IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 6th day of June, 2014
1. CHIEF (PRINCE) OLATUNDE OYEWOLE. .......... Appellants
(Substituted for Late Alhaji (Chief) Bolarinwa by order of Court made on 24/2/2010) (Babakekere Ataoja of Osogbo)
2. PRINCE KABIRU LAWAL
(Substituted for Late Alhaji Liasu Lawal Fabode by order of Court made on 1/3/2012)
(For themselves and on behalf of Ataoja of Osogbo Royal family).
3. PASTOR ATERE
(Rock of Ages)
1. MR. BASHIRU LASISI ........ Respondents
2. MR. KAMARUDEEN ADEYINKA
(For themselves and on behalf of Alhaji Lamidi Adeyinka family)
G. A. Adesina Esq. for Appellant
S. O. Popoola Esq. for Respondent
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Osun State High Court Osogbo Judicial Division delivered on 24th October, 2007 wherein the appellants were the defendants while the respondents were the plaintiffs.
The claim of the respondents at the Lower Court was for the following:
(1) A declaration that the plaintiffs are entitled to the piece of land along Railway Line, Alekuwodo Area, Osogbo being the property they inherited from their father Alhaji Lamidi Adeyinka.
(2) N2,000,000.00 (Two Million Naira) damages for trespass committed by the defendants on the land and
(3) An order of perpetual injunction restraining the defendants from further acts of trespass on the disputed land.
The facts of the case are that the respondents' father Lamidi Adeyinka farmed on the disputed land since 1969 but in 1972 or 1975 he bought it. He was in possession of the land. The father of the respondents executed a deed of conveyance. The respondents' father was in possession of the land until 1981 when he died. After his death Ajayi Awoniyi became the caretaker of the land. In 2002 he noticed that some people were clearing the land and he challenged them.
According to the respondents, the land in dispute is outside the one covered by the judgment of the Supreme Court.
The case of the Appellants is that the land in dispute is at Alekuwodo Area of Osogbo. It is a minute part of the land acquired by settlement by Oba Laro. The 1st and 2nd appellants are members and representatives of the royal family. That the land in dispute was given to the 3rd appellant's father for building a church.
The 3rd Appellant in his evidence in Court stated that the land belonged to his father who bought it from the Olomo - Obas with the consent of the Ataoja of Osogbo in 1976. After the death of his father, he inherited it.
At the Lower Court, the respondents called three witnesses; the caretaker, 1st respondent and a photographer. The appellant called four witnesses, a surveyor, 2nd and 3rd appellants, and a legal practitioner.
After hearing these witnesses the Lower Court in a reserved judgment found for the respondents in the following terms:
"On Plaintiffs' claim for damages for trespass, there is evidence adduced before me that the 3rd defendant went into the land in a manner inconsistent with the Plaintiffs' possession of it by building of small structure on it. I hold that the entry of the 3rd defendant into the land in dispute and his building thereon are all acts of trespass. This fact in my view is sufficient to sustain the plaintiffs claim for damages for trespass. I therefore award the sum of N100,000.00 in their favour."
An order of perpetual injunction was also made against the appellants.
Miffed by the above decision the appellants appealed to this Court by an original notice of appeal containing (14) fourteen grounds of appeal. The notice of appeal was amended by an amended notice of appeal equally containing (14) fourteen grounds of appeal. Eight issues were condensed by the appellants from the fourteen grounds of appeal. They are reproduced immediately hereunder:
"1. Whether this suit was properly initiated by the due process of the law before the Lower Court, and if not, whether it is competent for the Learned Trial Judge to grant the reliefs granted to the respondents on incompetent processes. (Relates to Ground 14 of the grounds of appeal).
2. Whether or not the Lower Court was justified in awarding any damages at all and alternatively, whether the N100,000.00 damages awarded against the Appellants was justified and not excessive in law and in the circumstances of this case. (Relates to Ground 8 of the grounds of appeal).
