NIGERIAN BOTTLING COMPANY & ANOR v. MADAM MULIKAT MOHAMMED & ORS (2012)

NIGERIAN BOTTLING COMPANY & ANOR v. MADAM MULIKAT MOHAMMED & ORS

(2012)LCN/5420(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of May, 2012

CA/J/103/2002

RATIO

APPEAL: EFFECT OF AN INCOMPETENT NOTICE OF APPEAL

It is very elementary and trite law which is well established that an incompetent notice of appeal does not confer jurisdiction on the court. No competent judgement can therefore arise from on incompetent notice of appeal. The acceptable and established principle of law would always hold true that you cannot put something on nothing and expects it to stand. The outcome of the two put together would certainly crumble. PER CLARA BATA OGUNBIYI, J.C.A

PROCEDURE: WHO CAN VALIDLY SIGN A COURT PROCESS

The case of Okafor V Nweke (2007) 10 NWLR (Pt 104) P.521 is the locus classical authority wherein their Lordships of the apex court in on unequivocal pronouncement interpreted the provision of sections 2(1) and 24 of the said Legal Practitioners Act which reproduction would be pertinent for better comprehension and appreciation thereof:

“2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll ……………………………………..

In this Act, unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively, that is to say:

“Legal Practitioners” means a Person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purpose of any particular office proceedings.”

By the combined effect of the two sections supra, it is apparent therefore that, for any person to qualify as a Legal Practitioner within the meaning of section 24, he must have attained the status and recognition of having been called to the Nigerian Bar and with his name which must be on the roll of Legal Practitioners. The interpretation of underlying implication is to the effect that no name or person outside the designated and recognized “roll” would either be competent or acceptable to qualify. The following question, as a consequence of the interpretation would therefore arise as relevant. That is to say, is the name Majiyagbe & Co a name of a person registered on the roll of Legal Practitioners and therefore recognized as such and entitled to practice as a barrister and solicitor within the meaning of the Legal Practitioners Act? If the answer is in the positive, as it is sought to portray by the learned appellants’ counsel, then it must be contained on the roll within the interpretation by their Lordships in the case of Okafor V Nweke Supra. In that case for instance, his Lordship Onnoghen JSC while considering the said two provisions of sections 2(1) and 24 of the legal Practitioners Act had the following to say at page 531 of the report.

“The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of Legal Practice in Nigeria.”

In the same tone his Lordship Oguntade JSC in his contribution also fielded the view and condemned such questioned practice and pronounced same as unconventional and wrong regardless of the norm which had been ongoing from time immemorial. The learned jurist reiterated that such should no longer either be encouraged or allowed to persist. It is dangerous to persist in doing wrong.

The learned appellants counsel in his submission had sought reliance on the cases of Cole V martins and Buhari V Yabo (supra). It is pertinent to restate that in addition to Section 2(1) and 24 of the Legal Practitioners Act, both decisions made in Okafor V Nweke as well as Cole and Martin supra were also of significant consideration by his Lordship Ogbuagu JSC in the case of Ogundele V Agiri (2009) 18 NWLR (Pt. 1173) 219. At Pages 246-247 of the report for instance his Lordship had this to say amongst others on the subject:

‘…I had drawn the attention of Mr. Ajibola off record, to the fact that their brief was faulty in that if was signed by Ajibola & Co. and there is/was no evidence that it is a firm duly registered as such … even recently, in the case of Okafor & Ors v. Nweke & Ors (2007) 10 NWLR (Pt. 1043) 521……. this court Per Onnoghen, JSC, dealt with this issue of fact. A partnership or firm unless duly registered as such, with respect, is not a legal practitioner recognized by law or a Person entitled to practice as a barrister and solicitor. See also Section 2(1) and 24 of the Legal Practitioners Act, cap. 207, LFN…” PER CLARA BATA OGUNBIYI, J.C.A

JUSTICES

CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. NIGERIAN BOTTLING COMPANY
2. ABUBAKAR ABDULLAHI Appellant(s)

