MADUWA ARNODE BODE
1. MUBI EMIRATE COUNCIL
2. NGIDDA ZAKAWA
3. GWAMNA ZAKAWA ?
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA):
This is an appeal against the judgment of the High Court of Adamawa State in Suit No. ADSM/9/1992: Yerima Akawa Arnado Peghi V. Mubi Emirate Council & Anor., delivered on 6/3/1997 by C. A, Negamumso J., in which judgment was entered in favour of the Plaintiff, now deceased but substituted by the 2nd and 3rd Respondents, declaring, amongst others, the purported election and subsequent appointment of the 2nd Defendant, now Appellant, by the 1st Defendant, now 1st Respondent, as the village head of Michika 11 as null and void in that the Appellant, then 2nd Defendant was not a member of the ruling house of Michika 11.
The original two Defendants, now the Appellant and 1st Respondent, were peeved by the said judgment and had promptly appealed to this Court by a Notice of Appeal on four grounds of appeal filed on 21/3/1997. See the unnumbered pages 99 100 of the record of appeal. However, by series of events ranging from obvious lack of interest on the part of the 1st Respondent as 1st Appellant to participate in the appeal to the death of the original sole Respondent to this appeal, with the leave of Court the original 1st Appellant became the 1st Respondent while the deceased 1st Respondent was eventually substituted by the 2nd and 3rd Respondents on record. On 7/3/2016, the Appellant sought the leave of court to file the 4th Further and Better Amended Notice of Appeal on ten grounds of appeal and same was deemed properly filed on 11/4/2016.
The Record of Appeal was duly transmitted to this Court on 23/4/2003, under the then Court of Appeal Rules 2002. The 3rd Further and Better Amended Appellants brief was duly filed on 7/3/2016. The 2nd Respondents brief was duly filed on 2/2/2016. The 3rd Respondents brief was duly filed on 4/5/2016. The 1st Respondent did not file any Respondents brief. The Appellants Reply brief to the 3rd Respondent brief was duly filed on 20/5/2016. On 4/5/2016, the 3rd Respondent filed a Notice of Preliminary Objection against the competence of the Notice of Appeal.
At the hearing of the Appeal on 23/5/2016, Chief L. D. Nzadon, learned senior counsel for the Appellant, appearing with Saad Abubakar Esq., and Hussani G. Maidawa Esq., adopted both the 3rd Amended Appellants brief and Appellants reply brief to the 3rd Respondents brief and relied on a counter affidavit filed on 20/5/2016 as their argument in answer to the Notice of preliminary objection and in support of the appeal and urged the court to dismiss the preliminary objection for lacking in merit and to allow the appeal and set aside the judgment of the court below. On their part, A. J. Akanmode Esq., learned senior counsel for the 2nd and 3rd Respondents appearing with Yakubu Ahmadu Esq., adopted the 2nd and 3rd Respondents respective briefs as their argument in support of the 3rd Respondents notice of preliminary objection and in opposition to the appeal and urged the court to strike out the Notice of appeal for being incompetent or to dismiss the appeal for lacking in merit. The 1st Respondent was not represented by counsel and thus did not participate at the hearing of the appeal, having not also file any 1st Respondents brief.
In the 3rd Amended Appellants brief, the following two issues were identified as arising for determination, namely;
1. Whether yerima Zakawa Arnado Phegi proved his case before the trial Court and was entitled to judgment? (Distilled from grounds 5, 7, 8, 9 and 10)
2. Whether having regard to the fact that the Appellants father was the immediate Village Head of Michika II and Yerima Zakawa Arnado Phegis uncle contested elections for the position of Village head if Michika II with the Appellants father and lost, Yerima Zakawa Arnado Phegi is not stopped from maintaining that the Appellant is not qualified to become the Village Head of Michika II and/or whether the Yerima Zakawa Arnado Phegi has waived any right to exclusivity of a Ruling House for Michika II? (Distilled from Ground 6)
In the 2nd Respondents brief, a sole issue was distilled for determination, namely;
Given the facts of this case and the lawplicable, whether the Appellant can be said to be a member of the ruling house of Michika 11? (Distilled from Grounds 5, 7, 8, 9 and 10)
In the 3rd Respondents brief, a sole issue also was distilled for determination, namely;
Whether by the state of pleadings and evidence led before the trial court, the learned trial judge was right in holding that the choice of of the Appellant as village head of Michika 11 village and his subsequent appointment by the 1st Respondent (Mubi Emirate Council) violated the native law and custom of Higgi people of Michika 11 village and when he proceeded to set aside the said appointment on that ground? (Distilled from Grounds 5 10)
I have taken due care and time to dispassionately review and consider the facts, circumstances, evidence in the record, the judgment of the Court below and the submissions of counsel in their respective Appellate briefs.
