(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
This is an Appeal against the Judgment of the Taraba State High Court of Justice sitting in Jalingo, in suit number TRSJ/60/2013, delivered on the 31st July, 2015.
The Appellant herein (as Plaintiff before the trial Court) took out a Writ of Summons jointly with one Shavo S. Mago, against the Respondent claiming as follows as per their joint Statement of Claim dated and filed on 16th May, 2014:
1. A DECLARATION that the Plaintiffs are the rightful owners and holders of all the titles and interest over the land lying and situate at Danpudi in Lau bounding to the North and west with Koppo Mountain and to the South with the main road to Zing and to the east with Jarang Stream and a large portion of the family land of the Plaintiffs and the larger portion of the Plaintiffs family land of the Plaintiffs and the larger portion of the Plaintiffs family.
2. AN ORDER of perpetual injunction restraining the defendant, his privies, heirs, agents/or whosoever claiming through him from trespassing in to the land or doing anything prejudicial to the interest of the Plaintiffs on the said land.
3. AN ORDER of this Honourable Court compiling the defendant to hand possession of the said land.
4. The cost of litigation.
The Respondent did not file any defence to the claim of the Appellant. The case of the Appellant, being declaratory in nature, he adduced evidence through two witnesses and closed his case. The Appellants Counsel later addressed the Court, and on 31st day of July, 2015, the trial Court in its Judgment, dismissed the Appellants claim. It is against this Judgment that the Appellant has now appealed on seven grounds vide his Notice of Appeal dated 22nd September, 2015 and filed on the 23rd September, 2015.
A succinct statement of the facts leading to the Appeal is that, a dispute arose between the Appellant and the Respondent over a parcel of land lying and situate at Gada Village in Lau Local Government Area of Taraba State. The Appellant contended that he inherited the disputed land from his mother who also acquired same via a gift from her brother, Selleng who, in turn had deforested and founded the land before his demise. Selleng died without a child and so the gift to his sister, the Appellants mother. The Appellant and his younger brother, Shavo S. Mago, also now deceased, filed the suit against the Respondent before the trial Court. After the demise of the 2nd Plaintiff, the Appellant continued with the case to conclusion.
The Writ of Summons was filed on 26th June 2013 and same was served on the Respondent. The Respondent did not put up a defense against the claim despite several adjournments granted at his instance to enable him file a Statement of Defence and to join issues with the Appellant. The Appellant thereafter adduced evidence in proof of his claim through two witnesses who were duly cross-examined by the Respondent. At the end of the trial, the Appellants Counsel filed and adopted his Written Address, after which the trial Court entered Judgment dismissing the case of the Appellant.
When the Appeal was called up for hearing on 19th May, 2016, L.J. Ezekiel, (Mrs.), learned Counsel for the Respondent, with the leave of Court, argued the Respondents Notice of preliminary objection to the hearing of the Appeal filed on 29-02-16. She adopted the arguments on the objections at pages 3-5 of the Respondents Brief of argument also filed on 29-02-16 in urging the Court to strike out the Notice of Appeal on the ground of incompetence.
Martin Milkman Esq. appearing with P.E. Owachu Esq., in response to the submissions on the preliminary objection, adopted his arguments at pages 1-7 of the Appellants Reply Brief of argument filed on 18-04-16 in answer thereto, and urged the Court to dismiss the objection for lacking in merit. In respect of the main Appeal, Mr. Milkman adopted and relied on his submissions as contained in the Appellants Brief of argument filed on 23-12-15 and pages 7-14 of the Appellants Reply Brief filed on 18-04-16, in urging the Court to allow the Appeal, set aside the Judgment of the lower Court and enter Judgment for the Appellant in terms of the reliefs claimed before that Court.
In response, Mrs. Ezekiel, learned Counsel for the Respondent, adopted her submissions in the Respondents Brief of argument in urging the Court to dismiss the Appeal.