AND

MADAM MULIKAT MOHAMMED (Wife)
ABDUL-RASHEED MOHAMMED (Son)
RASHEEDATU MOHAMMED (Daughter)
MUSA LAWAN – (As next friend to the infant children of the deceased who are):
FATIMA MOHAMMED
SULEIMAN MOHAMMED
SHEHU MOHAMMED
HADIJAT MOHAMMED & KABIRU MOHAMMED Respondent(s)

CLARA BATA OGUNBIYI, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the Borno State High Court delivered on the 4th December, 2000. The claim against the defendants/appellants was for the sum of N10,000,000.00 (Ten Million

Ground 1
The judgment is against the weight of evidence.
Ground 2
The learned trial judge erred in law in finding the appellants liable in negligence.
Particulars of error (a) – (f) Supplied

Grounds 3
The learned Trial Judge erred in law when he held thus:
“I therefore find it as a fact that the 2nd Defendant drove his vehicle on the fateful day with only the passenger side of his head lamp functioning. That created false impression to other road users from the opposite direction that it was a motorcycle”.
Particulars of Error (a) – (c) Supplied

Ground 4
The learned Trial, Judge erred in law and acted on wrong principles when he held that:
“from the evidence adduced, plaintiff have clearly proved that they have lost a reasonable possibility of pecuniary advantage. They have established that deceased was their breadwinner. Under this claim I will award N1,000,000.00. Under paragraph
(b) plaintiffs claimed pecuniary benefits to the deceased heirs through the deceased s wife small goods trading… I think they are also entitled to damages under this head. I will assess the damages at N50,000.00.”
Particulars of Error (a) – (f) Supplied

Ground 5
The learned Trial Judge erred in law when he failed to resolve the issue of locus standi raised by the Appellants in favour of the appellants.

Particulars of Errors (a) – (d) Supplied

In compliance with the rules of court, briefs were exchanged between the parties. While the amended appellants’ brief of argument filed 15th May, 2006 was, by the order of this court sought, deemed filed and served on the 14th December, 2006, that of the respondents in response and also amended was filed on the 17th January, 2007. The appellants amended reply brief was by the order of this court further deemed filed and served on the 24th April, 2007.
On the 25th April, 2012 when the appeal came up for hearing the learned counsel Mr. T.O. Oyegbile represented the respondents while the appellants were unrepresented. On the application by the learned Respondents counsel in view of the age long standing of the appeal the appellants foregoing amended brief as well as the reply briefs were both deemed argued.

The learned respondents’ counsel in adopting their amended brief relied upon same to substantiate their preliminary objection raised and also to ground the merit of their response to the appeal. The counsel therefore submitted the incompetence of grounds 2,3,4 & 5 of the grounds of appeal and which he submitted are liable to be struck out. That on the totality of the appeal it should suffer the fate of being struck out with ground 1 having been abandoned.

The notice of preliminary objection relied upon by the respondents was dated 12th January, 2007 and filed on the 17th January, 2007. The reproduction of some reads as follows:

”TAKE NOTICE that the respondents herein intend at the hearing of this appeal to rely upon the following preliminary objection. Notice whereof is hereby given to you viz:

1. The Notice of Appeal dated 5th December, 2000 and or Notice of Appeal dated 19th December, 2000 was/were not signed by a Person desires to appeal to Court of Appeal or their legal representative i.e. legal practitioners in accordance to Order 1 Rule 2.

2. Ground of Appeal No. 5 discloses no reasonable ground of appeal.

3. Fresh points of law were raised under grounds of Appeal Nos 2 and 5 without the leave of court. Thus rendering issues and argument thereon incompetent.”

The five grounds predicating the preliminary objection raised are also as follows:

“1. By Section 25(1) of the Court of Appeal Act when a person desires to appeal to Court of Appeal he must give notice of Appeal in the manner as may be directed by the rules of court.

