ATOYEBI & ORS v. OYINLOYE & ANOR (2021)

ATOYEBI & ORS v. OYINLOYE & ANOR

(2021)LCN/15149(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/IL/113/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

1. PA AKANDE ATOYEBI 2. CHIEF MICHAEL ALABI ARANSIOLA, AGBAJA OF IJARA-ISIN 3. MR. JOEL BAMIDELE AWOTAYO 4. ARCHITECT DELE OYEYIPO APPELANT(S)

And

1. CHIEF EZEKIEL AYO OYINLOYE 2. H.R.H GABRIEL O. ADEWOYE RESPONDENT(S)

RATIO

EFFECT OF NON-COMPLIANCE WITH PROVISIONS OF ORDER 15 RULE 1 OF THE KWARA STATE HIGH COURT CIVIL PROCEDURE RULES AND RULE 11 OF THE RULES OF PROFESSIONAL CONDUCT IN THE LEGAL PROFESSION IT AS IT RELATES TO WITHDRAWAL OF COUNSEL’S APPEARANCE FROM A MATTER

The complaint of the appellant’s counsel is predicated on the provisions of Order 15 of the Kwara State High Court (Civil Procedure) Rules, 2005 which provides that: “1. Every Legal Practitioner who shall be engaged in any cause or matter shall be bound to conduct same on behalf of the claimant or defendant as the case may be, by or for whom he shall have been so engaged until final judgment, unless allowed for any special reason to cease acting therein. 2. An application for a change of Legal Practitioner or withdrawal may be made by the claimant or defendant or the Legal Practitioner as the case may be, not less than 3 clear days before the date fixed for hearing. 3. Where the application is made by a Legal Practitioner, it shall be served on all parties to the cause or matter and where applicable also on the outgoing Legal Practitioner if he is not the applicant.” A careful reading of Order 15 Rule 1 shows that the rule relates to withdrawal of counsel’s appearance from a matter and not the right of a party to change his counsel. The right of a counsel to withdraw his appearance or representation from a matter before the Court is not the same as the constitutional right of a party to engage a counsel of his choice. The purpose of Order 15 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005 is protection of litigant. It is to ensure that a counsel who has been properly briefed to conduct a case on behalf of a litigant does not abandon the litigant midway by simply withdrawing his appearance from the case without any cogent reason. See OMALE V. FEDERAL MIN. OF LANDS, HOUSING AND URBAN DEVELOPMENT & ORS. (2015) LPELR-25906 (CA). However, where a party decides to change counsel, leave of Court is not necessary. See MUSTAPHA V. GAMAWA & ORS (2011) LPELR-9226 (CA) AT 37 (A). By Order 15 Rule 2, the procedure to be followed in notifying the Court of withdrawal by counsel or change of counsel by a party is the same. However, counsel who intends to withdraw his appearance must show a special reason for his withdrawal. A party who voluntarily changes his counsel need not give any special reason or any reason at all. See OJONYE V ONU & ORS (2018) LPELR-44212 (CA) AT 15 – 18 (A-D), CHUKWUKADIBIA V. EZE & ORS (2015) LPELR-25748 (CA) AT 41-42 (A-E), ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1152 (SC) AT 14 (F-G). In the instant appeal, Bisi Atolagbe of Bisi Atolagbe and Co., filed a notice of withdrawal of his appearance and representation for the respondents on 7/12/2018. The reasons stated therein are irreconcilable differences between the 1st defendant and Bisi Atolagbe and suspected lack of trust. H.G Ibn Mahmud of Abdulwahab Bamidele & Co., filed an application for change of counsel on 20/12/2018. The Court did not sit on that day. The record shows that the case came up on 24/1/2019 and Abdulwahab Bamidele appeared for the respondents that day. There was no representation for the appellants on that day. There is no doubt that notice of withdrawal filed by Bisi Atolagbe and application for change of counsel signed by H.G Ibn Mahmud were filed more than 3 clear days before the date fixed for hearing. The appellants’ counsel did not deny service of the application for change of counsel. The duty to seek leave to withdraw from a matter for special reason(s) is that of counsel not the litigant. Rule 11 of the Rules of Professional Conduct in the Legal Profession provides that: “….A Lawyer should decline association as a colleague if it is objectionable to the original counsel, but if the Lawyer first retained is relieved, another may come into the case.” The above rule imposes a professional duty on new counsel to contact the former counsel on being briefed to take over the conduct of the case. Where there is a breach of that duty, the only person entitled to complain is the original counsel. In the instant case, neither Bisi Atolagbe nor the respondents has raised any objection to the appearance of H.G. Ibn Mahmud of Abdulwahab Bamidele & Co. I am of the view that going strictly by the wordings of Order 15 Rules 1 and 2 of Rules of Court, Bisi Atolagbe ought to be in Court to formally withdraw his appearance pursuant to his notice of withdrawal. However, his omission or decision not to do so can only amount to an irregularity and a breach of professional duty. A litigant cannot be sanctioned or penalised for breach of professional duty or