NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD & ANOR. V. FEMBO NIGERIA LTD & ANOR.
(2010)LCN/3823(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/B/51/2004
RATIO
APPEAL: NOTICE OF APPEAL; WHETHER A NOTICE OF APPEAL SHOULD BE SIGNED BY THE APPELLANT
It is a cardinal provision of Civil Form 3 that a notice of appeal shall be signed by the Appellant. This requirement of signature has further been provided for in Order 4 r. 4(1) of the Court of Appeal Rules, 2002 thus:-
Order 4
“4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself, except under the provisions of paragraph (5) and (6) of this rule.”
In the circumstance of this appeal, because the 1st Appellant is a corporate legal entity, I consider the provisions of Order 4 r. 4(6) germane and apposite and for clarity I wish to reproduce it.
Order 4 r. 4(6).
“In the case of a body corporate where any notice or other document is required to be signed by The Appellant himself; it shall be sufficient compliance therewith if such notice or other document assigned by the Secretary, Clerk, Manager, or legal representative of such body corporate.”
It does not admit of any speculations or arguments that it is the duty and responsibility of an appellant to sign a notice of appeal to be filed on his behalf by the combined application of Order 3 r. 2(1) (supra) and Order 4 r.4(1) (supra). However, it is also permissible for a representative of an appellant to sign such notice where such an appellant is a corporate legal entity or other artificial juristic personality. Also, an appellant’s solicitor or Counsel may also sign the notice of appeal.
In the case of NWAZURIKE V. A.G. FEDERATION (2007) 8 NWLR (PT.1035) 1, the Supreme Court reviewed some of its earlier decisions while deciding the meaning and effect of the provisions of Order 4 r. 4(1) (supra) at page 13 D-E, His Lordship OGBUAGU, JSC, put emphasis on the expressions; “Every notice of appeal …shall be signed by the appellant himself.” In Order 4 r. 4(1). His Lordship went further to underline this expression and held that it is not in doubt that this provision must be complied with because it is an unambiguous mandatory provision. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
APPEAL: WHEN WILL A NOTICE OF APPEAL BE NEEDED TO BE GIVEN
According to S.25(2) of the Court of Appeal Act, 1976, a notice of appeal or an application for leave to appeal is given within 14 days where the appeal is against an interlocutory decision and a notice of appeal is given within 3 months where the appeal is against a final decision. Because of these benchmark periods, it is important that a notice of appeal should bear the date it was prepared and the date it was filed. No appeal is valid if it was brought outside the above stipulated benchmark period except with leave of Court. Therefore, a failure to date a notice of appeal is a grave error that could engender catastrophic consequences. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD
2. MR. ADUNNIYI Appellant(s)
AND
1. FEMBO NIGERIA LTD
2. PRINCE EMMANUEL O. FALOYE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ondo State High Court, Akure Division, Coram: G.O. Olateru Olagbegi, J. (as she then was) in Suit No. AK/6/95 delivered on 20th July, 1999.
In an Amended Statement of Claim dated 31st March, 1998, the Respondents herein, as Plaintiffs at the lower Court, sought for the following reliefs against the Appellants herein, as the defendants jointly and severally. They are as follows:-
i. A DECLARATION that by the combined effect of the loan and mortgage agreement dated the 11th day of September, 1989, a supplemental deed dated 13th day of July, 1990 and a second supplemental agreement dated 6th December, 1992 the banking facilities granted or advanced to the 1st Plaintiff by the 1st defendant are not yet due for repayment and’ it cannot be due for repayment until after the implementation of the 1st Plaintiff’s project and commissioning of same; ii. A DECLARATION that due to the failure of the 1st defendant to release to the 1st Plaintiff in full both the foreign and local components of the facilities approved in its favour, it has been impossible for the 1st Plaintiff to implement the said project and commission same.
iii. A DECLARATION that as a result of the failure of the 1st defendant to release in full both foreign and local components of the facilities approved for the 1st Plaintiff, thus leading to the inability of the 1st Plaintiff to complete the said project and commission same, the 1st Plaintiff has suffered damages and losses;
iv. A DECLARATION that if the Plaintiff is indebted to the 1st defendant at all, the said indebtedness does not and cannot exceed the actual amount made available to it by the 1st defendant without any accruable interest.
