Mobil Oil Nigeria Plc V. Alhaji F.O. Yusuf (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

On 22nd September, 2011 when this appeal came up for hearing, the Learned Counsel for the Appellant, O. Ojibara Esq informed the Court that the former panel of this court which had earlier heard this appeal had invited counsel to further address the court on the competence of the Notice of appeal filed on 15th March, 2000 as contained on pages 502 -506, volume 1 of the record of appeal.

That the said notice of appeal was signed “for and on behalf’ of the learned SAN who prepared the said Notice. He conceded that in view of several decisions of this court and the Apex court, such a notice of appeal is incompetent but urged the court to allow the use of the said notice in view of the advanced stage of the appeal and in view of the fact that the said notice of appeal was subsequently amended and filed on 5th October, 2007.

The Learned Senior Counsel for the Respondent, A. J. Owonikoko SAN, leading other counsel in the matter, submitted that there is no legally cognisable notice of appeal dated 15/3/06 but the amended Notice of appeal filed on 5th October, 2007 and signed by Paul Usoroh, SAN in person. That an amended process dates back to the original date which the first process was filed. He refers to the case of Anambra State Environmental Sanitation Authority v. Raymond Ekwenem (2009) 13 N.W.L.R. (pt.1158) 410 at 435-436 paras. G-H. The learned silk submitted further that since the defective notice of appeal has been amended, the said amended Notice of appeal should be used in this appeal.

It was a further contention of the Learned Senior Counsel that where this court grants leave for an amendment, it binds the parties and the court until it is set aside on appeal. That as far as the amendment is concerned, this court is functus officio. Submitting further, he contended that the said amendment is not an accidental slip which this court can correct but a matter duly considered and granted by the court. He urged this court to allow the amended Notice of appeal to be used and relies on the following cases: –

Ogundele v. Agiri (2009) 18 N.W.L.R. (pt.1173) 219 at 247 paras C-D; Chinwuba v. Alade (1997) 6 N.W.L.R. (pt.507) 85; Vulgan Gases Ltd. V. G. F. Industries A.G. (2001) 9 N.W.L.R. (pt.719) 610 at 639 para G; INEC v. Oshionmole (2009) 4 N.W.L.R. (pt. 1132) 607 at 636-637 para B-H.

Although both counsels have urged this court to assume jurisdiction inspite of the incompetence of the originating process, the notice of appeal. I wish to state that an incompetent Notice of Appeal does not confer jurisdiction on the Court. In other words, where the initial notice of appeal is held to be incompetent, there would be no foundation upon which an amended notice of appeal is to ground or stand. The acceptable and laid down principle is that you cannot put something on nothing and expect it to stand. The two put together would both crumble. See Mac Foy V. UAC Ltd. (1962) AC 150 at 160. The initial notice predicating the subsequent amendment is the foundation which must be competent before the amendment can stand. See NNPC v. Roven Shipping Ltd (unreported) Appeal No CA/L/490/06 delivered on 1sth July, 2011 by the Lagos Division of this court which I was a member of the panel that delivered it.Cooking Fats & Oils

The case of Okafor v. Nweke (2007) 10 NWLR (Pt 1043) 521 which appears to be the locus classicus in the matter, though not cited by any of the parties has laid the matter to rest. In it, the Law Lords of the Supreme Court, in an unequivocal pronouncement interpreted the provision of sections 2(1) and 24 of the Legal Practitioners Act which in effect is that for any person to qualify as a legal Practitioner, he must have been called to the bar. In other words, his name must be on the roll of legal Practitioners.

In the instant appeal, the notice of appeal was signed by an unknown person who has not been attested as having been called to the bar. It was signed “for” Paul Usoro SAN”. Clearly, this is an incompetent process and unfortunately, it is the originating process in this appeal. The Apex court had clearly stated in Okafor v. Nweke (supra) that except a person is qualified to practice as a legal practitioner, he cannot engage in any form of legal practice in Nigeria. I want to believe that legal practice includes the signing of legal documents. In the instant appeal, the person who signed the Notice of appeal is not even known. A person, who is not a legal practitioner or the Appellant, is incompetent to issue a notice of appeal since he is not a registered legal practitioner. See NNB PLC vs. Denclag Ltd. (2005) 4 N.W.L.R. (pt.916) 549; Oketade v. Adewunmi & 4 Ors. (2010) 2-3 SC (Pt.1) 140 at 152-153.

All I have endeavored to say in this matter is that the Notice of appeal filed on 1sth March, 2000 found on pages 502-506 of the record of appeal is incompetent. I had stated earlier in this ruling that an incompetent Notice of appeal does not confer jurisdiction on the court. The fate that should befall such a notice of appeal is for it to be struck out. Both the Learned Counsel and Senior Counsel for both parties respectively recognise this fact. However, they both draw the attention of this court to the fact that the said incompetent Notice of Appeal was amended and filed on 5th October, 2007 – They both urge this court to rely on this amended Notice of appeal.

I am aware and it is trite that the court possesses the discretionary power to grant an amendment to correct an irregularity in the process filed particularly where such an amendment does not cause any injustice to the adverse party. Where amendment is granted, it dates back to the time the original process was filed. Once an amendment is granted, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. See Vulcan Gases Ltd v. G.F. Industries AG (supra). On this I agree with the Learned Senior Counsel for the Respondent who took sides with the Appellant in this aspect.

However, I am unable to pitch my tent with both the Appellant and Respondent Counsel on the issue that an incompetent process can be amended and used in court. Where a process is declared or held to be incompetent, it is worthless and cannot be used in the court for any purpose whatsoever. The only option open to the court is to strike it out. A competent notice of appeal being an originating process confers jurisdiction on the court and where such Notice of appeal is incompetent the court has no jurisdiction to entertain such an appeal. Where a court lacks jurisdiction to hear a matter, counsel cannot agree to confer jurisdiction on the court. Courts are not allowed to confer jurisdiction on themselves where there is none. To amend an incompetent process tantamounts to trying to bring the matter within the jurisdiction of the court by force. By foisting an amendment of an incompetent process on the court, a party cannot confer jurisdiction on the court. See NCC. V. MTN (Nig.) Communications Ltd. (2008) 7 N.W.L.R. (Pt 1086) 229. The proper order to make in the circumstance is to strike out the matter and not to amend it. See WAEC V. Adeyanju (2008) 9 NWLR (Pt 1092) 270.

The Apex court, having stated clearly in Okafor V. Nweke (Supra) that an incompetent Notice of Appeal cannot sustain an appeal; it will amount to throwing confusion into the market place if we now begin to amend such notices of appeal. The courts cannot strike out some and then amend others. Justice must be even handedly dished out no matter who is involved. I am of the view that the order which amended the incompetent notice of appeal ought to be set aside. Issue of jurisdiction cannot be compromised because no matter how well conducted, where a court lacks jurisdiction, the whole proceedings is nullity.

See Owners of the M. v. “Arabella” vs. N.A.I.C. (2008) 11 N.W.L.R. (pt.1097) 182. The court has inherent power to set aside its own Judgment when it was obtained by fraud or where it is a complete nullity. In the instant case, the order for amendment was uncalled for as there was no competent process to amend. It was a nullity. See Okoye v. Nigerian constitution & Furniture Company Ltd. (1991) 6 N.W.L.R. (pt.199) 501; Olufunmise v. Falana (1990) 3 N.W.L.R. (p. 136) 1; Ajiako v. Ogneze (1962) 1 SCNLR 112; Nwosu v. Udeaja (1990) 1 N.W.L.R. (pt.125) 180 and Vulcan Gases Ltd. v. G. F. Ind., AG (supra).