Before going into the merits or otherwise of the Appeal, it is expedient to address the issues raised in the Notice of preliminary objection since they determination may have a bearing on the jurisdiction of the Court to entertain the Appeal.
RULING ON PRELIMINARY OBJECTION
The Notice of Preliminary objection filed by the Respondent on 29-02-2016 seeks an order of Court striking out or dismissing the Notice of Appeal in this Appeal on the following grounds:
1. The Notice of Appeal filed by the Appellant on the 23rd day of September 2015 in this Appeal No. CA/YL/124/15 is incompetent and liable to be struck out.
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.
In his Brief of argument, the Respondent submits that the Notice of Appeal filed by the Appellant in this Appeal is incompetent for violating the mandatory provisions of Order 6 Rule 2(1) Court of Appeal Rules, 2011. He contends that the Notice of Appeal filed on 23rd September, 2015 failed to comply with this mandatory provision of the rules of this Court. He argues that the word shall when used in a statute denotes a mandatory act and admits of no discretion. He relies on National Assembly V CCI Co. Limited (2008) 5 NWLR (Pt. 1081) 519 at 540, paras G-D. Counsel submits that when the law prescribes the mode in which a thing is to be done, it is only that method that must be followed, and any act to the contrary is a nullity. He relies on Orakul Resources Limited V NCC (2007) 16 NWLR (Pt. 1060) 270 at 302, paras D-G, 303 paras C-G.
Secondly, Counsel submits that the Notice of Appeal filed by the Appellant does not relate to any suit filed at the Registry of the High Court of Justice of Taraba State. The Writ of Summons and Statement of Claim filed at the Registry of the trial High Court are at pages 1-7 of the printed Record. The registered suit number as contained on the Writ and Statement of claim is: No. TRSJ/60/2013. The Notice of Appeal (at on pages 142-149 of the Record) however relates to suit no. TRSJ/160/2013. He submits that the Notice of Appeal, having no bearing with any suit filed at the trial High Court, is incompetent and liable to be strike out and he invites the Court to so do.
In response to the submissions in respect of the objection, learned Counsel for the Appellant submits that the import of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011, is that the names of all the parties affected by the Appeal must be indicated on the Notice of Appeal. The Rules do not mandatorily require that such information must be contained in a particular style on the Notice of Appeal. He relies on Amininaowuka V Derego (2011) LPELR-9099(CA) 1 at 10, paras A-G.
Counsel argues that the germane question to be asked is: has the Notice of Appeal in this Appeal complied with the provision of Order 6 rule 2(1) of the Rules of Court? In other words, who are the parties affected by this Appeal? Are their names and addresses contained in the Notice of Appeal? A perusal of the Judgment of the trial Court appealed against contained at page 120 of the Record of Proceedings reveals that the parties at the lower Court were:
MOHAMMED NYAVO PLAINTIFF
And BENJAMIN ZADING DEFENDANT
The parties as reflected on the Notice of Appeal (at page 142 of the Record of Appeal) are:
MOHAMMED NYAVO APPELLANT
BENJAMIN ZADING RESPONDENT
Pages 148 and 149 of the Record contain the addresses of the parties affected by this Appeal. Counsel therefore submits that the failure of the Appellants Counsel to write out the names of the parties affected by the Appeal and their addresses in a distinct sub-head or a particular manner cannot invalidate a valid Notice of Appeal or render same incompetent to rob this Court of jurisdiction to hear and determine the Appeal on the merit.
Assuming without conceding that failure to mention the names and addresses of the affected parties under a distinct sub-heading amounts to non-compliance with Order 6 Rule 2(1) of the Rules, Counsel submits that it is a mere irregularity. He relies on Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A.
