Friday, June 9, 2017

Suit Number: SC.331/2016

JUDGMENT
(Delivered by KUMAI BAYANG AKAAHS JSC)

This is an interlocutory appeal brought by the appellant (who was the 1st respondent in the Court of Appeal, Makurdi) against the Order of that court granting an application to hear appeal No. CA/MK/16/2016 on the appellant's brief only, the respondents having failed to file their briefs of argument within the specified period stipulated in the Rules of the Court. The motion was moved and granted on 13th April, 2016.

The proceedings of the lower court which necessitated this appeal are contained on page 50 of the records and I reproduce them as follows:-

"IN THE COURT OF APPEAL
MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
ON WEDNESDAY THE 13TH DAY OF APRIL, 2016
BEFORE THEIR LORDSHIPS

HON. JUSTICE OYEBISI F. OMOLEYE           JUSTICE COURT OF APPEAL
HON. JUSTICE OBANDE F. OGBUINYA          JUSTICE, COURT OF APPEAL
HON. JUSTICE CORDELIA I. JUMBO-OFO      JUSTICE, COURT OF APPEAL
 
APPEAL NO: CA/MK/16/2016

BETWEEN

ENGR. G. T. A. NDUUL                        APPELLANT

AND
BARR. BENJAMIN WAYO & ORS                 RESPONDENTS

Appellant present

Kelechi Udeoyibo with him, Kenechukwu and P. D. Adi for Appellant.
Respondents and Counsel absent
REGISTRAR: Respondents served on 23/03/2016

UDEOYIBO: Our motion dated and filed on 11/4/2016 is for the order of Court to hear the appeal on the Appellant/Applicant's Brief of Argument only the Respondent having failed to file their Brief of Argument within the time specified under the Rules of this Court. I move in terms.

COURT: The Appellant/Applicant's application is granted as prayed. The appeal is adjourned to 28/04/2016 for hearing. Hearing Notice to issue on all the Respondents.

SGD
O. F. OMOLEYE JCA
13/04/2016

SGD

I AGREE             O. F. OGBUINYA JCA
                          13/04/2016
                          SGD

I AGREE             C. I. JOMBO-OFO JCA
                          13/04/2016
                          SGD"

The appellant appealed against the ruling in his notice of appeal filed on 21st April, 2016 and sought for an order allowing the appeal and setting aside the ruling. The Notice of Appeal contained three grounds of appeal from which learned counsel representing the appellant distilled two issues for determination as follows:-

1.        Whether or not, it is the service of the requisite court processes on all parties to a matter that clothe the Court with the jurisdiction to entertain a matter and if it is whether the lower court was right when it assumed jurisdiction in entertaining the application of the 1st respondent and granting it when the evidence before the lower court clearly established that, the Appellant was neither served with the brief of argument nor the motion of the 1st respondent before the lower court (see grounds 2 and 3).

2.        Whether or not the Appellant was denied fair hearing, when the Court heard and granted the application of the 1st respondent without ensuring that the Appellant was served, and when the said application itself was not ripe for hearing (see ground 1).

The 1st respondent filed a preliminary objection on the competence of the appeal which was argued in the brief filed on 10/1/2017 but deemed filed on 8/2/2017. He urged this Court to strike out the appeal as incompetent because the Notice of Appeal dated 20th April, 2016 and filed on the 21st April, 2016 as well as the appellant's brief filed on 7th June, 2016 failed to comply with the provisions of Rule 10(1)(2) and (3) of the Rules of Professional Conduct, 2007. He also contended that grounds 1, 2 and 3 of the Notice of Appeal are grounds of mixed law and fact for which no leave of court was obtained and therefore incompetent. Also that ground 2 did not arise from the decision of the Court of Appeal and so the issues distilled from the grounds are incompetent.

On the substantive appeal, learned counsel distilled a single issue for determination namely:-

"Considering that the appellant was served with another copy of 1st Respondent's Brief of Argument in the open court, afforded enough time and enjoined by the Justices of the Court of Appeal to file his Respondent's Brief after denying earlier service of 1st Respondents/Appellant's Brief of Argument at lower court, whether the appellant could still complain of denial of fair hearing and (or pursue the present interlocutory appeal (Distilled from grounds 1 and 2)".

The 2nd respondent adopted the issues formulated in the appellant's brief. The 3rd respondent did not formulate any issue for determination but he predicated his argument in the appeal on equity which looks at the substance and not the form.

