GLOVER PRINCESS V NIGERIA CUSTOMS BOARD & ORS

GLOVER PRINCESS V NIGERIA CUSTOMS BOARD & ORS


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON TUESDAY, 24TH APRIL, 2018


Suit No: CA/L/971/16

CITATION:

Before Their Lordships:

YARGATA BYENCHIT NIMPAR, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA


BETWEEN

GLOVER PRINCESS
(APPELLANT)

AND

NIGERIA CUSTOMS BOARD
NIGERIA CUSTOMS SERVICE
COMPTROLLER GENERAL OF CUSTOMS
DCG, NIGERIA CUSTOMS ENFORCEMENT, INVESTIGATION AND INSPECTION HQS.
DCG, NIGERIA CUSTOMS HUMAN RESOURCES HEADQUARTERS
ACG, NIGERIA CUSTOMS INVESTIGATION AND INSPECTION HQS.
COMPTROLLER, NIGERIA CUSTOMS INVESTIGATION AND INSPECTION HQS.
COMMANDANT, IKEJA NIGERIA CUSTOMS TRAINING COLLEGE, IKEJA LAGOS
COMPTROLLER, NIGERIA CUSTOMS FEDERAL OPERATIONS UNIT, IKEJA
FEDERAL MINISTER FOR FINANCE
INSPECTOR GENERAL OF POLICE
COMMISSIONER OF POLICE, LAGOS STATE COMAND
DR. MRS. NGOZI OKONJO-IWEALA
ALHAJI ABDULLAHI INDE DIKKO
ALHAJI MUSA TAHIR
ALHAJI MERA
MR. ABUEH M. N.
ALHAJI SULEIMAN BAWA
ALHAJI USMAN ADAMU TURAKI
ALHAJI SANI MAIDUGU
ALHAJI IBRAHIM BUBA
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Brief of Argument – Effect of failure of Respondent to file brief of argument in an appeal

The Respondents did not file any brief of argument. Let me at this stage state that the failure of the Respondents to file any brief of argument is tantamount to an admission by the Respondents of everything stated in the Appellant’s brief and they will be bound by the outcome of the appeal. However, the appeal must still succeed or fail on the strength of the Appellant’s brief. See the case of Kano State House Of Assembly & Ors v. Umar (2015) LPELR-24008 (CA); Echere & Ors v. Ezirike & Ors (2006) LPELR-1000 (SC). Per OBASEKI-ADEJUMO, JCA. read in context

2. Leave Of Court – The need for leave of court before adding a new party to an appeal
Whether parties to an appeal can be altered without leave of Court; Effect of same

Now to the competency of this appeal; I found that a new party was unilaterally added to the list of Respondents on appeal. The trial had 20 Respondents while the Notice of Appeal reflects 21 Respondents. There is nothing to show that the Appellant at any time sought the leave of Court before adding a new party on appeal. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 clearly states that “All appeals shall be by way of rehearing… ” It has also been decided in plethora of cases that an appeal is a continuation of a case determined at the lower Court upon which the Appellant seeks the appellate Court to review. This Court in the case of Eshieshi v. Afegbua & Anor (2014) LPELR-22662 (CA) held that:

“…the position of the law is that an appeal though a fresh suit is generally regarded as a continuation of the suit appealed against (i.e. the original suit) the nature and character of which cannot be changed on appeal…”

See also the case of Nwaogu v. Atuma & Ors (2012) LPELR-19648 (SC). It suffices to say therefore that, parties cannot on appeal by conduct or consent alter the “parties” on record as pleaded at the lower Court. This settled position of law was emphasized by this Court, per EKO, JCA in Veralam Holdings Limited v. Galba Limited & Anor (2014) LPELR-22671 (CA) 8-9, paras D-C thus:

“The Notice of Appeal at pages 63 and 64, filed on 8th December, 2006 has only Lt. General T. Y. Danjuma (RTD) as the sole Respondent in this appeal. Thus the parties in the suit leading to the appeal have been unilaterally altered without leave of Court.

By Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011, “all appeals shall be by way of rehearing.” As stated in Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at page 226, which principle of law restated in Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at page 225; because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action; parties are normally confined to the case, as pleaded in the Court of first instance. The case at the Court below, being the Court of first instance has the Appellant as the plaintiff with Galba Ltd. and Lt. Gen. T. Y. Danjuma (RTD) as 1st and 2nd defendants respectively. The unilateral alteration of the parties in the suit, as pleaded at the Court below, by the Appellant as reflected in the Notice of Appeal, the said Notice of Appeal is liable to be struck out, and it is hereby struck out.”

It is evident from the record of appeal that the Respondents at the trial Court were twenty in number while on the Notice of Appeal the Appellant added a fresh Respondent without the leave of this Court. The Appellant contended in her brief that the 21st Respondent was joined in this matter because the rules of the lower Court and this Court makes provision for the joining of a party, but there is no where he stated that the joinder of the party was with the leave of Court. It is very important to seek and obtain the leave of Court because the Court has to be satisfied as to the reason why leave must be granted. See the case of Ayebakuro v. Tariah & Ors (2014) LPELR-22675 (CA).

The Appellant herein unilaterally altered the parties on the face of the Notice of Appeal before this Court by adding a fresh Respondent to the list of Respondent; this is fatal to the competency of the appeal and the defect cannot be regularized. The Notice of Appeal is the foundation upon which every appeal stands; therefore any defect therein cannot be treated as a mere irregularity.

A defective Notice of Appeal will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to hear and determine the appeal. The Supreme Court in the case of The Nigerian Army v. Sgt. Asanu Samuel & Ors (2013) LPELR-20931 (SC) held that:

“A Notice of Appeal if it is the process that initiates an appeal, so if it is defective, any proceedings taken on a defective Notice of Appeal becomes null and void as the Court would have no jurisdiction to hear an appeal commenced on such a defective process. The reasoning is simple. You cannot put something (appeal proceedings) on nothing (defective Notice of Appeal) and except it to stand. It would crumble.”

See also the cases of First Bank Of Nigeria Plc & Ors v. Maiwada & Ors (2012) LPELR-9713 (SC); Ikechukwu v. F.R.N. & Ors (2015) LPELR-2444 (SC); Kolapo & Ors v. Nzedinma & Anor (2011) LPELR-8820 (CA).

It is also important to note that by virtue of Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a fundamental right application will only be defeated/nullified if at any stage it is found that the application was not properly commenced. The provision is reproduced below:

“ORDER IX – EFFECT OF NON COMPLIANCE

1. Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to –
(i) Mode of commencement of the application…” (Underlining mine) As in this case, the Notice of Appeal is the mode of commencement before this Court and it has been established above that the Notice of Appeal was not properly placed before this Court. It therefore makes the appeal incompetent, such that it cannot be waived or treated as a mere irregularity.

Having established that the Notice of Appeal is incompetent, the only thing left is for this Court to strike out the Notice of Appeal. Order 7 Rule 6 of the Court of Appeal Rules, 2016 provides that:

“The Court shall have the power to strike out a Notice of Appeal when an appeal is not competent of for any other sufficient reason.”

See the case of Continental Shipyard Ltd v. Eziogoli Shipping Ltd (2008) LPELR-4002) (CA) where it was held that:

“…the defective nature of the Notice of Appeal renders both the Appellant’s and Respondent’s briefs incompetent and liable to be struck out…”

See also the cases of Veralam Holdings Limited v. Galba Limited & Anor (Supra); SPDC v. Sam Royal Nig Ltd (2016) LPELR-40062 (SC)

I therefore have no hesitation in holding that the Notice of Appeal is incompetent and is accordingly struck out. Per OBASEKI-ADEJUMO, JCA. read in context

B. COURT
3. Raising Issues Suo Motu – What necessitates the Court raising issue suo moto without hearing parties
Instance(s) where a court can raise issue(s) suo motu and determine it without hearing parties

At this point, there is the need to resolve the issue as to the competency of this appeal before this Court can decide whether or not to proceed with the substantive issues raised by the Appellant. It is also important to note that
this Court is raising this issue suo motu without necessarily inviting the parties to address the Court on it because the competency of the appeal is an issue of law that goes to the jurisdiction of this Court. See the case of Garba & Ors v. Ummuani (2012) LPELR-9841 (CA) on duty of an appellate Court, where MBABA, JCA held that:

“But is the appeal competent before this Court, even though there is no effective objection by the Respondent? Should an appellate Court close its eyes against obvious defects in the appeal of the Appellant, even where the Respondent fails to challenge it, or does so, improperly, as in this appeal? I think to do so would amount to abduction of judicial duties, because the appellate Court can suo motu raise any issue that bothers on law or its jurisdiction and decide on it, even without hearing the parties. See the case of Effiom v. Cross River State I.N.E.C. (2012) 14 NWLR (1213) 106 AT 133, 134; Tukur v. Govt. Gongola State (1984) 4 NWLR (Pt. 117) 517.”