2. By Order 3 Rule 2(1) of the Court of Appeal Rules, the appellants are expected to sign the notice of
appeal or by their legal practitioner in accordance with the Rules of court and the civil forms of the rules.

3. The J.B. Majiyagbe & Co as a legal firm who signed the Notices of Appeal is not a legal practitioner enrolled and registered in the Supreme Court of Nigeria in accordance with Legal Practitioners Act.

4. The appellants had admitted in 2 of their joint statement of defence that the Respondents have locus standi as they are entitled to inherit the deceased (Mallam Mohammed Lawan)

5. The fresh points of contribution negligence, presumption of negligence children born out of wedlock and the identity of the deceased by names Mohammed Lawan were raised and argued in Appellants brief of argument for the 1st time at Court of Appeal under grounds of Appeal Nos 2, 3 and 5 respectively without the leave of court.

AND FURTHER TAKE NOTICE that in support of this preliminary objection the Respondents will rely on the record of proceedings and amended appellants brief of arguments filed before the court and dated 14th May, 2006”.

The respondents 1st ground of objection questions the competence of the notices of appeal dated 5th December, 2000 and 19th December, 2000 which counsel submitted were not signed by a legal practitioner known to our law.

The counsel copiously referred to the provisions of section 2(1) of the Legal Practitioners Act, Section 25(1) of the Court of Appeal Act and order 3 rule 2(1) of the Court of Appeal Rules as well as the civil form 3 in first schedule of the Rules. Reliance was also made on the decisions of the cases of Ogbodu V Ishokare (1964) NMLR 234: New Nigerian Bank Plc V Denclag Ltd (2004) all FWLR (Pt.228) P.606 at 633 -634 and Nwani V Bakari (2005) all FWLR Pt 281 P1803 at 1822. That there is the presumption that the inscription of J.B. Majiyagbe & Co. being not a legal practitioner but could be any other business name not performing the function of a legal firm. That the law expects the name of the legal practitioners and his signature to clear the doubt. The counsel urged that the appeal be struck out on this point.
The next ground of objection relates to ground of appeal No. 5 wherein counsel submitted does not disclose any reasonable cause of action. That although the ground was couched to be ground of law, it ought not be part of grounds of appeal as it was admitted in the statement of defence of the appellants. Page 9 of the record of appeal and Paragraph 2 of the statement of defence were cited in reference. That Ground no. 5 referred to the error of the learned trial judge to have failed to resolve the issue of focus standi in favour of the appellants when infact that the appellant admitted that 1st, 2nd and 3rd defendants with the children of the deceased are entitled to share viz-a-viz section 2(c) of the Fatal Accidents Law of Borno State.

Counsel further submitted that raising this issue on appeal amounts to frivolity and disclosed no reasonable grounds of appeal. That the grounds of appeal No. 5 being an admission of the lower court should be struck out as incompetent.

The third objection poses that fresh points of law were raised under grounds of appeal Nos 2 and 5 without the leave of court and hence rendering the issues, arguments and grounds of appeal thereon as incompetent. That the appellants cleverly formulated issues on the above mentioned grounds of appeal but there under argued different issues. That the appellants argued on the failure of the trial court to consider the appellants defence, raised issues of contributory negligence which was neither specifically pleaded as special defence nor raised during the course of evidence, and issues of presumption of negligence. That they ought to have been raised at the lower court to enable the parties lead evidence in support. Similarly that issues no. 3 which relates to ground of appeal no. 5 needs evidence of the parties to support the points. There is no indication that leave was sought and obtained or is being sought to enable the appellants obtain the required leave on all the fresh points of law. That the appellants will not be allowed to raise for the first time a question which was not raised, tried, or considered by the trial court unless by the leave of court. Cited in support are the cases of Tangale Traditional Council V Fawu (2002) FWLR (pt 117) P.1137 at 1152-1154, RSCE v. Onubo (1992) 8 NWLR (Pt 260) P.456 and Nsirim V Nsirim (1990) 3 NWLR (Pt 138) 284.