Let me review in details at this stage in this judgment the submissions of learned senior counsel for the respective parties in their appellate briefs as duly adopted and adumbrated upon by them at the hearing of this appeal, with a view to focusing the real issues in contention in this appeal that should be set down as the issue (s) for determination.
On his first issue, learned senior counsel for the Appellant submitted that Yerima Zakawa Arnado Phegi, the Plaintiff, did not prove his claim and the trial Court should not have granted him the reliefs sought and contended that the law is trite that a Plaintiff may only succeed on his claim on the strength of his own case and not on the weakness of the defence. Counsel relied on Kara V. Wassah (2001) 18 NWLR (Pt. 744) 117 C.A; Reynolds Const. Co. Ltd V. Okue Jiminor (2001) 15 NWLR (Pt. 735) 87.
Learned senior counsel for the Appellant further submitted that in law where witnesses for a party gave inconsistent and/or contradictory testimonies, especially on material facts, their evidence on the point must be disregarded as unreliable and rejected as such contrary to the failure of the court below to so do. Counsel relied on Oluma V. Onyuma (1996) 3 NWLR (Pt. 445) 449; White V. Jack (1996) 2 NWLR (Pt. 431) 407, 438; Ufele V. Ume (1995) 5 NWLR (Pt. 393) 114, 127; Okolo V. UBN Ltd (1996) 2 NWLR (Pt. 539) 618, 647; A. Bullon V. Daiya (1998) (Pt. 556) P. 165; Tangale Traditional Council V. F. A. Nig (2006) 16 NWLR (Pt. 745) 293 @ P. 43; Ogunbiyi V. Ogundife (1992) 9 NWLR (Pt. 263) 23,40.
On his second issue, learned senior counsel for the Appellant submitted that on the state of the crucial and uncontroverted facts by the Yerima Zakawa Arnado Phegis family and Yerima Zakawa Arnado Phegi himself, even if it could be assumed, which was not conceded, that the Kwada Kwaha family is the only Ruling House for Michika II, they had over the years by their conduct waived their rights in favour of the Appellants family to the position and are therefore stopped from maintaining their claim and urged the court to allow the appeal. Counsel referred to Section 151 of the Evidence Act 2011 and relied on Iga V. Amakiri (1976) 11, S.C 1 @ Pp. 12 and 13; Okonkwo V. Kpajie (1992) 2 NWLR (Pt. 226) 633 @ 635; Iloabache V. Iloabache (2000) NWLR (Pt. 656) 178, 219 & 220; Yoye V. Olubode (1974) all NLR (Pt. 118 @ P. 128; Fasade V. Babalola (2003) 4 NWLR (Pt. 725) 659 SC.
On his respective sole issue, learned senior counsel for the 2nd and 3rd Respondents submitted that the case of the Appellant was that Yerima Zakawa, the Plaintiff before the Lower Court in paragraphs 23, 24 and 25 of his Amended statement of claim alleged that he was nominated by the traditional nominators but contended that the traditional nominators pleaded by the Plaintiff at the lower court referred to Bulamas i.e the ward heads and not Midalas
Learned senior counsel for the 2nd and 3rd Respondents further submitted that the Plaintiff in the lower court pleaded two methods of nomination as it relates to the office of the Village head of Michika II i.e. by a group of elders referred to as the traditional nominator and nomination by Bulamas (ward heads) and contended that the Appellant having not respondent to the above averments as reproduced in the Respondents brief from the Amended statement of claim in paragraphs 10, 20, 21, 22, 23, 28 and 29, he is in law taken to have admitted them and the Plaintiff in the lower Court was relieved of the onus of proving them. Counsel relied on Sal Sgitter V. Dosunm,u (2010) 4 SCNJ 186.
