20 settled principles relating to Notice of Appeal with decided cases

 

1.The notice of appeal is the foundation and super structure on which the appeal rests:
Case Law: OKWUOSA V. GOMWALK [2017] 2 SCM PG. 82.
The notice of appeal remains the only foundation and super structure on which the appeal rests. The incompetence of that originating process deprives the court of jurisdiction and competence to adjudicate on it. Accordingly, once the notice of appeal is defective, it renders the entire appeal incompetent and all the proceedings, decisions and orders made in the appeal, no matter how well conducted are rendered null and void.

A notice of appeal has been described as the “Spinal Cord” of an appeal. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective, no appeal can stand.

2. A notice of Appeal signed by a firm of solicitors or lawyers is incompetent:
Case Law: OKWUOSA V. GOMWALK [2017] 2 SCM PG. 82-83.
The challenge to the notice of appeal at pages 101-104 (also at pages 171-174) of the Records of this appeal is not novel. The law on this point has been settled in a number of previous decisions of this Court, including OKAFOR v. NWEKE, which held that a notice of appeal settled or signed by a firm of solicitors or lawyers is incompetent, the firm not being a natural person or man being called to the Nigerian Bar and enrolled in the Supreme Court of Nigeria to practice law. In the OKAFOR v. NWEKE case (supra) the question was whether “JHC OKORO, SAN & Co”, who signed the notice of cross-appeal and other processes in the appeal was a legal practitioner authorized by law to sign processes on behalf of litigants?

In the instant case, as it was in the OKAFOR V. NWEKE case (supra), the signature purporting to be that of “Miskom Puepet & Co” was on top of the inscription “Miskom Puepet &Co, who is not a legal practitioner legally authorized to sign and/ or file any processes in the Courts of law. -Per Eko, JSC (Pg paras).

The originating process to the Court of Appeal i.e. the Notice of Appeal was signed by “Miskom Puepet & Co”. By Section 2(1) and 24 of the Legal Practitioners Act read along with Section 31 of the Court of Appeal Act Cap 75 Laws of the Federation of Nigeria 1990 and Order 1 Rule 2 of the extant Court of Appeal Rules, the Notice of Appeal was not signed by a legal practitioner but a firm of solicitors, Not being a natural person or a human being who has been called to the Nigerian Bar and enrolled in the Supreme Court to practice law, the process so signed by Miskom Puepet & Co. was incompetent, – Per Aka’ahs, JSC (Pg paras).

A careful examination of the original Notice of Appeal at page 104 of the record shows clearly that it was signed on behalf of MIKSOM PUEPET & Co. It is also not in doubt that MIKSOM PEUPET & Co. is not a legal practitioner on the roll of legal practitioners entitled to practice Law in Nigeria. The position of the law on the competence of a legal process signed by a person whose name does not appear on the roll of legal practitioners has been re-stated many times by this Court. In my concurring opinion in a recent decision of this Court in SHELL PETROLEUM DEVELOPMENT CO. NIG LTD v. SAM ROYAL HOTEL NIG LTD, I observed as follows:- Per Kekere-Ekun, JSC (Pg paras).

I have had a preview of the lead Judgment just delivered by my learned brother Eko, JSC, and I am in agreement with him that the Notice of Appeal filed at the Court below is incompetent.

This Appeal is easily resolved in favour of the Appellant because as my learned brother pointed out, the position of the law as it stands at a legal process signed and issued by a law firm is definitely incompetent and is liable to be set aside. So, the processes used in Court must be signed and issued by a person and in the proper name of the person as enrolled to practice law in Nigeria under the Legal Practitioners Act.

3.A fundamentally defective Notice of Appeal cannot be cured by an amendment of same:
Case Law: OKWUOSA V. GOMWALK [2017] 2 SCM PG. 84.
The position or contention of the Appellant supported by a number of dicta of this Court in several authorities including AWHINAWHI v. OTERI; ATUYEYE v. ASHAMU; NWAIGWE v. OKERE, is that a fundamentally defective notice of appeal cannot be cured by an amendment of same and that only a valid notice of appeal can be amended subsequently.

Appellant’s counsel further submits that the mere fact that Mr. G.S. Pwul of counsel to the appellants, now Respondents herein, filed an amended Notice of Appeal upon leave sought and granted does not cure the malaise of the original Notice of Appeal.

