Martin Onyewuchi Iwunze & Ors V. Rev. Jude Chihereoeze Okenwa & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling)

When this appeal came up on 12th day of March, 2015 for the hearing of Appellants’ Motion on Notice to compile and transmit record of appeal dated and filed on 24th day of November, 2014 E. F. NJEMANZE Esq. for the Appellants informed this Court he was just served with a Counter Affidavit against the Motion that morning by Learned Counsel to the 1st Respondent N. C. Uzochukwu Esq. challenging the competence of the Notice of Appeal initiating this appeal.

Uzochukwu Esq. for the 1st Respondent confirmed the service of Counter Affidavit against the hearing of the Appellant’s application to compile and transmit record.

He informed this Court that the gravamen of their objection is that the Notice of Appeal filed by the Appellant’s on 23rd day of December, 2010 was not signed by a Legal Practitioner as required by the Legal Practitioners Act and Supreme Court cases. He contended that the said Notice of Appeal is a nullity. He relied on the cases of:

1. SLB CONSORTIUM LIMITED VS. N.N.P.C. (2011) 9 NWLR (PART 1252) 317 at 337H to 338 A – B.
2. DR. TUNJI BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PART 1346) 1 at 19 G – H to 20 A -B.

N. C. Uzochukwu Esq. submitted that the appeal should be struck out.

In response to the submissions of his learned friend for the 1st Respondent, E. F. Njemanze Esq. submitted that the Notice of Appeal aforesaid was properly signed by a Legal Practitioner. He accused the 1st Respondent’s Learned Counsel of failing to file a formal application to challenge the validity of the said Notice of Appeal. He urged the Court to dismiss the objection of the 1st Respondent. Ruling was then reserved on the point of Law raised.

The Learned Counsel to the Appellants E. F. Njemanze Esq. however filed in the Registry of this Court on 13th day of March, 2015 a LIST OF AUTHORITIES wherein he stated as follows:-

“1. Proceedings of 5th July, 2012 amending the Notice of Appeal: 1st Respondent Counsel did not object to the application: Ruling not appealed against up to date.

2. Amended Notice of Appeal dated 10-7-2012 and filed 11-7-2012: The Typographical error in the original notice of appeal i.e. “Solicitor Appellant” now reads “Solicitor to Appellant’s”
3. Failure to raise objection on time: Barigha V. PDP (2013) ALL FWLR (PT. 696) 414 at 436. FAWEHINMI VS. NBA (No. 1) (1989) 2 NWLR (PT. 105) 495.
4. Unity Bank PLC. Vs. Denelah Ltd. (2013) ALL FWLR (Part 675) 206 at 239 – 241 – where amendment to the process was effected, the process is redeemed and valid Issue of “Solicitor Appellant” no longer reflected in the amended notice of appeal filed on 11-7-2012.

In apparent reaction to this the Learned Counsel to 1st Respondent N. C. Uzochukwu also filed in the registry of this Court on 23rd day of March, 2015 list of the following authorities in further support of his objection viz:

1. S. L. B. CONSORTIUM LTD. VS. N.N.P.C. (2011) 9 NWLR (PART 1252) 317 at 337 – 338 F. A.
2. THE NIGERIAN ARMY VS. SGT. ASANU SAMUEL & ORS. (2013) 14 NWLR (PART 1375) 466 at 484 – 485 H – A.
3. ALAHAJI FATAYI AYODELE ALAWIYE VS. MRS. E. A. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570 at 617 – 618 H -C.
4. MELAYE V. TAJUDEEN (2012) 15 NWLR (PT. 1323) 315 at 339 C – E.
5. SUNDAY ADENEYE VS. ALHAJI BUKAR YARO (2013) 3 NWLR (PT. 1342) 625 at 633 – 634 H – C.
6. FIRST BANK OF NIGERIA PLC & OR. VS. ALHAJI SALMANU MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 509 C -D.
7. BRAITHWAITE VS. SKYE BANK PLC. (2013) 5 NWLR (PT. 1346) 1 at 22C.
8. PEAK MERCHANT BANK LTD. NDIC (2011) 12 NWLR (PT. 1261) 253 at 262 E – F and
9. MR. K. K. ADUSEI VS. MR. TOYIN ADEBAYO (2012) 3 NWLR (PT. 1288) 534 at 552 E – H.

The settled position of the Law is that a Notice of Appeal is the foundation and substratum of every appeal as it is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal. Therefore any defect in the Notice of Appeal goes to the root of the appeal and robs this Court the jurisdiction to hear the appeal.

See: (1) RALPH UWAZURUIKE & ORS. VS. ATTORNEY – GENERAL OF THE FEDERATION (2007) 8 N.W.L.R. (PT. 1035) 1 also reported in (2007) 5 S.C.M. 193 at 200 where OGBUAGU, J.S.C. puts it lucidly as follows:

“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is Statutory and so guided by the Rules of the Court. The failure of the appellant or appellants, to comply with Statutory provision or requirements prescribed by the relevant Law/Laws or Rules – (which are in the nature of a subsidiary legislation perforce must be obeyed) under which such appeals may be competent and properly before the Court, will certainly deprive the Appellate Court, jurisdiction to entertain and/or adjudicate on the appeal.

2. NONYE IWUNZE V. THE FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR (PART 1404) 580 at 596 D – E per RHODES – VIVOUR, JSC. who also said:

“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals. The Jurisdiction is Statutory and also controlled by the rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with Statutory Provisions or the relevant rules of Court.

The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of appeal ceases to have jurisdiction to entertain an appeal in whatever form.”