3. Whether or not the Trial Court was justified by suo motu (1) discountenancing the receipt with which the 3rd Appellant's father bought the land in dispute according to native law and custom from the Olomo Obas after admitting same as Exhibit 1 at the trial, (2) raised and determined the issue of the capacity in which the Olomo Obas sold the land in dispute to the 3rd Appellant's father and basing his judgment on the said issues without first giving the Appellants the opportunity to be heard on the issues raised suo motu and by holding that the Respondents joined issues with the Appellants on the sale of the land in dispute without filing any reply to the Appellants' amended joint statement of defence (Relates to Grounds 5 and 13 of the grounds of appeal).
4. Whether the Learned Trial Judge having held that the respondents did not prove title to the land in dispute and whatever acts of ownership and possession done by them on the land amounted to acts of trespass, was at the same time right in (1) using the same acts said to be act of trespass to grant the Respondents' claim for damages for trespass and injunction against the Appellants' and (2) holding that the land in dispute was conveyed to the Respondents' father and he was in possession thereof between 30/4/1975 and 13/11/1981 after which the Respondents continued in undisturbed possession thereof until September 2002 when the Appellants trespassed thereon. (relates to grounds 3, 7 and 9 of the grounds of appeal).
5. Whether or not the Appellants proved original ownership and possession of the land in dispute and the other surrounding lands at Alekuwodo Area, Osogbo and whether the evidence led thereon was properly evaluated.
6. Whether the Learned Trial Judge was right in admitting and relying on Exhibit B in making his findings for damages and injunction against the Appellants and in favour of the Respondents. (Relates to Ground 10 of the grounds of appeal).
7. Whether or not the Lower Court was justified by giving judgment in favour of the Respondent without first making specific findings on and resolving the contradictions and inconsistencies in the pleadings and evidence of the Respondents. (Relates to ground 2 of the grounds of appeal).
8. "Whether or not the Learned Trial Judge adequately and properly evaluated the evidence led at the trial before arriving at his conclusions and who between the Appellants and the Respondents were entitled to judgment at the Lower Court based on the weight of evidence before him." (Relates to Grounds 1, 4 and 12 of the grounds of appeal)."
However, the respondents presented only three issues for determination. These are:
1. Whether the failure of the Respondents' claim for declaration of title to the land in dispute should automatically affect their claim for damages and injunction against the appellants.
2. Whether the appellants who have no counterclaim before the Court can be said to have proved title to the land in dispute.
3. Whether the appellants can raise the issue of competency of the respondents' suit at the Court of Appeal for the first time having failed to raise same at the Lower Court and having also been guilty of the same irregularity that they are complaining about.
Arguing issue 1 which is whether this suit was properly initiated by due process, it was submitted that a Court will only have jurisdiction to entertain a suit if the suit has been properly initiated by due process of the law. Reliance was placed on Madukolu V. Nkemdilim (1962) All NLR 587 and Sea Trucks Anigboro (2001) 1 SCNJ 55 at 74. A valid Court process especially a writ of summons and statement of claim, it was submitted, must be signed by the plaintiff personally but if it is signed by a legal practitioner, it must be signed by a person enrolled to practice as a Solicitor and Advocate of the Supreme Court of Nigeria and whose name is on the roll of Legal Practitioners under Section 2 (1) of the Legal Practitioners Act.
The writ of summons, statement of claim and reply to the Statement of Defence in this case were issued and signed by "Chief A. Oladele Oladipo & Co.," it was submitted. Chief A. Oladele Oladipo & Co., it was further submitted, is neither a party on the record nor a legal practitioner enrolled to practice as such under the Legal Practitioners' Act nor a person known to law by way of incorporation. Chief A. Oladele Oladipo & Co, it was submitted cannot properly sign or initiate any proceedings in a law Court as was purportedly done by him or it as in this case. The originating processes before the Lower Court, it was submitted, were incompetent, null and void and of no effect and the suit was not properly initiated by due process of law. We were referred to Okafor & Ors. V. Nweke & Ors. (2007) 3 SCNJ 185 at 191.