The Court of Appeal Rules makes it mandatory that the Notice of Appeal shall be signed by either the appellant or his Legal representative, which in the same Rules is defined as meaning “a person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in any proceedings before the Court”. – Per Eko, JSC (Pg paras)

The law is also trite that an incurably defective process cannot be amended nor can anything be added to it, the well known adage being that you cannot put something on nothing and expect it to stand. See: Nwaigwe v. Okere. – Per Kekere-Ekun, JSC (Pg paras).

4. Failure to object to the admissibility of a defective Notice of Appeal by a Respondent thereto would not amount to waiver or estoppel by conduct to validate the act:
Case Law: OKWUOSA V. GOMWALK [2017] 2 SCM PG. 85.
Accordingly, no additional grounds of appeal can be added to an invalid notice of appeal that is void ab initio. And as Lord Denning had put in U.A.C. LTD v. MACFOY. You cannot place something upon nothing and expect it to stand.
A fundamentally defective notice of appeal is incurably bad and is one that was dead on arrival.

The law is now settled, as can be seen from the decision of this Court in MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE, that where an act is void ab initio it cannot be validated by subsequent acts, which are even valid.

In this case it was held that since the purported retirement of the respondent was void ab initio, the subsequent acceptance of the payment of three months salary in lieu of notice would not operate either on principles of waiver or estoppel by conduct to validate the act that was void ab initio. This authority of the MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE (supra) has, in my firm view, settled against the Respondents their contention that the Appellant was estopped from complaining that the original notice of appeal was incurably defective and a nullity when he did not oppose the application for amendment of the notice of appeal by addition thereto of additional grounds of appeal.

This argument is untenable, in view of NWAIGWE v. OKERE (supra); MILITARY ADMINISTRATOR, BENUE STATE v. ULEGEDE (supra). In any Case, there is a distinction between an amendment to permit additional grounds of appeal, which is innocuous, and a contentious amendment to alter illegality to legality retrospectively.

5. On need for grounds of appeal to arise from decision appealed against:
CASE LAW: NASIRU V. STATE [2022] 4 NWLR PT. 1819 PG. 178.
The grounds of appeal in an appeal must arise from the ratio decidendi of the decision appealed against, and the issues formulated for the determination of the appeal must arise from the grounds of appeal which emanated from the decision appealed against.

 

 

 

6. On meaning of omnibus ground of appeal and limitation as to issues that can be raised therefrom: –
NASIRU V. STATE [2022] 4 NWLR PT. 1819 PG. 178
When a complaint is against the weight of evidence, the complaint must be against the totality of the evidence adduced at the trial court not against any specific issue. The complaint is only concerned with the appraisal and evaluation of all the evidence; not the weight to be attached to any particular piece of evidence.

Thus, an omnibus ground of appeal is not against a specific finding of fact or any document, and cannot be used to raise any issue of law or error in law. In this case, the complaint in ground 2 of the grounds of appeal was not against the weight to be attached to any particular piece of evidence, and the appellant did not refer to a specific finding in the issue 1 arising from that ground.

The question raised by issue 1 was related to the appellant’s complaint, touching on weight of evidence in ground 2 of the grounds of appeal. Therefore, the respondent’s objection on that point totally lacked merit.

7. On purpose of particulars of ground of appeal and their relevance in determining complaint in a ground of appeal:
NASIRU V. STATE [2022] 4 NWLR PT. 1819 PG. 179
Particulars of a ground of appeal are the specifications of errors or misdirection, which show what a complaint against the decision is. They are the specific reasoning, findings or observations relating to an error or misdirection complained of, and to determine whether a ground of appeal is relevant to the issue formulated, it must be read together with its particulars to make it a complete ground, and it must be based on the issue in controversy.

In the instant case, it was clear from the ground 1 of the grounds of appeal read in conjunction with its particulars No. 5 that contrary to the respondent’s argument, there was a correlation between ground 1 of the grounds of appeal and the issue 2 distilled there-from. Therefore, the respondent’s objections were overruled.

