THERE IS NO CURE FOR A DEFECTIVE NOTICE OF APPEAL

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ADA v. HASHIMU & ORS (2017) LPELR-42510(CA)

PRACTICE AREA: APPEA

 INTRODUCTION

Where a Counsel erroneously files or inherits an unsigned Notice of Appeal, are there step(s) to be taken to cure the anomaly? Probably an amendment of the error in the defective Notice of Appeal will suffice? OHO, J.C.A. in the appeal under review explained Notice of Appeal thus: “The settled position of the law is that a Notice of Appeal represents the substratum of an Appeal. It is the foundation upon which the structure of a valid Appeal is erected. It is to the Appeal, what the writ of summons is to a validly originated suit. It is the originating process which signals the beginning for the proper, valid and lawful commencement of an Appeal. It is for this reason therefore where the Notice of Appeal is defective no proper Appeal can be validly prosecuted thereon.” He went further to say that where there is a defective Notice of Appeal, “the defect cannot be cured by an amendment.”

Bolstering the point, he said “The settled position of the law is that an incompetent Notice of Appeal cannot be validated or regularized by an amendment as the nullity inherent in the process is incurable.” This position was further backed by SHUAIBU, J.C.A. when he said: “I am in complete agreement that an incompetent Notice of Appeal cannot be validated or regularized by an amendment because the nullity in the process is incurable”.

Speaking on the effect of a defective Notice of Appeal, MUKHTAR, J.C.A. posited that “It is settled law that where a Notice of Appeal is defective and incompetent, it is simply tantamount to a nullity and the Court has to strike it out in limine.”

FACTS OF THE CASE

This appeal was brought against the judgment of the Sharia Court of Appeal Sokoto State sitting at Sokoto delivered on the 11-6-2001 in suit No. SCA/1S/222/99. The Appellant herein, as Plaintiff sued the Respondents at the Upper Area Court Isa Sokoto State claiming the inheritance of two farmlands belonging to his parents, and which he claimed were in the possession of the Respondents. At the conclusion of trial, the Upper Area Court Isa confirmed the farmlands to the Respondents. The Appellant, being dissatisfied with the trial Court’s judgment, appealed to the Shariah Court of Appeal Sokoto, which also affirmed the decision of the trial Upper Area Court Isa.

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The Appellant has further now appealed to this Court against the decision of the Shariah Court of Appeal vide a Notice of Appeal dated the 11-7-2001. There were three (3) Original grounds of Appeal filed. Four additional grounds were filed and served by the leave of the Court of Appeal in 2006.

Before the Notice of Appeal could be heard, the Respondents raised a Preliminary Objection to the competence of the Appeal. The Respondents’ Notice of preliminary objection challenging the jurisdiction of the Court to entertain this Appeal is hinged on the ground that the Notice of Appeal is incompetent because the Notice of Appeal is unsigned. The appellant in his response canvassed that the un-signed Notice of Appeal has since been amended by an application dated the 28-3-2006 and filed on the 29-3-2006 and that as such, the Notice of Appeal is no longer incompetent.

ISSUE(S) FOR DETERMINATION

In respect of the preliminary objection, the Court posited that the fundamental legal question to be determined is:

Whether an Amendment of a Notice of Appeal, which is otherwise defective, is capable of validating the Original Notice of Appeal and consequently sustaining the Appeal before Court.

HELD

The Court held that it does not have the jurisdiction to entertain and determine the Appeal, which has not been initiated by valid legal process. The appeal was therefore struck out and Cost of ₦30,000.00 was awarded in favour of the Respondents against the Appellant.

RATIO DECIDENDI

APPEAL – NOTICE(S) OF APPEAL: Whether a defective Notice of Appeal can be cured by amendment.

“The fundamental legal question to be determined by this Court is: whether an Amendment of a Notice of Appeal, which is otherwise defective, is capable of validating the Original Notice of Appeal and consequently sustaining the Appeal before Court. The settled position of the law is that a Notice of Appeal represents the substratum of an Appeal. It is the foundation upon which the structure of a valid Appeal is erected. It is to the Appeal, what the writ of summons is to a validly originated suit. It is the originating process which signals the beginning for the proper, valid and lawful commencement of an Appeal. It is for this reason therefore where the Notice of Appeal is defective no proper Appeal can be validly prosecuted thereon. See the cases of THOR LTD. vs. FIRST CITY MONUMENT BANK LTD. (2002) 2 SCNJ 85 and EBOKAM vs. EKWENIBE & SONS TRADING CO. LTD. (1999) 7 SCNJ 77. A Notice of Appeal which is not signed is incompetent and a mere document that has no legal value. See F.G.N. vs. ADIGUN AKINOLA (2014) LPELR- 23978. However, a Notice of Appeal can and will be competent if it contains at least one valid ground of appeal. See Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999; See also ERISI & ORS vs. IDIKA & ORS (1987) 3 NWLR (PT.66) 503 AT 516. But a Notice of Appeal which is bare, i.e., without any ground or grounds of Appeal is valueless and incompetent and it is incurably bad. See: AKEREDOLU & ORS vs. AKINREMI & ORS (1986) 4 SC 325 AT 372. The defect cannot be cured by an amendment and ditto a situation where the Original Notice of Appeal and by which the Appeal was commenced. See: GLOBAL TRANSPORT OCEANIC CO. SA & ANOR vs. FIXE ENTERPRISES NIG. LTD (2001) 2 SCNJ 224. “Per OHO, J.C.A. (Pp. 6-8, Paras. F-B)

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APPEAL – NOTICE(S) OF APPEAL: Whether a defective Notice of Appeal can be cured by amendment

“The settled position of the law is that an incompetent Notice of Appeal cannot be validated or regularized by an amendment as the nullity inherent in the process is incurable. The position is that there has to be a competent and valid Notice of Appeal and also a competent Appeal before any other process or step taken in the Appeal can be competent. The usual catch phrase is that you cannot place something on nothing and expect it to stand. It will most certainly collapse. For ex nihilo nihil fit. See MUHAMMED & ANOR vs. OLAWUNMI & ORS (1990) 4 SCNJ 23; NGONADI vs. EZENWOSU (1988) 6 SCNJ 88; COLITO (NIG.) LTD & ANOR vs. DAIBU & ORS (2009) LPELR-8216. In the final analysis, so long as the Original Notice of Appeal in this Appeal is incompetent, this Appeal is equally incompetent. As stated earlier on, a competent and valid Appeal is not possible where a competent and valid Notice of Appeal is lacking. Consequently this Court, and in agreement with learned Respondent’s Counsel does not have the jurisdiction to entertain and determine this Appeal, which has not been initiated by valid legal process. This appeal is therefore struck out.”Per OHO, J.C.A. (Pp. 9-10, Paras. A-A)

APPEAL – NOTICE(S) OF APPEAL: Effect of a defective/incompetent notice of appeal

“It is settled law that where a Notice of Appeal is defective and incompetent, it is simply tantamount to a nullity and the Court has to strike it out in limine. See Emechata v. Ogueri (1998) 12 NWLR (pt. 579) 502; Akuchie v. Nwamadi (1992) 8 NWLR (pt. 258) 214.”Per MUKHTAR, J.C.A. (P. 10, Paras. B-D)

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APPEAL – NOTICE(S) OF APPEAL: Whether a defective Notice of Appeal can be cured by amendment

“I am in complete agreement that an incompetent Notice of Appeal cannot be validated or regularized by an amendment because the nullity in the process is incurable.” Per SHUAIBU, J.C.A. (P. 11, Paras. A-B).

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