IN THE COURT OF APPEAL OF NIGERIA
ON THUSDAY, THE 3rd of April, 2014
ALHAJI IBRAHIM ADAMU .......... APPELLANT
1. ALHAJI ABDULLATIF HASSAN
2. HAJIYA MUSUMAT ......... RESPONDENTS
3. AMINU TIJJANI
4. DEPUTY SHERIFF UPPER AREA COURT No. 7 WAJI KANO
5. DEPUTY SHERIFF STATE HIGH COURT, KANO
Mustapha Bulama for Appellant
Okechukwu Nwaeze for Respondent
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Kano state High Court delivered on 31st January 2008, by Hon. Justice A. M. Haliru (of blessed memory).
The first, second and third Respondents in this appeal entered into partnership agreement with one Alhaji Hamdan Idriss, under the said partnership agreement, Alhaji Hamdan Idriss invested the sum of N755,000.00k in the business. The partnership agreement did not work after all. Alhaji Hamdan Idriss therefore instituted an action before the Borno Upper Area Court in Suit No. BUAC/CVF/97. The court eventually entered consent judgment. The consent judgment was eventually executed in Kano after undergoing due process of registration.
The judgment was levied on the property of the first Respondent at Kawaji Quarters in Kano, specifically on property covered by certificate of occupancy No. CON/RES/95/282. The 4th and 5th Respondents in this appeal sold the said property by auction on 12th July 1999 to Bashir Abubakar who eventually sold the property to the Appellant herein Ibrahim Adamu.
The Respondents challenged the consent judgment of the Borno Upper Area Court, the Borno State High Court sitting as an Appellate Court set-aside the consent judgment of the Upper Area court. The 1st, 2nd and 3rd Respondents filed action against the Appellant at the lower court in Kano on 4th July 2005, claiming jointly and severally against the Appellants as follows:
1. A Declaration that the first Plaintiff is the legal and lawful owner of the property situate at Kawaji Quarters Kano and covered by certificate of Occupancy No. LKN/CON/RES/95/282, having validly obtained judgment against the 1st defendant.
2. A declaration setting aside the sale of the 1st Plaintiffs said property based on a judgment validly over-ruled on appeal.
3. An order of mandatory injunction commanding the 4th defendant whether acting by themselves or their servants, privies, assigns or whatsoever called, to vacate the premises of said property by leaving same vacant.
4. General damages.
5. Cost of filing this suit.
Dated this 4th day of July 2005
PP: OKECHUKWU NWAEZE & CO
NO. 65, IBRAHIM TAIWO ROAD, KANO.
At the trial before the lower court, Appellant and Respondents called one witness each, and at the conclusion of trial, the learned trial judge entered judgment in favour of the Respondents, setting aside the auction sale.
The Appellant became aggrieved by the decision of the lower court and therefore filed amended Notice of appeal on 26th June, 2013 containing four grounds of Appeal reproduced without particulars as follows:
The learned trial judge erred in law, when in his judgment found as follows:
"On the issue of application of Section 47 and 48 of the Sheriffs and Civil Process Act, I hold that since the claim on loss of title to the property is grounded on the nullification of the judgment being retrospective to the decision of the UAC, on all actions consequent to it, the issue is not that of irregularity in Section 47 and 48 of the Sheriffs and Civil Process Act. In the end I hold that, the plaintiffs are entitled to all their reliefs and grant them accordingly except general damages which the plaintiff never bothered to substantiate in the evidence of PW1".
The learned trial judge erred in law, when in his judgment delivered on the 31st January 2008 found as follows:
"This brings to me the issue of non-joinder of Alhaji Hamdan and Bashir Abubakar, to which I say that, even though they are necessary parties to the Defence, they are not from peculiar facts of this case which is the reversed judgment of the Maiduguri UAC necessary parties for the plaintiffs case. In the circumstances, since the basis for the title passed to the 1st Defendant, has collapsed with exhibit I the 1st plaintiff is entitled to his reliefs".