That issues for determination and arguments not found on a ground of appeal go to no issue. In other words that the consequential effect is to discountenance and struck out the issues and arguments not found on a ground of appeal. The following authorities were cited to buttress the submission Nwosu v Nwaja (1990) 1 NWLR (Pt 125) P.188 At 217: Ogbuanyinya V Okudo (1990) 2 NWLR Pt. 146 P.551 at 567-568, Momodu V Momoh (1991) 1 NWLR (Pt 169) P.608 at 620-621 and Onifade V Olayiwola (1990) 7 NWLR (Pt 161) P. 30 at 157. That the argument on issue no. 3 which relates to ground of appeal no. 5 does not support the ground and issues formulated. That same is deemed abandoned and ought to be struck out. That the consequential effect is that the grounds of appeal nos. 2,3 ,4 and 5 of the appeal should be struck out.
Furthermore with ground of appeal no. 1 also having been abandoned, the entire notice of appeal which is not supported by any ground should accordingly be struck out.
In response to the preliminary objection the appellants amended reply brief deemed filed 24th April, 2007 is in evidence and contained at pages 1 -12 therein. Submitting on the 1st objection raised, the learned appellants counsel referred to Exhibit J01 annexed to the appellants’ counter affidavit to a motion dated 16th May, 2005 and which the respondents conceded to the name J.B. Majiyagbe & Co being a registered law firm. Reliance was also made to the Supreme Court decision of the case of Cole V Martins & Another (1968) NMLR 217 at 219-220. That on the authorities of the cases of Cole V Martin and Buhari V Yabo (2006) 17 NWLR (at 1007) at pages 179-80, the definition of the words “legal practitioner” had been extended to include a business name under which a legal practitioner practices. That assuming that the submission by the respondents’ counsel holds good, learned appellants’ counsel contended that signing of a notice of appeal cannot be equated to writing of the legal practitioner’s name on the notice. The argument is predicated on the authority of the Black’s Law Dictionary 6th Edition at page 1382 wherein it defines the word ‘sign’ as “includes any symbol executed or adopted by a party with intention to authenticate a writing. See also signature”. Learned counsel also sought to rely on the definition of signature by the same Blacks Law Dictionary (Supra) at page 1383 wherein it states:

“The signature to a deed, maybe made either by the grantor affixing his own signature or adopting one
written for him, or by making his own mark, or impressing some other sign or symbol on the paper by which the signature though written by another for him, may be identified”.
That signature is also defined to include mark of a person as pronounced in the case of Tsalibawa V Habila (1991) 2 NWLR (Pt 174) 461 at 480-481 per Ogundare JCA (as he then was and of a blessed memory).

That the notices of appeal dated 5th December, 2000 and 19th December, 2000 have both fulfilled the requirement of signing since the initials of the legal practitioner who signed it is contained thereon. That there is no where stated in Order 3 Rule 2(i) of the Court of Appeal Rules that the Notices of Appeal must be signed by the Appellant or his legal practitioner. The authority in the case of Buhari V Yabo (supra) was again firmly restated sufficient and that the interpretation by the respondents’ counsel will overstretch the provisions of the rules. The counsel in the circumstance had urged upon this court to over-rule the preliminary objection raised in this respect.

In response to the submission as to whether or not ground 5 discloses a reasonable ground of appeal, the appellants’ counsel pointedly submitted the argument as lacking any merit especially where the said ground is attacking specific finding of the lower court.
In his further response also to the allegation that grounds 2 and 5 are fresh points of law or issues and therefore require leave of court to raise, reference was drawn to the case of Shehu V Afere (1998) 7 NWLR (Pt 556) at 138 -139. That the yardstick for measuring fresh issue on appeal is whether the said issue was raised in the pleading and evidence led thereon at the trial court. That contrary to the contention as submitted by the learned respondents’ counsel, all the issues raised in the said ground of appeal were dealt with at the lower court. The counsel also submitted as preposterous for the respondents’ counsel to argue the issues as being fresh. That the ground of appeal raises the issue of locus standi of the respondents to institute the action at the lower court. That the issue of locus standi being jurisdictional in nature, it can be raised at any stage of the proceeding even on appeal for the first time. Cited in support is the opinion held by his Lordship Oputa JCA (as he then was) in the case of Green V Green (1987) 3 NWLR (Pt.61) 480 at 500.
Counsel on the totality of the preliminary objection raised, urged on behalf of the appellants that same be discountenanced as being frivolous and vexatious.