The Court was urged to resolve this issue in favour of the appellants and strike out the entire suit of the respondents as being incompetent.
The above issue is the same with issue 3 formulated by the respondents. The appellants' complaint, respondents argued, is the use of the firm name of the Respondents' counsel which is Chief A. Oladele Oladipo & Co. instead of Chief A. Oladele Oladipo. It was submitted that both names refer to one and the same person as both names carry the same signature. The signature of Chief A. Oladele Oladipo it was submitted is the same with that of Chief A. Oladele Oladipo & Co. It was submitted that a legal practitioner and his firm cannot be divided since the firm has no legal personality of its own unless it is incorporated under the Company and Allied Matters Act.
It was submitted that the fact that Chief A. Oladele Oladipo & Co. is not incorporated, is also conceded by the Appellants' counsel which supports the fact that both names belong to one and the same person who is a qualified legal practitioner whose name is on the roll of the legal practitioners at the Supreme Court of Nigeria. His signature on the roll of legal practitioners it was argued is the same as signed on the writ of summons and statement of claim in this case.
It was submitted in the alternative that the appellants waived their right to complain about the competency of the writ of summons and statement of claim having failed to raise this issue at the Lower Court. What is more, appellants are guilty of the same irregularity having signed the statement of defence and amended statement of defence in the firm name of defence counsel G.A. Adesina & Co.
It was further submitted that the challenge was a mere technicality and our Courts have long moved away from dealing with technicalities at the expense of justice. It was contended that the complaint that the learned counsel for the respondents signed the processes in the name of his firm is not enough. The appellants must go further to show how the irregularity affected the findings and final judgment of the Lower Court.
It is now trite law that a Court is competent when the court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or the other; 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 the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All these requirements must co-exist conjunctively before jurisdiction can be exercised by the Court. See Madukolu Vs. Nkemdilim (1962). All NLR 567 and Magaji Vs. Matari (2000) 5 SC 46.
Learned counsel for the respondent contended that the issue of jurisdiction or competency of the suit at the Lower Court having not been raised in that Court cannot now be raised in this Court. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to the Supreme Court. This is because the question of jurisdiction of court is a fundamental and crucial question of competence because if a Court has no jurisdiction to hear and determine a case the proceedings are a nullity. See Ukwu V. Bunge (1997) 1 NWLR (Pt.518) 527, Nnonye Vs. Anyichie (2005) 2 NWLR (Pt.910) 623 and Dapialong Vs. Dariye (2007) 8 NWLR (Pt.1036) 332.
Learned counsel for the Appellants submitted that processes of Court in this case; the writ of summons, statement of claim and reply to the statement of defence were not issued and signed by any of the parties or by a legal practitioner on the roll of Legal Practitioners under Section 2 (1) and Section 24 of the Legal Practitioners Act but by Chief A. Oladele Oladipo & Co. thereby rendering the processes and proceedings at the Lower Court a nullity.
In Okafor vs. Nweke (2007) 10 NWLR (Pt.1043) 521 at 530 - 531 the Supreme Court per Onnoghen JSC stated thus:
"There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed notice of Cross appeal and appellants' brief in support of the said motion were all signed: J.H.C. OKOLO SAN & CO. Learned Senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of J.H.C. OKOLO SAN & CO it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izugu V. Emuwa Supra and Banjo V. Eternal Sacred Orders of Cherubim & Seraphim, also Supra.
However Section 2(1) of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria 1990 provides thus:-
"Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll."
From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a "legal practitioner" to be:
"a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally of for the purpose of any particular office proceeding."
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J.H.C. OKOLO SAN & CO is a legal practitioner recognized by the law?
From the submissions of both counsel, it is very clear that the answer to that question is in the negative. In other words both senior counsel agree that J.H.C. OKOLO SAN & CO is not a legal practitioner and therefore cannot practice as such by say, filing processes in the courts of this country."