v. A DECLARATION that having not commissioned the 1st Plaintiff’s project and or factory as required under and by virtue of clause 9(1) of the loan mortgage agreement between it and the 1st
defendant any money owed to the 1st defendant by the 1st Plaintiff is not yet due for repayment and therefore the defendant in its letter of 8th December, 1994 is pre-emptory premature, uncalled for, unnecessary and, therefore, null and void and of no effect whatsoever;
vi. A DECLARATION that the procurement and or instigation of the arrest and detention of the 2nd Plaintiff by the defendant on or about the 8th day of December, 1994 is illegal, unlawful and done in utmost bad faith.
vii. AN ORDER commanding the 1st defendant to pay or remit to the 1st Plaintiff:-
a) A sum of DM 97,949.10 or its Naira equivalent at the existing rate being the interest due’ on the foreign Exchange Deposit paid or received by the 1st defendant or its correspondent bank on behalf of the 1st Plaintiff;
b) A sum of DM 27,368.00 or its Naira equivalent being the balance due on or yet to be disbursed to the 1st Plaintiff out of the approved foreign loan of DM660,910.40;
c) A sum of N1,268,300.43 being the balance due to or yet to be disbursed to the 1sf Plaintiff out of the approved local loan;
d) A sum of DM 89,300.66 and N919,064.81 which the 1st defendant admitted owing the 1st Plaintiff as at 31st December, 1994.
viii. A sum of N142,224,480.33 being the loss of earnings suffered by the 1st Plaintiff up to 31st December, 1996 as a result of the failure of the 1st defendant to disburse or release the approved foreign and local loans to the 1st Plaintiff AND/OR
ix. A sum of N175,200.000 Million being the loss of earnings suffered by the 1st Plaintiff up to 31st March, 1993 as a result of the failure of the. 1st defendant to disburse or release the approved foreign and local loans to the 1st Plaintiff and thereafter additional loss of earnings calculated as per the particulars given in paragraphs 46 and 47 supra from 31st day of March, 1998 until judgment is delivered in this case and or until the judgment debt is settled.
x. A sum of N10 Million only being damages from the 1st and 2nd defendant to the 2nd Plaintiff for procuring, arranging, instigating and being responsible for the arrest and subsequent detention of the 2nd Plaintiff on or about the 8th day of December, 1994;
xi. AN ORDER OF INJUNCTION restraining the 1st defendant either by itself, Directors, Officers, agents, privies or through any person or persons, however from alienating, auctioning, transferring or adversely dealing with the 1st Plaintiff’s fixed or floating assets covered by the loan and mortgage agreements aforementioned until the conditions precedent to so doing as contained in clause 9(1) of the said mortgage agreement has been complied with or until after the implementation of the project and one year after the date of commissioning.
In an Amended Statement of Defence and Counterclaim, the Defendants/Appellants denied the material averments in the Amended Statement of Claim and went further to Counter claim the sum of N57,188,835.69 (Fifty Seven Million One Hundred and Eighty Eight Thousand Eight Hundred and Thirty Five Naira Sixty Nine Kobo) being the principal sums and interest as at 31-3-97 due and outstanding pursuant to the agreement between the parties.
Issues having been duly joined, the matter went to trial. In the course of the trial, series of documents were tendered by each party in turn from the Bar, and with consent of Counsel, were admitted in evidence. Also at the trial, 2 witnesses testified on behalf of the Plaintiffs/Respondents while one witness testified for the Defendants/Appellants. It was at this stage that the lower Court, at the request and with consent of respective learned Counsel, ordered for written addresses to sum up the case of each of the parties. Written addresses were accordingly filed and exchanged.
In its judgment the lower Court found for the Respondents and granted part of their reliefs. Some of the reliefs granted are that the 1st Appellant was in breach of contract entered between it and the 1st Respondent. The Court also granted the declaratory reliefs as set out herein above as paragraphs (i), (ii), (iii), (iv), (v) and (vi). It was also part of the judgment that the arrest and detention of the 2nd Respondent was found to be illegal for which the sum of N250,000 was ordered as general damages and compensation against the 1st Appellant amongst other reliefs.
The Appellants were dissatisfied with this judgment consequent upon which they appealed to this Court in a notice of appeal containing 7 grounds of appeal. The grounds of appeal with their particulars are hereby set out as follows:-
GROUNDS OF APPEAL
I. The learned trial Judge failed to interpret the relevant provisions of the loan and mortgage agreement before reaching a speculative conclusion that the 1st Defendant was in breach.
PARTICULARS
a) The learned trial Judge did not resolve whether or not the 1st Defendant was entitled to capitalize interest in arrears as part of the disbursement.
b) The learned trial Judge did not resolve whether or not the 1st Plaintiff was entitled to the foreign currency loan not meant for meeting the’ foreign currency costs of goods and services.
ii. The learned trial Judge denied the Defendants a fair hearing in holding that the 1st Defendant was in breach of the loan and mortgage agreement.