The learned trial judge erred in law, when he held in his judgment delivered on the 31st January 2008 as follows:
"At this stage, it is pertinent to review the supposed area of divergence as to who the auction winner was by saying that, since DW1 has traced his title to Bashir Abubakar, it matters less to refer to him as the person who won the auction".
The learned trial judge erred in law by proceeding with the matter to trial on the basis of the originating processes filed in the matter, to wit, the writ of summons, and the statement of claim dated 4th July 2005, and writ of summons the statement of claim dated 20th February 2006.
Learned counsel Mustapha Bulama settled Appellants brief of argument, and distilled from Appellants grounds of appeal the following issues for determination:
- Whether the failure of the Respondent to institute action to set aside the auction sale conducted by the 4th and 5th Respondents within 21 days of the said Auction sale as provided by the provision of the Sheriffs and Civil process Act, Laws of the Federation 2004 deprived the lower trial court of the jurisdiction to grant the reliefs claimed by them.
- Whether the lower court was right to determine this action without joinder of Hamdan Idriss and Bashir Abubakar, whom he found in his judgment as necessary parties.
- Whether on the basis of the pleadings filed by the parties before the court and evidence led, it is correct to say that, the Appellant was the one to whom the said property was auctioned to at the auction sale conducted on the 12th July 1999 by the 4th and 5th Respondents if not what is the effect on the claim of the Plaintiffs/Respondents.
4. Whether, the originating processes filed in this matter, the writ of summons and the statement of claim could be said to be capable of vesting jurisdiction in the trial court to proceed with hearing of the plaintiffs/Respondents claim.
Respondents brief of argument was settled by learned counsel Okechukwu Nwaeze who nominated on behalf of the Respondent the following three issues:
1. Whether the learned trial judge was bound to apply the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Act, Laws of the Federation 2004, in an action for declaration of title to land covered by Kano State Certificate of Occupancy No. CON/RES/95/282 before it.
2. Whether the learned trial judge was right to hear and determine the case before it in the absence of persons whom it has ruled were not necessary parties to the plaintiffs case before it.
3. Whether in the interest of justice, the judgment of the lower court could be affected and or set aside solely on the fact that, the Respondent averred that, the Appellant was the winner of the auction whilst the Appellant averred and led evidence to prove that he purchased same from Bashir Abubakar.
The Appellant brought preliminary objection challenging the competence of the initiating processes before the lower court that the initiating processes with which the action before the trial court was commenced were not in accordance with Section 2(1) of the Legal Practitioners Act Laws of the Federation of Nigeria 2004 as amended. That the name Okechukwu Nwaeze & Co is a business name.
Learned counsel for the Appellant filed five paragraph affidavit in support of the objection, paragraph 4 of the objection reads:
"4. That, I am informed on the 10th December 2013 at about 5:00pm by Baba Duna Abubakar Esq. a counsel in our chambers situate at No. 144 Ibrahim Taiwo Road Kano, which information I verily believe to be true as follows:
a. That he has read the printed record of proceedings in this matter.
b. That, from the documents contained in the printed record, the initiating processes in this matter was commenced by filing of writ of summons and statements of claim.
c. That both the writ of summons and the statement of claim with which the action was commenced, were not duly signed by a legal practitioner, whose name is on the roll of the Legal Practitioners and was not equally signed by the plaintiff".
Learned counsel Mustapha Bulama submitted argument at page 7 to l0 of Appellants brief of argument. Preliminary objections are usually on points of law and consequently filing of affidavit is in most cases not necessary, but where the party objecting feels the need or thinks it desirable to rely on facts, in such circumstance an affidavit ought to be filed. See CONTRACT RESOURCES NIG. LTD & ANOR v. UBA PLC SC. 292/2003.
Learned counsel Bulama said the objection is basically on the jurisdiction of the trial court, counsel said Appellants raised this issue on appeal with the leave of the Court of Appeal granted on 27th November 2013.