See also the case of Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, where the Supreme Court per TABAI, JSC had this to say:

“… In some special circumstances the Court can in issues of law or jurisdiction suo motu and without hearing the parties decided upon it.” Per OBASEKI-ADEJUMO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OBASEKI-ADEJUMO, JCA


This is an appeal against the Ruling of the Federal High Court, Lagos State division delivered on the 9th of November, 2015 wherein the learned trial judge coram BUBA, J., dismissed the application for the enforcement of the Appellant’s fundamental human rights to personal liberty, dignity of human person, right to life, amongst other rights as provided by Sections 33, 34, 35, 39, 41, 42 & 43 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Articles 2-6, 18(3) & 20-22 of the African Charter on Human and Peoples’ Rights and Article 38 of the Statute of the International Court of Justice.

The Appellant by a fundamental human rights application before the lower Court alleged that some officers of the Nigeria Customs Board sexually harassed her, beat her up, stole her money and properties from her shop, threatened her life, vandalized her properties, and stopped her salary, amongst other allegations. The 1st-9th & 14th-20th Respondents filed a counter-affidavit in response denying the allegations. Also the 10th & 11th-12th Respondent filed a counter-affidavit and preliminary objection. The 10th Respondent stated that the Appellant’s application did not disclose any cause of action against them while the 11th-12th Respondents also denied having anything to do with the matter and that the Appellant has not shown any cause of action against them. The lower Court in dismissing the Appellant’s application held that the Appellant failed to make out a case for the infringement of her fundamental human rights and that the Court has no jurisdiction to dabble into the emoluments of the Appellants as it is a matter within the jurisdiction of the National Industrial Court. The Appellant been dissatisfied with the Ruling filed a Notice of Appeal dated 16th of May, 2016 based on 11 grounds.

The Appellant’s brief of argument was filed 20th of September, 2016 and it was settled by Glover Princess of Legal seat, Nigeria Customs Service. Eleven issues were formulated thus:

“1. Whether it was right, ethical and justifiable for the learned trial judge to clearly show bias, malice, bad faith, denial of fair hearing and injustice in the first paragraph of page two of his Lordship’s ruling where in his Lordship clearly showed gross bias, malice and bad faith on his side and thereby denied the Appellant justice and fairness. And I quote “the Court read the instant fundamental right enforcement application in which the applicant dragged 20 Respondents and is seeking.”

2. Whether it was right, ethical and justifiable for the learned trial judge to clearly show bias, malice, bad faith, denial of fair hearing again by relying on an affidavit which was on the weight of evidence in the last paragraph of page seven of his Lordship’s ruling; which extended to page eight of his Lordship’s ruling where in his Lordship clearly again showed gross bias, malice and bad faith, and denied the Appellant fair hearing and justice; where he stated and I quote

“the Respondents in their counter-affidavit state categorically. I Ahmed, male, Muslim, Nigerian citizen and superintendent of customs, Nigeria Customs Service Board, Customs Training College, Ikeja Lagos do hereby make oath and state as follows:”

His Lordship ended up not being coherent because he held that the Respondents categorically stated and the next he held was that one Ahmed Aminu a total stranger was the one who deposed to all the fabricated lies on a matter he knew nothing about and the said affidavit was also filed out of time.

3. Whether it was right, ethical and justifiable for the learned trial judge not to have given the Appellant fair hearing and most importantly was incoherent in his Ruling; because his Lordship again misdirected himself in law and erred in his judgment/Ruling when he held on the last paragraph of page 15 which extended into the page 16 of his ruling and I quote “to all these averments, the applicant had to answer by way of a counter-affidavit but chose to reply in her address. This Court upon a calm evaluation of the averments in the affidavit in support and the counter-affidavit has no doubt that the applicant no reply. See also the counter-affidavit of the 10th Respondent and the notice of preliminary objection.” His Lordship was completely incoherent and did not even have reasons for believing and relying on an affidavit that was grossly against the weight of evidence and should have be declared irrelevant and inadmissible.