In First Bank Vs. Maiwada (2012) 5 SCNJ 1, The Supreme Court at the request of learned counsel for the appellants empanelled a full Court to re-visit and indeed depart from Okafor Vs. Nweke (Supra). After hearing arguments from several counsel invited to address it; the Supreme Court was not persuaded to depart from the decision in Okafor V. Nweke (Supra). Fabiyi J.S.C who delivered the lead judgment of the Court stated thus at pages 23 -24 and 27:
"The decision in Okafor Vs. Nweke was based on a substantive law - an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment of Okafor V. Nweke. "It would have been quite another matter if what is in issue is a mere compliance with court rules." Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rules of court which are subject to the law must take the side line."
"I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing court process. 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 the 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."
Learned counsel for the respondents submitted that the appellants' counsel conceded it was the respondents' counsel who signed the writ of summons, statement of claim and reply to statement of defence and that he is a legal practitioner. This is not borne out from the arguments on the record. No such concession was made.
Learned counsel for the respondents further submitted that Chief A. Oladele Oladipo is the same as Chief A. Oladele Oladipo & Co. This cannot be true.
Learned counsel for the respondent claimed that the signature of Chief A. Oladele Oladipo & Co., on the roll of legal practitioners is the same as his signature on the writ of summons and statement of claim. But there is no such evidence. If by being on the roll, learned counsel meant Chief A. Oladele Oladipo it was not Chief A. Oladele Oladipo that signed those processes but Chief A. Oladele Oladipo & Co. But learned counsel for the respondent has not shown that Chief A. Oladele Oladipo & Co., is on the roll of legal practitioners. In any case the sweeping submission that the signature on the roll of legal practitioners and on the processes is the same has no basis.
Learned counsel for the respondents submitted that the issue of competency of the initiating processes at the Lower Court was in the realm of technicality. In Okafor Vs. Nweke (Supra) at page 533 the Court stated that the urge to do substantial justice does not include illegality or encouragement of the attitude of "anything goes." See also First Bank Vs. Maiwada (Supra) at 34 where the Court stated that there is nothing technical in applying the provisions of Section 2 (1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature. That one should not talk of technicality when a substantive provision of the law is rightly invoked.
I agree entirely with learned counsel for the appellants that the writ of summons, the statement of claim and reply to statement of defence were not signed by any of the plaintiffs personally but by Chief A. Oladele Oladipo & Co. who is neither a party nor a Legal Practitioner under the Legal Practitioners Act whose name is on the roll of legal practitioners.
The writ of summons and statement of claim are the foundation and substratum of the suit. Any defect will render the entire suit incompetent and the trial Court would lack the required jurisdiction to entertain the suit. Any defect in the writ and statement of claim robs the Court of jurisdiction to entertain it.
The writ of summons and statement of claim having not been signed by any of the parties or a legal practitioner whose name is on the roll of legal practitioners the suit was not initiated by due process of law and was therefore incompetent. The proceedings at the Lower Court were therefore a nullity.
Issue 1 presented by appellants and issue 3 submitted by the respondents which are the same are resolved in favour of the appellants. Because of the order I shall proceed to make it is unnecessary to consider the other issues presented by the parties for determination. The Writ of Summons and Statement of Claim in Suit No.HOS/160/2002 being incompetent are struck out.
The judgment of the Osun State High Court Osogbo Judicial Division in Suit No.HOS/160/2002 delivered on 24th October 2007 is accordingly set aside. Parties shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.:
I had the opportunity to read in advance the lead judgment just delivered by my learned brother James Shehu Abiriyi, JCA, and I agree entirely with the reasoning and conclusion reached therein.
In addition, a process prepared and filed in a Court of Law by legal practitioner must be signed by the legal practitioner. It is sufficient signature if the legal practitioner writes his own name over and above the name of his firm in which he carries out his practice. See the case of S.L.B. Consortium v. N.N.P.C (2011) 4 SCNJ (pt.211).
