TEXACO (NIGERIA) PLC V. REUBEN ILOKA & ANOR (2013)

TEXACO (NIGERIA) PLC V. REUBEN ILOKA & ANOR

(2013)LCN/6256(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2013

CA/J/280/2001

JUSTICES

JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

TEXACO (NIG.) PLC. Appellant(s)

AND

1. REUBEN ILOKA
2. ILOKSONS & CO. (NIG.) LTD. Respondent(s)

RATIO

WHETHER OR NOT WHERE A PARTY SEEKS TO AMEND A PROCESS AND FAILED TO AMEND THE PROCESS THE ORIGINAL NOTICE OF APPEAL WILL BE DEEMED INCOMPETENT.

The law is settled that where a party seeks to amend process and failed to amend the process the original notice of appeal will be deemed incompetent. Reliance was placed on Afribank Nig. Plc. vs. Akwara (2006) All FWLR (Pt.304) 401. Particularly at 416 – 417 paras G – D; U.B.N. Plc. v. Ezeomudo (2009) All FWLR (Pt.456) 1889 at 1897 paras B – G and Bayaro v. Mai Nasara & Sons. Ltd. (2007) All FWLR (Pt.359) 1285 at 1305.

The consequence of failure by the appellant to amend the defective notice of appeal is that there is no competent appeal. The law is settled that where a party seeks to amend process and failed to amend the said process the original process will be deemed incompetent. See Afribank (Nig) Plc V. Akwaro (2006) All FWLR (Pt. 304) 401 at 416. Since the original notice of appeal filed on 17th May 2001 is defective it means there is no competent notice and grounds of appeal before us to backup the purported appeal under consideration. The right of appeal conferred by the constitution on a party who desires to appeal is initiated by the filing of notice of appeal since it is the filing of the notice of appeal, against the judgment complained of that signifies the real and constitutional signal of dissatisfaction against the judgment. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 39. PER MSHELIA, J.C.A.

NOTICE OF APPEAL AS THE FOUNDATION OF AN APPEAL

WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE JUDGEMET APPEALED AGAINST

I have carefully examined the two grounds referred to by counsel. I agree with respondents’ counsel that the two grounds do not relate to the decision of 12/4/2001. Counsel also correctly stated the position of law. Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. In Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 23 paras F – G the Supreme Court per Karibi-Whyte, J.S.C. had this to say:
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
See also Egba v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at 590, Senator Adesanya v. President of Nigeria (1981) 1 NCLR 358 and C.C.B. v. Ekperi (2007) 3 NWLR (Pt.1022) 493. PER MSHELIA, J.C.A.

