 of the Appellant’s counter affidavit (pages 23 – 24 of the record).
The Appellant contends that perusing the charge sheet it clearly shows that there is strong nexus between the commission of the alleged offence and the said truck.
He submitted that Section 269 of the Criminal Procedure Act under which the Respondent brought the application only contemplates any other property other than that used in the commission of the offence. That, in the instant case the property in question i.e. the truck was used in the commission of an offence and that releasing same will prejudice the case of the Appellant.
Counsel submitted that if the trial judge had properly considered the section 269 of the C.P.A and the averment in paragraph 19 of the Appellant’s counter affidavit the Order would not have been given while the substantive case is pending.
That it is trite that where any property is used in the commission of an offence, the said property becomes an Exhibit in the hands of the prosecution of the case, the property cannot be dealt with otherwise.
The rationale behind this, he said, is to enable the prosecution to prove its case beyond reasonable doubt without facing any frustration. That the Appellant was seeking the determination of the case and not to punish the Applicant.
Learned Counsel for the Respondent on the other hand submitted that the learned trial judge was right to have granted the application for the release of the truck to the Respondent.
That it is trite that the grant of such application requires the discretion of the learned trial judge which must be exercised judicially and judiciously. He submitted that the exercise of discretion is regulated and or guided by the peculiar facts and circumstances of a given case.
He argued that in the instant case, it is on record that the trial of the charge pursuant to which this appeal emanated commenced on 13/11/12 when the plea of the accused persons were taken. That it is evident on record that since 13/11/12 to 27/11/13 (over a year) when ruling being challenged was delivered, the Appellant did not call any witness to prosecute its case.
Counsel submitted that it is equally evident from record that the Appellant made an application before the trial court for sample of the alleged adulterated diesel to be taken for laboratory analysis without objection from the Respondent’s Counsel. The application was granted. (Pages 38 – 49 of the Records).
He argued that despite the grant of the said application the Appellant failed to prosecute its case while holding tenaciously unto the tanker truck of the Respondent. Counsel submitted that the Appellant was not interested in the prosecution of its case but rather to impound perpetually the truck of the Respondent such that same would be grounded.
What is more, said Respondent’s Counsel, the ruling of the trial court being challenged by this appeal did not unconditionally release the truck in question to the Respondent. That it is on record that the order directing the release of the said truck gave conditions for the release of the said truck one of which is that the Respondent must undertake to produce the truck at any time required by the court.
He submitted that given the conditions for the release of the said truck by the trial court, the learned trial judge indeed exercised the discretion judicially and judiciously. The contention of the Appellant that the Appellant would be denied the use of the truck as exhibit is misleading.
Counsel submitted that the further contention of the Appellant’s Counsel that the release of the truck will frustrate the prosecution of the case in that the accused persons will jump bail is misconceived, The truck in issue was not used as collateral or surety to guarantee the presence/attendance of the accused in court. And, that despite impounding the said truck since 13/11/12 the Appellant could not call any witness till date let alone tendering the truck as exhibit.
He submitted further that the argument of the Learned Counsel for the Appellant that the learned trial judge was wrong to have granted the application having been brought pursuant to a wrong section of the law is in variance with firmly established principle of law. That it is trite that the court will consider an application on its merit irrespective of whether the same is brought pursuant to a wrong section of the law. In any event, said Counsel, the application was brought pursuant to the inherent jurisdiction of the trial court.
He referred to the case of Joseph O. Folabi v. Elizabeth O. Folabi (1976) 9 & 10 SC P.1.
He submitted that the trial judge rightly held that the Appellant has not been diligent in the prosecution of the case and was only interested in perpetually withholding the truck in issue.
Finally, that considering the circumstance of this case couple with the attitude of the Appellant which attitude the trial court had taken judicial notice, the learned trial judge rightly exercised his discretion in granting the application.
This appeal turns round to be an appeal against the discretion of the learned trial judge, unfortunately so, in granting a conditional order to release the truck of a person who was in no way connected with the crimes in which the accused persons were charged.
The Learned Counsel for the Respondent has given an appropriate answer to the Appellant’s Counsel on the question of bringing an application under a wrong section of the law. It is trite that the court will consider an application on its merit irrespective of whether the same is brought pursuant to a wrong section of the law. In any event, in the instant case, the Respondent’s application was also brought under the inherent jurisdiction of the court.