In response to the second arm of the preliminary objection that the Notice of Appeal filed by the Appellant does not relate to any suit, Counsel submits that the said Suit No. TRSJ/160/13 instead of Suit No. TRSJ/60/13 reflected on the Notice of Appeal was a mistake occasioned by the Registry of the lower Court. A perusal of the Judgment appealed against contained at page 120 of the Record of Proceedings, which was made available to the Appellants Counsel has Suit No. TRSJ/160/13. He argues that the mistake of the Registry cannot be visited on a litigant. Courts are not in the habit of punishing or penalizing a party because of the error committed by the Counsel the Judge or even court officials. He relies on Fidelity Bank Plc V Monye (2012) ALL FWLR (Pt. 631) 1412 at 1417-1418. More so that this Appeal is against the Judgment of the lower Court and the Notice of Appeal is attacking the said Judgment. It cannot therefore be right to submit that the Notice of Appeal which relates to the Judgment of lower Court is incompetent simply because Counsel inadvertently followed the mistake manifestly contained on the
Judgment with respect to the suit number. Counsel submits further that, having regard to the provision of Order 6 of the Court of Appeal Rules, 2011 which stipulates the mandatory requirements of a valid Notice of appeal, the insertion of the Suit number on the Notice of Appeal is not a mandatory requirement of a valid Notice of Appeal.
On the whole, Counsel submits that this objection is an attempt to take this Court back to the days of technical justice. More so that Counsel for the Respondent did not show how the Respondent was misled or how the wrong suit number and failure to mention the names and addresses of the parties affected by this Appeal in a separate sub-head will occasion a miscarriage of justice. He urged the Court to dismiss the preliminary objection for lacking in merit.
It is without question that the initiating process for an Appeal before an appellate court is the Notice of Appeal. The Notice of Appeal is the foundation and substratum of every Appeal. Any defect thereto will render the whole appeal incompetent and the appellate court will lack the jurisdiction to entertain it. Thus, once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider. It is the root of the appeal and robs the court of the jurisdiction to hear the appeal. See: FBN Plc V Maiwada (2012) LPELR-9713(SC); Uwazurike V AG Federation (2007) 8 NWLR (Pt. 1035) 11; AG Federation V Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187. That is exactly why, in FBN Plc V TSA Industries Ltd (2010) LPELR-1283(SC) 1 at 49, Adekeye, JSC, stated as follows:
A notice of appeal in the process of appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed in the lower court is a question which touches on the jurisdiction of the appellate court. If no proper notice has been filed, then there is no appeal for the court to entertain. See Anadi V Okoti (1972) 7 SC 57; CBN V Okojie (2004) 10 NWLR (Pt. 882) 488; Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622.
This Court has also spoken out very strongly on the issue of defective Notices of Appeal and the consequence of such. Thus, to validly invoke the jurisdiction of the Court, the Appellant must show that the appeal arose from the suit before the trial Court. The only way to do this is to state the particulars of the decision appealed against, etc. This would be consistent with the Civil Form 3 in the First Schedule to the Court of Appeal Rules, 2007.
The Respondents first ground of objection in the Notice of preliminary objection reads as follows:
1. The Notice of Appeal filed by the Appellant on the 23rd day of September, 2015 in this Appeal No. CAYL/124/15 is incompetent and liable to be struck out.
It is hinged on Order 6 Rule 2 of the Court of Appeal Rules, 2011. The Respondents contention is that the failure to reflect the names and addresses of the parties to the appeal in the Notice of Appeal renders it incompetent. I will quickly say that this ground of objection is baseless because the failure to state the names and addresses of all the parties directly affected by the Appeal in the Notice of Appeal has been serially held to be a mere irregularity which cannot affect the hearing of an appeal on the merit. See: Dyeris V Mobil Oil Nig. Plc (2009) LPELR-8914(CA) 1 at 11; Deen Mark Construction Co. Ltd V Abiola (2002) 3 NWLR (Pt. 754) 418; & Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618, to mention a few.