Mr. Bulama said the objection is targeted at the jurisdiction of the trial court to hear and determine the action filed by the plaintiffs/Respondents. Counsel said the writ of summons filed before the lower court dated 4th July, 2005 found at pages 2 - 7 and 134 - 139 of the record of Appeal were not signed in the manner prescribed by law. Learned counsel said the processes ought to be signed by the plaintiff or a legal practitioner acting on behalf of the plaintiff whose name is on the roll of legal practitioners qualified to practice as Barrister pursuant to Section 2(1) of the Legal Practitioners Act 2004.
Learned counsel for the Appellant said, the name of the signatory on both the writ of summons and the statement of claim is OKECHUKWU NWAEZE & CO. Counsel further submitted that the said name best qualifies as a business name and therefore fails to conform to the provisions of Section 2(1) of the Legal Practitioners Act 2004 as amended.
Learned counsel further submitted that the signature appended on the said processes cannot be traced to the name of any particular legal practitioner whose name is on the roll of legal practitioners and therefore qualified to practice as a legal practitioner. Counsel said the law is settled that initiating processes must be prepared in accordance with the law otherwise the court cannot assume jurisdiction, he referred this Court to OBARA v. HASSAN (2013) 2 SCNJ (PART III) 788 at 813, he therefore urged this Court to hold that the initiating processes filed at the lower court by the Plaintiff/Respondent at the lower court were not prepared in accordance with the prescribed statutory Law.
Submitting further, learned counsel Bulama said a court is competent to assume jurisdiction when it is properly constituted, when the subject matter is within its jurisdiction, and when the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. He relied on MADUKOLU & OTHERS v. NKEMDILIM & OTHERS (1962) ALL NLR 581. Mr. Bulama said Respondents processes offended Section 2(1) and 24 of the Legal Practitioners Act 2004 as amended, he further submitted that where it becomes clear to the court that it lacks jurisdiction it must put an end to the proceedings. He relied on ALAWIYE v. OGUNSANYA (2013) 5 NWLR (PART 1348) 570 at 602, AROMIRE v. AJOMAGBERIN (2011) ALL FWLR (PART 586) 540, and OGUNDELE v. AGIRI (2010) ALL FWLR (PART 507) 1.
Learned counsel Bulama said, the vice associated with the initiating process is incurable and the process cannot be relied on by any court, because no court has jurisdiction to inquire into the grievances of the plaintiffs/Respondents, he urged the court to so hold and strike out the matter.
Learned counsel for the Respondents Okechukwu Nwaeze conceded to the Appeal, and said he had no objection to the appeal being allowed on this ground.
Learned counsel Nwaeze demonstrated high sense of responsibility and good practice by conceding on this issue. It is certainly established that this appeal is now compressed and treated on a very narrow compass.
I have earlier in this judgment reproduced a portion of Plaintiff/Respondents writ of summons taken out at the lower court, as submitted by learned counsel Bulama and rightly too, that the writ and statement of claim were both signed by OKECHUKWU NWAEZE & CO, and it has been held in seemingly endless judicial decisions that a law firm is not a legal practitioner and therefore cannot practice as such by filing processes in the Nigerian court, that only legal practitioners, human beings called to the bar can practice by signing documents.
In FBN v. MAIWADA (2013) 5 NWLR (Pt. 1348) 444 Pg 10, ADEKEYE, JSC said:
"Order 1 Rule 2 of the Supreme Court Rules states that "Appellant means a party appealing from a decision for on behalf thereof, and includes the legal practitioner retained or assigned to represent him in a proceedings before the court. A person shall be entitled to practice as Barrister and Solicitor in Nigeria if and only if his name is on the roll. Section 2(1) of the Legal Practitioners Act Cap. LII Laws of the Federation of Nigeria 2004, the foregoing provision reads,
"subject to the provisions of this act, a person shall be entitled to practice as a barrister and a solicitor, if and only if his name is on the roll. Section 24 of the Legal Practitioners Act provides that, "In this act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively.
In effect by virtue of Section 24 of the Legal Practitioner Act, a Legal Practitioner in Nigeria is a person entitled in accordance with the provisions of this Act to practice as a barrister or as a Barrister and Solicitor either generally or for he purposes of any particular office or proceedings". It is noteworthy that by this definition a law firm is not a legal practitioner and therefore cannot practice as such by filing processes in the Nigerian courts, only legal practitioners, human beings called to the bar can practice by signing documents".