It is apparent in this instant case, that the learned trial judge in the court below exercised his discretion judiciously and judicially in granting the Applicant’s/Respondent’s motion to release the detained truck. In other words, the learned trial judge not only acted with care and great wisdom but also in accordance with the dictates of the law.
Here was an applicant, whose livelihood depends on the truck that was in the first instance, unnecessarily detained by the Appellant’s agents. This, because, there is nothing in the record of appeal to suggest that the prosecution could not prosecute its case without tendering the truck as exhibit in the case.
The above must be considered at the backdrop of the fact that the trial court had earlier ordered that samples of the alleged adulterated diesel be taken for laboratory analysis.
In addition, the learned trial judge merely granted a conditional release of the truck with orders to the Applicant to deposit a whooping sum of one million naira and to release the truck whenever it is required by the prosecution.
In the circumstances, the learned trial judge indeed exercised his discretion in granting the Applicant’s Respondent’s application judiciously and judicially.
The lone issue formulated in this appeal is resolved against the Appellant. The appeal lacks merit and ought to be dismissed.
However, in view of my earlier ruling on the Respondent’s notice of preliminary objection that the Appellant’s Notice of Appeal is incompetent. The appeal is incompetent and it is accordingly struck out.
I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead Judgment in draft before now and agree with same that the Notice of objection raised on the competence of the originating process – i.e. the Notice of Appeal in respect of this appeal is valid and succeeds.
There is, unfortunately, no valid appeal as the Notice thereof was incurably bad, having not been signed. The appeal was a still born baby, a paralytic that cannot be resurrected.
As I posited in CA/J/498/2007 see also Dr. Tunji BraithWaite Vs Skye Bank Plc (2012) 12 SC Pt.1, Page 1.
This court does not possess the resurrection power to give life to the weak, feeble and indeed crippled limps of “Desirous” – the intended Appellant herein.
See also Texaco (Nig) Plc Vs. Reuben Iloka & Iloksons & Co Nig Ltd of 31st May, 2013 CA/J/280/2001. There is no appeal in law to be argued. On the merit, the trial Judge had exercised his discretion. Nothing had been shown that it was exercised on wrong principles or against the law; but me think that an exhibit may be released to the victim of a crime or an accused in an appropriate circumstance when the Justice of a case dictates. Is a non party to a case entitled to the benefit of a release of an exhibit? Was it a disposal of an Exhibit to avoid the risk of wastage or deterioration. Was the exhibit unconnected with the offence as envisaged by s.269 cpc? Could a third party be joined in a criminal prosecution at any stage, other than one sought to be joined as a co-accused by the prosecutor by the Amendment of the charge?
It appears to me strange that there was this joinder upon application of the Respondent herein in the first place. In any case, this purported appeal does not relate to that.
This error, must have led to the irreconcilable orders for samples of content of the Tanker to be taken for Laboratory Analysis and the release of an exhibit-being the Tanker! S.269 of the Criminal Code applicable provides as follows:
“Where upon the apprehension of a person charged with an offence, any property other than that used in the commission of the offence, is taken from him, the court before which he is charged may order –
(a) that the property or a part thereof be restored to the person who appears to the court to be entitled thereto and if he be the person charged, that it be restored either to him or to such other person as he may direct; or that the property or a part thereof be applied to the payment of any costs on compensation directed to be paid by the person charged”
Clearly, the disposal of property in this circumstance relates only to property “other than that used in the commission of an offence”. What is more, the express, provision of S. 273 Criminal procedure Code relating to forfeiture and application of funds/proceeds of such forfeited property consequent a possible order of court at conclusion of trial appears to have been stealthily circumvented in avoidance of the due administration of Criminal Justice.
In all, it is sad that the learned counsel could as late as now, still allow an incompetent Notice of appeal to be filed.
To err is human. An over sight is human, but should it be, in this over beaten or over trod path of incompetent Notice of appeal condition? Sad!
This appeal fails for incompetence and is struck out, as ordered in the lead Judgment.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. The notice of appeal having not been signed cannot be looked into or considered by this Court. It is fundamentally defective and the appeal is incompetent. For this reason, it should be struck out.
I accordingly strike it out.
I abide by the order as to costs.
Appearances
Okai Felix Opaluwa Esq.For Appellant
AND
Akinyemi Omoware Esq.For Respondent