The provisions of the Court of Appeal Rules, 2011 dealing with the Notice and Grounds of Civil Appeals are contained on Part 2 of the said Rules. Order 6 Rule 2(1) under the Part 2 provides thus:
All appeals shall be by way of re-hearing and shall be brought by notice (hereinafter called the 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 only 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. (Emphasis supplied)
It would appear indisputable from the underlined portion of the provision of the above rule that a Notice of Appeal is expected to contain the names and addresses of the parties directly affected by the Appeal; as well as the addresses for service of the said parties. The submissions of the Appellant in relation to the Notice of Appeal have been extensively reviewed, and it is evident that he expressly admits that there has been non-compliance with this rule in that no such names and addresses have been supplied on the Notice of Appeal as required. The question therefore is: whether the Notice of Appeal amounts to a nullity for this reason, as argued by the Respondent, particularly in view of the word shall used in relation to the endorsement of names and addresses for service?
The law, no doubt, is that rules of court should be obeyed. However this Court has consistently held to the effect that, as a general rule, non-compliance with the rules of court (including its own Rules) is primarily an irregularity. See Enakhimion V Edo Transport Services (2006) ALL FWLR (Pt. 334) 1882 at 1904-1905, where this Court held to the effect that non-compliance with the rules of court does not prima facie invalidate the proceedings, unless no reasons are adduced upon which the Court can overlook or waive such non-compliance. In Uko V Ekpengyong (2006) ALL FWLR (Pt. 324) 1927 at 1946, again this Court held to the effect that non-compliance with the Rules of court would not be a ground for nullifying a proceeding unless such non-compliance amounts to a denial of justice.
Rules of court, it must always be borne in mind, are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, courts have been consistently admonished not to be slavish to their rules and therefore not to read the rules in the absolute, without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See also Odu V Fawehinmi (Rtd) (2006) ALL FWLR (Pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out clearly the effect of non-compliance with the Rules of Court in any given situation, stated the difference between a defect in the competence of an action and a defect in procedure to be that: a defect in competence of an action spells absence of jurisdiction, while a defect in procedure shows a defect in the process of adjudication and not fatal to jurisdiction.
It is without a doubt that a Notice of Appeal can properly be said to be the originating process upon which an appeal is founded. This is because it is the process by which a party aggrieved by the decision of a court signifies his dissatisfaction. See Adelekan V Ekuline NJ (2000) ALL FWLR (Pt. 321) 1213 at 1222. The provision of Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 relating to the endorsement on the Notice of Appeal of the parties directly affected by the appeal and the addresses for service on the parties, in my respectful view, is simply to ensure service of the said Notice of Appeal on the parties in the Appeal. An Appellant is equally enjoined by the provision of the Rule under consideration to provide not only the names and addresses of all parties directly affected by the Appeal, but to also file sufficient copies of the Notice of Appeal for service on such parties. Courts, it is to be appreciated, are expected to interpret the provision of legislation (be it statute or subsidiary, which Rules of court are), sensibly, and not make nonsense out of them. Against this backdrop, It is my respectful view that the requirement for the endorsement of names and addresses of parties affected by the Appeal on the Notice of Appeal, while important, is simply to enable the appropriate officer charged with the duty of serving the process know at a glance who the parties are and where service is to be effected, thereby eliminating the need for him to wade through the whole of the Notice of Appeal to determine this. The use of the word shall in relation to these endorsements therefore do not connote mandatoriness as argued by the Respondents. It is directory only, and the non-endorsement of the names and addresses of the parties for service of the court processes on the Notice of Appeal therefore, while important, cannot without more, render an otherwise valid Notice of Appeal, invalid. See Bob V Akpan (2009) LPELR-8519(CA) 1 at 47-51. This must be the reason for the finding of this Court by Tobi, JCA (as he then was, of blessed memory), as far back as the year 2000 in Agu V NICON (2000) 11 NWLR (Pt. 677) 187 at 194, where he held:
I hold that the failure on the part of the applicant to state in the Notice of Appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal.