Learned counsel invited this Court to pages 51-54 of the Record of Appeal pointing out that there is no stamp and seal of the Legal Practitioner who signed the Notice of Appeal which is the originating process as well as the Appellant's brief. He submitted that in Yaki v. Bagudu (2015) 18 NWLR (Pt. 1491) 288 the Supreme Court held that a legal document purportedly executed by a legal practitioner which does not carry the stamp and seal of that legal practitioner is voidable and where not remedied becomes an incompetent document. He reproduced Rule 10(1), 2 and 3 of the Rules of Professional Conduct, 2007 and submitted that the consequences of failure to comply with the mandatory provision of these Rules renders the document an incompetent one. He argued that parties by their action or inaction or acquiescence cannot confer validity on a defective process; neither can they by consent confer jurisdiction or right on the Court citing the following cases in support:- FRN v. Uwagbe (2009) 15 NWLR (Pt. 1163) 91; Okolo v. UBA (2004) 1 SCNJ 113 and Odua Investment Co. Ltd v. Talabi (1997) 7 SCNJ 600.

Regarding the grounds of appeal, learned counsel contended that a community reading of the three grounds of appeal together with their particulars will show that they are grounds dealing with mixed law and fact since the appellant introduced issues of facts both in the grounds and particulars accompanying them and by the combined effect of section 233 (l)(2)(a) and (3) of the 1999 Constitution (as amended) the Supreme Court hears appeals as of right from the Court of Appeal where the grounds of appeal involve questions of law alone and with leave either of the Court of Appeal or Supreme Court where the grounds of appeal deal with mixed law and facts. Any ground of appeal requiring leave but filed without such leave is incompetent and does not confer jurisdiction on the Supreme Court to embark upon adjudication. The following cases were relied upon by learned counsel:- KTP Ltd v. G & H (Nig.) Ltd (2005) 13 NWLR (Pt. 943) 680; Ojomen v. Momodu (1983) 1 SCNLR 188 at 205; Maigoro v. Garba (1999) 10 NWLR 10 (Pt. 624) 555 at 568; Akwiwu Motors Ltd v. Sangonuga (1984) 5 SC 184 at 188. On ground 2 he said it did not arise from the decision of the Court of Appeal. As regards the issues formulated from grounds 1, 2, and 3 of the Notice of Appeal, they are incompetent placing reliance on Jev v. Iortom (2014) 14 NWLR (Pt. 1428) 575 at 608-609 where it was held that if an incompetent ground is lumped with a valid ground, it will contaminate the whole issue and render it incompetent since the court cannot excise the argument in respect of the competent grounds from those of the competent grounds in the issue.

In his reply brief the appellant tried to distinguish the case of Yaki v. Bagudu supra from this case as he cannot be said to be a lawyer acting in his capacity as a legal practitioner so as to be caught by the provisions of Rule 10(1)(2) and (3) of the Rules of Professional Conduct 2007 regarding the filing of a legal document which requires affixing the Nigerian Bar Association stamp or seal.

On the competence of the notice of appeal and the issues formulated, learned counsel for the appellant submitted they are competent because they are based on admitted and ascertained facts. He argued that lack of service of requisite court process on parties to an action is a jurisdictional issue that touches on the jurisdiction of the court to proceed with the matter which can be raised at any time without leave. Learned counsel canvassed the same arguments in respect of the first issue he submitted for determination.

On the second, issue, learned counsel anchored his argument on section 36(1) of the Constitution and submitted that the appellant was not given fair hearing since the rules regarding audi alteram partem and nemo judex in causa sua must be observed to make an impartial observer to conclude that the trial has been balanced and fair to both sides to the trial or appeal. He submitted that the decision of the lower court on 13/4/2016 granting the application of the 1st respondent to hear the appeal on the appellant's brief when the appellant was not served and/or put on notice breached section 36(1) of the 1999 Constitution.

Learned counsel submitted that without any evidence on record that the appellant was served with another copy of 1st Respondent's (Appellant's) brief in the open court the appellant cannot be precluded from complaining about the denial of fair hearing.
 
The 2nd respondent who had also appealed in SC.332/2016 submitted that the Court of Appeal did not have jurisdiction to grant the orders sought on the application dated 11/4/2016 and granted on 13/4/2016 and that the 2nd respondent was denied fair hearing of the application.

Learned counsel for 3rd respondent argued that it is the substance and not the form that should be looked at in the appeal and since time is of the essence the appellant instead of appealing should have brought an application asking for extension of time within which to file his brief of argument.