ethical/procedural mistake committed by his counsel. Once the former counsel filed his notice of withdrawal and stated the reasons for his withdrawal, the respondents’ were entitled and in fact duty bound to exercise their constitutional right to engage another counsel of their choice. Since the respondents exercised their constitutional right to engage a counsel of their choice after the filing of the notice of withdrawal by their former counsel, Rule 29(2) of the Rules of Professional Conduct for Legal Practitioners, 2007 imposes a professional duty on both the former and the new counsel to give notice of the change to the Court. See AGORO V. AROMOLARAN & ANOR. (2011) LPELR-8906 (CA) AT 20 (B-E). It is my view that both the former and the new counsel complied with the above Rule of Professional Conduct for Legal Practitioners by filling a notice to withdraw appearance and application for change of counsel. One thing is certain, a rule of Court cannot be interpreted or applied in a manner that defeats or over rides the provision of the Constitution. See ACB PLC V. LOSADA (NIG.) LTD. & ANOR. (1995) LPELR-205 (SC) AT 35 (A-C) where the Supreme Court Per ADIO, J.S.C held as follows: “It has never been the case in our Law that the provision of an ordinary statute would render nugatory the relevant provision of the Constitution. See lshola v. Ajiboye (1994) 6 N.W.L.R. (Pt. 352) 506 at p. 621; (1994) 19 L.R.C.N. 35. Therefore, if any Law of a State including a subsidiary legislation like the aforesaid High Court (Civil Procedure) Rules of Lagos State, is inconsistent with the provisions of the Constitution, the provisions of the Constitution prevail, and that state Law is to the extent of the inconsistency void. Therefore, any provision of the Rules which purports to dispense with hearing of a defendant before judgment is given against him will be null and void.” See also ADISA V. OYINWOLA & ORS. (2000) LPELR-186 (SC) AT 74-75(F-C), UGBOJI V. STATE (2017) LPELR-43427(SC) AT 23 (B-D). The right to fair hearing includes not only the right of a party to engage a counsel of his choice but the right to engage another counsel where the one engaged by him withdraws his appearance or representation. See DANGOTE CEMENT PLC V. EKESON SALINS OIL & GAS LTD & ORS (2019) LPELR-47259 (CA) AT 9-17 (C-A). The Court below considered the provision of Order 15 Rule 1 of the High Court of Kwara State Civil Procedure Rules and Rule 11 of the Rules of Professional Conduct in the Legal Profession. The Court held that non-compliance with provisions of Order 15 Rule 1 of the Kwara State High Court Civil Procedure Rules and Rule 11 of the Rules of Professional Conduct in the Legal Profession and filing the preliminary objection when Bisi Atolagbe, Esq., was yet to be granted leave to withdraw from the case is a mere irregularity which should be waived. The Court below was right to treat the failure of Bisi Atolagbe or any counsel in the Law firm to appear before the Court in person and formally obtain leave to withdraw their appearance and representation for the respondents as an irregularity. At least, he filed a notice to withdraw his appearance and representation wherein he stated the reasons for his withdrawal. The decision accords with the provision of Order 4 Rules (1) and (2) of the Kwara State High Court (Civil Procedure) Rules 2005 which provides that: “(1) Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein. (2) The Court may, on the ground that there has been such a failure as mentioned in Sub-rule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.” See FAMFA OIL LTD V. A.G. FEDERATION (2003) 18 NWLR (PT.852) 453 AT 468, (2003) LPELR- 1239(SC) AT 28-29 (F-A) where the Supreme Court Per EDOZIE, J.S.C held that: “…Any non-compliance with any Rules of Court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of natural justice. See Okoye v. Nigerian Construction Co. Ltd & Ors. (1991) 6 NWLR (Pt.199) 501 AT 539.” The words of Order 4 Rules 1 (1) and (2) of the Rules of Court are very clear and unambiguous. Failure to comply with the requirement of the rules in any respect may be treated as an irregularity and if so treated will not nullify any document. H.G. Ibn Mahmud of Abdulwahab & Company having filed the application for change of counsel on 20/12/20 were immediately invested with the power to take any step or file any process they consider to be necessary for the proper presentation of the respondents’ case. See AKUMA V. EZIKPE (2001) 8 NWLR (PT.716) 547 AT 556-557 (E-A) where this Court per ……… held as follows: “A litigant does not require leave of Court to change his counsel. All that is required of him is to give notice of such change. The party giving notice of the change can do so either in person or by his new counsel. This means that new counsel can go into action immediately whether or not the notice has been given and that given of notice is not a precondition to invest the new counsel with necessary powers to act for the litigants.” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EFFECT OF A COURT PROCESS SIGNED IN THE NAME OF A LAW FIRM