Yet again, in Deen Mark Construction Company Ltd V Abiola (2001) LPELR 6997(CA) I at 30-31, paras A-A, Okunola JCA, held thus:
The fact that the word shall as used in the said Order 3 Rule 2(1) of the Court of Appeal Rules has been interpreted in other legislations to mean mandatory notwithstanding the case of Amata V Omofuma (1997) 2 NWLR (Pt. 485) 93; Ajayi V. Military Administrator, Ondo State, (1997) 5 NWLR (Pt. 504) 237; Okpala V DGNC for M.M. (1996) 4 NWLR (Pt. 444) 585 etc, this Court had in two different cases made a return. Thus, in Oruobu V Anekwe (1997) 5 NWLR (Pt. 506) 618 the Court, per Onalaja, JCA, relied on the decision in the case of Surakatu V Nigerian Hosing Dev. Society Ltd. (1984) 4 SC 26 and Odi V Osafile (1987) 2 NWLR (Pt. 57) 510 to hold that the mistake is an irregularity which should not affect the hearing of the appeal on the merit. See also the case of Agu V Nicon Ins. Plc (2000) 11 NWLR (Pt. 677) 187 at 194 per Tobi, JCA, where faced with a notice of appeal that failed to comply with the said Order Rule 2(1) held inter alia thus:
I hold that the failure on the part of the applicant to state in the notice of appeal the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merit of the appeal. From the foregoing authorities, it is evidence that the argument of the learned SAN against an issue that has been pronounced upon as a mere irregularity cannot affect the hearing of this appeal on merit and I so hold. (Emphasis supplied)
In the instant Appeal, the names of the parties are clearly spelt out on the face of the Notice, while the addresses for service of the process have been stated at the end of the process. The objection of the Respondent that the Notice of Appeal filed by the Appellant is a nullity for failure to separately endorse the names and addresses of the parties, in my respectful view, rings hollow against the backdrop that the names are ad idem with those already stated in the Notice, and the addresses for service are also set out at the end of the Notice of Appeal. The hollowness of the objection becomes even more pronounced when it is viewed against the purpose which the provision is to serve vis-à-vis the lack of any complaint that the Notice of Appeal was not served. Thus, I am of the view that the failure by the Appellant to insert an endorsement separately bearing details of the names and addresses of the parties to the Appeal in the Notice of Appeal, is an irregularity that ordinarily, cannot and will not affect the hearing of the Appeal on the merit, and I so hold. The Respondents first ground of objection is therefore overruled.
The second ground of objection in the Notice of preliminary objection is:
2. The Notice of Appeal filed by the Appellant do not relate to any suit filed at the trial High Court.
The Notice of Appeal dated 22nd September, 2015 and filed on 23rd September, 2015, (at un-numbered pages at the back of the printed Record of Appeal) in its first paragraph reads thus:
TAKE NOTICE that the Appellant, Mohammed Nyavo, who was the Plaintiff in Suit No: TRSJ/160/13, being dissatisfied with the decision of the Taraba State High Court sitting in Jalingo, contained in the Judgment dated the 31st day of July, 2015, Coram: Hon. Justice Silas Haruna, do hereby appeal to the Court of Appeal on the grounds and particulars set out in paragraph 3, and is seeking the reliefs set out in paragraph 4. (Emphasis supplied)
From the Writ of summons and Statement of Claim filed by the Appellant himself (as Plaintiff before the trial Court), at pages 1-7 of the Record of Appeal, the suit was registered at the Registry of the High Court of Justice, Taraba State as suit number TRSJ/60/13. This suit number is reflected on all processes filed in respect of the case at the lower Court, and is also reflected on the Record of proceedings transferred to this Court, (which constitutes the Record of Appeal), on 26th November, 2015. Just a cursory comparison of the Record of Appeal with the Notice of Appeal, reveals the obvious incongruity between the two. Clearly, there is nothing in the Notice of Appeal which would serve to invoke the jurisdiction of this Court to entertain the Appeal based on this Notice. The suit referred to in the Notice of Appeal has absolutely no nexus with the Record of Appeal before the Court.
