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GANYE LOCAL GOVT COUNCIL v. GTB PLC & ANOR (2022)

GANYE LOCAL GOVT COUNCIL v. GTB PLC & ANOR

(2022)LCN/16714(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, March 28, 2022

CA/YL/233/19(R)

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

GANYE LOCAL GOVERNMENT COUNCIL APPELANT(S)

And

1. GUARANTEE TRUST BANK PLC 2. NULGE MULTI PURPOSE CO-OPERATIVE SOCIETY RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT OF APPEAL CAN DETERMINE AN APPEAL WHERE THE PROPER APPELLANT IS NOT BEFORE THE COURT

The law is that the Notice of Appeal is the foundation of an appeal, the incompetence negates the entire appeal. It is only when an appellant appeals against the specific decision of the trial Court he is aggrieved with that this Court’s jurisdiction to entertain the appeal avails him. See, MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 341, ATOLAGBE VS. AWUNI (1997) 9 NWLR (PT. 522) 536 and CBN vs OKOJIE (2004) 10 NWLR (PT. 882) 488. A Notice of Appeal is an initiating process; it would normally contain the subject matter of the appeal. This Court would not look into an appeal and take a decision where the proper Appellant is not before the Court. The Notice of Appeal is the foundation of the Appeal, if it is defective, the appellate Court must strike it out on the ground that it is incompetent. See, FBN PLC VS. T.S.A. INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247. The Court would lack the jurisdiction to entertain an appeal with a defective Notice of appeal. See, ODUNZE & ORS VS. NWOSU & ORS (2007) 13 NWLR (PT. 1050) 1 and UWAZURUIKE VS. A.G. FEDERATION (2007) 8 NWLR (PT. 1035) 1. PER UWA, J.C.A.

WHETHER OR NOT A DEFECTIVE NOTICE OF APPEAL RENDERS THE APPEAL VOID

A Notice of Appeal is an originating process on which an appeal is based, so where the Notice of Appeal is defective, the purported appeal would collapse, neither the receipt, Exhibit “A” to the motion papers nor the purported Notice of appeal at pages 322 – 325 can be reconciled to be in respect of the same appeal, at the same time the defect cannot be overlooked. See, DANIEL VS. INEC & ORS (2015) LPELR – 24566 (SC), EJIOGU VS. IRONA & ORS (2008) LPELR – 4083 and HARRY VS. MENAKAYA (2017) LPELR – 42363.  PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The application filed on 24/9/21 was brought pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2016, and under the inherent powers of this Court praying for the following reliefs:
1. “AN ORDER of Court striking out, or dismissing the Appellant’s purported Notice of Appeal in Appeal No. CA/YL/233/2019 between GANYE LOCAL GOVERNMENT COUNCIL VS. GUARANTEE TRUST BANK PLC & ANOR for being incompetent and for want of jurisdiction.
​2. AN ORDER of Court striking out the Appellant’s purported Brief of argument dated 3rd March, 2021, and purportedly filed on 4th March, 2021.
3. IN THE ALTERNATIVE, an order of Court dismissing Appeal No. CA/YL/233/2019 for want of diligent prosecution.
4. ANY other order or orders the Honourable Court may deem fit to make in the circumstances.”

Reliance was placed on the already compiled and transmitted records of appeal. The grounds upon which the application was brought are as follows:
​(i) “The purported Appellant in this purported appeal did not pay any statutory fees or any fees at all to activate the purported appeal.
(ii) Messrs Nulge Multi-Purpose Co-operative Society who purportedly paid for the Notice of Appeal No. CA/YL/233/2019 was not an Appellant on record in the purported Notice of Appeal dated and filed 18th September, 2019.
(iii) Suit No. ADSY/70M/2018 is a motion number in respect of the garnishee proceedings filed by the 1st Respondent i.e. Guarantee Trust Bank Plc. on 28th June, 2018, and not the suit filed against the purported Appellant, Ganye Local Government Council.
(iv) The purported Appellant, i.e. Ganye Local Government Council does not have a right of appeal in the motion marked “Suit No. ADSY/70M/2018” and/or was not a party to that suit, being a garnishee proceedings.
(v) The purported Appellant i.e. Ganye Local Government Council has no right of appeal either in Suit No. ADSY/70M/15/2018 or ADSY/15/2016 having not paid any filing fees in respect of the notice of appeal in Suit No. ADSY/70M/2018, being a garnishee proceedings.
(vi) The records in the instant appeal was compiled on the 2nd of December, 2019 and purportedly transmitted to the Court of Appeal on or about 19th December, 2019 and no competent or valid Appellant Brief of Argument has been filed before this Court.”