PARTICULARS
a) The Record contained submissions of the Defendants’ Counsel as to the circumstances under which a breach could have taken place.
b) The learned trial Judge failed to consider and reach a determination of these submissions.
iii. The learned trial Judge erred in law in holding that the 1st Defendant was in breach of the loan and mortgage agreement.
PARTICULARS
a) The holding, overlooked submissions of the Defendants’ Counsel.
b) The judgment did not contain an evaluation of all the evidence on record.
iv. The learned trial Judge failed to evaluate the evidence on Record in awarding the 1st Plaintiff N250,000.00 representing interest accruing on the foreign denomination loan.
PARTICULARS
a) The sum awarded had already been credited to the Plaintiffs vide the 1st Defendant’s computation of accounts on record.
b) The 1st Defendant’s computation accounts remained uncontroverted.
v. The learned trial Judge denied the Defendants a fair hearing and erred in law in awarding the 2nd Plaintiff N250,000.00 damages by reason of, his arrest and detention.
PARTICULARS
a) The learned trial Judge failed to consider and resolve the submissions of the Defendants’ Counsel on the issue of arrest and detention.
b) The learned trial Judge misconstrued the pleading and evidence on this issue.
vi. The learned trial Judge erred in law and failed to evaluate the evidence on Record in dismissing the 1st Defendant’s. Counter-Claim as insufficiently prove.
PARTICULARS
a) The 1st Defendant’s computation of accounts was tendered by the maker D.W.1
b) D.W.1 was never cross-examined as to the accuracy of the accounts
vii. The judgment is against the weight of evidence.
From these grounds of appeal, the Appellants identified the following 4 issues for the determination of this appeal. They are:-
1. Whether the trial Court was not in error in finding the Appellants liable for arresting or instigating the arrest and detention of the 2nd Respondent and in awarding damages of N250,000 on that score?
2. Whether the learned trial Judge was not in error in finding the Appellants liable in breach of contract.
3. Whether the trial Court properly evaluated the pieces of evidence at its disposal and whether the improper evaluation leading to the award of the reliefs granted’ in the Respondents favour has not occasioned a grave miscarriage of justice.
4. Whether the trial Court was not in error in .dismissing the 1st Appellant’s Counter-Claim and in allowing in part the respondents’ claim.
These 4 issues were duly argued in the Appellants’ brief of argument dated 13/11/06 but filed on 15/03/06. In response, the Respondents identified 2 issues for the determination of this appeal.
They are:-
i. Having regard to the case presented by the parties before the lower court, vis-a-vis the evidence of witnesses and the documentary evidence placed before the court, whether or not the court was wrong to have given judgment in favour of the respondents.
ii. Whether having regard to the pleadings and evidence, both oral’ and documentary, the appellants are entitled to their claim as put forth in the counter claim.
At the hearing of this appeal on 9th March, 2010, learned Counsel to the Respondents, Mr. C.O. Aduroja, informed the Court that the Respondents had filed a notice of preliminary objection to the competence, of the notice of appeal in this appeal and same was argued in the Respondents’ brief Learned Counsel to the Appellants, Mr. I.O. Atofarati challenged the belated raising of the preliminary objection and urged this Court not to consider it.
While it is correct that learned Counsel Mr. Aduroja informed the Court of the preliminary objection after the appellants adopted and relied on their brief of argument thereby making it procedurally belated, I do not see any good reasons not to consider it as submitted by learned Counsel Mr. Atofarati for-the Appellants. This is simply because, the Appellants had adequately responded to all the arguments on the preliminary objection in their appellants’ reply brief. It is therefore without any doubt that the Appellants would not suffer any prejudice or miscarriage of justice if the preliminary objection is considered and decided upon on its merits, and this is moreso when it seeks to challenge the jurisdiction and competence of this Court to entertain this appeal.
I now turn my attention to the preliminary objection. The grounds for this objection inter alia are:
I. The Notice of Appeal as appearing on the record is neither dated nor signed;
2. The appeal is fundamentally defective and grossly incompetent; and
3. This Honourable Court has no jurisdiction to entertain same.
Learned Counsel to the Respondents argued this objection at pages 4-6 of their brief of arguments with an explanation that the law is now firmly established that an undated document is invalid and of no value at all and the consequence that befall a document which is unsigned are grave and of no redeeming grace. In support of these explanations, learned Counsel referred to the decision of this Court in OGBAHON V REGD. TRUSTEES, G.C.C. (2002) NWLR (PT.749) 675 as per IBIYEYE, JCA at 704 B-C as well as those of the Supreme Court in OJO V. ADEJOBI (1978) 3 SC 65 and OMEGA BANK NIG. PLC V. O.B.C. LTD (2005) 8 NWLR (PT.928) 547 as per MUSTAPHER, JSC at 576 E-F and TOBI, JSC at 581 A-B.