While noting however, as gleefully pointed out by learned Counsel for the Appellant, that the Judgment of the lower Court (at pages 120-140 of the Record) bears the same suit number as that in the defective Notice of Appeal, i.e. suit number TRSJ/160/13 instead of TRSJ/60/13, it goes without saying that, in addition to the defect on the Notice of Appeal, the Record of proceedings transmitted to this Court, is also both incomplete and incompetent, as it does not contain a valid Judgment in respect of suit number TRSJ/60/2013, from which the Judgment is purported to emanate. Without any correction effected to the Judgment of the lower Court itself by the learned trial Judge either suo motu or by a motion under the hand of one of the parties under the Slip rule, the Judgment itself is also a stranger to the proceedings in respect of the Record of Appeal transmitted to this Court.
There is no doubt that an error or slip in the Judgment of a court can be corrected by that court. Most rules of court make such appropriate provisions to enable the Judges correct their Judgments. Judges are human after all and are subject to also err just like any other person. In Akpan V Umoh (1999) 7 SCNJ 154, the Supreme Court suo motu corrected a slip made by a lower Court in referring to a survey plan of a disputed plan. A Judge can amend his Judgment, whether enrolled or not, where there is a clerical slip or where the order does not express the meaning of the Judgment or the order intended by the Judge. This is what is known as the Slip Rule principle. The correction of such a slip by a party to the suit can only be made via a motion on notice. See: Makanjuola V Baligun (1989) 3 NWLR (Pt. 108) 192; NICON V Pie Co. Ltd (1990) 1 NWLR (Pt. 129) 697; Bakare V Apena (1986) 4 NWLR (Pt. 33) 1. See Nwankudu V Ibeto (2010) LPELR-4391(CA) 1 at 32; Olurotimi V Ige (1993) 8 NWLR (Pt. 311) 257; Koiki V FBN (1994) 8 NWLR (Pt. 35) 665. This is because there should be no ex parte communication between a party and the court.
In this case, the Appellant has actually conceded to the defect in the Notice of Appeal. However curiously, he blames it on the Judgment of the learned trial Judge, which he says misled him, and therefore, in his view, he should not be blamed/sanctioned for it. Much as Counsels passing of the buck, in the way he has sought to do instead, of man-ning up to it, leaves a sour taste in the mouth, the problem is not so much the slip in the Judgment in stating the correct registered suit number of the case at the Court below. The problem is ignoring or overlooking the slip in the Judgment of the Court and failing to embark on initiating the proper procedure to have the slip corrected before activating the Appeal. Instead of going through that route, Counsel chose to compound the obvious error/slip on the face of the Judgment by filing a Notice of Appeal and deliberately choosing to base it on the wrong suit number, which suit number, as aforesaid, has no bearing to the suit filed by the Plaintiff at the lower Court, as well as the subsequent proceedings thereon. This was his choice, a risk, a gamble and he has lost!
I am of the firm view that the slip in the Judgment (as pointed out by Counsel for the Appellant himself) and, by the same token, in the Notice of Appeal cannot be overlooked. The Judgment can only be corrected by the lower Court itself upon a motion on notice by the affected party. This was not done in this case, and it is only in the highest court in the hierarchy of courts that amendments to orders of a lower court may be made suo motu. Filing an Appeal based on this evident error has not helped the Appellant, but only made a bad case, worse. It is well settled that a court is able to correct a misnomer or mis-description under the Slip Rule. In the present case, the Taraba State High Court is a court of competent jurisdiction with definite powers, either under the Slip rule or under the inherent jurisdiction of the court, to rectify or correct its judgments or orders within the framework of the law concerning the rectification or correction of court judgments or orders. See Osho V Ape (1998) 8 NWLR (Pt. 562) 492; Afolabi V Adekunle (1993) 8 SC 98.
