IN THE COURT OF APPEAL

IN THE UNIMAID JUDICIAL DIVISION

HOLDEN AT UNIMAID

APPEAL NO:FOlHC/MG/CR/70/2023

BETWEEN:

UNIVERSITY OF MAIDUGURI ………………………………………… APPELLANT

AND

1. MODU ILIYASU

2. JOSEPH DANLADI

3.SALIM ISHIAKU - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESPONDENTS

NOTICE BY THE 3rd RESPONDENT OF INTENTION TO RELY UPON

PRELIMINARY OBJECTION

BROUGHT PURSUANT TO ORDER 10 RULE 1 OF THE COURT OF APPEAL

RULES 2021 AND UNDER THE INHERENT JURISDICTION OF THIS
HONOURABLE COURT

TAKE NOTICE that this Honourable Court shall be moved on the 2nd day of
November 2023 at the hour of 9:00am in the morning. thereafter as counsel may
be heard on behalf of the 3rd Respondents praying this Honorable court for the
following;
1. AN ORDER of this Honourable Court dismissing this appeal for lack of
jurisdiction and upholding that the notice of appeal is defective.

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 AND FOR SUCH FURTHER OR OTHER ORDERS as this
Honourable Court may deem fit to make in the circumstances of this case

TAKE FURTHER NOTICE that the grounds of this objection are:

1. That the notice of appeal being served upon the 3rd respondent by
the appellant is unsigned which amounts to a total violation to Order
17 Rule rule 5 (1) of the (Court of appeal Rule 2021) and as such
renders the said notice of appeal defective
2. That in compliance with the rules of this honourable court, every
notice of appeal must contain the names and addresses of persons
directly affected by the appeal as well as the addresses for service on
the respondents and such a notice must be properly dated. In this
regards the notice of appeal served upon the 3rd respondent by the
appellant did not spell out the names and addresses of persons
directly affected by the appeal as suggested in paragraph 5 of the said
notice of appeal. And as such we urge this honourable court to hold
that the notice of appeal is entirely defective and dismiss the appeal
in its entirety.

Dated this 27th Day of October. 2023

…………………………………………
F.O.IGWE (SAUM) Principal partner
N. LUMANA (SAUM) HOC
A. ALEX
M. A. ADELOWO
3rd Respondent counsel
LIBERTY CHAMBER
Faculty of law
UNIVERSITY of maiduguri Borno state

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FOR SERVICE ON;
ON THE APPELLANT
University of Maiduguri
C/ O THEIR COUNSEL
NIKI TOBI CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

1st RESPONDENT
MODU ILIYASU
C / O THEIR COUNSEL
KAUMI KOLO. CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

2nd RESPONDENT
Joseph Dauda
C / O THEIR COUNSEL
HOUSE OF LORDS CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

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

APPEAL NO:FOlHC/MG/CR/70/2023

BETWEEN:

UNIVERSITY OF MAIDUGURI ………………………………………… APPELLANT

AND

1. MODU ILIYASU

2. JOSEPH DANLADI

3.SALIM ISHIAKU - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESPONDENTS

AFFIDAVIT IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION

I, Alpha Alex., Male, Christian of full age and capacity, being a Legal practitioner
do hereby make Oath and state as follows;

1. That I am a legal practitioner and associate partner of Liberty chamber

University of maiduguri federal Republic of Nigeria
2. That I have the authority and consent of the 3rd respondent in person of
Salim Ishiaku to depose to this affidavit in support of the notice of
preliminary objection.
3. That the facts deposed herein are within my personal knowledge except
where otherwise stated.

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 4. That the respondents in this appeal, having been aggrieved and dissatisfied
by the verdict of the University of maiduguri disciplinary panel, appealed
to the High court of LAWSAN where the presiding judge HON JUSTICE
FATIMA MUHAMMAD KALE gave her verdict in favour of the
Respondents ( formerly known as the appellant at the lower court) setting
aside the judgment of the Disciplinary panel on the 20th day of April 2023
5. That the Appellant aggrieved with the judgment of HON JUSTICE
FATIMA MUHAMMAD KALE, has now hereby appeal to this honorable
court by way of notice of appeal being served upon the respondent
6. That by the provisions of the Court of Appeal Rules 2021, the said notice of
appeal is in itself defective with regards to the fact that the notice of appeal
is entirely unsigned, not dated and did not spell out the Names and
addresses of the persons directly affected by the appeal. As such it is in
total violation of Order 17 Rule 5 of the Court of appeal rules 2021
7. That the notice of appeal is in itself not dated and as such is invalid
8. That I make this oath in good faith believing its contents to be true and in
accordance with the Oaths Law currently in force.