While referring to the subsequent leave and order of this Court for the Appellants to amend the original notice of appeal, learned Counsel argued and submitted that even if the original undated and unsigned notice of appeal was amended pursuant to an order of this Court on 7/11/2006, this Court cannot ex debito justitiae, ignore a situation where the foundation for the amended notice of appeal remained defective. He submitted further that the amended notice of appeal lacks a foundation to rest on. Learned Counsel recalled the legal aphorism that one cannot put something on nothing and expect it to stand. He argued that it is the same with the amended notice of appeal.
In a further effort and based on his earlier submissions, learned Counsel submitted that this appeal is without any foundation as there is no valid and competent notice of appeal upon which it could have been regularly brought.
Further, Mr. Aduroja referred to and quoted very extensively from 2 decisions of this Court in OLOWOKERE V. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT.295) 583 as per NSOFOR, JCA at 599-560 H-A and 601, A-B as well as AMAIZU, JCA in SAM FAM FINANCIERI LTD V. AINA (2004) 2 NWLR (PT.857) 297 at 314 C-D where it was emphasized and re-stated that where a notice of appeal is defective, this Court lacks the legal competence to entertain the appeal pursuant to which it was filed as the purported appeal remained a nullity. Upon this premise learned Counsel urged this Court to hold that the original notice of appeal was defective and could not have supported the amended notice. He also urged this Court to hold further that there is no valid appeal before this Court and prayed for an order striking out this appeal for being incompetent and want of jurisdiction to entertain same.
The response of learned Counsel to the Appellants to the preliminary objection came in the reply brief. In opening his response, learned Counsel underscored the fulcrum of the objection and submitted that the arguments of learned Counsel to the Respondents are baseless. And while conceding that the original notice of appeal is undated and unsigned, learned Counsel pointed out that this Court upon an application, granted leave to the appellants to amend the original notice of appeal. According to learned Counsel, the amended notice of appeal is now the only notice before this Court and it is the only notice of appeal that can be relied upon by this Court, the parties and their Counsel. He then argued that the amended notice of appeal has effectively replaced the original notice of appeal. In support of this argument, learned Counsel referred to the case of AFRIBANK NIG. PLC V. AKWARA (2006) 5 NWLR (PT.974) 619 as per OGUNTADE, JSC, at 640.
Upon the foregoing premise, learned Counsel submitted that since the appellants have applied for and obtained leave to amend the notice of appeal, then the amended one as filed has vacated and nullified the original one. In conclusion, he also submitted that this appeal is not fundamentally defective or incompetent or that this Court lacked jurisdiction to entertain same. He then urged this Court to strike out the notice of preliminary objection and to hear the substantive appeal on its merit.
From the foregoing arguments and submissions of respective learned Counsel the factual basis upon which a decision must be made on the notice of preliminary objection appear to be well settled and defined and beyond any doubt. The short story is that the original notice of appeal filed on behalf of the appellants by their erstwhile Counsel is undated and unsigned. And while it remained undated and unsigned, the current Counsel for the Appellants sought for and obtained leave to amend the original notice of appeal to take care and correct the seeming and apparent defect in the original notice of appeal.
Because this appeal was purportedly filed during the regime of the Court of Appeal Rules 2002, I wish to recall the provisions of Order 3 rule 2(1) thereto. It provides thus:
Order 3
2(1)
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.”
This provision without any doubt lays down the foundation of an appeal. The marginal note to Order 3 r. 2(1) refers to Civil Form 3 in the 1st Schedule to the 2002 Rules for guidance as to the content of a notice of appeal.
It is a cardinal provision of Civil Form 3 that a notice of appeal shall be signed by the Appellant. This requirement of signature has further been provided for in Order 4 r. 4(1) of the Court of Appeal Rules, 2002 thus:-
Order 4
“4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself, except under the provisions of paragraph (5) and (6) of this rule.”
In the circumstance of this appeal, because the 1st Appellant is a corporate legal entity, I consider the provisions of Order 4 r. 4(6) germane and apposite and for clarity I wish to reproduce it.
Order 4
r. 4(6).