The Law is settled that in view of the clear provisions of Sections 2(1) and 24 of Legal Practitioners Act, only a person entitled to practice as a barrister and solicitor of the Supreme Court of Nigeria is entitled to sign a Court process as a legal practitioner. Since a person is entitled to practice as barrister and solicitor if, and only if, his name is on the roll, a law firm or partnership not being a human being called to the bar and enrolled to practice cannot legally sign or file a Court process. Any process signed in the name of a law firm is incompetent and liable to be struck out. PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

POSITION OF THE LAW ON THE SEQUENCE TO BE FOLLOWED BY THE LEGAL PRACTITIONER IN SIGNING A COURT PROCESS; POSITION OF THE LAW WHEN THE NAME OF THE COUNSEL WHO SIGNED A PROCESS IS NOT STATED IN THE PROCESS

In SLB CONSORTIUM LTD V. NNPC (Supra), (2011) 9 NWLR (Pt. 1252) 317 at 337 – 338, the Supreme Court stated the sequence to be followed by the legal practitioner in signing a Court process as follows: “First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm.” The Court further held that “once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)” The cases which have followed the above decision are legion. See DANIEL V. INEC & ORS. (2015) LPELR-24566 (SC) AT 42-43 (E-A), OKPE V. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) AT 16-23 (D-A), EMEKA V. CHUBA-IKPEAZU & ORS (2017) LPELR-41920 (SC) AT 47-49 (B-E), OKARIKA & ORS V. SAMUEL & ANOR. (2013) LPELR-19935 (SC) AT 16-17 (E-F), OKWUOSA V. GOMWALK & ORS. (2017) LPELR-41736 (SC) AT 29-32 (A-F), ONYEKWULUJE & ANOR. V. ANIMASHAUN & ANOR (2019) LPELR-46528 (SC) AT 25-28 (D-B), GTB V. INNOSON NIG. LTD. (2017) LPELR-42368 (SC) AT 7-8 (C). SALAMI V. MUSE (2019) LPELR-47038 (SC) AT 8-9 (B), DICKSON OGUNSEINDE VIRYA FARMS LTD V. S. G. B. LTD. (2018) LPELR-43710 (SC) AT 24-29 (C-A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

POSITION OF THE LAW AS REGARDS SIGNING OF COURT PROCESS

It is settled by the authorities cited above and legion of others that the name of the legal practitioner who signs a document should be written or indicated immediately below the signature. No Court is allowed to embark on a voyage of discovery by comparing signatures on two separate Court processes to come to a conclusion that one or the other is signed by a legal practitioner whose name is not written or indicated under the signature on the process on the process as mandatorily required by Law. The fact that a Court process or any legal document is signed by a legal practitioner known to law should be as clear on its face as a mathematical precision. It is not a fact that can or should be decided on inferences, presumptions and assumptions. See IBEKE V. NZEGWU & ORS. (2017) LPELR-43056 (CA) AT 8-9 (C-A) AND ARUEZE & ORS. V. NWAUKONI (2018) LPELR-46352 (SC) AT 8-10 (C-B). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WHETHER SIGNING OF COURT PROCESS IN THE NAME OF A LAW FIRM IS A TECHNICAL ERROR

The argument of the learned silk insinuating that the error in signing the writ of summons in the name of a firm is a technicality is contrary to the firm pronouncement of the Supreme Court that signing of Court process, in this case, an originating process in the name of a firm is not a technical error but a fundamental defect which renders the process incompetent and robs the Court of the jurisdiction to entertain the suit. See OKAFOR V. NWEKE & ORS (2007) LPELR-2412 (SC), OLIYIDE & SONS LTD V. OAU, ILEIFE (2018) LPELR-43711 (SC) AT 30-31 (D-F), FIRST BANK OF NIG. V. MAIWADA (2012) 5 SC (PT.3) 1 AT 28-29, SALAMI V MUSE (2019) LPELR-47038 (SC) AT 8-19 (B). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The appellant herein commenced suit No. KWS/OM/7/2011 by a writ of summons dated 21/9/2011 and filed on the same day. Upon the conclusion of pleadings, the case proceeded to trial. The defendants now the respondents were represented by Bisi Atolagbe of Bisi Atolagbe & Company until the conclusion of evidence. The Court ordered that written addresses be filed and the case was fixed for 29/10/2018 for adoption of addresses. There is no record of what happened on 29/10/2018. According to the appellant’s counsel, the Court did not sit on that day and the respondents did not file any written address. The record of appeal before this Court shows that the respondents’ counsel filed a notice of withdrawal of his representation for the respondents “due to irreconcilable difference between the 1st defendant and Bisi Atolagbe and suspected lack of trust”. The record also shows that an application for change of counsel for respondents was filed on 20/12/18 by Abdulwahab Bamidele & company and signed by H.G. Ibn Mahmud. On 4/1/2019, a notice of preliminary objection against

the suit was filed and signed by H.G. Ibn Mahmud of Abdulwahab Bamidele & company. The objection challenged the jurisdiction of the Court to entertain the suit on the ground that it was initiated by an incurably and fundamentally defective writ of summons because the writ of summons was not properly signed as required by Law.