__________________

Deponent

This 27th day of October 2023

BEFORE ME
COMMISSIONER FOR OATHS

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

APPEAL NO:FOlHC/MG/CR/70/2023

BETWEEN:

UNIVERSITY OF MAIDUGURI ………………………………………… APPELLANT

AND

1. MODU ILIYASU

2. JOSEPH DANLADI

3.SALIM ISHIAKU - - - - - - - - - - - - - - - - - - - - - - - - - - - - RESPONDENTS

WRITTEN ADDRESS BY THE 3RD RESPONDENT IN SUPPORT OF THE

NOTICE OF PRELIMINARY OBJECTION

1.0. INTRODUCTION
That the Appellant being dissatisfied with the judgment delivered by HON
JUSTICE FATIMA MUHAMMAD KALE of the High court of LAWSAN.
Unimaid, has hereby appealed to this honorable court by way of notice of
appeal based on the following ground

Grounds

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 1.1.The Learned judge, of the appellate Court erred in law, in declining jurisdiction
but the panel of disciplinary committee (university of maiduguri) and quashing
same.
1.2. The appellate court(unimaid high court) erred in law without considering the
pre- action notice as required by law.
1.3. The trial appellate court (unimaid high court) erred in law in awarding
judgment in respect of violations of Respondents right to fair hearing as
misdirection.

1.4. In response to the said notice of appeal, the 3rd respondent has filed this
Notice of Preliminary Objection challenging the competence of the notice
of appeal and contends that this Honourable Court is divested of
jurisdiction to entertain this suit due to the fact that the notice itself is
defective and urges this honorable court to dismiss the entire appeal.

2.0. ISSUES FOR DETERMINATION

2.1. The 3rd respondent formulates the following issues for determination with
regards to this notice of preliminary objection and humbly urges this
Honourable Court to determine this application on these points:

2.1.1. Whether an unsigned notice of appeal is competent to sustain an

APPEAL?
2.1.2. Whether an appellate court lacks the jurisdiction to entertain an
appeal instituted by a defective notice of appeal?

3.0. ARGUMENT
3.1. Argument for the issues distilled for determination are being canvassed
below before my noble lords

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3.2. ISSUE ONE (1) Whether an unsigned notice of appeal is
competent to sustain an appeal?

3.3. In addressing and answering to the issue above, the 3rd

respondent answers in the negative and urges this honorable
court to so hold.
3.4. 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.
3.5. It is for this reason therefore where the Notice of Appeal is
defective no proper Appeal can be validly prosecuted thereon.
As opined in the case of ADA v. HASHIMU & ORS (2017)
LPELR-42510(CA). Where the your learned brother
MUKHTAR, J.C.A. Stated and I qoute.

It is a 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

3.6. My noble lords, it is now pertinent to ascertain whether the

mere not signing of a notice of appeal makes it incompetent or
not. In the case of THOR LTD. vs. FIRST CITY
MONUMENT BANK LTD. (2002) 2 SCNJ 85, the court
held that

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 A Notice of Appeal which is not signed is incompetent
and a mere document that has no legal value. This same
position has been opined and upheld in the case of
EBOKAM vs.
EKWENIBE & SONS TRADING CO. LTD. (1999) 7
SCNJ 77.

3.7. It is crystal clear from this instant case that the appellant did
not just served upon the 3rd respondent with an unsigned
notice of appeal, but also a notice of appeal that is not dated and
does not stipulate the names and addresses of the persons
directly affected by the appeal as suggested in an invisible
paragraph 5 of the appellant notice of appeal.
3.8. My Lords pursuant to ORDER 17 Rule 5(1) of the COURT
OF APPEAL RULES 2021, every notice of appeal must be
signed by either the applicant himself or by his legal
representative (practitioner). In this instant case my Lords,
neither did the applicant University of Maiduguri nor their legal
practitioner sign the notice of appeal as such this singular
inaction by the appellant renders the entire notice of appeal
incompetent, invalid and unreliable. As such my Lords if the
notice of appeal which ought to be the foundation of an Appeal
tends to be invalid therefore nothing valid can ever come out of
the entire appeal in itself.
3.9. In the case of ADA v. HASHIMU & ORS SUPRA. it was held
that

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 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.” This position was further backed by
SHUAIBU, J.C.A. when he said: “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”

3.10. On this note my noble lords, it is the submission of the 3rd

respondent that based on the plathora of arguments canvassed
above making reference to detailed rules of Court and decided
cases, the mere fact that the notice of appeal of the appellant in
itself was served unsigned renders it incompetent to sustain this
appeal and as such we urge this honorable court to so hold and
dismiss this appeal in its entirety

4.0. ISSUE TWO (2) Whether an appellate court lacks the

jurisdiction to entertain an appeal instituted by a defective
notice of appeal?