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from Benue State High Court of Justice sitting in Makurdi wherein on 1.03.2001 Eko J. dismissed the plaintiff’s claim for want of prosecution and allowed the defendant to open their counter-claim.
The brief facts of the case leading to this appeal are that the appellant as plaintiff commenced action of the High Court of Justice Benue State claiming title to 3 fuel dispensing pumps, special and general damages.
The suit was commenced at the High Court of Justice of Benue State Sitting in Gboko, Hearing commenced in that Court and 13 exhibits were tendered. The coram of the court changed and the case started de novo before Honourable justice. Ikyegh who subsequently transferred the suit to the High Court of justice sitting at Makurdi.
On 17/10/2000, 1/12/2000 and 18/1/2001, the matter could not go on due to absence of appellant’s (plaintiffs) witnesses who are all outside Benue State. On 1/12/2000, the trial court granted the appellant the last adjournment to open her case. The something happened on 18/1/2001. On 1/3/2000, the appellant was with a witness who came from Enugu to testify and was ready to open her case but the exhibit which were tendered before the High Court sitting at Gboko were not available for the case to be opened. The learned trial judge rather than strike out the suit dismissed it. Appellant felt unhappy hence this appeal. Appellant filed a notice of appeal on 17/5/2001 containing two grounds of appeal.
In compliance with the rules of court parties exchanged briefs of argument. Appellant’s brief of argument dated 3/12/2001 was filed on 5/12/2001. Respondents’ brief was dated 4/4/2002 and filed on 8/4/2002 but deemed properly filed and served on 14/10/2002. A reply brief was filed on 14/10/2002.
When the appeal came up for bearing the registrar informed the court that appellant’s counsel S.B Swem was in court on the last hearing date being 26/2/13 when the case was adjourned against 7.05.13 for hearing. Consequently appellant’s brief filed on 3/12/2001 was deemed argued, as well as the reply brief filed on 14/10/02. Respondents’ counsel intimated the court that the respondents’ brief dated 4/4/02 and filed on 8/4/02 but deemed properly filed on 14/10/02, contained Notice of preliminary objection at pages 2-5 of the brief. Respondents’ Counsel adopted the argument contained of pages 3-5 of the brief and urged the court to uphold the objection. As regards the substantive appeal learned Counsel adopted the respondents’ brief and relied on the argument appearing of pages 6-17 of the brief and urged the court to dismiss the appeal.
Appellant formulated two issues for determination as follows:
1. Was the trial judge right when he dismissed appellant’s suit?
2. Whether or not by that order of dismissal appellant was granted fair hearing in the circumstances.
Respondents adopted the issues raised by the appellant on page 2 of his brief of argument.
The preliminary objection has to be resolved before considering the issues distilled by the appellant for determination by the court. It is trite law that an objection must be taken first before determining the merit of the appeal. See Osun State Government vs. Olami (Nig.) Ltd. (200) 7 NWLR (Pt. 818) 72.
The argument relating to the preliminary objection is contained at pages 3-5 of the respondents’ brief. Learned counsel for the respondents submitted under paragraph 1.03 of the brief that since the decision appealed against is an interlocutory decision, leave of this court or the trial court is required for the appeal before this court to be competent. The contention of learned counsel is that whether the decision appealed against is that of 1/3/2001 or 12/4/2001, a counter claim is still pending as such the decision have not conclusively determined the rights of the parties herein. That in absence of leae being sought and obtained, this court lacks jurisdiction to hear this appeal as there is no valid pending appeal.
It was also contended that the appeal being interlocutory decision, ought to have been filed within 14 days from the date of the decision. Reference was made to S.25(2) of the Court of Appeal Act and the Notice of Appeal filed on 17 /5/2001 appearing on pages 38-40 of the record. That if the appeal is against the decision of 1/3/2001, then it was filed after two months 15 days which is outside the 14 days prescribed period provided under S.25(2) of the Court of Appeal Act, for interlocutory decision. Learned counsel submitted that since the decision is not a final decision, this court should hold that the appellant’s appeal is incompetent.
Learned counsel also urged the court to strike out ground 2 of the notice and grounds of appeal. The ground of complaint is that it offends Order 3 Rule 2(2) of the Court of Appeal rules 1981 as amended. That the particulars of misdirection supplied by the appellant regarding ground 2, have no nexus with the alleged misdirection. That the ground is of mixed fact and law and leave of court or trial court is required to file same. He urged the court to strike it out.
Another point of objection is that the Grounds of Appeal does not relate to the decision of 12/4/2001. Counsel submitted that the decision of 12/4/2001, was a decision refusing application No. MHC/141M/2000 praying for suit No. MHC/194/2000, dismissed on 1/3/2001, to be restored on the same cause list for hearing. That from the reading of the notice of appeal, it is clear that it has no relationship whatsoever with the decision of 12/4/2001. It is well settled proposition of law in respect of which there can hardly be a departure, that the ground of appeal against a decision must relate to the decision and constitute a challenge to the ratio of the decision. The grounds of appeal must arise from the decision. Reliance was placed on Saraki v. Kotoye (1992) 11-12 SCNJ 130 of 145. He urged the court to strike out ground 2 as being incompetent.
Another point raised by the respondents is that the appellant’s brief is incompetent. That the said brief filed on 3/12/2001 was filed based on the grounds of appeal relating to the decision of 1/3/2001 that is yet to be brought into being. Learned counsel conceded that the application No. CA/J/183/2001 seeking to amend the notice of appeal was pending as at the date appellant’s brief was filed on 3/12/2001. That notwithstanding, he submitted that a brief based on proposed grounds of appeal is incompetent. See Korede V. Adedokun (2001) 15 NWLR (Pt.70) 370. By application No. CA/J/183M/2001, appellant proposed to amend her notice of appeal. Since the application was yet to be granted, the brief filed is incompetent and urged court to so hold.
At the hearing of the appeal learned counsel also made oral submission to amplify the objection. This contention is that there is no competent notice of appeal before this court. That appellant sought and obtained leave on 18-6-02 but uptil date he failed to amend the defective notice of appeal by way of filling a clean copy. The law is settled that where a party seeks to amend process and failed to amend the process the original notice of appeal will be deemed incompetent. Reliance was placed on Afribank Nig. Plc. vs. Akwara (2006) All FWLR (Pt.304) 401. Particularly at 416 – 417 paras G – D; U.B.N. Plc. v. Ezeomudo (2009) All FWLR (Pt.456) 1889 at 1897 paras B – G and Bayaro v. Mai Nasara & Sons. Ltd. (2007) All FWLR (Pt.359) 1285 at 1305. He urged the court to dismiss the appeal. The foundation has collapsed and falls like a pack of cards.
The response of the appellant to the notice of preliminary objection is contained in paragraphs 1.00 – 1.04 of the appellant’s reply brief which is undated. Learned counsel for the appellant contended that the respondents’ preliminary objection embedded in their brief lacks merit. It was his contention that this court has jurisdiction to hear this appeal. That the appeal is not incompetent and has followed due process of law. He argued that the order of the trial court of 1/3/2001 dismissing the suit is a final order hence no leave is required to appeal against it. That appellant was within time as such section 25(2) of the Court of Appeal Act does not apply. Learned counsel submitted that the counter-claim which is pending before the trial court is a separate action from the claim that was dismissed. Reference was made to the cases of: Jeric Nigeria Ltd. v. Union Bank of Nigeria (2000) 4 NSQR 254 at 272 and Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt.220) 647.
Learned counsel further submitted that the Notice and Grounds of Appeal related to the decision of 1/3/2001. That the date 12/4/2001 was erroneously endorsed but has since been amended vide the court order of 18/6/2002 when application No. CA/J/183M/2001 was moved and granted. To this extent the cases of Saraki v. Kotoye (supra) and Coker v. UBA Plc. (supra) are not applicable.
Counsel maintained that the brief filed before motion No. CA/J/183M/2001 was moved and granted is competent. It was submitted that by order 3 rule 16 of the Court of Appeal Rules, 1981 a notice of appeal or respondent’s notice may be amended by or with leave of the court at any time. It includes after briefs are filed. That the argument advanced by the respondent is a mere technicality and the courts have since moved away from the era of technicalities. See Jeric Nigeria Ltd. Vs. Union Bank of Nigeria (supra) at 264 – 265 and State v. Gwonto (1983) 1 SCNLR 142.
The notice of preliminary objection is as set out of page 2 of the respondents’ brief of argument. The notice read thus:-
“TAKE NOTICE that the respondents herein named intend at the hearing of this appeal to rely upon the following preliminary objection, notice whereof is hereby given to you viz:-
“That the entire notice and grounds of appeal filed by the appellant are incompetent. Alternatively, that there is no competent brief of argument in support of the appeal of the appellant.”
Respondents raised five grounds of objection in the said notice. I have already summarized the submission of both counsel in respect of the objections raised.
The first arm of the objection to be resolved is whether there is a competent notice of appeal before this court. The record clearly showed that on the 17th day of May 2001 appellant filed a notice of appeal against the decision of the Benue State High Court of justice delivered on 12th April, 2001 in suit No. MHC/194/2000, containing two grounds of appeal. By application No. CA/J/183M/2001, appellant proposed to amend the defective notice of appeal to reflect the correct date of decision being 1.03.2001. It is undisputed that this court on 18th June 2002 granted the appellant leave to amend the said notice of appeal. As rightly submitted by respondents’ counsel uptil date appellant has failed to amend the notice of appeal by filing a clean copy. There is no copy of the amended notice of notice of appeal inside the court’s file. None was also served on the respondents. Although appellant’s counsel contended in his reply brief that his application for leave to amend the notice of appeal was granted the clean copy is not before the court. Appellant’s counsel was aware of the date of hearing, yet he refused to avail himself to argue the appeal and possibly explain the position of things. As it is the only conclusion to be drawn from this development is that the clean of copy of the amended notice of appeal was never filed by the appellant after obtaining the order to amend same.
Now, the question is what is the consequence of failure of the appellant to file the amended notice of appeal? The consequence of failure by the appellant to amend the defective notice of appeal is that there is no competent appeal. The law is settled that where a party seeks to amend process and failed to amend the said process the original process will be deemed incompetent. See Afribank (Nig) Plc V. Akwaro (2006) All FWLR (Pt. 304) 401 at 416. Since the original notice of appeal filed on 17th May 2001 is defective it means there is no competent notice and grounds of appeal before us to backup the purported appeal under consideration. The right of appeal conferred by the constitution on a party who desires to appeal is initiated by the filing of notice of appeal since it is the filing of the notice of appeal, against the judgment complained of that signifies the real and constitutional signal of dissatisfaction against the judgment. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 39.