The Court below in its ruling delivered on 9/5/2019 upheld the objection and struck out the suit. Being dissatisfied with the ruling, the appellants filed a notice of appeal dated 21/5/2019. From the fourteen grounds of appeal raised in notice of appeal, the appellant formulated the following two (2) issues for determination in their brief of argument filed on 10/11/20 and deemed as properly filed and served on 17/11/20:
1.“whether the “preliminary objection” against the competence of the suit before the trial Court by H.G. Ibn Mahmud Esq., of Law firm of Abdulwahab Bamidele & Co., a completely different Law firm from Bisi Atolagbe & Co., counsel to the respondents is due and competent when Bisi Atolagbe & Co., neither applied for leave nor granted leave to withdraw for “special reason”

from the suit as counsel to the respondents (defendants).
2. This issue is on the merit of the objection in case issue No. 1 does not resolve the appeal. Whether on an holistic reading, construction and interpretation of the entire content of the writ of summons, spanning three pages, it was issued and signed by Joseph S. Bamigboye & Co., or by Joseph S. Bamigboye Esq., who on the writ of summons is counsel to the appellants (claimants).”

In the respondents’ brief of argument filed on 23/12/20, the respondents formulated the following issues for determination:
1. “Whether H.G Ibn Mahmoud, Esq., of Abdulwahab Bamidele & Co., could not competently file a notice of preliminary objection against the validity of this suit upon being engaged by the respondents to replace Bisi Atolagbe, Esq., of Bisi Atolagbe & Co., who had filed a notice of withdrawal. (Grounds 1, 2, 3, 4, 5, 6, 7 and 8).
2. Considering the totality of preliminary objection, whether the writ of summons signed by “Joseph S. Bamigboye & Co” is not incurably defective and grossly incompetent leading to its being struck out. (Grounds 9, 10, 11, 12 and 13).”

The issues formulated by counsel to both parties are similar though couched in different words.

On issue 1 of both parties, the appellants’ counsel, J. S. Bamigboye SAN submitted that the provisions of Order 15 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005, (Civil Procedure Rules) makes it mandatory for a counsel engaged by a party in any cause or matter to conduct same until final judgment unless allowed for any special reason to withdraw upon an application made either by the party or the legal practitioner. He argued that since Bisi Atolagbe and Bisi Atolagbe & Company have not withdrawn their representation for the respondents, H. G. Ibn Mahmud of Abdulwahab Bamidele & Company had no locus to file the preliminary objection against the suit. He further argued that the Court below having agreed that the rules of Court are meant to be obeyed misconstrued the effect of failure to comply with the provisions of Order 15 Rule 1 of the Civil Procedure Rules and Rule 11 of the Rules of Professional Conduct when it treated the non-compliance as an irregularity. He referred to ELIAS V. ECO BANK NIG. PLC

(2019) ALL FWLR (PT.1006) 530 AT 563-564. It is the contention of the learned silk that where leave of Court such as prescribed by Order 15 Rule 1 of the Civil Procedure Rules is required for withdrawal of a counsel from a matter, failure to seek and obtain the required leave is not a mere irregularity which can be waived but a substantial omission which makes the appearance of a different counsel without withdrawal incompetent as no validity or incompetence can stand on illegality or incompetence. He referred to SKENCONSULT (NIG.) LTD V. UKEY, I.L.C. 656 AT 661. He submitted that the power of the Court to treat non-compliance with the rules as an irregularity is to be exercised judicially and judiciously based on facts and guided by Law. He referred to U.B.N PLC V. FAYANJU (2019) ALL FWLR (PT.1017) 602 AT 652. He urged this Court not to uphold the holden that non-compliance with the Rules of Court and Rules of Professional Ethics is an irregularity which can be waived as the holden is premised upon a wrong principle of Law and wrong exercise of judicial discretion. He finally submitted that non-compliance with a rule of Court which requires special reason

for grant of leave is a substantial non-compliance which renders any process founded on it incompetent.

In response, the respondent’s counsel argued that the complaint of the appellant is at best a procedural irregularity but the fact that a party approached the Court by a wrong procedure or under a wrong Law will not deny him the relief he is legitimately entitled to. He referred to F.R.I.N V. GOLD (2007) LPELR-1287 (SC) AT 28 (B-C). He submitted that there was a substantial compliance with the provisions of Order 15(1) of the Civil Procedure Rules, Bisi Atolagbe having filed notice of withdrawal of his presentation for the respondents and Abdulwahab Bamidele & Co., having filed an application for change of counsel. Counsel argued that even if there is a defect in the appearance of counsel, the preliminary objection remains valid since jurisdiction is not conferred or removed from the Court by the appearance or non-appearance of counsel. He referred to NIG. NAVY V. GARRICK (2006) 4 NWLR (PT. 969) 69 AT 109 (E-F), AKALONU V. OMOKARO (2003) 8 NWLR (PT.821) 190, TUKUR V. GOVT. OF GONGOLA STATE (1988) 1 NWLR (PT.68) 39 AT 42 (14). It is the