The Notice of Appeal contains the subject matter of that appeal. It is only when a proper Notice of Appeal has been filed that an appeal is said to have commenced. No appeal can stand without a proper Notice of Appeal to sustain it. Where a Notice of Appeal contains an error, or is fundamentally defective or deficient, it becomes incompetent and any appeal founded on an incompetent Notice is invalid. It renders any proceeding founded on it equally invalid, null and void. Thus, an appellate court has inherent power to strike it out for being incompetent as the issue touches on the competence of the Appeal and also the jurisdiction of the Court to entertain it. See Obidoa V Marchie (2010) LPELR-4668(CA) 1 at 16; Chairman, Oyo State LG Trad. Council V Adegboye (2010) LPELR-3903(CA) 1 at 14; LASTMA V Esezoobo (2010) LPELR-4420 (CA) 1 at 4; Cornelius V Ezenwa (1996) LPELR-1632(SC) 1 at 40; (1996) 4 NWLR (Pt. 443) 391; Tukur V Govt. of Gongola State (1988) 1 NWLR (Pt. 68) 339.
I feel the need to join the Supreme Court in deprecating the increasing habit of some Counsel who show very little care in the way and manner processes relating to Appeals in Court are prepared and filed. Some Counsel hardly take sufficient care in drawing up processes relating to Appeals from the decisions of lower Courts. The Notice of Appeal is a very important document because it is the foundation of the Appeal. If it is defective, the Court of Appeal has inherent power to strike it out on the ground that it is incompetent, and in appropriate cases, it will not hesitate to do so. See Anadi V Okoli (1977) LPELR-479-(SC) 1 at 3-4.
I am of the considered view that the defect in this regard on the face of the Notice of Appeal is a fundamental defect that goes to the very root of the entire process. It is not an irregularity that can be cured by any amendment. It has failed to invoke the jurisdiction of the Court by virtue of this feature on the Judgment, in conjunction with the Notice of Appeal. Where the jurisdiction of the Court has not been properly invoked, the Court would have no jurisdiction to entertain an Appeal based on such an incompetent process. See MadukoluV Nkemdilim (1962) NLR LPELR-24023(SC). The error of Counsel in the present circumstances is fundamental and robs the Court of jurisdiction to entertain it. In the result, I sustain the preliminary objection to the hearing of the Appeal on the second ground of objection.
On the whole, having found that the Notice of Appeal is incurably defective on the basis of the Appeal being against a non-existent suit, the objection of the Respondent to the hearing of the Appeal is sustained.
Now the question is, having sustained ground two of the preliminary objection, what is the fate of the Appeal before the Court? I am well aware that as a general rule, an intermediate court, such as this Court, has a duty to pronounce on all issues placed before it. See: Federal Ministry of Health V Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt. 1145) 193; Fasogbon (2011) 8 NWLR (Pt. 1250) 427; Ovunwo V Woko (2011) 17 NWLR (Pt. 1277) 522.
In this respect, this Court is unlike the Supreme Court which, as the apex court of the land, is vested with authority to isolate just one critical issue amid others before it, and determine an appeal based on it. See: Shasi V Smith (2010) 6 WRN 39 at 68; Uzuda V Ebigah (2009) 48 WRN 1.
Nonetheless, there exist some exceptions to this broad rule that applies to the Court of Appeal as an intermediate court. For instance, where the Court decides that it lacks jurisdiction in an appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of its jurisdiction. See: Falade (1995) 5 NWLR (Pt. 396) 385 at 407; Ifeanyi Chukwu (Osondu) Ltd V Soleh Boneh Ltd (2000) 5 NWLR (Pt. 656) 322 at 352. What this means therefore is that, where a preliminary objection challenging the competence of an appeal is upheld, it will be unnecessary to consider the arguments in support of the issues for determination distilled by the parties to the Appeal. See: Onigemeh V Egbochualam (1996) NWLR (Pt. 448) 255; NEPA V Ango (2001) 15 NWLR (Pt. 737) 627; Uwazurike V AG, Federation (supra).