8. On effect of inelegant drafting of ground of appeal:
NASIRU V. STATE [2022] 4 NWLR PT. 1819 PG. 179-180
Courts are encouraged to make the best out of an inelegant ground of appeal in the interest of justice, particularly where no one is left in doubt as to the particulars on which it is founded. In the instant case, the appellant’s complaint in the main ground was that the Court of Appeal erred in law when it held that the prosecution proved beyond reasonable doubt that he caused the death of the deceased, and in particulars No. 5 of the said ground 1, the appellant specified that the Court of Appeal did not dispassionately consider all defences put forward by the appellant during trial before affirming that the prosecution proved its case beyond reasonable doubt. He did not mention self-defence, but the courts are encouraged to make the best out of an inelegant ground of appeal.

9. A Notice of Appeal should convey the applicants complaints in clear terms-any ground of Appeal which is vague, general in nature or speculative is incompetent:
Case Law: IKECHUKWU V. NWOYE & ANOR. [2013] 12 SCM PT. 2 PG. 295.
In summary, it is expected that a notice of appeal should convey in clear terms the substance of the appellant’s complaint against the judgment appealed for purpose of leaving the respondent in no doubt as to what battle he is expected to contest in court. Any ground which is vague or speculative will fall short and not disclose any reasonable ground of appeal. The contents must in other words be specific and straight to the point. – Per Ogunbiyi, JSC (Pg. 301 paras C-E)

10. An amendment can be made at anytime before judgment-errors in Grounds of Appeal can be corrected:
Case Law: IKECHUKWU V. NWOYE & ANOR. [2013] 12 SCM PT. 2 PG. 295-296.
This is not to say however that the 1st respondent’s counsel was out of place in submitting on the conflicting and inelegant nature of the grounds of appeal as contained in exhibits 1 and 3. in other words, notwithstanding that the reliefs sought were clumsily couched, the totality of the application in my view is sustainable under relief 3 of the motion paper wherein the following phrase in the prayer serves a saving grace.
“by correcting typographical errors and/or modifying existing Grounds of Appeal in the manner shown and underlined in the Proposed Amended Notice and Grounds of Appeal.”

What the applicant is seeking leave from the court to put in place as his notice and grounds of appeal are contained in Exhibit ‘3’, the proposed notice and grounds of appeal which is to replace exhibit 1.
In other words the intention is to amend the initial eight grounds of appeal by adding more grounds on issues of facts or mixed law and facts. The product of the amendment Exhibit ‘3’ containing 15 grounds of appeal is further sought to be deemed as filed and served.

The law is trite and well settled that an amendment can be made at any time before judgment. This is reasonable because once judgment is delivered, a seal has been put to the controversy between parties and therefore ends the adjudication in that court.
“A notice of appeal may be amended by or with the leave of the court at anytime”-Per Ogunbiyi, JsC (Pg. 302 paras I, A-E).

11. On purpose of preliminary objection to an appeal and when should not be filed:
Case Law: AFOLABI V. STATE. [2022] 2 NWLR PT. 1814 PG. 211.
The essence of a preliminary objection is to terminate an appeal in limine. In other words, the sole purpose of a preliminary objection is to terminate the appeal usually on grounds of incompetence. It should be filed only when the respondent is satisfied that there are some fundamental defects in the appellant’s process, and not when the respondent notices any error in the appellant’s processes.

12. On how competence of ground of appeal can be challenged:
Case Law: AFOLABI V. STATE. [2022] 2 NWLR PT. 1814 PG. 211.
Where a respondent complains of the competency of a ground of appeal, and the other grounds are in order, and can sustain the appeal, the respondent ought to file a motion on notice to strike out the incompetent grounds and not a preliminary objection. Any objection to a ground or some grounds of appeal, and not the entire appeal, is by way of motion on notice which could also be argued in the brief.

13. MEANING OF GROUNDS OF LAW AND QUESTION OF FACT:
CASE LAW: BASF (Nig.) Ltd. v. Faith Intp Ltd. (2010) Vol. 24 WRN 26 at 55-56, lines, 35 15 (SC)
“A ground of law has the under-mentioned meanings:
A question in which the court has no discretion to exercise because it has to be answered in accordance with a principle of law. It is already predetermined and resolved by the law.