The sister appeal No. SC. 332/2016 dealt with the same issues which have been raised in this appeal and in his judgement delivered on 19/5/2017 Galinje JSC came to the following conclusions:-
 
1.     The three grounds of appeal are raising jurisdictional issues and therefore competent.

2.     The registrar misled the lower court, when he told the court that the respondents were served with the motion whereas it was impossible to have served a process on 23/3/2016 which was filed on 11/4/2016.

3.     The appellant could have if he so wished apply to set aside the order made on 13/4/2016 to hear the appeal based on the appellant's brief alone since it was made without jurisdiction.

4.     Since the appellant chose to appeal the appeal must be allowed and the order set aside.

These findings would have applied mutatis mutandis to this appeal but for the preliminary objection.
 
On the issue concerning the competency of the notice in not affixing the Nigerian Bar Association seal or stamp by the appellant, I am afraid I cannot see the dichotomy between the appellant filing the process in his capacity as a legal practitioner and filing the same process and describing himself as Barr. Benjamin Wayo. Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007 which became effective from 1st April, 2015 provide as follows:-

"10(1)    A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department of Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.

(2)    For the purpose of this rule "legal documents" shall include pleadings, affidavits depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.

(3)    If without, requirements of this rule a lawyer signs or files any documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed".

In his judgement in Yaki v. Bagudu supra Onnoghen JSC (as he then was) explained the import of Rule 10(3) at pages 319-320thus:-

"What sub-rule (3) supra is saying is that such non-compliance renders the document so signed or filed voidable that is why it is said that the document is deemed not to have been properly signed or filed". In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal....... It should be noted that the qualification to practice law as a legal practitioner is as provided under the Legal Practitioners Act which includes being called to Bar and enrolled at the Supreme Court of Nigeria as a legal practitioner. It is that qualification that entitles a legal practitioner to sign/frank any legal document either for filing in Court of Law in a proceeding or otherwise".

The appellant in this appeal did not apply to regularise the documents objected to; consequently the Notice of Appeal and appellant's brief have not been properly filed. The preliminary objection therefore succeeds and this appeal is struck out.

AMINA ADAMU AUGIE, JSC:

I had a preview of the lead Judgment delivered by my learned brother - Akaahs, JSC, and I agree with him that the objection raised by the first Respondent must be upheld. He explained the rationale for this decision, which I agree with completely.

The Appellant cannot argue that because he is a Member of the Federal House of Representatives, and has ceased to act in his capacity as a legal practitioner, the authority of Yaki V. Bagudu (2015) 18 NWLR (Pt. 1491) 288, does not apply here. His argument totally lacks merit, and I also strike out his appeal.

Chima Centus Nweze, JSC:
 
My Lord, Akaahs, JSC, obliged me with the draft of the leading judgement just delivered now. I abide with the consequential orders therein.

MARY UKAEGO PETER-ODILI, JSC:

I am in total agreement with the judgment just delivered by my learned brother, Kumai Bayang Akaahs and in support of the reasonings, I shall make some comments.

This is an interlocutory appeal against the ruling of the Court of Appeal sitting in Makurdi, Benue State delivered on the 4th July, 2016 wherein the Lower Court granted the 1st  respondent's application dated 11th April to be heard on 1st respondent's brief of argument.

Dissatisfied with the said ruling, the appellant challenged the ruling vide a Notice of Appeal consisting of three grounds of appeal.

The detailed facts of this appeal are well set out in the lead judgment and so there is no need repeating them save for when the occasion demands a reference to any part thereof.

On the 15th day of March, 2017 date of hearing, learned counsel for the appellant, G. T. Yongo Esq. adopted his brief of argument, settled by the appellant himself, filed on the 7th June 2016 and deemed properly filed and served on 8/2/17. He filed a reply brief on 7/3/2017. He raised two issues for determination which are as follows:-

1.       Whether or not, it is the service of the requisite court process on all parties to a matter that clothe the court with the jurisdiction to entertain a matter, and if it is whether the lower court was right when it assumed jurisdiction in entertaining the application of the 1st respondent and granting it when the evidence before the lower court clearly established that, the appellant was neither served with the brief of argument nor the motion of the 1st respondent before the lower court? (See Grounds 2 & 3).

2.     Whether or not the appellant was denied fair hearing, when the court heard and granted the application of the 1st respondent without ensuring that, the appellant was served, and when the said application itself was not ripe for hearing. (See Ground 1).
 