The application was supported by a fifteen (15) paragraph affidavit deposed to by S. N. Nzonzo Esq., attached to the affidavit is Exhibit “A” a receipt issued in respect of the filing of the Notice of Appeal. In moving the motion, the learned counsel to the Applicant Chief J.O. Makinde Esq. appearing with S.N. Nzonzo Esq. for the Respondents, submitted that the purported Applicant did not file an appeal, reference was made to page 321 of the records of appeal showing a receipt in the name of the 2nd Respondent NULGE MULTI-PURPOSE SOCIETY, GANYE, reference was made to Order 1 Rule 5 which defines what an appeal is and who an appellant is. It was submitted that Ganye Local Government Council has no appeal before the Court.

Further, that the judgment subject to an appeal is not what appears in the Notice of appeal, at page 69 of the records of appeal, the suit was registered as ADSY/15/16 but, the Notice of Appeal is against Suit No. ADSY/70M/18 at page 322 of the records of Appeal. It was concluded that the Notice of Appeal is incompetent. See, KENTE VS. ISHIAKU (2017) NWLR (PT. 1587) P. 94. We were urged to strike out or dismiss the Notice of Appeal for being incompetent.

In response and opposition, the learned counsel Aliyu Kegangso Esq. for the Appellant/Respondent filed a fourteen (14) paragraph Counter Affidavit deposed to by Augustine Sambo. Learned counsel relied on all the paragraphs of the affidavit, particularly paragraphs 6 – 13. It was submitted that at page 322 of the printed records, it is clear that Ganye Local Government Council is the Appellant but, at page 321, the name of the Appellant was given as Nulge Multi-Purpose Co-operative Society which was the judgment debtor was the mistake of the Registry, which should not be visited on the Appellant, reference was made to page 3 of the printed records and the judgment entered on 3/4/17. It was noted that the processes from pages 3 – 14 had no suit number, page 13 has the suit number as ADSY/79/17, page 259 has ADSY/15/16, also page 69. It was submitted that suit No. ADSY/15/16, having been disposed of, the applicant ought not to proceed with Ganye Local Government Council as Appellant, instead it should have come for the enforcement of the judgment. It was concluded that the application was brought to defeat the justice of the appeal, we were urged to dismiss the application.

I have examined the affidavits of the parties in support and against the application as well as the grounds for the application. On the face of the judgment that gave rise to the appeal, pages 314 – 320, was against Ganye Local Government Council, who if dissatisfied with the decision of the lower Court should be the Appellant. With a look at the Notice of appeal at pages 322 – 325 of the records of appeal, even though the Appellant shown is Ganye Local Government Council and the suit being appealed against is ADSY/70M/19 delivered on 1/8/19, receipt for the filing of the Notice of Appeal at page 321 of the printed records of Appeal, dated 18/9/19 has NULGE MULTI – PURPOSE CO-OPERATIVE SOCIETY as the Appellant. The NULGE, MULTI – PURPOSE CO-OPERATIVE SOCIETY, GANYE cannot rightly be the appellant, being only the defendant judgment/debtor at the lower Court that only guaranteed the loan given to Ganye Local Government against whom judgment was given and who was aggrieved by the decision of the lower Court. As it appears on the face of the receipt for payment of filing fee, there is nothing to show that filing fees has been paid in respect of Appeal No. CA/YL/233/2019 in purported Notice of appeal filed on 18/9/2019. At page 322 of the printed records of appeal, the purported Notice of Appeal filed on 18/9/19 does not have any appeal number endorsed on it.