contention of the respondents’ counsel that the rules of Court cannot be interpreted in a way that will deny a party his constitutional right of engaging a counsel because the Constitution is superior and takes precedence over any rule of Court. He referred to A.C.B. PLC V. LOSADA NIG. LTD & ANOR (1995) LPELR-205 (SC) AT 35 (A-CO), OGUNDIMU V. KASUMU (2006) ALL FWLR (PT. 326) 207 AT 218, AKUMA V. EZIKPE (2001) 8 NWLR (PT.716) 547 AT 556-557 (E-A). He further contended that a party does not require leave of Court to change his counsel, all that is required is to give notice of change of counsel to Court since the Court does not choose counsel for parties. He referred to MKO ABIOLA V. FRN (1997) 1 NWLR (PT.488) 439 AT 442 (F-G). He finally submitted that the decision of the Court below to treat non-compliance with the relevant Rules of Court and Rule of Professional Conduct in the instant case as an irregularity is unassailable and faultless as Order 4(1) (1) of the High Court (Civil Procedure) Rules, Kwara State, 2005 provides that non-compliance with the relevant Rules of Court may be treated as an irregularity which does not go the root or foundation

of the proceedings. He referred to FAMFA OIL LTD V. A.G FEDERATION (2003) 18 NWLR (PT. 852) 453 AT 468.

RESOLUTION:
The complaint of the appellant’s counsel is predicated on the provisions of Order 15 of the Kwara State High Court (Civil Procedure) Rules, 2005 which provides that:
“1. Every Legal Practitioner who shall be engaged in any cause or matter shall be bound to conduct same on behalf of the claimant or defendant as the case may be, by or for whom he shall have been so engaged until final judgment, unless allowed for any special reason to cease acting therein.
2. An application for a change of Legal Practitioner or withdrawal may be made by the claimant or defendant or the Legal Practitioner as the case may be, not less than 3 clear days before the date fixed for hearing.
3. Where the application is made by a Legal Practitioner, it shall be served on all parties to the cause or matter and where applicable also on the outgoing Legal Practitioner if he is not the applicant.”
A careful reading of Order 15 Rule 1 shows that the rule relates to withdrawal of counsel’s appearance from a matter and not the

right of a party to change his counsel. The right of a counsel to withdraw his appearance or representation from a matter before the Court is not the same as the constitutional right of a party to engage a counsel of his choice. The purpose of Order 15 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005 is protection of litigant. It is to ensure that a counsel who has been properly briefed to conduct a case on behalf of a litigant does not abandon the litigant midway by simply withdrawing his appearance from the case without any cogent reason. See OMALE V. FEDERAL MIN. OF LANDS, HOUSING AND URBAN DEVELOPMENT & ORS. (2015) LPELR-25906 (CA). However, where a party decides to change counsel, leave of Court is not necessary. See MUSTAPHA V. GAMAWA & ORS (2011) LPELR-9226 (CA) AT 37 (A).
By Order 15 Rule 2, the procedure to be followed in notifying the Court of withdrawal by counsel or change of counsel by a party is the same. However, counsel who intends to withdraw his appearance must show a special reason for his withdrawal. A party who voluntarily changes his counsel need not give any special reason or any reason at all.

See OJONYE V ONU & ORS (2018) LPELR-44212 (CA) AT 15 – 18 (A-D), CHUKWUKADIBIA V. EZE & ORS (2015) LPELR-25748 (CA) AT 41-42 (A-E), ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1152 (SC) AT 14 (F-G). In the instant appeal, Bisi Atolagbe of Bisi Atolagbe and Co., filed a notice of withdrawal of his appearance and representation for the respondents on 7/12/2018. The reasons stated therein are irreconcilable differences between the 1st defendant and Bisi Atolagbe and suspected lack of trust. H.G Ibn Mahmud of Abdulwahab Bamidele & Co., filed an application for change of counsel on 20/12/2018. The Court did not sit on that day. The record shows that the case came up on 24/1/2019 and Abdulwahab Bamidele appeared for the respondents that day. There was no representation for the appellants on that day. There is no doubt that notice of withdrawal filed by Bisi Atolagbe and application for change of counsel signed by H.G Ibn Mahmud were filed more than 3 clear days before the date fixed for hearing. The appellants’ counsel did not deny service of the application for change of counsel. The duty to seek leave to withdraw from a matter for special reason(s) is