In the instance case, the name of legal practitioner in which he carries on his practice is not on the processes he has filed before the court. It would have been sufficient if Chief A. Oladele Oladipo had simply written his name on top of Chief A. Oladele Oladipo & Co. because Chief A. Oladele Oladipo is the legal practitioner registered to practice law in the roll at the Supreme Court, not Chief A. Oladele Oladipo & Co.
The Writ of Summons and Statement of Claim are the originating processes which give the court jurisdiction to hear and determine a case and where such processes are incompetent by not been properly initiated by the process of law, it renders the proceedings a nullity. See Okafor V Nweke (2007) 10 NWLR (pt. 1043) 521 at 530 - 531.
For this and fuller reasoning elucidated by my learned brother, I too shall strikeout the Writ of Summons and Statement of Claim. And it's hereby struck out for being incompetent. The judgment of the Lower Court is also hereby set aside. I abide by the consequential order(s) made there-in.
MOHAMMAD AMBI-USI DANJUMA, J.C.A.:
I have been privileged to read before now, the draft of the lead Judgment of my Lord, James Shehu Abiriyi, JCA in its raw form, wherein he set aside the Judgment and all proceedings leading thereto as INCOMPETENT as the Writ of Summons originating the suit at the trial court was not signed by a natural person in either the plaintiff himself or by his Counsel.
The said Writ of Summons was signed by Chief A. Oladele Oladipo & Co., a Juristic or Juridical personam. An abstract creation of the law.
I would have been content to merely concur with the erudite and well articulated Judgment that is amply supported by the Apex Court (the Supreme Court), but because of the STUBBORN REFUSAL OR INSTISTENCE TO JUSTIFY THE NONE COMPLIANCE TO THE LAW IN THIS RESPECT on the part of Counsel in some instances, that I shall recall two of my previous Judgments on this issue of the validity or otherwise of a process of a court that is not signed in accordance to law, and not by a Legal Practitioner, but by a firm of a Legal Practitioner.
In TUNDE AKINLUSI VS CENTRAL BANK OF NIGERIA APPEAL No.CA/L/298/1997 delivered on 31st January, 2011 I had stated thus:-
"When this appeal came up on 27th May, 2010, this Court suo motu raised the issue of the competence of the said Notice of Appeal and matter was accordingly adjourned for address by the respective counsel for the parties on 3rd November, 2010.
The Notice of Appeal dated 22nd June, 1998 has signature inscribed above the words "B. Aluko-Olokun & Co, Solicitors for the Defendants/Appellant.
"34, Shirro Street,
Ikorodu Road, Fadeyi,
Arguing the issue raised by the Court, Gabriel O. Ibiwoye learned counsel for the Appellant conceded that the said Notice of Appeal was not signed by a counsel but by the firm of legal practitioners itself, but that it was however competent. In this wise, counsel submitted that even the amended Notice of Appeal signed in like manner was also competent.
It was the contention of counsel that the notice was signed by a firm and was therefore competent. Counsel urged that the decision in OKAFOR & vs NWEKE & ORS (2007) 10 N.W.L.R. (PART 1043) 5-21 was reached Per incuriam in view of the earlier decision of the Supreme Court in COLE vs. MARTINS (1968) 1 ALL N.L.R 161 (Lardner's case) that a process signed by a firm is competent.
In reply, learned counsel for the Respondent submitted that the said notice was incompetent based on the later decision in OKAFOR VS. NWEKE, Learned Counsel submitted that it is not within the powers of a subordinate Court to declare the decision of a superior Court in this case, the decision of the Supreme Court Per incuriam.
Counsel concluded by submitting that while the Notice of Appeal may have been valid under the old state of the law but with the amendment of the Notice of Appeal coming as it were in 2008, Appellant's counsel ought to have rectified the error, and not having done so, the Notice of Appeal should be dismissed for being an abuse of court process.