Learned senior counsel for the 2nd and 3rd Respondents also submitted that there are no specific grounds of appeal challenging these far reaching findings and conclusions of the court below on the position of the village head of Michika and contended that the effect of failure of the Appellant to raise specific grounds of Appeal challenging these findings is that the conclusion of the trial Court stands. Counsel relied on Nigerian Bank for Commerce and Industries V. Intergrated gas Nigeria Ltd & 1 Other (2005) 1 SCNJ 104; Institute of Health V. Anyip (2011) 5 SCNJ 250; Atanda V. Iliasu (2012) 12 SCNJ 173; Kaydee Ventures Ltd V. Minister of FCT and Others (2010) 181 LRCN 69, Iwuoha V. NIPOST (2003) SCNJ 258; Awoyuola V. Aro (2006) 135 LRCN.
Learned senior counsel for the 2nd and 3rd Respondents further submitted that a party who did not specially plead and canvass estoppels at the trial Court cannot canvass it on appeal and contended that a such a party relying on estoppels is required by law to specially plead it and urged the court to dismiss the appeal for lacking in merit. Counsel relied on Shittu V. Ola Egbe (2010) All FWLR (Pt. 549) 1000 @ p. 1008, Essien V. Essien (2010) All FWLR (Pt. 509) 539.
In the Appellants reply to the 3rd Respondents brief, it would appear that no submissions were made in respect of the issue of estoppels raised in the 2nd and 3rd Respondents briefs in that the entire reply was geared at answering the challenge to the competence of the original Notice of appeal. However, at the hearing, the learned senior counsel for by the Appellant had made oral reply and submitted that in law an issue of estoppels need not be pleaded before it could legitimately be relied upon by the party. Counsel relied on Chinwendu V. Mbamali (1980) NSCC 127 @ p. 139.
However, having taken due time to review the submissions of respective learned senior counsel for the parties, I am still aware that the 3rd Respondent is by a Notice of Preliminary Objection filed on 4/5/2016 challenging the competence of Notice of Appeal. As the law stands, a preliminary objection challenging the competence of a Notice of Appeal is in the nature of a threshold issue of jurisdiction and thus once raised must be determined first by the Court and that is what I intend to do anon.
RULING ON PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 4/5/2016, the 3rd Respondent is challenging the competence of the original Notice of Appeal on the ground that it was not signed by either the Appellant or his counsel as required by law and thus rendering the Notice of Appeal incompetent and robbing this court of its jurisdiction to hear and determine the same on the merit.
The 3rd Respondent had also contended that the Record of Appeal, as by way of the record of procceedings of the court below were not duly certified as required by law and thus also incompetent and rendering the Appeal devoid of any competent record of appeal on which it could be heard and determined on the merit.
In response, the Appellant filed what he termed Counter Affidavit 15 paragraphs deposed to by one Abubakar Saad, counsel in the law firm of the Appellants Solicitor deposing to the facts sorrounding the filing of the original Notice of Appeal in 1997 and the efforts made by the Appellnts counsel vide Exhibits A and B to get a copy of the original Notice of appeal filed by the then Appellants counsel but to no avail as the only copy available is the one as in the record of appeal as in Exhibit C.
In the 3rd Respondents brief, learned senior counsel for the 3rd Respondent submitted the original Notice of Appeal filed on 21/3/1997, which was not even dated, has merely the name Silas Barnabas Esq., of Silas Barnabas & Associates on the face of the said Notice of Appeal but without any signature or mark appearing on top of the said Silas Barnabas or Silas Barnabas & Associates and contended that in law it rendered the original Notice of Appeal incompetent and liable to be struck out and urged the court to strike same out. Counsel on SLB Consortium V. NNPC (2011) 1999 LRCN 124 SC; Ministry of Works & Transport Adama State & Others V. Alhaji Isi Yaku Yakubu & 1 Other (2013) All FWLR (Pt. 694, 23; Onu V. State (2013) All FWLR (pt. 683) 2019; Uwazuruike V. Attorney General of the Federation (2007) All FWLR (Pt. 367) Fortune International Bank Plc V. City Express Bank Ltd (2013) All FWLR (Pt. 679); Okarika V. Samuel (2013) 2 SCNJ 491.
Learned senior counsel for the 3rd Respondent further submitted that the Record of Proceedings purporting to be the Certified True Copy of the Lower Courts record and transmitted to this Court cannot in law be relied upon to determine this appeal in that same has not been duly certified in the manner required by law and also contained no schedule of fees paid by the Appellant for the certification and urged the court to strike out the Notice of Appeal together with the appeal as being incomoetent. Counsel referred to Section 111 of the Evidence Act and relied on Tabik Investment Limited V. G. T. Bank Plc (2011) 17 NWLR (Pt. 1276); Sarai V. Haruna (2008) All FWLR (Pt. 432) Federal Airports V. Wamal (2011) 1 SCNJ 133; Order 3 Rule 8 (i) (b) and C of the Court of Appeal Rules 2002.