that of counsel not the litigant. Rule 11 of the Rules of Professional Conduct in the Legal Profession provides that:
“….A Lawyer should decline association as a colleague if it is objectionable to the original counsel, but if the Lawyer first retained is relieved, another may come into the case.”
The above rule imposes a professional duty on new counsel to contact the former counsel on being briefed to take over the conduct of the case. Where there is a breach of that duty, the only person entitled to complain is the original counsel. In the instant case, neither Bisi Atolagbe nor the respondents has raised any objection to the appearance of H.G. Ibn Mahmud of Abdulwahab Bamidele & Co. I am of the view that going strictly by the wordings of Order 15 Rules 1 and 2 of Rules of Court, Bisi Atolagbe ought to be in Court to formally withdraw his appearance pursuant to his notice of withdrawal. However, his omission or decision not to do so can only amount to an irregularity and a breach of professional duty. A litigant cannot be sanctioned or penalised for breach of professional duty or ethical/procedural mistake committed by his

counsel. Once the former counsel filed his notice of withdrawal and stated the reasons for his withdrawal, the respondents’ were entitled and in fact duty bound to exercise their constitutional right to engage another counsel of their choice. Since the respondents exercised their constitutional right to engage a counsel of their choice after the filing of the notice of withdrawal by their former counsel, Rule 29(2) of the Rules of Professional Conduct for Legal Practitioners, 2007 imposes a professional duty on both the former and the new counsel to give notice of the change to the Court. See AGORO V. AROMOLARAN & ANOR. (2011) LPELR-8906 (CA) AT 20 (B-E). It is my view that both the former and the new counsel complied with the above Rule of Professional Conduct for Legal Practitioners by filling a notice to withdraw appearance and application for change of counsel. One thing is certain, a rule of Court cannot be interpreted or applied in a manner that defeats or over rides the provision of the Constitution. See ACB PLC V. LOSADA (NIG.) LTD. & ANOR. (1995) LPELR-205 (SC) AT 35 (A-C) where the Supreme Court Per ADIO, J.S.C held as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“It has never been the case in our Law that the provision of an ordinary statute would render nugatory the relevant provision of the Constitution. See lshola v. Ajiboye (1994) 6 N.W.L.R. (Pt. 352) 506 at p. 621; (1994) 19 L.R.C.N. 35. Therefore, if any Law of a State including a subsidiary legislation like the aforesaid High Court (Civil Procedure) Rules of Lagos State, is inconsistent with the provisions of the Constitution, the provisions of the Constitution prevail, and that state Law is to the extent of the inconsistency void. Therefore, any provision of the Rules which purports to dispense with hearing of a defendant before judgment is given against him will be null and void.”
See also ADISA V. OYINWOLA & ORS. (2000) LPELR-186 (SC) AT 74-75(F-C), UGBOJI V. STATE (2017) LPELR-43427(SC) AT 23 (B-D). The right to fair hearing includes not only the right of a party to engage a counsel of his choice but the right to engage another counsel where the one engaged by him withdraws his appearance or representation. See DANGOTE CEMENT PLC V. EKESON SALINS OIL & GAS LTD & ORS (2019) LPELR-47259 (CA) AT 9-17 (C-A). The Court below considered the

provision of Order 15 Rule 1 of the High Court of Kwara State Civil Procedure Rules and Rule 11 of the Rules of Professional Conduct in the Legal Profession. The Court held that non-compliance with provisions of Order 15 Rule 1 of the Kwara State High Court Civil Procedure Rules and Rule 11 of the Rules of Professional Conduct in the Legal Profession and filing the preliminary objection when Bisi Atolagbe, Esq., was yet to be granted leave to withdraw from the case is a mere irregularity which should be waived. The Court below was right to treat the failure of Bisi Atolagbe or any counsel in the Law firm to appear before the Court in person and formally obtain leave to withdraw their appearance and representation for the respondents as an irregularity. At least, he filed a notice to withdraw his appearance and representation wherein he stated the reasons for his withdrawal. The decision accords with the provision of Order 4 Rules (1) and (2) of the Kwara State High Court (Civil Procedure) Rules 2005 which provides that:
“(1) Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any

proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may, on the ground that there has been such a failure as mentioned in Sub-rule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”
See FAMFA OIL LTD V. A.G. FEDERATION (2003) 18 NWLR (PT.852) 453 AT 468, (2003) LPELR- 1239(SC) AT 28-29 (F-A) where the Supreme Court Per EDOZIE, J.S.C held that:
“…Any non-compliance with any Rules of Court is prima facie an irregularity and not a ground for nullity, unless such