The notice of appeal is therefore the foundation of the appeal. In other words, the notice of appeal in this court is the initiating process which lays the legal and judicial foundation for the invocation of the court’s power and authority over or in an appeal. It has been held to be a fundamental and crucial process which goes to and touches the jurisdiction of the court to adjudicate in an appeal. See Adelekun v. Eculine NV (2006) All FWLR (Pt.321) 1213 or 1222: Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592 and Atuyeye V. Ashamu (1987) 1 NWLR (Pt.49) 267.
In absence of a valid notice and Grounds of appeal, the court’s jurisdiction has not been activated. I agree with the submission of respondents’ counsel that there is no competent appeal pending before this court. The Court of Appeal will decline to adjudicate on an appeal which is not properly before it. The foundation has collapsed.
By upholding this ground of objection just treated it has disposed of the entire appeal. I will however, briefly consider the other grounds of objection though not necessary. The contention of the respondents is that the dismissal of the suit for want of prosecution by the trial court was an interlocutory decision and not final decision as such appellant required leave of the trial court or this court to file the Notice of Appeal. I agree with the submission of appellant’s counsel that the decision was a final one as it determined the rights of the parties. A counter-claim is a separate action which would be treated independently from the main suit. Distinction between final and interlocutory judgment has been considered by the Supreme Court in W.A. Omonuwa v. N. Oshodin & Anor 1985 2 SC 1 and Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) NWLR (Pt.30) 617. In Western Steel Workers Ltd. v. Iron & Steel Workers Union (supra) the Supreme Court per Kazeem J.S.C. stated thus:
“The question whether a decision is interlocutory or final was revisited by this court in W.A. Omonuwa v. N. Oshodin & Anor (1985) 2 SC 1 where it was decided that (i) a decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties, (and not merely an issue) in the case and (ii) “where only an issue is the subject matter of an order or appeal, the determination of that court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties …. Is interlocutory.”
See also Gomez & Anor v. Cherubim and Seraphim Society & Ors. (2009) 10 NWLR (Pt.1149) 223 and Alor v. Ngene (2007) 17 NWLR (Pt.1062) 163.

