Legalpedia Citation: (2015-07) Legalpedia (CA) 11151

In the Court of Appeal

HOLDEN AT JOS

Mon Jul 6, 2015

Suit Number: CA/J/76C/2010

CORAM

PARTIES

BALA ABUBAKAR

APPELLANTS

COP GOMBE STATE

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction. The Appellant in 2007 bought and collected some goods from one Alhaji Ahmed Garba worth N7, 306,622.00. He issued a cheque for the sum of N7,306,622.00 to the said Alhaji Ahmed Garba to be drawn from his account with Skye Bank. When Alhaji Ahmed Garba presented the cheque to the Bank for payment, it was discovered that there was no money in the Appellant’s account to settle the said amount. The cheque was therefore dishonoured and became a dud cheque. Alhaji Ahmed Garba drew the attention of the Appellant to the refusal of Skye Bank to accept the cheque because there was no money in the account. The Appellant thereafter made several pledges to pay for the goods collected, but failed to do so. Alhaji Ahmed Garba then reported the matter to the Respondent and lodged a complaint of criminal breach of trust and cheating against the Appellant. The Appellant was later arraigned before the trial Court for the said offences of criminal breach of trust and cheating. At the end of the trial, the trial Court discharged the Appellant for the offence of criminal breach of trust but convicted him for the offence of cheating, and sentenced him to twelve (12) months imprisonment with an option fine of One Thousand Naira (1, 000.00) on each of the two counts of charge. The trial Court also ordered the Appellant to pay Alhaji Ahmed Garba, (the complainant to the Police), the sum of N7, 306, 622. 00 as compensation, representing the value of the goods which the Appellant collected from him without paying for same, the trial Court attached some moveable and immoveable properties of the Appellant. The Appellant was aggrieved with the above decision of the trial Court and appealed to the High Court of Justice, Gombe State, (the Court below), which in turn, dismissed the Appeal and affirmed the conviction and sentence of the Appellant. The Court below also affirmed the action of the trial Court in attaching the moveable and immoveable properties of the Appellant in execution of the order of compensation. Still dissatisfied, the Appellant further appealed to this Court.

HELD

Appeal struck out.

ISSUES

Whether the Appeal before this Court is competent, in light of the fact that the Notice of Appeal was signed by Counsel to the Appellant, and not by the Appellant himself

RATIONES DECIDENDI

APPEALS – A COURT LACS JURISDICTION WHERE THE APPEAL IS INCOMPETENT

Consequently, before going into the merits of the Appeal, the question of the competence or otherwise of the Appeal, which was raised suo motu by the Court, must necessarily be addressed first. This is because, where the Appeal is incompetent, this Court is without jurisdiction to entertain it as any proceedings arising there from will be null and void and of no effect. Consequently, the live issue to be considered, even before going into the merits of the Appeal is: whether the Notice of Appeal is competent. PER – JUMMAI HANNATU SANKEY, J.C.A.

DEFECTIVE APPEALS – EFFECT OF A DEFECTIVE NOTICE OF APPEAL

A Notice of Appeal is inarguably the process that initiates an appeal. Thus, where it is defective, any proceeding taken thereon becomes null and void, as the Court would have no jurisdiction to hear an appeal commenced by such a defective process. The reasoning is simple. You cannot put something, (i.e. the appeal proceedings), on nothing, (i.e. the defective Notice of Appeal), and expect it to stand. No. It will crumble. PER – JUMMAI HANNATU SANKEY, J.C.A.

COMPETENT COURT – WHEN IS A COURT COMPETENT

In Madukolu V Nkemdilim (1962) 2 NSCC 374, it was held that a court is competent when:

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;

2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

3. The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. PER – JUMMAI HANNATU SANKEY, J.C.A.

INTERPRETATION OF STATUTE – HOW THE COURTS MUST INTERPRETE A STATUTE WHERE THE WORDS ARE UNAMBIGUOUS

It is settled law that where the words in a statute are clear and unambiguous, the court must give them their plain meaning. PER – JUMMAI HANNATU SANKEY, J.C.A.

INTERPRETATION OF STATUTE – HOW THE COURTS MUST INTERPRETE A STATUTE WHERE THE WORDS ARE UNAMBIGUOUS

It is settled law that where the words in a statute are clear and unambiguous, the court must give them their plain meaning. PER – JUMMAI HANNATU SANKEY, J.C.A.

SIGNATURE – THE POSITION OF THE LAW ON WHO SHOULD SIGN A NOTICE OF APPEAL

Undoubtedly, by these provisions, it is mandatory that the Appellant should have signed the Notice of Appeal by himself, and not through his legal representative, as has been done here, since it has not been canvassed that the Appellant is incapable of signing the Notice of Appeal by reason of insanity or that the Appellant is a body corporate. Consequently, the said Notice, having fallen fowl of Rule 4 of Order 17 of the Rules of Court, is fundamentally defective. This has therefore divested the Court of the requisite jurisdiction to hear and determine the Appeal. By this Rule, only an individual Appellant is envisaged as qualified to sign the Notice of Appeal. See The Nigeria Army V Samuel (LPELR-SC.75/2008 per Onnoghen, JSC; & Adekaye V FRN (2005) ALL FWLR (Pt. 252) 514 at 539.

In Uwazurike V A-G Federation (2007) LPELR-SC.209/2006 1 at 11 paras E-G; (2007) ALL FWLR 514 at 539, Ogbuagu, JSC stated thus:

“In the case of State V Jammal (1996) 9 NWLR (Pt. 473)384 at 399 C.A., it was held that the Court of Appeal ought to take judicial notice of the fact and law that a notice of appeal in a criminal appeal filed in the lower or trial court which was signed by a counsel for the appellant instead of by the appellant himself is defective by virtue of Order 4 Rule 4 (1) of the Court of Appeal Rules, 1981. That the provisions are clear, unambiguous and mandatory. That the notice of Appeal must be signed by the appellant himself and not by his counsel.”

PER – JUMMAI HANNATU SANKEY, J.C.A

COMPLIANCE OF RULES OF COURT – EFFECT OF NON-COMPLIANCE TO RULES OF COURT

Rules of court prima facie must be obeyed in compliance and not in breach. Any failure to comply with the provisions of the Court of Appeal Rules will render the Notice of Appeal filed fundamentally defective and incompetent and therefore liable to be struck out. The Rules certainly do not permit the signing of the Notice of Appeal by Counsel for the Appellant. PER – JUMMAI HANNATU SANKEY, J.C.A.

INTERPRETATION OF STATUTES – DUTY OF COURTS TO GIVE A CLEAR INTERPRETATION OF A STATUTES WHERE ITS WORDS ARE UNAMBIGUOUS

It needs to be emphasized that where the language of a statute is plain, clear and unambiguous, the task of interpretation can hardly arise. It is therefore the duty of the courts in such a situation to give the words their ordinary, natural and grammatical construction unless such interpretation would lead to an absurdity or some repugnancy or inconsistency with the rest of the legislation. PER – JUMMAI HANNATU SANKEY, J.C.A.

NOTICE OF APPEAL – WHAT IS THE EFFECT OF A DEFECTIVE NOTICE OF APPEAL

It must also be borne in mind that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See: Olanrewaju V BON Ltd (1994) 8 NWLR (Pt. 364) 622; & Olowokere V African Newspapers (1993) 5 NWLR (Pt. 295) 583. PER – JUMMAI HANNATU SANKEY, J.C.A.

CASES CITED

STATUTES REFERRED TO

Penal Code

Sheriffs and Civil Process Act

Criminal Procedure Code

Court of Appeal Rules

Evidence Act

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