Reynolds Ezediaro V. Ghaddar Machinery & Company Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling)

The applicant brought an application by motion on notice pursuant to Order 7 Rule 1 and Order 18 Rule 10 and 12 of the Court of Appeal Rules and the inherent jurisdiction of this Court. By the said motion filed on 11/8/11, the appellant/applicant asked this Court to grant the following prayers based on the following grounds:

1. AN ORDER striking out the Appellant/Applicant’s Notice of Appeal filed on 1st February 2011;
2. AN ORDER setting down for hearing the Appellant/Applicant’s appeal, commenced vide the Notice of Appeal filed on 9th March 2011, solely on the Appellant’s Brief of Arguments filed on 31st May 2011;

AND for such further orders as this Honourable Court may deem fit to make in the circumstances;

TAKE FURTHER NOTICE that the grounds for this application are that:

1. The High Court of Lagos State per Adefope J. delivered a final judgment in suit No. LD/318/2010 on 18th January 2011 against the interest of the Appellant/Applicant herein. Being a final judgment and further to the court of Appeal, Act, the Appellant/Applicant had 3 (three) months within which to Appeal against the said judgment which appeal period ended on 18th April, 2011.
2. The Appellant/Applicant therefore competently filed 2 Notices of Appeal against the said judgment. The first was filed on 1st February 2011 and the second was filed on 9th March 2011, both before the 18th of April 2011. It has been settled by the Supreme Court of Nigeria that an appellant can competently file as many notices of appeal against a decision if the said notices are all filed within the time allowed. The Applicant shall rely on the case of Tukur v. Government of Gongola State (1988) 1 NWLR (Pt.68) @ Pg. 39, 49, Paras A – C.
3. However, the Appellant/Applicant shall not be relying on the Notice of Appeal filed on 1st February 2011 and therefore some ought to be struck out.
4. By virtue of order 8 Rule 1, 4 & 5 of the court of Appeal Rules, 2011, the Appellant/Applicant ought to compile and transmit the Record of Appeal within 30 (thirty) days after the 60th day of the failure of the Registrar of the High Court to do same after the Appellant/Applicant filed his Notice of Appeal on 9th March 2011. The 60th day from 9th March 2011 was 9th May 2011.
5. Therefore, the 30 (thirty) day period for the Appellant/Applicant to dutifully compile and transmit the Record of Appeal ought to end on 9th June 2011. In compliance with this duty, the Appellant/Applicant compiled the Record and filed/transmitted some on 26th May 2011. In further compliance with his duty, the Appellant/Applicant served the Respondent on 27th May 2011.
6. By Order 4 Rule 10 of this Honourable Court’s Rules (the Rules), the Appellant/Applicant’s appeal was therefore entered on 26th May 2077 when the Record of Appeal was filed and/or transmitted in/to the Registry of this Honourable Court.
7. Further to Order 18 Rule 2 of the Rules, the Appellant/Applicant filed his brief of arguments immediately on 31st May 2011 and served the Respondent of on same date.
8. By virtue of Order 18 Rule 4 of the Rules, the Respondent ought to have filed its brief of argument within 30 (thirty) days from the date of service of the Appellant/Applicant’s brief on it and this period expired on 30th June 2011.
9. The Respondent has however failed to file its brief of arguments within the time specified by the Rules of this Honourable Court.
10. This Honourable Court on 15th July 2011 ordered that the Appellants/Appeal be given accelerated hearing owing to the urgency associated with the facts of the appeal.
11. The hearing of the appeal based on the Appellant/Applicant’s Brief of Arguments alone will aid the quick dispensation of justice as the Respondent is not minded to file a brief of argument.

The motion is supported by a five paragraph affidavit and one exhibit. In urging this court to grant the application, learned applicant’s counsel Mr. Awonuga submitted that there is no doubt that the respondent is aware of the appeal and that this court can take cognizance of the service on the respondent by virtue of Order 2 Rule 1(a) of the Court of Appeal Rules 2011. He argued that Order 20 Rule 3 gives the court power to waive compliance in the interest of justice and that there is no miscarriage of justice just because the appellant did not file a certificate of service even though the notice of appeal was served on the Respondent. He argued that this was due to error of counsel which should not be visited on the litigant. He submitted that the notice of appeal in the records is sufficient notice. He cited Ojo v. INEC (2008) 13 NWLR Pt. 1105 Pg. 577 at Pg. 603 -604. Counsel explained that the appellant filed several notices within time and they intend to withdraw one and rely on the other. He urged the Court to hold that the Respondent has waived the issue of the service of the notice of appeal. Counsel argued that in the exhibit attached to the counter-affidavit of the respondent, specifically Exh D02, this court in the ruling delivered in this case on 15/7/11 limited itself to the notice of appeal filed on 1/2/11 rather than the notice filed on 9/3/11. He urged the Court to grant the application.