Being a final decision appellant do not require leave of either the trial court or this court to file his Notice of appeal. The argument of respondents’ counsel cannot therefore hold water. For the reasons stated this ground of objection cannot be sustained.
Another ground of objection raised by the respondent is that the two grounds of appeal do not relate to the decision of 12/4/2001. I have carefully examined the two grounds referred to by counsel. I agree with respondents’ counsel that the two grounds do not relate to the decision of 12/4/2001. Counsel also correctly stated the position of law. Grounds of Appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. In Saraki v. Kotoye (1992) NWLR (Pt.264) 156 at 23 paras F – G the Supreme Court per Karibi-Whyte, J.S.C. had this to say:
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”
See also Egba v. Alhaji Abubakar Alhaji & Ors. (1990) 1 NWLR (Pt.128) 546 at 590, Senator Adesanya v. President of Nigeria (1981) 1 NCLR 358 and C.C.B. v. Ekperi (2007) 3 NWLR (Pt.1022) 493. Since appellant has failed to file the amended notice of appeal to reflect the correct date of decision appealed against being 1.10.2001, I hold that the two grounds of appeal are incompetent and liable to struck out. Same are hereby struck out.
As regards the complaint relating to the appellant’s brief of argument, I am of the humble view that since the said brief was filed based on an incompetent notice and grounds of appeal the said brief will also be declared incompetent. I so hold. It has no foundation.
Having resolved that there is no competent or valid appeal pending before this court, I will in the circumstances sustain the preliminary objection raised by the respondent. I therefore hold that the purported appeal is incompetent.
Consequently, the defective Notice of Appeal filed on 17th May, 2001 must be and is accordingly struck out pursuant to order 6 Rule 6 of the Court of Appeal Rules 2011. Parties to bear their own costs.