non-compliance amounts to a denial of natural justice. See Okoye v. Nigerian Construction Co. Ltd & Ors. (1991) 6 NWLR (Pt.199) 501 AT 539.”
The words of Order 4 Rules 1 (1) and (2) of the Rules of Court are very clear and unambiguous. Failure to comply with the requirement of the rules in any respect may be treated as an irregularity and if so treated will not nullify any document. H.G. Ibn Mahmud of Abdulwahab & Company having filed the application for change of counsel on 20/12/20 were immediately invested with the power to take any step or file any process they consider to be necessary for the proper presentation of the respondents’ case. See AKUMA V. EZIKPE (2001) 8 NWLR (PT.716) 547 AT 556-557 (E-A) where this Court per ……… held as follows:
“A litigant does not require leave of Court to change his counsel. All that is required of him is to give notice of such change. The party giving notice of the change can do so either in person or by his new counsel. This means that new counsel can go into action immediately whether or not the notice has been given and that given of notice is not a precondition to invest the new

counsel with necessary powers to act for the litigants.”
In view of all what I have stated above, the inevitable conclusion is that the contention of the learned silk that the notice of preliminary objection signed by H.G Ibn Mahmud of Abdulwahab Bamidele & Co., on behalf of the respondents is incompetent because H.G Ibn Mahmud of Abdulwahab Bamidele & Co., had no locus to file the process before leave to withdraw is granted to Bisi Atolagbe of Bisi Atolagbe and Co., is misconceived. Issue 1 is resolved against the appellants.

On issue 2, the learned silk submitted that documents including writ of summons are read, interpreted and construed holistically and not in isolation and disjunctively. He referred to EDEH V. ADAH (2016) ALL FWLR (PT. 864) 1848 AT 1861, NIGERIA MERCHANT BANK PLC V. GARBA (2013) ALL FWLR (PT. 688) 1004 AT 1014, OBATUGA V. OYEBOKUN (2014) ALL FWLR (PT.754) 110 AT 138. RESSURECTION POWER INV. LTD. V. U.B.N. PLC (2018) ALL FWLR (PT.941) 202 AT 250-257. He argued that by virtue of Order 2 Rules 1 and 3 of the Kwara State High Court (Civil Procedure) Rules, 2005 all the three (3) pages of the writ of summons must be read,

construed and interpreted holistically and conjunctively in resolving the issue of whether the writ of summons was issued and signed by Joseph S. Bamigboye Esq. , or Joseph S. Bamigboye & Co. He further argued that the Court below having found that Joseph S. Bamigboye & Co., is inanimate and incapable of a signature, page 3 of the writ of summons which states that the writ of summons was issued by Joseph S. Bamigboye Esq., renders Joseph S. Bamigboye & Co., on page 2 a typographical error and the signature is duely ascribed to Joseph S. Bamigboye Esq., who is animate and capable of signature and identified as Legal Practitioner who issued the writ. According to the learned silk, the signature is necessarily and by all reasonable inference and presumption that of Joseph S. Bamigboye Esq. He submitted that the attempt by the Court below to distinguish signing and issuance of a writ is technicality taken too far and it resulted in a perverse decision. He further submitted that all the conditions for a valid signature on the issuance of a writ of summons laid down in SLB CONSORTIUM LTD V. NNPC (2011) 4 SC (PT.1) 97 are all present and clearly identifiable on

holistic reading, interpretation and construction of the writ of summons and if the Court had compared the signature on page 2 of the writ of summons with the one on the statement of claim, the Court would have come to the conclusion that Joseph S. Bamigboye Esq., referred to on page 3 of the writ of summons signed the endorsement on page 2. He also submitted that once a writ is attributable to an identifiable legal practitioner, it is valid and its competence must be upheld. He referred to OYAMA V. AGIBE (2016) ALL FWLR (PT.840) 1274 AT 1284, U.B.A PLC V. S.E.A LTD. (2016) ALL FWLR (PT.829) 1127 AT 1157.

The respondents’ counsel on his part argued that the writ of summons in this case is fundamentally and incurably defective because if all the pages of the writ of summons are read together, it was signed by or in the name of Joseph S. Bamigboye & Co., and if on the other hand, the 3rd page of the writ is construed alone, then it is not signed at all by anybody and the therefore the writ is null and void. He contended that the submission that the signing of the writ of summons by Joseph S. Bamigboye & Co., is a typographical error is an

afterthought which cannot avail the appellants because the signature of Joseph S. Bamigboye & Co., on page 2 cannot be transferred or adopted by Joseph S. Bamigboye, Esq., on page 3 of the writ. It is submitted that Orders 2 Rule 8(1) and Order 6 Rule 2(3) of the Kwara State High Court (Civil Procedure) Rules, 2005 provides that a writ of summons is deemed to be issued when it had been prepared by the applicant or his legal practitioner, sealed and filed in the registry of the Court, therefore the writ of summons in this case was prepared, sealed and filed by Joseph S. Bamigboye & Co., not “Joseph S. Bamigboye Esq., notwithstanding page 3 thereof.

On the complaint that the decision of the Court below amount to technicality which has occasioned a miscarriage of justice, counsel submitted that the firm position of the Supreme Court is that signing of a document by a Law firm is not a technicality but a duty owed the Court in the adjudication process. He referred to F.B.N. PLC V. MAIWADA (2012) 5 SC (PT.3) 1 AT 28-29 (25-39). He finally submitted that the signing of the writ failed woefully to comply with the mandatory requirements stated in SLB CONSORTIUM LTD V. NNPC (SUPRA).