I have carefully listened to arguments from and was seemingly signed for a firm of Solicitors. A corporate entity has no hand of its own and cannot sign: it acts through agent or representative. In the instant Notice of Appeal, it is not expressed that B. ALUKO-OLOKUN & CO., SO acted. Who the signatory is, as inscribed above the corporate name is not known. Even if it was known, the law is now well settled and beyond dispute that a Notice of Appeal shall be personally signed by an intended Appellant or his legal representative. A legal representative or counsel must be a person who has been called to the bar and registered to practice as legal practitioner.
It is for that reason, that a named counsel who appears for a party in any legal proceedings ascribes his name and address. E. ALUKO-OLOKUN & CO. is not a legal practitioner enrolled to practice law and cannot therefore be a counsel for the purpose of signing legal process in a court. The said Notice of Appeal and its purported amendment i.e. "Amended Notice of Appeal" are both incompetent.
The Supreme Court had made the point clear beyond dispute in OKAFOR VS. NWEKE supra that Notice of Appeal signed by a firm and not a registered legal practitioner was invalid and the appeal incompetent. My Lord, OGBAUAGU, J.S.C., years after OKAFOR Vs NWEKE'S, case (supra) in OGUNDELE vs AGIRI (2010) 180 LRCN 153 @ 164 made the point clear beyond any equivocation as follows:,
"A partnership or firm, unless duly registered as such with respect, is not a legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor. See also Sections 2 (i) and 24 of the legal practitioners Act, Cap. 2009 LFN. See the case of THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS ARCH DIOCESE VS. RAHMAN AKINDELE (1967) NWLR 263, @ 265, FIRST BANK PLC & RANKASSA ENTERPRISES LTD. VS ALHNI SALMANU MAIDAWA dated 27th March, 2002, @ pages 13 and 14 - per Magaji; J.C.A. (of blessed memory) (unreported); my concurring Judgments/contributions in suit No.CA/J/241/200- Major - General MUSA BAMAIYI (Rtd,) vs. DANDALADI A. S. GARHA dated 9th December, 2004 (unreported) and CA/J/241/2001-DOMINIC NWANI vs BAKARI & ANOR. Also dated 9th December, 2004 (unreported).
If learned counsel who appears before this court persists in this practice of signing any process of this court as and Co. without evidence of being duly registered as such, it may be obliged to disregard or discountenance such process including briefs. Such signing is in my respectful view, but firm view is not an irregularity as held by the Court of Appeal - Per Alagoa, J.C.A. in the case of UNITY BANK PLC Vs. R. OLUWAFEMI (2007) ALL FWLR (PART. 382) 1923 relying on the case of or decision in COLE vs. MARTINS (1969) 1 ALL NLR 161 (Lardner's, case). It is a fundamental error. However, in the interest of the Litigants, I will go on for the last time, with the merit of this appeal."
In FIRST BANK OF NIGERIA Plc vs. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PART. 1216), page 242 @ page 287 par. E.G. the Supreme Court in its Judgment delivered 9th July 2010 per Adekeye, JSC stated thus:
"A Notice of Appeal is a very important document because it forms the foundation of an appeal. If a Notice of Appeal is defective, the Appellate court must strike it out on the ground that it is incompetent. Thus the question whether or not a proper Notice of Appeal has been filed in the Lower Court is question which touches on the jurisdiction of the Appellate court because if a proper notice was not filed, there is not appeal for the Appellate court to entertain...."
The later decision of the Supreme Court overruling COLE VS. MARTINS is binding on this court and this court has no jurisdiction to declare that it, had been reached Per incuriam. To do that would amount to judicial rascality.
It appears clear that the Supreme Court has by the decision in the OGUNDELE VS. AGIRI'S case supra departed from and reconfirmed its departure and overruling of the case of COLE VS. MARTINS (supra) when His Lordship, Ogbuagu, JSC. made it clear that the decision of the Court of Appeal Per Alagba, JCA relying on COKE vs. MARTINS was wrong.