In the Appellants reply brief, learned senior counsel for the Appellant submitted that the writ of summons, statement of claim, statement of defence, the Court proceedings and the judgment appealed against has the same pattern indicating how it was signed and contended that if the 3rd Respondent was to fault the documents , then he should start same with the statement of claim, the very basis of his case in lower Court and the lower Court judgment that gave him the judgment because he who comes to equity must come with a clean hands and urged the court to find that the entire lapses were that of the Court Registry and in law should not be visited on the litigant, the Appellant. Counsel relied on Hon Abraham Adedu Adeleke (speaker) & Anor V. Oyo State House of Assembly & Ors (R2) (2006) LPELR 7745 (CA); Duke V. Akpabuyo LG (2005) 19 NWLR (Pt. 959) 130. Engineering Enterprises V. AG (Kaduna (1987) 2 NWLR (Pt. 57) 381; Olusola A. Oke V. INEC & Ors (2008) LPELR 8619 (CA).
Learned senior counsel for the Appellant further submitted that by Exhibit C to the effect that the original Notice of Appeal could not be found in the Notice typed together with the record, does not mean that the original Notice of Appeal was not signed as in law the 3rd Respondent who alleged it was not signed has the burden of proving it and contended that the fees payable were clearly indicated in the record and the mere failure to indicate it on the Notice of Apeal, though not even conceeded, cannot in law invalidate the Notice of Appeal. and urged the court to dismiss the preliminary objection. Counsel relied on Obianwuna Ogbuanyiya & Ors V. Obi Okudu & Ors (1990) LPELR 2294; Akpaji V. Udemba (2009) 6 NWLR (Pt. 1138) 545 @ p. 561
In considering this preliminary objection, I bear in mind from the onset that in law the issue of competence is of utmost importance. This is so because where the requisite jurisdiction to hear and entertain any suit or matter or cause or appeal is found to be lacking by reason of incompetence of the originating processes, that is indeed to end of the matter and it does not matter how meritorious or even how painful or difficult the result may be on the party whose originating process turns out to be incompetent. In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the erudite Kayode Eso JSC, (God bless his soul) had put it so poetically and biblically thus:
Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain
It is for this reason that the issue of competence, that is jurisdiction, can even be raised suo motu by the Court to ensure that matters before it are competent in order that the Court does not end up acting in vain and in nullity if it turns out in the end that it indeed lacked the requisite competence to have heard and determine the cause or matter or action or appeal before it. Now, going by the first ground for the preliminary objection it appears to me that raises the fundamental issue of when would a Notice of Appeal be said to be competent or incompetent as the case may be and the consequences on the appeal where it turns out that the Notice of appeal was not competent.
The law has been well settled and it no longer admits of any argument that jurisdiction is the very basis and the life wire of every matter and on which any court tries or hears a case. It is, thus metaphorically speaking, indeed the life blood of all trials, whether it be at the Court of trial or on appeal, without which all such trials are a nullity and it does not matter how well or meticulous such a trial or proceeding had been conducted or how sound or profound the resultant judgment. It is simply a nullity. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also Balogun V. Ohiwhere (2005) All FWLR (Pt. 281) 1724; Onuorah V. Kaduna PRC Ltd. (2005) All FWLR (Pt. 256) 1356; Okereke V. YarAdua (2008) All FWLR (Pt. 343) 636; Essien V. Essien (2010) All FWLR (Pt. 523) 1192; Petro Jessica Enterprises Ltd. V. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 693.
The corollary to the above succinct position of the law is that the issue of jurisdiction, being a threshold issue, can be raised at any stage of the proceeding either by the parties or by the court suo motu. It could even be raised for the first time on appeal as is being done in the instant appeal, a case which has taken all of over 13 years from 2003 2016 for the parties being before this court and that was after about 5 years they had spent before the court below from 1992 1997, when the judgment appealed against was delivered on 6/3/1997 by the court below and promptly appealed against on 21/3/1997.