The law is that the Notice of Appeal is the foundation of an appeal, the incompetence negates the entire appeal. It is only when an appellant appeals against the specific decision of the trial Court he is aggrieved with that this Court’s jurisdiction to entertain the appeal avails him. See, MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 341, ATOLAGBE VS. AWUNI (1997) 9 NWLR (PT. 522) 536 and CBN vs OKOJIE (2004) 10 NWLR (PT. 882) 488. A Notice of Appeal is an initiating process; it would normally contain the subject matter of the appeal. This Court would not look into an appeal and take a decision where the proper Appellant is not before the Court. The Notice of Appeal is the foundation of the Appeal, if it is defective, the appellate Court must strike it out on the ground that it is incompetent. See, FBN PLC VS. T.S.A. INDUSTRIES LTD (2010) 15 NWLR (PT. 1216) 247. The Court would lack the jurisdiction to entertain an appeal with a defective Notice of appeal. See, ODUNZE & ORS VS. NWOSU & ORS (2007) 13 NWLR (PT. 1050) 1 and UWAZURUIKE VS. A.G. FEDERATION (2007) 8 NWLR (PT. 1035) 1.

The learned counsel to the Appellant/Respondent had argued that the error of writing the name of the 2nd Respondent in the motion paper and on the receipt on the filing of the appeal was that of the Registry which should not be visited on the Appellant, but it must be noted that the Registry staff are likely not to be lawyers but, clerical staff who might not know or understand the importance of writing the name of the Appellant on the receipt when the Notice of Appeal was filed, also, omitting putting an appeal number on the purported Notice of Appeal. On the other hand, learned counsel ought to be more diligent and meticulous to ensure that processes they have filed and properly labeled and that receipts for payments made in the Court’s Registry are correctly endorsed.

Further, the payment of a prescribed filing fee is a pre-condition to the validity of the process filed. In the present case, the required payment as shown in Exhibit ‘A’ annexed to the motion paper was by NULGE MULTI – PURPOSE CO-OPERATIVE SOCIETY, GANYE, and not Ganye Local Government, the supposed Appellant. The essence of having the name on the receipt to tally with the name of the payee and the receipt number endorsed on the process, in this case the notice of appeal without which the memorandum of appeal cannot be valid or competent, this is to guard against fraud in most cases and to ensure that the intending appellant has paid the appropriate filing fees and proof of same is the endorsement of the receipt number on the Notice of Appeal, motion or affidavit, whatever the case may be. See, ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252, RE: OTUEDON (1995) 4 NWLR (PT. 492) 655, 7 UP BOTTLING CO. LTD VS. YAHAYA (2001) 4 NWLR (PT. 702) 47 and TOTAL EXPLORATION & PRODUCTION NIGERIA LTD VS. KYE ENGINEERING & CONSTRUCTION LIMITED (2014) LPELR – 22680.

At page 322 of the printed records of appeal, the purported Notice of Appeal shows Ganye Local Government Council as the Appellant, while Exhibit “A”, the receipt for payment of filing fee has Nulge Multi – Purpose Co-operative Society, Ganye as the Appellant. These two processes can be reconciled. A Notice of Appeal is an originating process on which an appeal is based, so where the Notice of Appeal is defective, the purported appeal would collapse, neither the receipt, Exhibit “A” to the motion papers nor the purported Notice of appeal at pages 322 – 325 can be reconciled to be in respect of the same appeal, at the same time the defect cannot be overlooked. See, DANIEL VS. INEC & ORS (2015) LPELR – 24566 (SC), EJIOGU VS. IRONA & ORS (2008) LPELR – 4083 and HARRY VS. MENAKAYA (2017) LPELR – 42363.

In sum, this Court cannot overlook the defects in the purported Notice of Appeal and Exhibit “A” the receipt for filing of the purported Appeal.

​The application succeeds, the purported Notice of Appeal filed on 18/9/19 is defective, same is hereby struck out.
I award costs of N100,000.00 (One Hundred Thousand Naira) against the Respondents.

JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance the draft copy of the lead ruling just delivered by my learned brother CHIDI NWAOMA UWA, JCA. I am in agreement with the decision my learned brother arrived at in the lead ruling. I adopt the ruling as mine with nothing further to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have had the privilege of reading the draft ruling just delivered by my learned brother, Chidi Nwaoma Uwa, JCA and I entirely agreed with him. The Application has merit.
The Notice of Appeal filed on 18/09/2019 is defective and consequently, it is struck out.

Appearances:

Aliyu Keganso, Esq. For Appellant(s)

Chief J. O. Makinde, Esq., with him, S. N. Nzonzo, Esq. For Respondent(s)