HANKURAU ADA v. HASHIMU & ORS (2017)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of June, 2017

CA/S/43S/2012

Before Their Lordships

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria


Between

HANKURAU ADA –Appellant

 AND

1. HASHIMU
2. KOKARI
3. HAJIYA DELA –Respondents

…………………….A…………………….

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sharia Court of Appeal, Sokoto State sitting at Sokoto and delivered on the 11-6-2001 in suit No. SCA/1S/222/99 decided by Hon. Alhaji Mohammed Silame, acting Grand Kadi, Hon. Alhaji Bello Muh’d Rabah-Kadi and Hon. Alhaji Aliyu Mainasara Sifawa-Kadi. 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 and the Appellant, 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. The Appellant has further now appealed to this Court against the decision of the Court below 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 this Court granted on the 4-4-2006.

ISSUES FOR DETERMINATION; 
There are three (3) issues nominated by the Appellant for the determination of this Court as follows;
1. Whether the Court below was right to affirm the decision of the trial Court despite the fact that the Appellant’s deceased grandfather’s farmlands sold by his uncles named Goje Arzika and Giye Muh’d to the Respondents were part of undistributed inherited estate of his deceased grandfather (Ground 4).
2. Whether it was proper for the Court below to rely on the evidence adduced by the Respondents at the Court below and trial Court to hold that the Appellant have no right to complain since his mother was alive when the farmland was sold and she did not complained. (Grounds 5 and 7).
3. Whether having regard to the unimpeachable evidence of the Appellant’s two male witnesses, it was proper for the Court below to affirm the decision of the trial Court (Ground 6).

On the part of the Respondents, only an issue was nominated for the determination of this Court and which is reproduced here thus;
Whether on the peculiar facts of this case, the Court below was right in upholding the decision of trial Upper Area Court Isa which confirmed the farmlands to the Respondents. 
The Respondents also raised a Preliminary Objection to the competence of this Appeal in the alternative which shall first be determined before anything else as follows.
DETERMINATION OF PRELIMINARY OBJECTION 
The Respondents’ Notice of preliminary objection dated the 12-9-2013 and which is challenging the jurisdiction of this Court to entertain this Appeal is hinged on the ground that the Notice of Appeal is incompetent. On account of this position, learned Counsel for the Respondents submitted that the Court lacks the requisite jurisdiction to entertain this appeal as the notice of appeal which sets the machinery of this Appeal in motion, is incompetent and cannot therefore ignite the jurisdiction of this Court to entertain the Appeal.
It was the argument of Counsel that the Notice of Appeal is unsigned and that an unsigned document is a worthless piece of document in law and has no  legal value whatsoever. He cited the case of UBN PLC vs. TOYINBO (2009) 13 WRN 143 AT 152, where this Court per AGUBE, JCA held thus:
It is well settled that an unsigned document is worthless and void and is entitled to no weight at all in law …
See also SARAI vs. HARUNA (2008) 23 WRN 130 @ 135-136; SEIDU vs. A. G. LAGOS STATE (1986) 2 NWLR (PT. 21) 165; AG. ABIA STATE & ORS vs. AGHARANYO & ORS (1999) 6 NWLR (PT. 607) 362 @ 371 and ANAEZE vs. ANYASO(1993) 5 SCNJ 151 @ 168-169. 
Learned Counsel further argued that the Notice of Appeal in this Appeal as contained in the Records of Appeal being unsigned is incompetent and therefore this Appeal is not initiated by the due process of law and which robs this Court of its jurisdiction to entertain the Appeal. Counsel cited the case of MADUKOLU vs. NKEMDILIM(2001) 46 WRN 1. Counsel also cited the case of LADO vs. CPC (2012) 12 WRN 1 @ 14, where the Supreme Court per FABIYI, JSC held thus:
“It is clear that where claims before the trial Court were not initiated with due process same robs the Court of competence… A fortiori, the Court lacks jurisdiction.

…………………….B…………………….

Counsel, therefore, urged this Court based on the above submissions to grant the preliminary objection of the Respondents and to hold that this Appeal is incompetent having not been initiated by due process of law. He urged this Court to strike out this Appeal for lack of competence.
On account of this Preliminary Objection, learned Appellant’s Counsel on the 25-9-2013, filed an Appellant’s Reply Brief in which learned Counsel conceded that there is indeed an un-signed Notice of Appeal, which was filed on the 11-7-2001 before the Shari’ah Court of Appeal Sokoto but which has since been amended by an application dated the 28-3-2006 and filed on the 29-3-2006. By the said application, it was contended that an Amendment had since been effected by the Appellant, and which Notice was duly signed by Counsel. According to Counsel the Amended Notice of Appeal was deemed properly filed and served on the 4-4-2006 by an Order of this Court.
It was therefore submitted by Counsel that as a result of the Amendments made, the only existing Notice of Appeal of the Appellant before this Court is the one signed by the said Counsel, as the original notice of Appeal was amended and substituted with the existing notice of Appeal filed pursuant to an Order of this Court made on the 4-4-2006, and that the said Amended Notice of Appeal is therefore competent.
Learned Counsel also argued in the alternative without conceding that, the original notice of Appeal of the Appellant was not signed. He said that should this Court agree with Respondents’ submissions made pursuant to the objections raised it would only amount to inviting this Court to overturn its Order made on the 4-4-2006, which he believe this Court cannot do. Counsel cited the case of INVESTORS INTERNATIONAL (LONDON) LIMITED vs. FIRST BANK OF NIGERIA PLC (2008) 13 WRN 83 AT 87 thus;
“Once a Court pronounces on a final decision it becomes functus officio and can no longer recede or resile from it and can only be reserved on appeal”.
Counsel therefore urged this Court to respectfully dismiss the preliminary objection of the Respondent, and to decide this Appeal on its merit, being one of the oldest Appeals before this Court.
RESOLUTION OF PRELIMINARY OBJECTION 
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. 

…………………….C…………………….

It would be recalled that the invalidity cited by the Respondents in the instant Appeal has to do with the fact that the Original Notice of Appeal by which this Appeal was commenced was not signed. Albeit, learned Appellant’s Counsel conceded that the said Original Notice of Appeal filed on the 11-7-2001 was un-signed, he quickly informed Court that an Amended Notice of Appeal was filed via an application filed on the 29-3-2006. It was contended by Appellant’s Counsel that an Amendment has since been effected by the Appellant, and which Notice was duly signed by Counsel as required. Learned Counsel further argued that by the Amended Notice of Appeal which was deemed properly filed and served on the 4-4-2006 by an Order of this Court, whatever defect inherent in the Original Notice of Appeal, had become validated thereby and cured of its defects. 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. Cost of 30,000.00 is awarded in favour of the Respondents against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the lead judgment just rendered by my learned brother, Frederick O. Oho, JCA. I fully agree with the reasoning therein and the conclusion that the appeal is incompetent.
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.
There are of course instances of decided cases where Notice of Appeal are held to be ex facie defective and incompetent and are accordingly struck out by the appellate Courts. The instant Notice of Appeal being defective and incompetent is liable to be struck out.
It is accordingly struck out. I subscribe to the order made as to costs in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, Frederick O. Oho, JCA which has just been delivered. 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.
I accordingly struck out the appeal with a cost of N30,000.00 in favour of the respondent against the appellant.
Appearances

M.A. Sambo, Esq. –For Appellant

AND

Sanusi Garba, Esq. –For Respondents

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