Be that as it may, in the light of the all important place jurisdiction occupies in the hearing and determination of every matter placed before the courts, once it is raised, no matter when or how or even how late, the court is under a legal duty and indeed an obligation to consider it first and resolve it one way or the other. This is so because without jurisdiction, which is the life wire of any and every judicial process or proceedings, there can be no validity or competence of either the court process or proceeding or the resultant decision of the court. See Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 2 NSCC (Vol. 17) 786 @ p. 798.
It is for the above reasons and many more germane reasons as can be seen in several decided cases as are replete in our law reports that the effect of lack of jurisdiction on the processes or proceedings and or decisions of court is far so great and can be liken to a watchman who watches or the labourer who labours all in vain except the Almighty God watches or builds. Consequently, it would be safe to say that without jurisdiction the labourers, that is the parties and their counsel on the one hand and the Court on the other hand labour in vain. See Attorney General of Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552.
In law, therefore, where a Court finds that it has no jurisdiction and that the proceedings are a nullity that is where the matter ends and no amount of sentiment or substantial justice or indeed over zealousness can dictate otherwise, since one cannot put something on nothing and expect it to stand. See Macfoy V. UAC Ltd. (Supra) @ p. 160. See also Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Barclays Bank of Nigeria V. C.B.N (1976) 1 All NLR (Pt. 1) 6; Attorney General of Lagos State V. Dosunmu (Supra) @ p. 552.
My lords, having reiterated the position of the law as it relates to the fundamental issue or concept of jurisdiction in our courts, let me now consider the pertinent facts in the instant appeal and resolve first the first ground of preliminary objection by the 3rd Respondent challenging the competence of the Appellants original Notice of appeal. I am aware that the Appellant has since amended and re-amended the notice of appeal to the 4th degree as what we now have before the court is the Appellants 4th Amended Notice of Appeal. Yet, in law an amended Notice of Appeal must tap and take its validity from the original Notice of Appeal since like begat the like. In other words, only a competent Notice of Appeal can give birth to a competent Amended Notice of Appeal and so also is the converse the case, an incompetent original Notice of Appeal can only give birth to an incompetent Amended Notice of Appeal. The latter, that is an incompetent original Notice of Appeal, can by no means in law, give birth to a competent Amended Notice of Appeal.
The original Notice of Appeal of the Appellant can be found at the unnumbered pages 99 - 100 of the record of appeal. It clearly contains the date of the decision being appealed against, 6/3/1997; the Names and addresses of the parties affected by the appeal; four grounds of appeal and the reliefs sought. Written thereafter at the foot of it are the following endorsements:
SILAS BARNABAS Esq.,
SILAS BARNABAS & ASSOCIATES,
My lords, on the above endorsements on the original Notice of Appeal filed on 21/3/1997, the indisputable fact is that there was no signature of either the Appellant, who was the 2nd Defendant before the court below or the 1st Respondent which was the 1st Defendant before the court below, both of whom the judgment of the court below was delivered against on 6/3/1997, or by their individual or joint counsel.
From the above facts, crystal clear, it is a fact duly established by the 3rd Respondent, as urged upon him by the 3rd Respondents counsel to so do, that the original Notice of Appeal of the Appellant filed on 6/3/1997, supposedly at the Registry of the Court below since on the face of it there is even no endorsement or stamp as to which Courts Registry it was filed, as all that was indicated thereon as
Fees paid N54.50 on No. 001268543 of 21/3/1997, was not signed at all by either the Appellant or by his counsel as required by law and in addition an unsigned document, has in a long line of decided case, been considered a worthless document in law. See Abia State Government V. Agharanya (1996) NWLR (Pt. 607) 362 @ p. 37.
Now, the only question, having found as of fact that the original Notice of Appeal of the Appellant filed on 21/3/1997 was not signed, is whether this defect was curable and indeed cured by the 15 paragraph counter affidavit filed by the counsel for the Appellant on 20/5/2016?
Firstly, a counter affidavit filed against a non existence affidavit in support of any application before the court is a strange document and thus unknown to the Rules of this Court. Secondly, by the succinct Rules of this Court, vide Order 10, Court of Appeal Rules, a Respondent has the right, if he so considers it necessary, to raise preliminary objection against the competence of a Notice of Appeal and in response by Order 11 thereof, an Appellant who intends to reply to the preliminary objection has the liberty to do so by way of a Reply brief.