JA’AFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Adzira Gana Mshelia, JCA. There is no competent or valid appeal pending before this Court. The Preliminary Objection raised by the respondent is sustained. The purported appeal is therefore incompetent. The defective Notice of Appeal filed on 17th May, 2001 is hereby struck out as per Order 6 Rule 6 of the Court of Appeal Rules, 2011. Parties to bear their costs.

MOHAMMED A. DANJUMA, J.C.A.: I have read in draft the lead Judgment in this appeal, just delivered by my learned brother, Adzira Gana Mshelia, JCA and I agree that the appeal is incompetent as argued in the preliminary objection by the Respondent.
The Appellant who had filed an incompetent Notice of Appeal was granted leave to amend same. The leave was granted on 18th June, 2002 almost 12 years today. The simple amendment that was to merely reflect the correct date of the decision sought to be appealed as 1/03/2001, was never done, or at least not filed in this court. The incompetent Notice subsists but is in law incapable of activating the appeal sought.
The Notice of Appeal is an originating process. Its validity is a fundamental and necessary prerequisite for the competence of a suit or an appeal. The failure to commence either a suit or an appeal as in the instant case, with a valid Notice of Appeal goes to the root of the action or appeal since the condition precedent to the exercise of the court’s jurisdiction would not have been met to duly place the suit or appeal as the case may be, before the court.
See, MADUKOLU v. NKEMDILIM; MOHAMMED vs. A. D. OGUNMOLA (2006) 5 SC 147 (2006) 13 NWLR Pt.997. See also DR. BRAITHWAITE vs. SKYE BANK. PLC. (2012) 12 SC 1.
See also my contribution in CA/J/408/2007 wherein I stated thus:
“My lord, Mshelia, JCA has exhaustively and clearly captured the facts of the case leading to the appeal and the necessary essence of the objection raised. She had characteristically hit the nail on the head by her conclusion that the provision of the Legal Practitioners’ Act was violated in the manner of taking out of the Notice of Appeal in the name of I. U. Ututu & Co. was a violation of Statutory or substantive law, which cannot be waived and which therefore made the Notice of Appeal in this matter on appeal incompetent and devoid of any legal strength to ground any appeal which can be argued.”
Relevantly, therefore, an incompetent Notice of Appeal has no legal strength to ground any appeal. The brief of argument filed pursuant thereto must necessarily be incompetent as it has no substratum to rest thereon. For the reasons so lucidly set out in the leading Judgment, which I adopt as mine, I too, hold that there is no competent appeal before this court to be argued as the Notice of Appeal is defective.
Appeal struck out.

Appearances

Appellant absentFor Appellant

AND

Ede UkoFor Respondent