For the determination of the first preliminary objection raised, the notices of appeal subject of contention were dated 5th December and 19th December, 2000 and were both borne out by the signature to wit J.B. Majiyagbe & Co. as the appellants’ solicitors. There is no controversy from both counsel representing the parties on this fact. The issue of contention however is the legal effect of the signature J.B. Majiyagbe & Co in the light of section 24(1) of the Court of Appeal Act 2004 and not 25(1) as wrongly specified by the respondents counsel. The subsection provides for the directive governing the procedure for giving notice of appeal and the reproduction which states as follows:

“24(1) Where a Person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the Period prescribed by the provision of subsection (2) of this section that is applicable to the case”.

By Order 6 Rule 2(4) of the Court of Appeal Rules 2011, it is expected that:
“(4) The Notice of Appeal shall be signed by the Appellant or his legal representative”.

The grouse of this preliminary objection relates to the phrase “his legal representative” specified in the subsection (4) supra. In other words, while the respondents are questioning the competence of the signatory Majiyagbe & Co being a legal firm, the appellants conceive the opposite and argue that it is competent and in strict satisfaction of the requirement of the law.

The consideration of the judgement at hand is predicated on the resolution of the competence or not of the notice of appeal in question. It is very elementary and trite law which is well established that an incompetent notice of appeal does not confer jurisdiction on the court. No competent judgement can therefore arise from on incompetent notice of appeal. The acceptable and established principle of law would always hold true that you cannot put something on nothing and expects it to stand. The outcome of the two put together would certainly crumble.
The issue at hand is calling for the determination as to whether the signature made in the name of the law firm Majiyagbe & Co is competent and in consonance with the provisions of Sections 2(1) and 24 of the Legal Practitioners Act which must be read along with section 24(1) of the Court of Appeal Act 2004 and also Order 6 Rule 2(4) of the Court of Appeal Rules 2011 reproduced (supra) which deal with the procedure for filing notice of appeal. The case of Okafor V Nweke (2007) 10 NWLR (Pt 104) P.521 is the locus classical authority wherein their Lordships of the apex court in on unequivocal pronouncement interpreted the provision of sections 2(1) and 24 of the said Legal Practitioners Act which reproduction would be pertinent for better comprehension and appreciation thereof:

24. In this Act, unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively, that is to say:
“Legal Practitioners” means a Person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor, either generally or for the purpose of any particular office proceedings.”

By the combined effect of the two sections supra, it is apparent therefore that, for any person to qualify as a Legal Practitioner within the meaning of section 24, he must have attained the status and recognition of having been called to the Nigerian Bar and with his name which must be on the roll of Legal Practitioners. The interpretation of underlying implication is to the effect that no name or person outside the designated and recognized “roll” would either be competent or acceptable to qualify. The following question, as a consequence of the interpretation would therefore arise as relevant. That is to say, is the name Majiyagbe & Co a name of a person registered on the roll of Legal Practitioners and therefore recognized as such and entitled to practice as a barrister and solicitor
within the meaning of the Legal Practitioners Act? If the answer is in the positive, as it is sought to portray by the learned appellants’ counsel, then it must be contained on the roll within the interpretation by their Lordships in the case of Okafor V Nweke Supra. In that case for instance, his Lordship Onnoghen JSC while considering the said two provisions of sections 2(1) and 24 of the legal Practitioners Act had the following to say at page 531 of the report.