I have, in the interest of doing substantial justice, taken the time to scan through all the provisions of the Court of Appeal Rules 2011 together with the Court of Appeal Act 2004 to see if there is any provision for the filing of a counter affidavit by an Appellant in response to issue(s) raised in a Respondents Notice of Preliminary Objection and, with due respect to the learned senior counsel for the Appellant, no such provision(s) can be found. All my concerted efforts in that regard were to no avail. The counter affidavit of the Appellant remains therefore, strange and unknown to the proceedings in this appeal.
Be that as it may, I have still in the interest of doing real substantial justice to the parties, as much as practicable, decided to make use of the counter affidavit filed on behalf of the Appellant to see if it indeed cured the fundamental defect raised against the competence of the Appellants original Notice of Appeal.
I have considered the entire paragraphs of the counter affidavit, particularly paragraphs 13 (i) (vii) thereof, and I find it was so plenteous on explanations of all but the relevant fact, which is whether the Appellants original Notice of Appeal was duly signed as required by law and if so whether a copy of it was furnished before this court in this appeal, a fact on which the counter affidavit fell gravely short. By Exhibit C, the Registry of this Court, from whom the Appellants counsel had intended to obtain a copy of the original Notice of Appeal as duly signed, forwarded to them a copy of the original Notice of Appeal as made available to the Registry of this court as was duly transmitted to this court from the Registry of the court below. It was same as the copy of the original Notice of Appeal as in the Record of Appeal at unnumbered pages 99 100 of the record. They were each not signed by either the Appellant or his Counsel or Solicitor as required by law.
In my finding therefore, all the explanations in the counter affidavit not disclosing a copy of the Appellants signed original Notice of Appeal go to no avail and the original Notice of Appeal of the Appellant in this appeal remain unsigned contrary to the requirements of law that it must be duly signed and thus is invalid and grossly incompetent. See Okarika V. Samuel (2013) Vol. 53 NSCQR (Pt. 1) 220 @ p. 23; Aregbesola V. Oyinlola (2011) Vol. 9 EPR 1 @ p. 133; Ogudu V. The State (2011)Vol. 48 NSCQR Pt. 1) 377 @ p. 409; Alawiye V. Ogunsanya (2012)Vol. 52 NSCQR (Pt. 1) 186 @ p. 230. Shelim V. Gobang (2009)Vol. 39 NSCQR 175 @ p. 195; Societe Generale Bank V. Adewunmi (2003) Vol. 14 NSCQR (Pt. 1 ) 119 @ p. 133; Macfoy V. UAC Ltd. (1962) 152 @ p. 160.
My lords, the above position that the Appellants original Notice of Appeal was invalid and thus incompetent was dispassionately, carefully and thoughtfully arrived at on the correct position of the law devoid of any sympathy and extraneous consideration as to the age and chequered history of this appeal that has been pending for over 13 years before this court and notwithstanding the strenuous efforts by way of very brilliant and alluring submissions by learned senior counsel for the Appellant urging this court to overrule technicality, as he sees it, and to do substantial justice by perhaps closing our eyes to the fundamentally defective and thus grossly incompetent original Notice of Appeal of the Appellant, a call which we do not consider apt and would not asur well too in the due dispensation of justice according to law. In law, everything worth doing is worth doing not only well but also in accordance with the relevant and applicable Law and or Rules.
Consequently, the Appellants original Notice of Appeal having not been signed as required by law either by the Appellant or his counsel or solicitor, it is grossly incompetent, No more, no less! No amount of grammar or logical deductions can change that fact. This position of the law is as immutable as the old laws of the Medes and Persia, which once promulgated and proclaimed cannot be changed.
Happily however, unlike the Laws of the Medes and Persia, in Nigeria, this position of the law can only be changed by the Supreme Court, when and only when it considers it appropriate in its wisdom to do so but certainly not by this court and this by reason of the apex position the Supreme Court, indeed the policy court, occupies in the Nigerian Judicial hierarchy.
The Appellants original Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid and competent to confer life on an appeal. Consequently, once a Notice of appeal is found or turns out to be invalid and incompetent, as in the instant appeal, it is indeed the end of the matter. In law such an appeal commenced by an invalid original Notice of Appeal is itself incompetent. It is incurably bad and thus good for nothing or anything worthwhile the precious time of this court to be considered on the merit.
In Okarika V. Samuel (Supra) @ p. 238, the Supreme Court pronounced with finality on the issue of invalid Notice of Appeal inter alia thus:
It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them. Thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp of authority or authentication
See also Amadi V. Okoli (1977) 7 SC 57. See also Olarenwaju V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin v. Agu ( 1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade (2010) 3 SCNJ 368.