A question, which calls for the argument and determination of what the true position is in law, such usually arises out of the uncertainty of the law.
Interpretation of documents, which is a question of fact but is strictly within the duty of a court. While the meaning of a question of fact in a ground of appeal relate to:
Any question not determined by the principle of law.
Any question except that which relates to what the law is.
Any question that is to be answered by the jury rather than the Judge.” Per. Adekeye, JSC.

14. MEANING OF OMNIBUS GROUND OF APPEAL LIMITATION AS TO ISSUES THAT CAN BE RAISED THEREFROM:
CASE LAW: Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82, paras. G-H (SC)
“An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document and it cannot be used to raise any issue of law or error in law. Therefore, for a complaint on a finding of fact on a specific issue, a substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. See Ajibona V. Kolawole (1996) 10 NWLR (Pt. 476) 22.” Per. Kalgo, JSC.

15. MEANINGS OF GROUND OF APPEAL AND QUESTION OF LAW OR GROUNDS OF LAW:
CASE LAW: Ene V. Asikpo (2011) ALL FWLR (Pt. 553) 1907 at 1934-1935, Paras. B-E (CA)
“A around of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing. On the other hand, a question of law or grounds of law can be said to have three meanings, to wit:

A question the court is bound to answer in accordance with a rule of law, the process of answering of which question the court would exercise no discretion in whatever manner; it is a question predetermined and authoritatively answered by the law;
The second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true rule of law is on a certain matter which question usually arises out of the uncertainty of the law;
The third meaning is in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the Judge instead of a jury is a question of law, even though in actual sense, it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the Judge.

16. ISSUES FOR DETERMINATION MUST BE DISTILLED FROM COMPETENT GROUNDS OF APPEAL:
CASE LAW: Bayero v. Mainasara and Sons Ltd (2007) ALL FWLR (Pt.359) 1285 at 1308 Paras. D-G (CA)
“Issues for determination must be distilled from competent grounds of appeal. It is the ground of appeal that gives life and meaning to the issues raised in the appeal for determination.

 

17.A wrongly-headed notice of appeal is of no relevance to the appeal.
CASE LAW: OHUTA V. OKIGBO [1995] 4 NWLR [PT. 389] 353 at 368- 369.
The present position of the law therefore is that where a notice of appeal is wrongly headed, the Court should not strike out the appeal but should, in the interest of justice, hear it on its merits.

18.On whether a notice of appeal can be sustained by a single competent ground of law:
CASE LAW: MAINASARA V. F.B.N. [2022]6 NWLR [PT. 1827] PG. 472.
A notice of appeal can be sustained by a single competent ground of law.

19. WHETHER THE SUPREME COURT CAN EMBARK ON SURGICAL OPERATION TO SIFT GROUNDS OF APPEAL.
CASE LAW: IKpeazu v. Otti & 3 ORS. (2016) 2 S.C. (Pt. II) 102 at 155 156 PG. 15- 5 [SC].
“The issue that is not contested at the court below is that Issue 11 was formulated from ground which was already struck out. Appellant’s case was simply that having sruck out Ground 28 the court below was without jurisdiction to consider same and that the said issue 11 should be struck out along side with the other issues jointly considered.

This point is fairly settled in a number of decisions of this court to the effect that arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped together with those of competent grounds of appeal and issues for determination. If this is done it will not be the business of the court to “sift the chaff from the grains” an exercise that would clearly involve arguments in respect of the valid grounds from the invalid ones. It is true that such an exercise may involve the court in descending into the arena of dispute which will often becloud the judgment of the court.

In this case just as the lower court lumped all the 9 issues together, it also lumped its consideration and resolution of the said issues together. This court cannot embark now on any “surgical operation” to sift out the good grounds from the ones already struck out, as well as Issue 11 that was struck out.” Per. Galadima, JSC.

20.WHETHER GROUND OF APPEAL BECOMES GROUND OF LAW MERELY BECAUSE IT IS SO DESCRIBED IN THE NOTICE OF APPEAL-
CASE LAW: General Electric Coy. v. Akande & 4 Ors. (2010) 12 S. C. (Pt. IV) 75 at 102 PG 15 (SC)

“It is trite law that a Ground of Appeal does not become a ground of law merely because it is so described in the Notice of Appeal. The ground itself and its particulars of error must show that the ground is that of Law.

 

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]

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