4. Whether it was right, ethical and justifiable for the learned trial judge to have again erred and misdirected himself in law and did not do justice to this case when he held in the last paragraph of page 16 of his ruling which extended to page 17, thereby denied the Appellant fair hearing. And I quote “the law is that an address no matter how brilliant will not take the place of evidence. Indeed in the absence of an averment countering the deposition of Ahmed Aminu, the Court is left with no option than to accept the averment as the truth and hold that the preliminary objection has merits and on the merits. The applicant has failed to make out a case of the infringement of fundamental rights.” His Lordship practically ignored all the averments in the Appellant’s affidavit which had already countered all the fabricated lies of the so called Ahmed Aminu; all the responses in the Appellant’s reply written address and all the documentary evidences therein.

5. Whether it was right, ethical and justifiable for the learned trial judge to have again and again erred in law and misdirected himself thereby denied the Appellant justice and fair hearing; when his Lordship held on the second paragraph of page 17 of his ruling and I quote “that is not the only problem, this Court has no jurisdiction to dabble into the emoluments of the applicant by way of salary that is a matter within the domain of the National Industrial Court.” His Lordship practically did not do justice to the case and refused to understand that the dispute was not that of employer and employee but clear of oppression and dehumanization which resulted from sexual harassments.

6. Whether it was right, ethical and justifiable for the learned trial judge to have completely misdirected himself in law and erred in his judgment when he ignored all the orders sought for by the applicants/Appellant and only decided to pick on one that he thought he could defend with the fact that it is only National Industrial Court that has jurisdiction; even when his Lordship knows that is the Federal High Court that has jurisdiction so to speak? It is very clear and obvious that this Lordship did not do justice to this case because he never considered all the Orders A-M sought by the applicant/applicant in that suit, but rather he mischievously relied on all the false allegations that hold no water fabricated by one Aminu Ahmed a total stranger to the suit; who was not also summoned for cross examination because that is one of the exceptions to the rules that cross examinations is not necessary in matters filed through motions on notice which are for speedy disposal. Whether the decision of the trial judge on this case was not also the weight of evidence.

7. Whether it was right, ethical and justifiable for the learned trial judge to have completely exhibited bias, malice, bad faith and denial of fair hearing all through in his Ruling; erred and misdirected himself in facts all through; because a good study of all the documents, affidavits, written addresses including applicant’s reply address on point of law, the applicant’s motion itself and all the documents by both the applicant and the so called Aminu Ahmed a total stranger to this suit would reveal bias, malice, bad faith, denial of justice and fair hearing all through on the side of his Lordship against the Appellant?

8. Whether it was right, ethical and justifiable for the learned trial judge again to have completely exhibited bias, malice, bad faith and fair hearing all through his Ruling; erred and misdirected himself in facts all through. Again a good study of all the documents, affidavits, written address including applicant’s reply address on point of law, the applicant’s motion itself and all the documents by both the applicant/Appellant and the so called Aminu Ahmed a total stranger to this suit; would reveal again bias, malice, bad faith and lack of justice all through on the side of his Lordship, the learned trial judge and denial of fair hearing to the applicant/Appellant. Especially that the Ruling itself is seriously on the weight of evidence.

9. Whether it was right, ethical and justifiable for the learned trial judge to have again and again and again completely exhibited bias, malice and bad faith all through his Ruling, erred and misdirected himself in facts all through. Again a good study of all the documents, affidavits, written addresses including applicant’s reply address on point of law, the applicant’s motion itself and all the documents by both the applicant/Appellant and the so called Aminu Ahmed a total stranger to this suit would reveal again bias, malice, bad faith, lack of justice and fair hearing; all through on the side of his Lordship, the learned trial judge as against the side of the applicant/Appellant.

10. Whether it was right, ethical and justifiable for the learned trial judge to have again and again erred and misdirected himself in law when he disregarded all the issues and arguments put up by the applicant/Appellant in countering all the preliminary objections of the Respondents; and ended up dismissing this case that has a lot of credits and merits; thereby denied the Appellant justice and fair hearing?