My lords, with the obvious incompetence of the original notice of appeal, as already found, I do not see how the issue of whether the record of appeal was duly certified or not, forming the second ground of the preliminary objection of the 3rd Respondent, would still remain a live issue to be considered on its merit. I think such an issue having been duly overtaken by the all debilitating incompetence of the original Notice of Appeal, no further judicial time, energy and intellect need be spent on it and it should perhaps wait for another day in any appeal when it arises and remains a live issue for consideration by this court.
In the circumstances therefore, the 4th Amended Notice of Appeal, must necessarily be a product of a competent original Notice of Appeal being the originating process but that not being the case in this appeal, is also invalid and incompetent since in law one cannot put something on nothing and expect it to stand. So it is with both the original notice of appeal and the 4th Amended Notice of Appeal of the Appellant in this appeal. Like as I had earlier observed, incompetence begetting incompetence is the fate of this appeal, which has become like a tale told by an idiot full of sound and fury but signifying nothing, absolutely nothing worth anything. See Macfoy V. UAC Ltd. (Supra) @ p. 160.
Having come to the inescapable conclusion that the Appellants appeal vide the original notice of appeal filed on 21/3/1997 was incompetent and thus incapable of conferring any validity on this appeal, it has become obvious to me and as rightly submitted by the 2nd and 3rd Respondents counsel in the 3rd Respondents brief that this court is thereby rubbed of its jurisdiction to determine this appeal on the merit as doing so would render the entire proceedings and judgment of this court a sheer waste of time and indeed a nullity being predicated upon an invalid originating process.
In law, originating process whether be it by way of commencing a suit or initiating an appeal, once found to be incompetent, the resultant consequences are the same. It simply robs the trial or the appellate court as the case may be of its jurisdiction. This is so because in law a court is competent only and only when all conditions precedent to the exercise of its jurisdiction has been fulfilled and never before then. See Madukolu V. Nkemdilim (Supra) @ p. 581. See also Okarika V. Samuel (Supra) @ p. 238; Shelim V. Gobang (2009) Vol. 173 LRCN 36 @ p. 42.
My lords, having come to the inescapable conclusion that this appeal is incompetent and has been demonstrably shown in this judgment, has this Court any further duty, whether in equity or law or doing of substantial justice, proceeding to consider and make pronouncements on the merit of this appeal? I certainly do not think so!
In conclusion therefore, it is my firm view that the only course, being as well as the only option, open to this Court in the circumstances and findings in this appeal is simply to strike out the original Notice of Appeal for being invalid and consequently striking out the entire appeal for being incompetent in the absence of a valid originating process.
In Shelim V. Gobang (Supra) @ p. 42, it was emphatically stated thus:
First and foremost, a notice of appeal is the basis, foundation and backbone of every appeal and where it is found to be defective or incompetent, the Court of Appeal has the power to strike it out or to discountenance any purported appeal for which there is no notice of appeal.
The above decision, though based on the strength of the succinct provisions of the Rules of this Court by virtue of Order 6 Rule 6 of the Court of Appeal Rules 2011, is equally true as the general position of the law whenever a Court or Tribunal finds that the originating process of any matter before it is incompetent and not initiated by due process of law, such a process or matter is invalid and a nullity and should be struck out without much ado! See Order 6 (6) of the Rules of this Court, which provides as follows:
The Court shall have the power to strike out a notice of appeal when the appeal is not competent..........
In Macfoy V. UAC Ltd. (Supra) @ p. 160; the immortal words of that erudite law lord, Lord Denning springs forth thus:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have an order declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
See also Nigerian Army V. Sgt. Samuel (2013) LPELR 20931. See also Yusuf V. Tolulu (2008) 6 SCNJ 1; Olori Motors Co. Ltd V. UBN Plc (2006) 4SCNJ 1; Okotie Eboh V. Manager (2004) 5 SCNJ 131; Anya V. Imo Concorde Hotel (2001) 12 SCNJ 145.
There being no valid original Notice of Appeal in this appeal before this court, this court therefore, lacks the jurisdiction to determine it on the merit and consequently, the original Notice of Appeal is hereby struck out for being invalid.
In the result, this Appeal, having not been initiated by due process of law and thus incompetent and incapable of invoking the jurisdiction of this court, is accordingly hereby struck out.
I shall make no order as to cost.
JUMMAI HANNATU SANKEY, J.C.A.
