A.I.C. Limited V. Total Upstream Nigeria Limited & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Lead Ruling)

The applicant, A.I.C. Limited brought this application praying this court to set aside its order made on the 13th June, 2011 granting leave and other reliefs to Appellant/1st Respondent to appeal on the ground that the orders of this court are a nullity because they were made without jurisdiction and per incuriam as held by the Supreme Court in SLB Consortium v NNPC (2011) 9 NWLR (Pt. 1252) 317 per Onnoghen JSC to the effect that:

“the provisions of the Legal Practitioners Act 1990 are statutory and therefore matters of substantive law which cannot be waived.

The motion is supported with a 7 paragraph affidavit to which was annexed Notice of Motion dated 24th November, 2010. The Ruling sought to be set aside was not attached to the motion. It was in the Counter – affidavit which was deposed to by Akintola Ejiwunmi on 19th March, 2012 that the said Ruling was attached.

In paragraphs 4, 5, and 6 of the affidavit in support of the motion Adekunle Folorunsho deposed to the following facts:-

“4. That in an affidavit dated 24th November, 2010 in support of its application of the same date for enlargement of time to file its Notice of Appeal out of time the Appellant/1st Respondent admitted that the Notice of Appeal dated 7th November, 2005 was signed by one Olugbenga Bello whilst the name of the place for the signature was that of Babajide Ogundipe. Attached as Exhibits AF1 and AF2 respectively is a certified true copy each of the application and of the affidavit.

5. That on the 13th June, 2011, this court granted the leave sought by the Appellant/1st Respondent thus ignoring the non-compliance with the statutory requirement.
6. That the highest Court has held that none compliance cannot be dispensed with being a statutory requirement and moreover, the non-compliance being an issue of jurisdiction can be raised at any time.”

Although learned counsel for the applicant did not state how many Notices of Appeal were filed in the Court at the time, it does seem to me that there were two Notices of Appeal filed namely by Total Upstream Nigeria Limited and Technip. This was explained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 11,13,1,4 and 15 of the Counter – Affidavit of Akintola Ejiwunmi. The said paragraphs of the Counter-affidavit are reproduced as follows:-

4. By a Notice of Appeal dated 7th November, 2005, the appellant appealed against the ruling delivered by the Honourable Justice Alabi of the High Court of Lagos State. Now shown to me annexed herewith and marked as exhibit AE/1- is a true copy of the said Notice of Appeal.
5. I am aware that Technip the 4th respondent and Star Deep water the 5th Respondent also appealed against the said-ruling.
6. Subsequently, parties were invited by the Registrar of the Court below for settlement of record of appeal to this Honourable Court. I am aware that all the appellants duly settled the record of appeal and paid the cost for the compilation and transmission of the record of appeal.
7. However, rather than compile separate record of appeal for the three sets of appellants, the Registrar of the lower Court compiled and transmitted one record of appeal for the three set of appellants. The record of appeal was entered in the registry, of this Honourable Court as CA/L/115/06 between Star deep water v A.I.C & Ors.
8. I am aware that when the matter came up before this Honourable Court, all the appellants herein laid claim to the record of appeal because of the inclusion of their Notice of Appeal in same.
9. I am equally aware that to obviate the apparent confusion arising from this anomaly, the Presiding Justice; Hon. Justice Ogunbiyi during proceedings directed all the counsel to approach the registry for a separation of all the processes in this file into three. Suit no. CA/L/115/06 was retained between Stardeep Water v A.I.C. & Ors: CA/L/115A/06. Technip v AIC & ORS and CA/L/115B /06 Total Upstream v. A.I.C.
10. I am aware that this separation led to a compilation of another set of record of appeal by Total Upstream which was duly transmitted on the 4th day of November, 2008.
11. On the 16th day of March, 2009, the Total Upstream [the Appellant] herein filed an application seeking an extension of time to compile and transmit the record of appeal in CA/L/115B /06 in suits No CA/L/115B /06. Now shown to me annexed herewith as exhibit AE/2 is a true copy of said application.
12. In or around 29th day of October, 2010, Mr. Lateef Owolabi who is also a counsel in the firm of Sofunde Osakwe Ogundipe & Belgore brought to the attention of Mr. Ogundipe a decision of this Division in CA/L/266/02 Adeneye v. Yaro delivered, in June 2010.
13. In the said decision, this Court invalidated a Notice of appeal signed on behalf of a legal practitioner by another person on grounds that there was no showing that the person who sigged same was a legal practitioner as required by law.
14. I am aware that exhibit AE/1 was signed on behalf of B.O. Ogundipe, the partner handling this matter on behalf of the appellant by Olugbenga Bello counsel in the firm of the appellant.
15. Accordingly, Mr, Ogundipe advised that another application be filed seeking enlargement of time to appeal against the ruling delivered on 4th of November, 2005 was filed in the registry of this Honourable Court, it was assigned suit No. CA/L/1107/10. Now shown to me annexed as exhibit AE/3 is a true copy of said application.

The stand point of learned Senior Counsel for the Applicant is that once an appeal is dismissed, no application can be made to resuscitate that appeal. I do not share in that view. If a Notice of Appeal is dismissed for being incompetent, an application can be brought to regularise the appeal.

And this is what the respondent did in the motion dated 24th November, 2010. The Motion dated 24th November 2010 effectively cured the defect which led to the withdrawal of the Notice dated 7th November, 2005. I find that there is no merit in the application and it is accordingly dismissed.KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Lead Ruling): The applicant, A.I.C. Limited brought this application praying this court to set aside its order made on the 13th June, 2011 granting leave and other reliefs to Appellant/1st Respondent to appeal on the ground that the orders of this court are a nullity because they were made without jurisdiction and per incuriam as held by the Supreme Court in SLB Consortium v NNPC (2011) 9 NWLR (Pt. 1252) 317 per Onnoghen JSC to the effect that:

“the provisions of the Legal Practitioners Act 1990 are statutory and therefore matters of substantive law which cannot be waived.

The motion is supported with a 7 paragraph affidavit to which was annexed Notice of Motion dated 24th November, 2010. The Ruling sought to be set aside was not attached to the motion. It was in the Counter – affidavit which was deposed to by Akintola Ejiwunmi on 19th March, 2012 that the said Ruling was attached.

In paragraphs 4, 5, and 6 of the affidavit in support of the motion Adekunle Folorunsho deposed to the following facts:-

“4. That in an affidavit dated 24th November, 2010 in support of its application of the same date for enlargement of time to file its Notice of Appeal out of time the Appellant/1st Respondent admitted that the Notice of Appeal dated 7th November, 2005 was signed by one Olugbenga Bello whilst the name of the place for the signature was that of Babajide Ogundipe. Attached as Exhibits AF1 and AF2 respectively is a certified true copy each of the application and of the affidavit.

5. That on the 13th June, 2011, this court granted the leave sought by the Appellant/1st Respondent thus ignoring the non-compliance with the statutory requirement.
6. That the highest Court has held that none compliance cannot be dispensed with being a statutory requirement and moreover, the non-compliance being an issue of jurisdiction can be raised at any time.”

Although learned counsel for the applicant did not state how many Notices of Appeal were filed in the Court at the time, it does seem to me that there were two Notices of Appeal filed namely by Total Upstream Nigeria Limited and Technip. This was explained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 11,13,1,4 and 15 of the Counter – Affidavit of Akintola Ejiwunmi. The said paragraphs of the Counter-affidavit are reproduced as follows:-