Alh. Mohammed Mohammed V. Martins Electronics Company Ltd. (2009)

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A,

This ruling is in respect of an application dated and filed on 7th November, 2006 wherein Alhaji Mohammed Mohammed, (hereinafter referred to as the Applicant) sought for the grant of the following orders; namely:

(i) leave to amend his existing notice of appeal dated and filed on 23rd June, 2005 with regards to the parties.

(ii) leave to amend the said exiting notice of appeal by adding three additional grounds of appeal numbered (3), (4) and (5) respectively to the existing grounds of appeal.

(iii) leave to argue the said additional grounds of appeal.

The application which was brought by way of motion on notice has a five paragraph affidavit in support, sworn to on 7th November, 2006 by one Elemeje Victoria (Mrs) with Exhibits E.V.1 – E.V.5 attached thereto.

On 22nd January, 2007 when the matter came up for hearing, K.B. Olawoyin Esq., the learned counsel who appeared for Martins Electronics Company Limited (hereinafter referred to as the Respondent) informed this Court of his opposition to the said application on the basis that the notice of appeal dated and filed on 23rd June, 2005 is incompetent on the ground that it was not signed by a legal practitioner within the meaning of the Legal Practitioners Act, 1967. Consequent thereto, O.A. Dada Esq., the learned counsel for the Applicant sought for an adjournment to enable him address the Court on the issue of competence or otherwise of the said notice of appeal.

Thereafter, a further affidavit of ten paragraphs sworn to on 14th March, 2007 by one Adamu Abubakar Esq., who described himself as “a Barrister and Solicitor of the Supreme Court of Nigeria duly registered and also a Notary Public” was filed in this matter with Exhibits A.B.1 and A.B.2 annexed thereto.

Again, a six paragraph affidavit, headed “Further and Better Counter-Affidavit” was sworn to on 26th March, 2007 by one Clementina Adeola Fakoya, one of the counsel in the chambers of Messrs O.E.B. Offiong and Company, the firm of legal practitioners representing the Respondent, was filed with Exhibits CAF1, 2, 3, and 4 attached thereto – all in a bid to counter the previous further affidavit filed by the Applicant herein. As to be expected, the Applicant responded with yet another affidavit, tagged, “Further and Better Affidavit”, sworn to on 14th May, 2007 by the same Adamu Abubakar Esq. It has Exhibits AB 1, 2, 3, and 4 attached thereto.

On 5th June, 2007, this Court ordered the parties herein to file and exchange written addresses in respect of the application and objection raised thereon. Pursuant thereto, Applicant’s written address is dated and filed on 7th June, 2007 while Respondent’s written address in reply thereto is dated 20th September, 2007 and deemed properly filed and served on 23rd January, 2009. The Applicant’s reply on points of law thereto is dated 12th February, 2008 and filed on 15th February, 2008.

On 23rd February, 2009 when this matter came up for hearing before us, O.A. Dada Esq., learned counsel for the applicant adopted and placed reliance on all the court processes filed in respect of the instant application, inclusive of all the affidavits in support and the written address. He pointed out that the Supreme Court’s decision in Okafor V. Nweke (2007) 3 FWLR (Pt.382) 4969; (2007) 10 NWLR (Pt.1043) 521 was decided without any reference being made to the earlier decision of the Supreme Court in Cole V. Mattins (1968) All NLR 161. We were urged to give preference to the latter as against the former – all in the interest of justice. We were also urged to grant the instant application as prayed.

O.E.B. Offiong Esq., the learned counsel for the Respondent also adopted the afore-described Respondent’s court processes and written address. He also laid specific emphasis on the case of Okafor V. Nweke (supra) with particular reference to the dictum of Oguntade, JSC therein. He further urged us to prefer and apply Okafor’s case as against Cole’s case. Finally, that the application should be dismissed and the notice of appeal struck out.

In the adopted written address of the Applicant, two issues were formulated therein for the resolution of this application. They are:

(a) WHETHER the notice of appeal dated and filed on 23rd June 2005, signed in the name of Adamu Abubakar & Co. is competent having regards to the provisions of Section 30 of the Court of Appeal Act, Cap. C.36 contained in the Laws of the Federation of Nigeria 2004, Order 1 Rules 2 of the Court of Appeal Rules 2002 as amended, Section 24 of the Legal Practitioner’s Act Cap. L.11 contained in the Laws of the Federation of Nigeria, 2004 and relevant decided authorities of the Supreme Court and the Court of Appeal.