Effect of a Notice of Appeal Not Signed by Any Person or Legal Practitioner Known to Law

0
Photo: Credit Solution

PREAMBLE

In the words of My Lord Justice MARY UKAEGO PETER-ODILI, J.S.C. delivering the Leading Judgment in RAJI v. UNILORIN & ORS (2018) LPELR-44692(SC): “The case law on ground right now is that a Notice of Appeal must be signed by the appellant or his legal representative, and where such a representative is a legal practitioner he must be qualified to practice in Nigeria. A Notice of Appeal not signed by a person recognised to practice law in Nigeria would be deemed incompetent.”

It is therefore settled, that, the importance of a Notice of Appeal to the success or failure of an appeal cannot be over-emphasized. Legal Practitioners are therefore admonished to take proper steps in the filing of a Notice of Appeal. Not only should a Notice of Appeal be signed, it must of huge necessity by signed by either the Appellant or his Legal Representative and where such representative is a Legal Practitioner, he must be one qualified to practice law in Nigeria.

Failure to adhere to this dictate of the law will be fatal to the prosecution of an appeal, as even the appellate jurisdiction of the Apex Court, cannot be activated by such improperly signed Notice of Appeal, no matter the industry committed to the pursuit of the appeal.

 FACTS

Dr. Ajewumi Bili Raji joined the service of the University of Ilorin on 7th January, 1991 and by the year 2000 he had become a Senior Lecturer in English in the department of Modern European Languages, Faculty of Arts of the University. 

In February, 2000, Dr. Raji was awarded the Alexander Von Humboldt Research Fellowship tenable in the Federal Republic of Germany. He thereupon applied for leave to utilize the external award from the Administration of the University. His application in this regard was expressly supported by his Head of Department and the Dean of the Faculty of Arts. When, by 13th March, 2000, it dawned on Dr. Raji that the Appointments and Promotions Committee of the University, which is the body invested with the power to grant his application, would not be convened before March 29th, 2000, the scheduled date for his departure for the award, Dr. Raji forwarded an application directly to the Vice-Chancellor (Professor Shuaib Oba Abdulkareem), for executive approval of his application for leave to utilize the scholarship award. 

Dr. Raji left for the Federal Republic of Germany on the 29th March, 2000 to utilize the award at which time the Vice-Chancellor had not made any response to his application despite the urgency. 

Immediately after Dr. Raji had left the Country, the Vice-Chancellor ordered the Bursary Department to stop paying his salary. Dr. Raji was eventually accused of absconding from the University. At the end of some disciplinary proceedings on this allegation, Dr. Raji was directed by the Governing Council, University Of Ilorin to return to the University on December 21, 2000. The letter conveying this directive was received by Dr. Raji in Germany on December 19, 2000, id est, two days before the expiry of the ultimatum. 

The employment of Dr. Raji with the University was eventually terminated on the premise of his failure to return to the University on the December 21, 2000 without the benefit of any hearing as to why he could not comply with the directive. 

Sequel to the foregoing, Dr. Raji filed this action by way of an Originating Summons at the Federal High Court sitting in Ilorin claiming among other reliefs, a declaration that the termination of his appointment with the University is illegal, null and void, and, that he be reinstated back to his office as a Senior Lecture in the University of Ilorin. The learned trial judge in a considered judgment dismissed the case of Dr. Raji. His appeal to the Court of Appeal Ilorin Judicial Division was further dismissed, hence this appeal to the Supreme Court. 

ISSUES FOR DETERMINATION

ALSO READ   War Against Social Media Comments: NBA Fighting the Wrong War

A Preliminary Objection was raised to the competence of the Notice of Appeal filed before the Apex Court on the ground that it was not properly signed as the law demands. 

The Supreme Court therefore decided the appeal on the propriety or otherwise of the Notice of Appeal before the Court. 

DECISION/HELD

​In a unanimous decision, the Supreme Court upheld the Preliminary Objection. Consequently, the appeal was struck out on the ground that the Notice of Appeal was invalid.