I had the privilege of reading in advance the draft of the Judgment just delivered by my learned brother, Georgewill, J.C.A., and agree that the Notice of preliminary objection raised to the competence of the originating process, to wit: the original Notice of Appeal, is valid and succeeds.
In Okafor V Nweke (2007) 2 SC (Pt. 11) 60, the Supreme Court laid down that originating processes filed in court are to be signed as follows:
(a) First, the signature of Counsel, which may be by any contraption.
(b) Secondly, the name of Counsel that signed the process clearly written.
(c) Thirdly, who Counsel represents.
(d) Fourthly, name and address of Legal Firm.
In the instant case, the Appellants Notice of Appeal does not contain any signature at all. It was neither signed by the Appellant nor by Counsel representing the Appellant. Obviously, it could be safe to say that there is no notice of appeal, this appeal was never initiated, in fact the appeal does not exist in law or in fact.
By the effect of the Legal Practitioners Act and Order 17 Rule 4 (1) (2) (4) & (6) of the Court of Appeal Rules, 2011, an un-signed Notice of Appeal, as in the instant Appeal, is incompetent. It is a mere document that has no legal value. It cannot be looked into and/or considered by the Court, nor can any court process be predicated on it.
The Appeal was dead at the point of filing. It is fundamentally defective and incompetent ab initio. The 3rd Respondents Notice of preliminary objection thus succeeds and is upheld.
In consequence, the subsequent amendments to the original Notice of appeal by the 4th amended Notice Appeal, does not change the invalidity and/or incompetence of the defective Notice of appeal. I respectfully invite the renowned Jurist of our time, Onnoghen, JSC, to address this issue, as he did in the case of Nwaigwe V Okere (2008) LPELR-SC.392/2002, 1 at 23-24:
The issue of filing six additional grounds of appeal is a non starter as it amounts to an exercise in futility, there being no valid notice of appeal due to the absence of a valid ground of appeal raising a question of customary law for determination. Since there was no valid notice and ground of appeal to which any further grounds would have been added, the attempt at making the addition is to try to resurrect a dead horse. It is stone dead. The same reasoning also applies to the purported amendment of the original omnibus ground of appeal. It is settled law that you cannot amend a fundamentally defective document such as a notice of appeal so as to infuse live into it. In other words a fundamentally defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non existent or dead. See Awhinawhi V Oteri (1984) 5SC 38; Atuyeye V Ashamu (1987) 1 SC 333 at 358. (Emphasis supplied)
See also Nigeria Army V Samuel (2013) 56 NSQR 844 at 849; Ahmed V Ahmed (2014) Vol. 231 LRCN 179 at 188-189; & FRN V Akinola (2014) LPELR-23978(CA).
This Appeal therefore fails for its incompetence and is accordingly struck out, as ordered in the lead Judgment.
SAIDU TANKO HUSAINI
I had a preview of the Judgment just delivered by my brother Biobele Abraham Georgewill, JCA and I agree with him completely that the appeal is one which necessarily must be determined based on the Preliminary objection raised or taken by the respondent on the validity of the Notice which originates the appeal to this court. Same was not signed.
The value of a signature on a legal document or process of court cannot be underestimated. It is the signature of the person, the owner or maker of that document that authenticates that document that hold him out as bound or responsible for the contents of the document. Remove it and there is nothing worthy of the document or process to hold on to. See:-Adefarasin. Dayekh (2007) 11 NWLR (Pt. 1044) 89; Tsalibawa V. Habiba (1991) 2 NWLR (Pt. 174) 461, 489-481.
Moreover in the face of the mandatory provisions of the rules of this Court under Order 6 rule 4, a Notice of appeal which is not signed is by reason of non-signing, a defective process, as to render same incompetent and useless for any purpose. Nothing can be built on it. See: Macfoy V. UAC A.C 152 andas such the appeal cannot be said was commenced having regard to due process. SeeMcdokolu v. Nkemdelin (1962) SCNLR 342.-
It is for these and the more elaborate reasoning as contained in the lead Judgment that I too will uphold the Preliminary Objection and in consequence strike out this Appeal No. CA/J/88/2003 as incompetent.?
Chief L. D. Nzadon, learned senior counsel, appearing with Saad Abubakar Esq., and Hussani G. Maidawa Esq., for the Appellant.
A. J. Akanmode Esq., learned senior counsel, appearing with Yakubu Ahmadu Esq., for 2nd and 3rd Respondents.