Alex Ejesieme Esq. of counsel for the 1st respondent adopted his brief of argument filed on 10/1/2017 and deemed filed on 8/2/17. He had filed a Notice of Preliminary Objection on the 10/1/2017 which he argued in his brief of argument. He however raised a single issue in the event that the Preliminary Objection was not upheld by the court which sole issue is thus:-

Considering the fact that the appellant was served with another copy of 1st respondent's/appellant's brief of argument in the open court, afforded enough time and enjoined by the Justices of the Court of Appeal to file his respondent's brief after denying earlier service of 1st respondent's/appellant's brief of argument at the lower court, whether the appellant could still complain of denial of fair hearing and/or pursue the present interlocutory appealed. (Distilled from Grounds 1 and 2).
 
Learned counsel for the 2nd respondent adopted its brief of argument filed on 4/1/17 and deemed filed on 8/2/17. He adopted the issues as crafted by the appellant.

Musibau Adeunbi Esq. of counsel for the 3rd respondent adopted its brief of argument filed on 20/12/16 and deemed filed on 8/2/17. He identified a sole issue for the determination of the appeal which is as follows:-

In the entire circumstances of this appeal, can it be lawfully and equitably contended that the honourable court below at all time material to this appeal did deprive the appellants herein the opportunity to be heard in Appeal No. CA/MK/16/2016 pending before her, such that it can be said that the ruling in issue did occasion a miscarriage of justice to the appellant herein.

It behoves the court to deal with the preliminary objection raised by the 1st respondent before anything else.
 
NOTICE OF PRELIMINARY OBJECTION:

TAKE NOTICE that the 1st respondent shall contend as a preliminary objection that this appeal is incompetent and ought to be struck out on the following grounds:-

1.     The Notice of Appeal being the originating process as well as the appellant Brief of Argument do not comply with Rule 10 (1) (2) and (3) of the Rules of professional Conduct, 2007 as well as the Legal Practitioners Act, 2004, Laws of the Federation of Nigeria.

2.     Grounds 1, 2, & 3 of the Notice and Grounds of Appeal are grounds of mixed law and fact, for which leave is required.

3.     Ground 2 of the Notice of Appeal and grounds of appeal did not arise from the decision of the Court of Appeal.

4.     Issues one and two distilled from the incompetent grounds are also incompetent and this Honourable Court lacks jurisdiction to entertain them.

Learned counsel for the 1st respondent/Objector contended that the appeal is incompetent and ought to be struck out for the reason that the Notice of Appeal as well as the appellant's brief of argument filed on 7th June, 2016 failed to comply with the mandatory provisions of Rule 10 (1) (2) and (3) of the Rules of Professional Conduct, 2007.

Also that grounds 1, 2, and 3 of the Notice of Appeal filed on 21st April, 2016 are grounds of mixed law and fact for which no leave of court was obtained and therefore competent as well as the two issues distilled therefrom.

He stated further that Ground two of the Notice and Ground of Appeal did not arise from the decision of the Court of Appeal. He also called attention to the fact there is no stamp and seal of the Legal Practitioner who signed the Notice of Appeal and appellant's brief of argument. He cited Yaki v Bayudu (2015) 18 NWLR (Pt.1491) 288.
 
Learned counsel for the Objector further submitted that where a process as the one in issue is defective or cannot be legally acted upon by a court, the parties by their action, inaction or acquiescence cannot confer validity "on same. He referred to FRN v Uwagba (2009) 15 NWLR (Pt. 11630 91; Okolo v UBA (2004) 1 SCNJ 113; Odia Investment Co. Ltd v Talabi (1997) 7 SCNJ 600.

That grounds 1, 2 and 3 of the Notice of Appeal and the two issues distilled therefrom are issues of mixed law and fact for which no leave was obtained either from the court below or the Supreme Court and so the notice of appeal lacks competence and the jurisdiction of the court ousted. He cited KPT Ltd v G & H Nig Ltd (2005) 13 NWLR (Pt.943) 680; Ojemeic v Momodu (1983) 1 SCNLR 188 at 205; Maigoro v Garba (1999) 10 NWLR (Pt.624) 555 at 568; Akwiwu Motors Ltd v Sangonuga (1984) 5 SC 184 at 188 etc.

Alex Ejesieme of counsel contended that Ground 2 of the Grounds of Appeal did not arise from the decision of the court below and so the appellant cannot be heard on it. He relied on Odom v PDP (2015) 6 NWLR (Pt.1456) 527 at 551. Yet Pet Ind. Ltd v Cocoa Ind. Ltd (2008) 13 NWLR (Pt.ll05) 486; Qgbe v Asadu (2009) 18 NWLR (Pt.1172) 106' Orwrio v Osain (2012) 16 NWLR (Pt.1329) 560; Adeogwu v Fasogbo (2011) 8 NWLR (Pt.1250) 427 etc.