The above decision has clearly and sufficiently settled the narrow issue in this appeal.
The Supreme Court of Nigeria gave reasons behind the conclusion in OKAFOR & ORS v. NWEKE & ORS. (2007) NWLR (Pt. 1043) 521, the rationale behind the decision is that members of the Bar must note that processes signed by firm of Legal Practitioners in their firm name are incompetent, the decision is to inject sanity and quality in Legal practice. The decision is not designed to shut the doors of the court house against litigants, certainly litigants will be left with option to return to court to commence their suits a fresh if they desire so doing.
Before I drop my pen let me cite what ONNONGHEN, J.S.C. said in NWEKE (supra):
"...... The conclusion that must be reached in this matter is that the documents are incompetent and are struck out, leaving the applicants with the opportunity to present a proper application for consideration by this Court. The effect of the ruling is not to shut out the applicant but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of "anything goes".........."
We join in sending similar message to members of the Legal Profession by upholding the Preliminary Objection in this appeal, and holding that Plaintiffs/Respondents writ and statement of claim at the lower court suffer incurable defects deserving of instant termination.
Appeal is allowed and Suit No. K/407/2005 is hereby struck out.
Parties in this Appeal shall bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.:
I agree with the judgment just delivered by my learned brother, Abubakar, J.C.A. The civil proceeding before the lower Court was initiated via a fundamentally defective originating process and a pleading. As was depicted, the Writ of Summons and the Statement of Claim filed by the Respondents at the Kano State High Court in suit No.K/407/2005 were all authenticated by Okechukwu Nwaeze & Co., a Law Firm, not being a human or living person called to the Nigerian Bar and enrolled to practice as a Barrister and Solicitor of the Supreme Court of Nigeria. See Order 25 Rule 4 of the Kano State High Court (Civil Procedure) Rules which provides inter-alia that pleadings shall be signed by a Legal Practitioner, or by the party if he sues or defends in person.
Further, section 2(1) of the Legal Practitioners Act, provides that "subject to the provision of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only is his name is on the role. Then, section 7 of the same Act prescribes that "a person shall be entitled to have his name enrolled if, and only if, (a) he has been called to the Bar by the Benchers; and, (b) he produces a Certificate of his Call to the Bar to the Registrar. The above sections of the Legal Practitioners Act have been severally analyzed and interpreted by the Supreme Court of this country with the result that any human who did not meet up with the conditions stipulated in section 4(1) of the Legal Practitioners Act, cannot be called to the Bar, and if the person was not called to the Bar, he, cannot, therefore, have his name enrolled. Then, where he is not enrolled, he is not qualified or cannot be entitled to practice as a Barrister and Solicitor in any of the Courts in Nigeria. See the Supreme Court decisions in Okafor v. Nweke (supra), S.L.B. Consortium Ltd v. NNPC (supra); F.B.N. Plc v. Maiwada (2013) 5 NWLR Part 1348 page 444; Alawiye v. Ogunsanya (2013) 5 NWLR Part 1348 page 570 and Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) page 19. This point had been unrelentingly drawn to the ears of the Legal Practitioners by this Court and our law Lords in their remarked decisions.
"It is improper where a law firm is consulted by an individual for legal services, indicate on the initiating process that such a process is signed by the law firm. The law firm is incapable of signing the process. It is incapable of pursuing the appeal to its logical conclusion, as it lacks these human qualities. It has to act through natural persons or human beings. Once an initiating process, be it Writ of Summons or notice of Appeal is not signed or authenticated either by the litigating party or the legal practitioner on his behalf, then the process is invalid and the jurisdiction of the Court ousted. The defect is taken as incurable and the process signed in the name of the legal firm would not suffice. In the instant case, the notice of appeal, not having been signed by a human person, where as appellant or Legal Practitioner, was invalid; the implication of which was that there was no appeal." (underlined for emphasis)
Further, in Alawiye v. Ogunsanya (2013) 5 NWLR Part 1348 page 570 at 581 to 584, Chukwuma-Eneh, J.S.C held that:
"A law Firm is not a legal person and so cannot under the Legal Practitioners Act sign and issue legal processes being a non-cognizable person under the Act. A legal process signed and issued by a law firm is incompetent and is liable to be set aside. Processes must be signed and issued by a person as enrolled to practice law in Nigeria under the Legal Practitioners Act. Anything short of signing and authenticating legal processes in that manner is unacceptable.