Dr. Tunji Braithwaite in opposing the application filed an 11 paragraph counter-affidavit. He submitted that the sole issue for determination is the jurisdiction of this court to entertain this application. He argued that the applicants being in violation of Order 8 Rule 10 (1) and Order 8 Rule 10 (2) cannot be heard since he did not file a notice of service along with the record of appeal. He argued that when there is no service of the originating process, there is no appeal. He conceded that the respondent had been served with the record of appeal. He argued that there is a finding of this court exhibited as Exh D02 attached to the counter-affidavit that the record of appeal I was filed out of time. Counsel submitted that failure to serve process goes to the root of the jurisdiction of the court. He cited Mark v. Eke (2004) 1 S.C. Part 11 Pg. 1; Tsokwa Motors v. UBA (2008) 2 NWLR Pt. 1071 Pg. 347 at 367. He urged the court to dismiss the application.

There is no objection to prayer one and I will waste no time on it. There seems to me to be two objections raised to the competence of the second prayer sought by this application. The respondent’s counsel is challenging the competence of both the notice of appeal and the record of appeal filed by the appellant/applicant. The first and major objection is that there being no service of the notice of appeal, the applicant cannot be heard in limine. The challenge to the competence of the notice of appeal filed on 9th March 2010 is that the record which was transmitted by the appellant did not comply with Order 8 Rule 10 (1) and (2) which mandates that the record must be transmitted together with a certificate of service of the notice of appeal. The learned appellant’s counsel conceded the fact that no certificate of service was filed while transmitting the record and urged us to regard it as an error of counsel. The learned respondent’s counsel did not concede that he was served with the particular notice of appeal in issue but he conceded that he was served with the record of appeal. The respondent’s paragraph 6 of their counter-affidavit is most emphatic on this.

A notice of appeal is the basis, foundation and backbone of every appeal, and where lacking by way of being defective or incompetent or not being properly served, this court can strike out or discountenance and ignore any purported appeal for which no valid notice of appeal has been filed.

See Savannah Bank of Nig. v. Motor Parts Installation Enterprises (2004) 6 NWLR Pt.868, Pg.146; Ifeanyichukwu Okonkwo v. INEC and 2 Ors. (2004) 1 NWLR Pt.854 Pg.242.

There is no doubt that the respondent is aware of this appeal and has in fact being vigorously opposing same. Order 2 Rule 1 of the Court of Appeal Rules 2011 is a provision which meets this situation. It states as follows:

2. “1.(a) Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.

(2) Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Court to be served personally”.

Thus, where there is no proof of personal service of the notice of appeal, but where there is proof that in fact the notice of appeal had been communicated to the respondent, the Court will not entertain any objection to the hearing of the appeal on the ground of non personal service. The respondent conceded prompt service of the record of appeal. Pages 148-155 of the record show that in fact the notice of appeal dated 9th March 2011 had been filed and transmitted as part of the record, and service of which the respondent has conceded. Thus the respondent had been communicated with the fact that a notice of appeal had been filed. The proviso to Order 2 Rule 1 in my humble view amply demonstrates the entrenchment of the new attitude to dispensation of justice, which is to enthrone substantial justice over technical justice. As there are a plethora of authorities on the view based on the rules at the time, that an originating process must be served personally, and the current rules of course recognize the need for that, so the current Court of Appeal Rules recognize the fact that no more ado about nothing or fuss need be made by a respondent who in fact is aware that a notice of appeal has been filed. The days of technical justice are over. See N.I.T.T., Zaria v. Dange (2008) 9 NWLR Pt.1091 Pg. 127; Agbakoba v. INEC (2008) 18 NWLR Pt.1091 Pg. 720. The violation by the Application concerns a rule of court which we are permitted to forgive pursuant to order 20 Rule 3 of our Rules. It would have been a different matter altogether if the applicant were in violation of a substantial law. That head of objection is accordingly overruled.

The second objection is to the effect that there is no valid record of appeal before this court and the appeal cannot be set down for hearing as prayed by the applicant. The learned respondent’s counsel is of the view that the record of appeal was not transmitted within time. Exhibited with the counter-affidavit are exhibits D01 and D02 record of proceeding of this court dated 1/6/11 and ruling dated 15/7/11 respectively. Respondent’s counsel argued that both exhibits are to the effect that this court has found that the respondent had not been served with the notice of appeal. Learned applicant’s counsel argued in rebuttal the grounds set out in their application to the effect that the appellant filed two notices of appeal, thus, this court in its ruling recognized only the first notice of appeal filed on 1/2/11 and limited itself to that notice of appeal in making its findings.

My understanding of the argument of learned respondent’s counsel is that the record of appeal was transmitted out of time and is thus incompetent. There is no doubt that the appellant is at liberty to file several notices of appeal and he can pick and choose at will which one he wants to use in the prosecution of the appeal. It is not improper to file more than one notice of appeal in one appeal. See Alhaji Umam Abba Tukur v. Governor Gongola State (1988) 1 SCNJ s4 (1988) 1 NWLR Pt.68 Pg. 39. It is apparent that the appellant now wants to jettison the notice filed on 1/2/11 and to rely on the notice filed on 9/3/2011. Please note that the judgment was delivered on 18/1/11 so both notices were filed within time.