“In the case of a body corporate where any notice or other document is required to be signed by The Appellant himself; it shall be sufficient compliance therewith if such notice or other document assigned by the Secretary, Clerk, Manager, or legal representative of such body corporate.”
It does not admit of any speculations or arguments that it is the duty and responsibility of an appellant to sign a notice of appeal to be filed on his behalf by the combined application of Order 3 r. 2(1) (supra) and Order 4 r.4(1) (supra). However, it is also permissible for a representative of an appellant to sign such notice where such an appellant is a corporate legal entity or other artificial juristic personality. Also, an appellant’s solicitor or Counsel may also sign the notice of appeal.
In the case of NWAZURIKE V. A.G. FEDERATION (2007) 8 NWLR (PT.1035) 1, the Supreme Court reviewed some of its earlier decisions while deciding the meaning and effect of the provisions of Order 4 r. 4(1) (supra) at page 13 D-E, His Lordship OGBUAGU, JSC, put emphasis on the expressions; “Every notice of appeal …shall be signed by the appellant himself.” In Order 4 r. 4(1). His Lordship went further to underline this expression and held that it is not in doubt that this provision must be complied with because it is an unambiguous mandatory provision.
I have taken a very close and hard look at the original notice of appeal as contained at pages 183 – 186 of the record of appeal. No doubt, and as conceded by learned Counsel to the appellants, it is undated and unsigned. According to S.25(2) of the Court of Appeal Act, 1976, a notice of appeal or an application for leave to appeal is given within 14 days where the appeal is against an interlocutory decision and a notice of appeal is given within 3 months where the appeal is against a final decision. Because of these benchmark periods, it is important that a notice of appeal should bear the date it was prepared and the date it was filed. No appeal is valid if it was brought outside the above stipulated benchmark period except with leave of Court. Therefore, a failure to date a notice of appeal is a grave error that could engender catastrophic consequences.
Learned Counsel to the appellants referred to the decision of the Supreme Court in AKWARA (supra). I have read it and found it extremely helpful and of great assistance. In that case the appellant was granted leave to amend its notice of appeal and ordered to file the amended notice within 6 weeks. Counsel failed to file the amended notice within the period ordered by the Supreme Court. Without any extension of time, learned Counsel belatedly filed the amended notice of appeal. Faced with this situation the Supreme Court struck out the belatedly filed amended notice of appeal and held that the purported appeal was incompetent and it lacked jurisdiction to entertain it. See AFRIBANK NIG. PLC. V. AKWARA (supra) as per OGUNTADE, JSC, at 641C. Though the principles laid down in this case are very clear that a validly amended notice of appeal vacates and renders the original notice of appeal non-existent, it goes without saying that where an original notice of appeal contains some defects this principle may not be fully applicable.
It is the requirement of the rules of this Court that a notice of appeal must be signed by the appellant himself or his duly recognized representative in appropriate circumstances. In the case of DADA V. DOSUNMU (2006) 14 LRCN 2440 at 2468-2469 the Supreme Court held that where a rule of Court has clearly and unambiguously provided for a particular act or situation, the Courts have a duty to enforce the act or situation. See also AFRIBANK NIG. PLC. V. AKWARA (supra) at 646 A-B and 655D.
The decision of the Supreme Court in UWAZURIKE V. A.G. FED. (Supra) is that the provisions of Order 4 r. 4(1) (supra) are mandatory and must be obeyed in compliance and not in breach. The Court also held that failure to comply with Order 4 r. 4(1) renders a notice of appeal filed to be fundamentally defective and incompetent. In my humble but firm view, an incompetent original notice of appeal, even if subsequently amended, is afflicted by a fundamental vice that runs through its entire gamut and remains incurably, bad and of no legal effect. In the circumstance the decision of Lord Denning in SAVAGE V. MCFOY that something cannot be put on nothing and expected to stay is applicable to the amended notice of appeal in the circumstance of this matter.
In consequence of all the foregoing, the amended notice of appeal herein having been predicated on the unsigned and undated original notice of appeal remains fundamentally defective, and incompetent. An incompetent notice of appeal is liable to being struck but. This preliminary objection is hereby upheld and the appeal is struck out. Order for N20,000.00 costs against the Appellants for the Respondents.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I agree entirely with the lead Judgment delivered by my learned brother, ALI ABUBAKAR BABANDI GUMEL, JCA. There is therefore no need to dwell further on the said Judgment. I also abide by the order as to costs.
Appearances
Mr. I. O. AtofaratiFor Appellant
AND
Mr. C. O. AdurojaFor Respondent
