Mr. Akintunde Aromire & Ors V. Mr. Ibrahim Taiwo Ajomagberin & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I.M.M. SAULAWA, J.C.A (Delivering the Lead Ruling )

Indeed, it’s a common knowledge, that the instant appeal was heard on 02/11/2010. The learned counsel adopted the respective briefs of argument thereof on the same day, thus resulting in reserving the appeal for delivery of judgment.

Most regrettably, however, in the course of writing the judgment, it was discovered that the notice of appeal, contained at pages 361-370 of the record of appeal, was signed by an unknown (unnamed) person for Kayode Sofola, SAN of Kayode Sofola’s chambers, 2 Tinubu Square, Lagos. By implication, therefore, the notice of appeal in question is apparently incompetent.

Thus, it became imperative for us to order that the learned counsel to the respective parties be served with a hearing notice, with a view to addressing the court on whether or not the notice of appeal is competent. Gladly, the learned counsel did appear in court on 08/02/2011 and accordingly addressed us on the vexed issue in question.

The submission of the Appellants’ learned Senior Counsel, Mr. Kayode Sofola, SAN, is to the effect that the notice of appeal is competent. According to the learned silk, the notice of appeal is competent because the Legal practitioner, Kayode Sofola, SAN who signed it comes within the controversial decision of Nweke vs. Okafor which did not take into consideration the earlier decisions of the Supreme Court in the case of Cole vs. Martins, to the effect that a process franked by a legal firm was held to be competent.

Mr. Sofola, SAN contended that the court may however elect to follow the Supreme Court’s decision in OKAFOR VS. NWEKE (2007) 10 NWLR (pt. 1043) 521, which says that a process must be franked by a legal practitioner. That, in the instant appeal, the process in question (the notice of appeal) complies with the decision in OKAFOR VS. NWEKE (supra) because it has been franked by Kayode Sofola, SAN. It was argued, that the decision in OKAFOR VS. NWEKE does not allow the court to go on a voyage of discovering who signed the process. And that there have been several steps taken by all the parties following the process.

The learned silk accordingly urged on the court to resolve the dispute in favour of the Appellants.

On the part thereof, the Respondents’ learned counsel, Olusegun Fabunmi Esq. has submitted that it’s unfortunate the discovery was made at this stage when parties were awaiting the delivery of the judgment. He was of the view that the notice of appeal was incompetent, because it was signed by a proxy and not by the learned SAN himself. It was contended that the proxy that signed the notice of appeal is an unknown person. He cited and relied on the case of ONWARD V5. OLAM (2010) ALL FWLR (pt. 531) 1503. a decision of this court following the Supreme Court’s decision in OKAFOR v. NWEKE. According to the learned counsel, that’s the situation in which the parties found themselves in the instant case. He thus urged the court to strike out the notice of appeal in question.

Replying on points of law, the learned silk urged that the requirement for the signature in civil appeal is not contained in the Rules of the Court of Appeal.

Secondly, the learned Senior Counsel placed a reliance on OGUNSHAKIN VS. AJIDARA (2008) 5 NLWR (pt. 1082) para. 1 pages 24 – 25 and DALHATU VS. DIKKO (2005) All FLWR 483, 493 – 494 and urged the court.

I have accorded an ample regard upon the circumstances surrounding the learned counsel’s respective addresses, the authorities referred to therein vis-a-vis the record of appeal. It must be emphasized at this point in time, that the jurisdictional competence of the Court of Appeal to hear appeals from the decisions of the lower courts or tribunals, either in their original or appellate jurisdiction, is traceable to both the constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal Act, 2004, as well as the Court of Appeal Rules, 2007.

By virtue of the provision of section 240 of the 1999 constitution, the court has been imbibed with the jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from –

The Federal High court, the High court of the Federal capital Territory, Abuja, High court of d state, sharia court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by on Act of the Notional Assembly.

Section 241 of the constitution provides for various instances of appeals as of right to the Court of Appeal from the Federal High Court of State High Court. See also section 242 of the L999 constitution; section 24 of the Court of Appeal Act, 2004; Order 5 of the Court of Appeal Rules, 2007, respectively.