RATIO DECIDENDI

  • APPEAL – NOTICE(S) OF APPEAL: Effect of a notice of appeal not signed by a legal practitioner or an appellant

“A cursory look at the end part of the Notice of Appeal above showcased in full shows that the identity of the person who signed the said Notice is not discernible in for Dayo Akinlaja purportedly signing. That is to say that the identity of the signatory or an indication that the person who signed it is an enrolled legal practitioner in Nigeria, the signature appended for Dayo Akinlaja being a scribble. This goes against what is now the laid down procedure for the appending of signatures of a legal practitioner on an originating process such as a Notice of Appeal. In this I cite the case of Onward Enterprises Ltd v. Olam International Ltd (2010) All FWLR (Pt.531) 1503 at 1523 per Muktar JCA thus: –

“The person signing is required to write his name on long hand and in a legible and readable manner in order to satisfy the requirement of signature, which mere scribbling fall short of. I am not saying that the signature must be readable, but the name of the signatory must be clearly stated on the notice of appeal which must be that of a legal practitioner.”

Learned counsel for the appellant in a curative attempt on this defect anchored on the affidavit deposed to by Miss Temitope Odedele, identifying herself as practitioner in the chambers of the firm representing the appellant and that she signed the said Notice of Appeal. Appellant seeks anchor on Section 101 of the Evidence Act, 2011 (as amended). For clarity I shall quote the said Section 101 thus: –

“In order to ascertain whether a signature…is that of the person by whom it purports to have been written or made, any signature… admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved.”

As posited by learned counsel for the respondent, the defect alluded to is fundamental and a Notice of Appeal is an originating process which is what activates the jurisdiction of this Court and so since the appellant himself did not sign the document and appellant’s counsel has put out himself to sign on behalf of his client, then it behoves on him in bounden duty to do so properly. This is because, without a valid Notice of Appeal, the foundation is lacking and the appeal is automatically rendered incompetent and with it flying out of the window is the jurisdiction of the Court. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; NBN v. NET (1986) 3 NWLR (Pt. 31) 667; Atuyeye v. Ashamu (1987) 1 NWLR (pt.49) 276; Nwaeze v. Eze (1999) 3 NWLR (Pt.594) 410 at 418; NNB PLC v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549 at 574.

The position stated above is reiterated for emphasis by this Court in the case of Okafor v. Nweke (2007) All FWLR (pt. 368) 1016 at 1026 – 1027 to the effect that a process as the Notice of Appeal must be signed by a legal practitioner known to law, thus the identity of the person who signed the Notice of Appeal must be disclosed to assist the Court to confirm that the person who signed the document is a legal practitioner indeed. What is meant by this policy is not to await the clarification by affidavit as to the identity of the owner of the signature on the particular process. What the appellant is asking of the Court is to authenticate an absurdity, where the Supreme Court has to suspend action and ascertain first of all that the person who signed the starting point of an appeal when it has not been signed by the appellant himself but a person who claims to be a legal practitioner, that he is indeed a legal practitioner. Such a surveying duty is not for the Court and nothing has happened yet to show that it is likely to be commenced now.

I cannot resist what Nsofor JCA stated in Olowokere v. African Newspapers Ltd (1993) 5 NWLR (Pt.295) 583 at 599 as it captures what a fundamental defect does to a Notice of Appeal. He stated as follows: –

“The question firstly required to be asked to be firstly answered becomes thus: – how is an appeal – id est a valid initiated to as to be by “due process of law”. But there is no doubt that a notice of appeal is a very important document. It is the very foundation of an appeal against any appealable decision. If therefore a notice of appeal is detective, then the Court of Appeal shall lack legal competence to entertain the appeal. It will strike out the appeal…… The notice of appeal (see Exhibit P1 at pages 57 and 58) was defective in one of the necessary to constitute it a valid notice of appeal it became Ipso Facto defective in all the condition wholly and entirely. The conditions precedent not having been satisfied or complied with, the purported notice of appeal filed was in my respectful opinion an exercise in futility the notice of appeal had no existence de jure. It was not by itself and in itself “a due process” to commence or initiate a valid appeal the Court of Appeal could entertain. What then was the legal consequence? It is clearly obvious. The Notice of Appeal was a nullity. And a fortiori, there was never ever appeal lodged or filed ab initio.”

It follows from what is on ground including the flimsy attempt by the appellant to sway the Court to its side of reasoning as the reality is that the instant Notice of Appeal is incurably bad or fundamentally defective as it has produced a failure to properly initiate an appeal. The situation is beyond what can be termed a technicality being a scenario that has effectively ousted the jurisdiction of this Court to enter into the determination of the appeal. See Onward Enterprises Ltd v. Olam International Ltd (supra) 1513-1514.