Learned counsel for the appellant submitted that the matter of no service of requisite court process on parties is a jurisdictional issue and so can be raised at anytime and anyhow, without leave of court. He cited Eluqbe v Omokaje (2004) 18 NWLR (Pt.905) 319 at 334.

He stated on that the provisions of Order 2 Rule 6 is inapplicable to the present Appeal. That once an appeal is entered before the Supreme Court, the Court of Appeal ceases to have jurisdiction over the matter appealed against. He referred to Ogunremi v Dada (1962) 1 All NLR 663; Ezoma v A. G. Bendel State (1986) NWLR (Pt.36) 448; VAB Petroleum Inc v Momoh (2013) LPELR - 1977 SC.
 
The salient part of this Preliminary Objection of the 1 respondent is that on the side of the Objector, the appeal is incompetent and ought to be struck out because the Notice of Appeal filed on the 21st of April, 2016 as well as the appellant's brief of argument filed on 7th June, 2016 were not in compliance with the mandatory provisions of Rule 10 (1) (2) and (3) of the Rules of Professional Conduct, 2007. This being so as there is no stamp and seal of the Legal Practitioner who signed the Notice of Appeal, which is the originating process and the same defect on the appellant's brief of argument.

The appellant counters that stand on the ground that the appellant cannot be said to be a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department of Ministry or any corporation. That the appellant, though a lawyer is a legislator, a member of the Federal House of Representatives of the Federal Republic of Nigeria and so ceased to act in his capacity as a legal practitioner and so the processes filed by the appellant cannot be said to be defective and caught by Rule 10 (1), (2) and (3) of the Rules of Professional Conduct, 2007. I shall quote the said Rule for guidance and it is thus:-

Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007 provides thus:-

"A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department of ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigeria Bar Association.

2.    For the purpose of this rule "legal documents" shall include pleadings, affidavits, deposition, applications, instrument, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.

3.    If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub-rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed".

The appellant's argument would have been debatable if the appellant, had not signed the document, the Notice, of Appeal in this way, "Barr. B. I. Wayo". In doing so he put himself out as a lawyer acting in that capacity and therefore came within what this court had contextually interpreted the Rule 10 (3) of the said Code of conduct rules to mean a legal practitioner acting as such with the need for his stamp and seal to make the process and in this case the Notice of Appeal as properly filed. I am in effect referring to the case of Yaki v Bagudu (2015) 18 NWLR (Pt.1491) 288.

In that case Onnoghen JSC (as he then was) stated at page 319 as follows:-

"What sub-rule (3) supra is saying is that such non-compliance renders the document so signed or filed voidable that is why it is said the document is "deemed not to have been properly signed or filed". In other words the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. That is what my Lord, Ngwuta, JSC meant by saying that the situation is like filing a document out of time which can be subsequently remedied".

I had with humility in support of the position stated at page 343 thus:-

"A Notice of Appeal is the originating process at an appellate court and the notice of appeal is clearly within the ambit of legal documents described in Rule 10 (2) as any similar documents" which must be signed, stamped and sealed. Therefore, a notice of appeal not found with these components is an incompetent notice of appeal depriving the court of jurisdiction to determine the appeal on merit. This is within what was provided under the Legal Practitioner Act, 2004 (as amended) and Rules of Professional Conduct, Rule 10

Therefore the appellant not having done the needful by regularising the defective Notice of Appeal and the appellant's brief, the defect remained and since the processes were voidable and in view of the objection of the 1st respondent they remained defective and produced the incompetence of the appeal as being espoused by the 1st respondent. It follows that there is no way of wriggling out of the authority of Yaki v Bagudu (2015) 18 NWLR (Pt.1491) 288 in which the Supreme Court had laid down what is to be in the event of a document filed by a legal practitioner without the legal seal and stamp of that practitioner.

The situation on ground clearly showing an appeal without a properly filed Notice of Appeal is incompetent and suffers the fate of having it struck out.

From the foregoing and the better articulated lead judgment of my learned brother, Akaahs JSC I too see the merit in this Preliminary Objection which I uphold as I strike out the appeal.

I abide by the consequential orders made.
 

Counsel appearing:

G. T. Yongo Esq. for Appellant.

Alex Ejesieme Esq. for 1st Respondent.

Olayode Delano SAN (with him Ahmed Oyegbami Esq. and Alex Ozougwu Esq.) for 2nd Respondent.

Musibau Adetunbi Esq. (with him D. A. Suleiman Esq., Barbara Onwubiko Esq. and Chinelo Madueke Esq.) for 3rd Respondent.