In the instant case, the Writ of Summons, the statement of claim and the notice of cross-appeal signed and issued in the name of "Chief Afe Babalola, SAN & Co." were nullities and void ab initio. The law firm is not a Legal Practitioner known to law. Okafor v. Nweke (2007) 10 NWLR Part 1043 page 521; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR Part 1252 page 317 referred to page 611-612 paragraphs G-H; page 617 paragraphs E-G. All processes filled in Court are to be signed as follows:
(a) The signature of Counsel, which may be any contraption;
(b) The name of Counsel clearly written;
(c) The party Counsel represents;
(d) Name and address of Law Firm.
Once who signed the process cannot be ascertained, it is incurably bad and the rules of Court that seem to provide for a remedy are of no use as a rule cannot override the Legal Practitioners Act. There must be strict compliance with the law. SLB Consortium Ltd v. NNPC (2011) 9 NWLR Part 1252 page 317 page 617-618, paragraphs H-C. By virtue of sections 2(1) and 24 of the Legal Practitioners Act, Cap. 111, Laws of the Federation of Nigeria, 2004, subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll. In the context, unless the context otherwise requires, "Legal Practitioner" means a person entitled in accordance with the provisions of the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings. Page 619, paragraphs B-D." (underlined for emphasis)
In the case of FBN. Plc v. Maiwada (2013) 5 NWLR Part 1348 page 444 at 455 and 461, Fabiyi, J.S.C. expressed thus:
"It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated.
I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre-eminence over the dictate of law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and legal Practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession."
There is a clear breach of the provisions of sections 2(1), 4(1) and 7 of the Legal Practitioners' Act by the Respondents' Counsel. The said provisions were not complied with, in other words, they were contravened. It is trite that when a law is breached or disobeyed, an action carried out as a result of the breach or contrary to the dictates of the law, is illegal, null and void, therefore, any Court process not authenticated by the person authorized by Law to so author, is fundamentally defective and incompetent. It is settled that where there is non compliance with a stipulated precondition for the commencement of an action or for setting a legal process in motion, any suit or action instituted in contravention of such a precondition provision of the relevant law or statute is regarded as incompetent and as such, the court in which the action is instituted or sought to be instituted lacks the jurisdictional power to entertain the suit or action - See UBA Plc v. Ekpo (2003) 12 NWLR Part 834 page 322.
It is certain in the aforementioned Supreme Court decisions that the Respondents' originating process clearly contravened the Law on who shall authenticate a legal or Court process. It is therefore, incurably defective and cannot be put aright in any form even by amendment of subsequent processes. I, therefore, agree with the leading judgment of my learned brother. Consequently, the Writ of Summons filed by the Respondent leading to this appeal will be and is hereby struck out for being incompetent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.:
I was privileged to read in draft the succinct judgment prepared by my learned brother, Tijjani Abubakar, JCA, with which I agree and adopt as my judgment in the appeal with the addition, by way of emphasis, that any court process signed "and Co" as was the originating process in the suit at the court below which was signed by "Okechukwu Nwaeze and Co" is incurably defective and must be struck out on that score. See SLB Consortium Ltd. v. NNPC (2011) ALL FWLR (Pt. 583) 1875, Bello v. Adamu (2012) 3 NWLR (Pt. 1287) 286, Braithwaite v. Skye Bank PLC (2013) 5 NWLR (Pt. 1346) Page 1.
In the result, I too find merit in the preliminary objection and hereby uphold it and abide by the consequential orders contained in the said lead judgment.