The learned appellants’ counsel in seeking to bring his case within the contemplation of Cole V Martins supra did not however show forth that the two cases are on all fours. In the latter case for instance, the name and address of the Legal Practitioner representing the appellant was given as “Lardner & Co.22 Kakawa Street, Lagos. The notice of appeal was signed in the name of Lardner & Co. Their Lordships of the apex court while relying on an earlier decision expatiated on the effect of a notice of appeal signed in the name of a firm or solicitors. In other words reference was made to the case of The Registered Trustees of Apostolic Church V Rahman Akindele 1967 N.S.C. 118 at 119 wherein the apex court held and said thus on the prescribed form of appeal bearing “J.A. Cole for J.A. Cole & Co.”:

“Mr. J.A. Cole is admittedly a duly registered legal practitioner, and entitled to practice as such under the Legal Practitioners Act, 1962. He has no partner in his practice, but he has registered the name of J.A. Cole & Co. under the Registration of Business names Act, 1961 and uses that name in his practice. It is not suggested that there is any professional objection to doing this, and if is frequently done by solicitors in England, as the law list shows. In our view the business name was correctly given as that of the legal practitioner representing the appellant. In signing the notice of appeal, Mr. Cole used his name, that is to say, the name in which he is registered as a legal practitioner. We hold that on any interpretation of the rules there was sufficient compliance with them…”

In Cole V Martins, and applying the principle of the case of Registered Trustees of Apostolic Church V Rahman Akindele under reference, in the same way Mr. J.A. Cole was practicing alone under the registered business name of J.A. Cole & Co, so also was Mr. H.A. Lardner practicing alone under the registered business name of “Lardner & Co.” In Cole V Martins 1968 N.S.C.C.120 at 122 therefore, the Supreme Court for instance held that:

“The effect, however of registering a business name under the Registration of Business Names Act 1961, is that where only one person constitutes that business it is correct to describe that person as in the terms of the registered business name.”
The effect of the foregoing is that where only one person constituted that business he was appropriately described in terms of the registered business name.
In other words, it was held that where a legal practitioner practicing alone gives the name which he is registered as a business name and is known as such, that would suffice and apply as if the legal practitioner’s name is synonymous to the business name. In Cole V Martins (Supra) there was therefore the evidence that Mr. H.A. Lardner was practicing alone under the registered business name of “Lardner & Co.” Also recourse was had to the fact that the effect of registering a business name under the Registration of Business Names Act, 1961 satisfied that where only one Person constituted that business it was correct to describe him in the terms of the registered name, as a corollary and in the case at hand, contrary to the contention held out by the learned appellants’ counsel, there is no evidence before us to show that Majiyagbe & Co. was a legal practitioner registered under sections 2(i) and 24 of the Legal Practitioners Act. There is also no evidence that the person so designated was same in chambers and also practices alone. The relationship drawn by the learned appellants’ counsel to the authority in Cole V Martins is, with all respect misconceived. The case of Buhari V Yabo relied upon cannot salvage the appellants case. The intention of the law is to presuppose specific signature of a Personality and not a vague sort of presumption such as on behalf of a company or chambers who cannot be identified. It is the identity that is in question which the authority in the case of Buhari V Yabo did not dispense with but also requires that the personality be either “the appellant himself or his legal representative”. Needless to emphasize that this is mandatory as provided by order 6 rule 2(4) of the Rules of this court 2011 where “the notice of appeal shall be signed by the appellant or his legal representative”.
The use of the word shall is mandatory and not directory in nature. It cannot therefore be circumvented. The law I envisage has anticipated the possibility of imposters wanting to come under the guise of such registration and thus posing as members of the legal profession. The measure would certainly safeguard against impersonation and ensure a water tight and a close door participation only by those who are truly the bonafide members of the profession. The submission by the appellants’ counsel that compliance is sufficient once the notice is signed by counsel to the appellant or the appellant himself would have held appropriate if the counsel who signed had been identified. In the absence of such identity therefore, I hold that the said counsel had by his contention misconceived the interpretation of the law relating same and gotten it all wrong.