In the circumstance, there is nothing more worth considering in the Appeal. Put tersely, it lacks everything that any court should look for in an attempt to determine the credit of an appeal from a forensic point of view, the premise upon which the Appeal is based having crumbled like a pack of cards. This conclusion, as aforesaid, obviates the need to consider the arguments in the main appeal. This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit. Indeed, that is why this court is under an obligation to resolve the issues agitated in the preliminary objection before taking any further step in the Appeal. Thus, since the preliminary objection to the competence of this Appeal has succeeded in the second ground, the proceedings in the Appeal are aborted, and the need to consider the issues raised therein automatically abates. The Appeal having been found incompetent, this Court lacks jurisdiction to entertain the Appellants agitation, which is woven around it. See Ikuepenikan V State (2015) LPELR-SC.402/2010 at 33-34; Onyemah V Egbuchulam (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237; AG Federation V ANPP (2003) 12 SCNJ 67 at 81-82; Jim-Jaja V COP Rivers State (2012) LPELR-20621(SC) 10, para F; Okoi V Ibiag (2002) 10 NWLR (Pt. 776) 445 at 468; UBA Plc V ACB (2005) 12 NWLR (Pt. 939) 232; Goji V Ewete (2001) 15 NWLR (Pt. 736) 273 at 280; L.M. Ericsson Nig Ltd V Aqua Oil Nig Ltd (2011) LPELR-8807; Ananeku v Ekeruo (2002) 1 NWLR (Pt. 748) 301; NPA V Eyamba (2005) 12 NWLR (Pt. 939) 409; UBN V Sogunro (2006) 16 NWLR (Pt. 1006) 504; Uwazurike V AG, Federation (2007) LPELR-3448(SC) 14; Okoye V Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501; Auto Import & Export V Adebayo (2003) FWLR (Pt. 140) 1686.
In the result, the Notice of Appeal in Appeal number CA/YL/124/2015 between Mohammed Nyavo V Benjamin Zading dated 22nd September, 2015 and filed on 23rd September, 2015, and the Appeal in its entirety, is accordingly struck out on the ground of incompetence.
SAIDU TANKO HUSAINI
I had the privilege of reading in draft the lead Judgment of my learned brother, JummaiHannatuSankey, JCA just delivered. I am in total agreement with the reasoning therein and the conclusions arrived it
A defective Notice of Appeal conveys no appeal and cannot for this reason serve as the medium throughwhich the grievances of the party effected by the case is ventilated. A Notice of appeal is fundamentally defective if it has no correlation with the facts in the record of Appeal. Such Notice is incompetent, and the appeal as well. I abide by the order in the lead Judgment striking out this appeal.
BIOBELE ABRAHAM GEORGEWILL, JCA:
I have been privileged to read in advance a draft copy of the lead judgment just delivered by my lord, JUMMAI HANNATU SANKEY JCA, and I am in complete agreement with both the reasons and conclusions reached therein, which I hereby humbly adopt as mine. I only wish to add a few words of mine to the lucid judgment.
In law an 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. 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; Western Steel Works Ltd. V. Iron and Steel Workers Union (1986) 2 NSCC (Vol. 17) 786 @ p. 798.
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. In Macfoy V. UAC Ltd. (1962)I AC 100 @ p. 160, the immortal words of the 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 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.
The 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 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. See 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.
In Okarika V. Samuel (2013) 2 SCNJ 491, 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
Again, in Shelim V. Gobang(2009) Vol. 173 LRCN 36 @ 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, vide 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..........
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.
It is in the light of the above few comments of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the preliminary objection challenging the competence of the appeal partly succeeds on the second ground of objection. Consequently, I too hereby strike out the Notice of Appeal and the entire appeal founded thereon for being incompetent.?
Martin Milkman Esq. with P.E. Owachu Esq., appears for the Appellant.
L.J. Ezekiel (Mrs.) appears for the Respondent