From the foregoing, I am of firm view that the decision in OKAFOR VS. NWEKE was not reached Per incuriam; and even if it had been so reached, a Lower Court has no jurisdiction to so declare, as that will amount to judicial rascality. For the reasons so stated, the Notice of Appeal herein is liable to be struck out under Order 6 of the Court of Appeal, Rules 2007 and on the authorities indicated in this Ruling.
I am also strongly inclined to agree with the learned counsel for the Respondent when he argued that the filing of an incompetent Notice of Appeal and its amendment to the same effect is an abuse of court process. There is no iota of law supporting the Notice of Appeal as signed. It appears to have been recklessly done. See: SARAKI VS. KOTOYE (1992) 9 NWLR (PART.254) 156 @ 169 - 170 Per KARIBI WHYTE JSC, @ 189. For the foregoing reasons as advanced in this Ruling, it is my decision that the preliminary objection raised on the competence of the Notice of Appeal has merit. It succeeds. The Notice of Appeal dated 22nd June, 1997 in respect of this case is accordingly struck out".
My Lord, Clara Bata Ogunbiyi, JCA (as she then was) in her concurring opinion stated categorically thus:
"The signature by "B. Aluko - Olokun & Co" is that of an entity not recognized as registered legal practitioner known to our law. In other words the name is not of any person properly enrolled to practice Law in Nigeria.
A notice of appeal as an originating process is so fundamental that its competence should not be thrown into question. The absence of signature goes into the very foundational root base of the process itself. Contrary to the submission by the Learned Appellant's counsel therefore, the principle enunciated in the case of Okafor V. Nweze cited in the lead ruling is governing and applicable. I also adopt and endorse the ruling by my brother and struck out the notice of appeal"
Hussein Mukhtar, JCA, Phd, pungently concurred to the lead Judgment and emphasised the need for a signature by a known and disclosed person in a Notice of Appeal and I dare say every Legal process.
He stated thus:
"The Supreme Court decision in Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521 still represents the current position of the law on the issue of requirement of signing a notice of appeal by appellant or his legal practitioner. A firm of solicitors is not a legal practitioner. The name of the person signing must therefore be endorsed to enable the court determine if such person is a legal practitioner called to the Nigerian Bar and duly enrolled to practice as such. The signature on the notice of appeal by "B. Aluko-Olokun & Co" does not satisfy this requirement. One wonders why the person signing has to conceal his identity if he really is a legal practitioner.
The notice of appeal dated 22nd June 1997 is therefore incompetent and same ought to be struck out. It is pathetic that such an old incompetent notice has been pending for so long. However an incompetent notice cannot but be struck out.
I subscribe to all the consequential orders in the said ruling".
My Lord, Mshelia, JCA in her characteristic pungent but calm style reinforced this stand that a compliance to the law as to who can act as a legal practitioner must be observed, This, she did in this court at the Makurdi Division in CA/J/403/2007 delivered in .......
I, in my contributory Judgment minced no words in holding that the non-observance of this notorious imprimatur that only a legal practitioner can sign any process of court to be filed and not his legal firm as an inanimate person which is of course not registered to practice law in Nigeria.
I made it clear that all courts in Nigeria below the Supreme are to stand akimbo to this stance.
For the avoidance of doubt, this is what I said and there is no reason warranting any change of heart, more so that the Supreme Court fortifies that stand.
Hear this court, per Danjuma, JCA:
"I agree with the reasoning and the conclusion that the appeal rests on nothing as its substratum has not just withered away but was a still born with paralytic limbs. Crawl it may, but the courts do not have the jurisdiction in the state of the law in Nigeria, now, to mimic any jurisdiction. In the circumstance, no matter how hard party/counsel tries, the resurrection power of asking the paralytic (to stand and walk") does not lie in us, in respect of such purported Notice(s) of Appeal. We have not been imbued with the anointing.