5.0. addressing the above issue above my noble lords, the 3rd respondent
answers in the affirmative and urges this honorable court to so hold.
6.0. My noble lords in a bid to appreciate the substance of the issue at hand, it
is pertinent to give answers to the obvious question at hand which has to
deal with the issue of jurisdiction. The term jurisdiction has been generally
defined to be the authority or power of the court to determine a dispute

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 between parties as well as the territory over which the legal authority of a
court extends.
7.0. In the decided case of

Oloba v. Akereja (1988) 7 SCNJ (pt 1) 56 @ 63).

Jurisdiction was defined as the authority which a
court retains to hear a case presented before it. It is
the foundation of all actions in court, the presence of
which validates the commencement, hearing and
judgment of any trial.

8.0. Going by the above definition, it can be deduced that jurisdiction is the
sole basis on which any validly initiated action can be entertained by a
court of law. My Lords now the question begging for answer is whether an
appellate court lacks the jurisdiction to entertain an appeal initiated by a
defective notice of appeal. Emphasis on DEFECTIVE my Lords
9.0. To answer this question the 3rd respondent humbly refer your lordships to
the case of
Uwazurike & Ors. v. A.G. Federation (2007) 2 S.C.
169. Where the Supreme Court held that a notice of
appeal is the foundation and substratum of every
appeal. Any defect therein will render the whole
appeal incompetent and the appellate court will lack
the required jurisdiction to entertain it.

10.0. My Lords it is now incumbent on us to ascertain whether or not the notice

of appeal of the appellant is in itself defective for it to have affected the
jurisdiction of this honorable court. What then can make a notice of appeal
defective in this instant case?

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11.0. In addressing the above question my Lords i hereby refer this honorable
court to the case of

Madukolu v. Nkemdilim (1962) 1 All NLR 587, 594

where the learned judge held that the Appellant’s
failure to sign his notice of appeal personally
rendered it fundamentally defective, incurably
incompetent, since the condition precedent to the
invocation of this court’s jurisdiction had not been
fulfilled,

12.0. Going by the verdicts and dictum of the learned judge above my lord it is
crystal clear that the inability of the appellant to sign the notice of appeal
alone has in itself rendered the entire notice incompetent and as such this
honorable court lacks the jurisdiction to entertain the appeal in its entirety.
13.0. Furthermore my noble lords the 3rd respondent humbly submit before this
honorable court that It is without question that the initiating process for an
Appeal before an appellate court is the Notice of Appeal. The Notice of
Appeal is the foundation and substratum of every Appeal. Any defect
thereto will render the whole appeal incompetent and the appellate court
will lack the jurisdiction to entertain it. Thus, once a Notice of Appeal is
defective and therefore incompetent, there would be nothing left for the
Court to consider. It is the root of the appeal and robs the court of the
jurisdiction to hear the appeal. This was the decision in the case of

FBN Plc V Maiwada (2012) LPELR-9713(SC). Same

was also upheld in the case of Uwazurike V AG
Federation (2007) 8 NWLR (Pt. 1035) 11.

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14.0. Therefore my noble lords, it goes without saying that A notice of appeal in
the process of appeal is a very important document, as it forms the
foundation of the appeal. If it is defective, the appellate court must strike it
out on the ground that it is incompetent. Because If no proper notice has
been filed, then there is no appeal for the court to entertain.
15.0. In conclusion my Lords, based on the series of arguments canvassed above,
it can be vehemently seen that the mere fact that the Appellant failed to
sign the notice of appeal, renders the notice incompetent and as such robs
this honorable court off the jurisdiction to entertain this appeal. It is the
submission of the 3rd respondent that this court allows the preliminary
objection and hold that the notice of appeal filled by the appellant is
defective and strike out the appeal in its entirety. We are most obliged my
Lords

Dated this 27th Day of October. 2023

…………………………………………
F.O.IGWE (SAUM) Principal partner
N. LUMANA (SAUM) HOC
A. ALEX
M. A. ADELOWO
3rd Respondent counsel
LIBERTY CHAMBER
Faculty of law
UNIVERSITY of maiduguri Borno state

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FOR SERVICE ON;
ON THE APPELLANT
University of Maiduguri
C/ O THEIR COUNSEL
NIKI TOBI CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

1st RESPONDENT
MODU ILIYASU
C / O THEIR COUNSEL
KAUMI KOLO. CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

2nd RESPONDENT
Joseph Dauda
C / O THEIR COUNSEL
HOUSE OF LORDS CHAMBER
FACULTY OF LAW
UNIVERSITY OF MAIDUGURI BORNO STATE

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