11. Whether it was right, ethical and justifiable for the learned trial judge to have again and again and again shown bias, bad faith and malice and total lack of fair hearing; and misdirected himself in law when even with the documentary evidences that the applicant/Appellant several times ran to both the police and the honourable minister of finance for protection; of which that protection was not given. And yet again the learned trial judge upheld the preliminary objections of both the police and the honourable minister of finance not to be added in the suit because they were not aware of such matter. What more can one say that even all the documentary evidenced, the learned trial judge chose to preside over the case and gave his Ruling outside the scopes of the law and in the way and manner that pleased his Lordship.”

The Respondents did not file any brief of argument. Let me at this stage state that the failure of the Respondents to file any brief of argument is tantamount to an admission by the Respondents of everything stated in the Appellant’s brief and they will be bound by the outcome of the appeal. However, the appeal must still succeed or fail on the strength of the Appellant’s brief. See the case of Kano State House Of Assembly & Ors v. Umar (2015) LPELR-24008 (CA); Echere & Ors v. Ezirike & Ors (2006) LPELR-1000 (SC).

At this point, there is the need to resolve the issue as to the competency of this appeal before this Court can decide whether or not to proceed with the substantive issues raised by the Appellant. It is also important to note that this Court is raising this issue suo motu without necessarily inviting the parties to address the Court on it because the competency of the appeal is an issue of law that goes to the jurisdiction of this Court. See the case of Garba & Ors v. Ummuani (2012) LPELR-9841 (CA) on duty of an appellate Court, where MBABA, JCA held that:

“But is the appeal competent before this Court, even though there is no effective objection by the Respondent? Should an appellate Court close its eyes against obvious defects in the appeal of the Appellant, even where the Respondent fails to challenge it, or does so, improperly, as in this appeal? I think to do so would amount to abduction of judicial duties, because the appellate Court can suo motu raise any issue that bothers on law or its jurisdiction and decide on it, even without hearing the parties. See the case of Effiom v. Cross River State I.N.E.C. (2010) 14 NWLR (123) 106 at 133, 134; Tukur v. Govt. Gongola State (1989) 4 NWLR (Pt. 117) 517.”

See also the case of Effiom v. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, where the Supreme Court per TABAI, JSC had this to say:

“… In some special circumstances the Court can in issues of law or jurisdiction suo motu and without hearing the parties decided upon it.” (underlining mine)

Now to the competency of this appeal; I found that a new party was unilaterally added to the list of Respondents on appeal. The trial had 20 Respondents while the Notice of Appeal reflects 21 Respondents. There is nothing to show that the Appellant at any time sought the leave of Court before adding a new party on appeal. Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 clearly states that “All appeals shall be by way of rehearing… ” It has also been decided in plethora of cases that an appeal is a continuation of a case determined at the lower Court upon which the Appellant seeks the appellate Court to review. This Court in the case of Eshieshi v. Afegbua & Anor (2014) LPELR-22662 (CA) held that:

“…the position of the law is that is an appeal though a fresh suit generally regarded as a continuation of the suit appealed against (i.e. the original suit) the nature and character of which cannot be changed on appeal…”

See also the case of NWAOGU v. ATUMA & ORS (2012) LPELR-19648 (SC). It suffices to say therefore that, parties cannot on appeal by conduct or consent alter the “parties” on record as pleaded at the lower Court. This settled position of law was emphasized by this Court, per EKO, JCA in Veralam Holdings Limited v. Galba Limited & Anor (2014) LPELR-22671 (CA) 8-9, paras D-C thus:

“The Notice of Appeal at pages 63 and 64, filed on 8th December, 2006 has only Lt. General T. Y. Danjuma (RTD) as the sole Respondent in this appeal. Thus the parties in the suit leading to the appeal have been unilaterally altered without leave of Court.

By Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011, “all appeals shall be by way of rehearing.”

As stated in Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at page 226, which principle of law restated in Ngige v. Obi (2006) 14 NWLR (Pt. 999) 1 at page 225; because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action; parties are normally confined to the case, as pleaded in the Court of first instance. The case at the Court below, being the Court of first instance has the Appellant as the plaintiff with Galba Ltd. and Lt. Gen. T. Y. Danjuma (RTD) as 1st and 2nd defendants respectively.