The confirmation of the position taken is firmly planted vide the pronouncement also made by this court in the case of N.N.B. Plc V Denclag Ltd (2005) 4 NWLR (Pt. 9116) P549 wherein it was held qt Page 573 in a similar circumstance that:
“…it is clear that Ibrahim Hamman and co is not competent to issue the notice of appeal since the said firm that signed and issued it is not a registered legal practitioner who is competent to issue a notice of appeal.
Section 2(1) of Legal Practitioners Act 1990 LFN. See also Section 24 of the same Act which defines a “Legal Practitioner”. Having not been issued by a registered legal practitioner, the original notice of appeal, signed issued and filed by the said firm is incompetent, invalid and null and void since it was issued by Person not authorized by law to issue it. The said notice of appeal is also incurably defective.”

The said foregoing view was affirmatively authenticated by their Lordships of the apex court in the case of Oketade V Adewunmi & 4 Ors (2010) 2-3SC (Pt 1)140 at 152-153.The existing and operative standing order as it is for now is the authority in the case of Okafor V Nweke (Supra) wherein their Lordships of the apex court as earlier stated in a unanimous decision interpreted sections 2(1) and 24 of the Legal Practitioners Act Cap 207 LFN 1990 and laid down a clear cut principle. The conclusion arrived at in that case was that all the processes filed inclusive of the proposed Notice of Cross Appeal were held as incompetent in that they were not issued by a legal practitioner known to law. They were all as a consequence therefore struck out. We cannot in the case at hand do less but be bound by the conclusion arrived at by their Lordships in the case of Okafor V Nweke. I hold the view that the said proposed notices of appeal dated 5th December, 2000 and 19th December, 2000 are both incurably defective and held as incompetent. They are hereby struck out.
On the 2nd and 3rd complaints of the preliminary objection raised the process which brought about this appeal that is to say the proposed notice(s) of appeal had been duly declared incompetent and struck out. As a consequence, there cannot therefore be an appeal and grounds of appeal in the absence of any competent notice of appeal. It is a subsisting notice of appeal that would have grounded the 2nd and 3rd preliminary objections against the entire grounds of appeal nos. 2, 3, 4 & 5 with ground of appeal no. 1 having been deemed abandoned where the originating process, to wit the notice of appeal is struck out for want of competence, no valid appeal can in the circumstance hang thereon. I had earlier made reference to the principle enunciated in the case of Macfoy v U.A.C. Ltd (1962) A.C- 150 at 160 wherein putting something on nothing would result in total collapse. In other words and in the result of the totality of the submission of counsel, the purported notice(s) of appeal signed by Majiyagbe & Co are fundamentally defective and cannot be salvaged. The consequential effect is that there is no competent appeal in the matter at hand with same being incompetent and accordingly struck out.
The preliminary objection on the 1st leg therefore succeeds and has disposed of the entire appeal without having to be labour into any fruitless effort on the 2nd and 3rd preliminary objections raised. To do so would be engaging in an academic exercise which courts have, times without number been warned by the apex court against dissipating energy therein.
The entire appeal is therefore struck out for incompetence. With costs following events, I will assess the sum of N50,000.00 (Fifty Thousand Naira) in favour of the respondents against the appellants.
The appeal is struck out with N50,000.00 costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in advance the Judgment just delivered by my learned brother, Ogunbiyi, J.C.A. I agree with his reasoning and conclusions. I also accordingly strike out the Appeal on the ground of incompetence. I endorse the order for costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the advantage of reading in advance the judgment just delivered by my learned brother Clara Bata Ogunbiyi, JCA, and I entirely agree with the opinions expressed therein on all the issues raised in this appeal.
The entire appeal is hereby struck out for incompetence. I too assess cost at N50,000.00 (fifty thousand naira) in favour of the Respondents against the Appellants.

Appearances

EDWARD C. OKPE ESQ.For Appellant

AND

T.O. OYEBILE ESQ.For Respondent