In the end therefore this Notice of Appeal is invalid and I have no option than to uphold the preliminary Objection. The appeal is consequently struck out.”Per PETER-ODILI, J.S.C. (Pp. 17-22, Paras. E-C).

  • APPEAL – NOTICE(S) OF APPEAL: Effect of a notice of appeal not signed by a legal practitioner or an appellant

“A Notice of Appeal is the foundation of an appeal. If it is not signed by the appellant or the legal practitioner representing him, such a document remains void and a Court would not have jurisdiction to hear an appeal on such a document. An unsigned Notice of Appeal is worthless and void. A complete nullity. See Okafor & 2 Ors v. Nweke & 4 Ors (2007) 3 SC (pt. ii) p. 55. Registered Trustees of the Apostolic Church v. R. Akindele (1967) NMLR p. 263.

Where a Notice of Appeal is not signed, and the Court proceeds to hear the appeal, it would be as if the hearing never took place. This is so since one cannot put something on nothing and expect it to stand. See UAC v. Mcfoy (1962) ACP 152.

In SLB Consortium Ltd v. NNPC (2011) 4SC (pt. i) p. 86.

I said that:

“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot overrule the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:

Firstly, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of legal firm.”

The Notice of Appeal was signed by “someone” on behalf of Dayo Akinlaja esq. That “someone” deposed to an affidavit explaining the blunder.

On looking at the Notice of Appeal it is impossible to say who signed it for Dayo Akinlaja esq.

On this fact alone the Notice of Appeal is a nullity. Deposing to an affidavit to explain irredeemable flaws in the signing of the Notice of Appeal is a worthless exercise since processes must be seen to have been properly signed, just by looking at it and not by examining affidavit evidence.

The preliminary Objection at the instance of learned counsel for the respondents’ is upheld.

The appeal is struck out.”Per RHODES-VIVOUR, J.S.C. (Pp. 23-24, Paras. A-E).

  • APPEAL – NOTICE(S) OF APPEAL: Effect of a notice of appeal not signed by a legal practitioner or an appellant

“I agree entirety with the said judgment as it accords with my views and conclusion in the matter that the notice of appeal having been signed by an unknown person, is a nullity and cannot activate the appellate jurisdiction of this Court.

It is trite that a notice of appeal is an originating process as far as an appeal is concerned. Such a process must be properly signed for it to be legally binding. Where notice of appeal is signed by a legal practitioner, it must be signed by such legal practitioner whose name can be found in the roll of legal practitioners. It cannot be signed “for” any legal practitioner or by an unidentified person. See Okafor v. Nweke (2007) All FWLR (pt. 368) 1016, Okwuosa v. Gomwalk & ors. (2017) LPELR 41736 (SC); Emeka v. Ikpeazu & ors (2017) LPELR – 41920 (SC).

I agree that the notice of appeal upon which this appeal is predicated is invalid and is hereby struck out. The preliminary objection is accordingly upheld.”Per OKORO, J.S.C. (Pp. 24-25, Paras. F-E).    

  • APPEAL – NOTICE(S) OF APPEAL: Effect of an unsigned notice of appeal

“A notice of appeal is the originating process of any appeal. In the instant case the notice of appeal which was meant by the appellant to institute the appeal was not signed at all on top of the name of the purported author of same one “DAYO AKINLAJA Esq” it was therefore unsigned or unauthenticated by anybody. I agree with the objectioner that the Notice of appeal is defective and incompetent in law. The incompetence of the Notice of appeal has therefore invalidated the appeal in its entirety. As a corollary this Court lacks Jurisdiction to entertain and determine the appeal for reason of non-existence of a valid and competent Notice of appeal or because of a defective notice of appeal.”Per SANUSI, J.S.C. (P. 26, Paras. A-D).

AJEWUMI BILI RAJI v. UNIVERSITY OF ILORIN & ORS (2018) LPELR-44692(SC)

ALSO READ   NWLR This Week: Visiting Error of Counsel on Litigant, Rules, Exceptions, Applications

Law Pavillion

Send your press release/articles to: info@dnlpartners.com . Follow us on Twitter at @Dnl_Legalstyle and Facebook at DNL Legal and Style



© Copyright DNL Legal & Style 2017.

This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original

Leave a Reply