The unilateral alteration of the parties in the suit, as pleaded at the Court below, by the Appellant as reflected in the Notice of Appeal, the said Notice of Appeal is liable to be struck out, and it is hereby struck out.”

It is evident from the record of appeal that the Respondents at the trial Court were twenty in number while on the Notice of Appeal the Appellant added a fresh Respondent without the leave of this Court. The Appellant contended in her brief that the 21st Respondent was joined in this matter because the rules of the lower Court and this Court makes provision for the joining of a party, but there is no where he stated that the joinder of the party was with the leave of Court. It is very important to seek and obtain the leave of Court because the Court has to be satisfied as to the reason why leave must be granted. See the case of ayebakuro v. Tariah & Ors (2014) LPELR-22675 (CA).

The Appellant herein unilaterally altered the parties on the face of the Notice of Appeal before this Court by adding a fresh Respondent to the list of Respondent; this is fatal to the competency of the appeal and the defect cannot be regularized. The Notice of Appeal is the foundation upon which every appeal stands; therefore any defect therein cannot be treated as a mere irregularity.

A defective Notice of Appeal will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to hear and determine the appeal. The Supreme Court in the case of The Nigerian Army v. SGT. Asanu Samuel & Ors (2013) LPELR-20931 (SC) held that:

“A Notice of Appeal if it is the process that initiates an appeal, so if it is defective, any proceedings taken on a defective Notice of Appeal becomes null and void as the Court would have no jurisdiction to hear an appeal commenced on such a defective process. The reasoning is simple. You cannot put something (appeal proceedings) on nothing (defective Notice of Appeal) and except it to stand. It would crumble.”

See also the cases of First Bank Of Nigeria Plc & Ors v. Maiwada & Ors (2012) LPELR-9713 (SC); Ikechukwu v. F.R.N. & Ors (2015) LPELR-2444 (SC); Kolapo & Ors v. Nzedinma & Anor (2011) LPELR-8820 (CA).

It is also important to note that by virtue of Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009, a fundamental right application will only be defeated/nullified if at any stage it is found that the application was not properly commenced. The provision is reproduced below:

“ORDER IX – EFFECT OF NON COMPLIANCE

1. Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to –

(i) Mode of commencement of the application…” (Underlining mine)

As in this case, the Notice of Appeal is the mode of commencement before this Court and it has been established above that the Notice of Appeal was not properly placed before this Court. It therefore makes the appeal incompetent, such that it cannot be waived or treated as a mere irregularity.

Having established that the Notice of Appeal is incompetent, the only thing left is for this Court to strike out the Notice of Appeal. Order 7 Rule 6 of the Court of Appeal Rules, 2016 provides that:

“The Court shall have the power to strike out a Notice of Appeal when an appeal is not competent of for any other sufficient reason.”

See the case of Continental Shipyard Ltd v. Eziogoli Shipping Ltd (2008) LPELR-4002) (CA) where it was held that:

“…the defective nature of the Notice of Appeal renders both the Appellant’s and Respondent’s briefs incompetent and liable to be struck out…”

See also the cases of Veralam Holdings Limited v. Galba Limited & Anor (Supra); SPDC v. Sam Royal Nig Ltd (2016) LPELR-40062 (SC)

I therefore have no hesitation in holding that the Notice of Appeal is incompetent and is accordingly struck out.

NIMPAR, JCA

I have read in draft the judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A. I agree with the reasoning and conclusion arrived at.

The law is trite that in an appeal where the parties in the suit leading to the appeal where unilaterally altered without leave first sought and obtained, such a Notice of Appeal is incompetent and must be struck out. This is indisputably the case in this appeal, see Afribank Nigeria Plc & Ors v. N.D.I.C. (2015) LPELR-24654 (CA), Oloriode v. Oyebi (1984) SCNLR 390.

Consequently, I too find the Notice of appeal incompetent and accordingly strike it out.

OGAKWU, JCA

I was privileged to read in draft the leading judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA which has just been delivered.

The ken in the reasoning process on the competence of the Notice of Appeal are in accord with my views. I consequently adopt the reasoning and conclusion as mine and equally join in striking out the appeal for bearing incompetent. The parties are to bear their respective costs.

Appearances:

GLOVER PRINCE For Appellant(s)

ABSENT For Respondent(s)