The Apex Court - Supreme Court has restated this stand of the law umpteenth time that I think, by now, it should never be heard in any of the courts of this land that such trite and notorious question on the signing of an originating process such as a Notice of Appeal is still an issue.
Are we hard at hearing or understanding? Will a better option at no cost to litigants not lie in pursuing an amendment to the Legal Practitioners' Act by those that feel uncomfortable with the state of the law as settled in the interpretation thereof by the Supreme Court?
I note for an instance, a situation in our courts where a process is sometimes indicated as signed by XYZ (SAN) & Co. even when the firm was not so registered, merely because the Principal Practitioner or Partner thereof has become a Senior Advocate of Nigeria. It is either, a firm is so registered or if not so registered, then, the particular or individual counsel that subsequently dons the coveted rank of Senior Counsel may sign, to the name(s) in addition the title or epithet Senior Advocate of Nigeria or SAN.
I have digressed a bit to make clear that it is important to adhere to the Law/Rules at all times, including not signing for a Law Firm, or indicating a Law Firm as signing, as a firm is not a legal practitioner authorised to and registered in the Roll of Legal practitioners, as such to practice. An inanimate person/firm is not a legal practitioner in Nigeria, for the purpose of signing documents.
An originating process must be validly and legally initiated to properly place a suit before a court.
Only recently, (7th December 2012) the Supreme Court, again in the case of Dr. Braithwaite v. Skye Bank Plc (2012) 12 Se Pt.1 page 1, per Muhammad, JSC stated thus:-
"I agree with learned counsel to the Respondent/Objector that this court has consistently held that the validity of the originating processes in a proceeding before a court is a fundamental and necessary requirement for the competence of the suit and...failure to commence a suit with a valid writ and/or statement of claim writ and/or statement of claim goes to the root of the action since the condition precedent to the exercise of the court's jurisdiction would not have been met to duly place the suit before that court. See Madukolu V. Nkimdilim & Mohammed Maikida vs. A. D. Ogunmola (2006) 6 SC. 147; (2006) 13 NWLR (Pt.997).
As the Apex court pointed out In Braithwaite v. Sky Bank, supra, the objection in the this case, as in the Skye Bank case, supra, was not about the Rules of Court applicable per se which could be waived or remedied as an irregularity, but the objection was founded on Sections 2(i) and 24 of the Legal Practitioners Act Cap. 2007, Laws of the Federation, 2004.
Furthermore, as the apex court, per Muhammed, JSC stated,
"Again, learned Appellants/Respondents Counsel in asking us to ignore the decisions of this court in Okafor v. Nweke And SLB Consortium Ltd. v. NNPC.. seem to be requesting the impossible. The court remains bound by its previous decisions where the facts and the laws considered in the earlier cases are the same or similar in the cases being subsequently determined. See Adisa v. Oyinwola (2006) 6 SC (Pt.11) 47, Okulate v. Awosanya (2000) 1 SC 107."
All courts in Nigeria below the Supreme Court are to stand akimbo to this stance.
Bound by the consistent decisions of the Supreme Court, now reaffirmed in the recent decision of the same court in Braithwaite vs. Skye Bank, supra, I agree with the lead judgment that the preliminary objection raised orally was proper and could be heard. I also agree that the objection has merit, as there was no competent appeal before this court as the purported Notice was invalid in law.
I adopt the said lead Judgment including the order relating to "no costs" and hold that the purported appeal is incompetent.
It is, therefore, struck out for incompetence.
There is, therefore, every compelling reason to agree in toto with My Lord, James Shehu Abiriyi, JCA in the Lead Judgment maintaining this binding and consistent stand of this court, with the blessing of the Supreme Court.
It is for the above reasons that I endorse as my view and concur in the Leading Judgment striking out the instant appeal for incompetence. The writ of summons is consequentially struck out and the "infected" Judgment there from is set aside.