In reply to the submissions of the respondent, the appellant’s counsel referred to Order 6 Rules 1 and 2(3) of the Kwara State High Court (Civil Procedure) Rules, 2005. He submitted that the writ of summons having been issued in compliance with the rules of Court by J. S. Bamigboye Esq., an identifiable person known to Law, the signature on the writ of summons cannot be separated from that of the person who issued the writ.

RESOLUTION:
The Law is settled that in view of the clear provisions of Sections 2(1) and 24 of Legal Practitioners Act, only a person entitled to practice as a barrister and solicitor of the Supreme Court of Nigeria is entitled to sign a Court process as a legal practitioner. Since a person is entitled to practice as barrister and solicitor if, and only if, his name is on the roll, a law firm or partnership not being a human being called to the bar and enrolled to practice cannot legally sign or file a Court process. Any process signed in the name of a law firm is incompetent and liable to be struck out.

The suit on appeal was commenced by a writ of summons filed on 21/9/2011.

Order 2 Rules 1 and 3, Order 5 Rule 6(2) and Order 6 Rules 1 and 2 provides that:
“ORDER 2
1. Subject to the provisions of any enactment, civil proceedings may be begun by a writ of summons, originating Summons, originating motion or petition, as herein after provided.
3. Except in cases in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations as circumstances may require.
ORDER 5
5. 6(2) Where a claimant sues through a Legal Practitioner, the Legal Practitioner shall state on the originating process his chambers’ address as the address for service. If the Legal Practitioner is based outside the jurisdiction he shall state a chambers’ address within the jurisdiction as his address for service.
ORDER 6
Preparing originating process
1. Originating process shall be prepared by a claimant or his Legal Practitioner, and shall be clearly printed on opaque foolscap size paper of good quality.
2. (1) The Registrar shall seal every originating process whereupon it shall be deemed to be issued.
(2) A claimant or his Legal Practitioner

shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed by the Legal Practitioner or by a claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.”
It is clear from the above rules of Court that where a claimant sues through a legal practitioner each copy of the writ of summons must be signed by the legal practitioner. In SLB CONSORTIUM LTD V. NNPC (Supra), (2011) 9 NWLR (Pt. 1252) 317 at 337 – 338, the Supreme Court stated the sequence to be followed by the legal practitioner in signing a Court process as follows:
“First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm.”
The Court further held that “once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule

cannot override the law (i.e. the Legal Practitioner Act.)”
The cases which have followed the above decision are legion. See DANIEL V. INEC & ORS. (2015) LPELR-24566 (SC) AT 42-43 (E-A), OKPE V. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) AT 16-23 (D-A), EMEKA V. CHUBA-IKPEAZU & ORS (2017) LPELR-41920 (SC) AT 47-49 (B-E), OKARIKA & ORS V. SAMUEL & ANOR. (2013) LPELR-19935 (SC) AT 16-17 (E-F), OKWUOSA V. GOMWALK & ORS. (2017) LPELR-41736 (SC) AT 29-32 (A-F), ONYEKWULUJE & ANOR. V. ANIMASHAUN & ANOR (2019) LPELR-46528 (SC) AT 25-28 (D-B), GTB V. INNOSON NIG. LTD. (2017) LPELR-42368 (SC) AT 7-8 (C). SALAMI V. MUSE (2019) LPELR-47038 (SC) AT 8-9 (B), DICKSON OGUNSEINDE VIRYA FARMS LTD V. S. G. B. LTD. (2018) LPELR-43710 (SC) AT 24-29 (C-A).
In the instant case, the signature on the writ of summons is on page 2 thereof. Immediately under the signature is the name “Joseph S. Bamigboye & Co. No name of any individual or natural person appeared under the signature. Thus, contrary to the manner of signing a Court process as laid down in SLB, the name of the person who signed the writ is not stated. The submission

of the learned silk that Joseph S. Bamigboye & Co. on page 2 of the writ is a typographical error tantamounts to giving evidence under the guise of writing a brief. I do not understand why the learned silk refused to accept that there was an error in the signing of the writ of summons but rather wants the Court to decide the issue based on inference, assumptions and comparison of signatures. It is settled by the authorities cited above and legion of others that the name of the legal practitioner who signs a document should be written or indicated immediately below the signature. No Court is allowed to embark on a voyage of discovery by comparing signatures on two separate Court processes to come to a conclusion that one or the other is signed by a legal practitioner whose name is not written or indicated under the signature on the process on the process as mandatorily required by Law. The fact that a Court process or any legal document is signed by a legal practitioner known to law should be as clear on its face as a mathematical precision. It is not a fact that can or should be decided on inferences, presumptions and assumptions. See IBEKE V. NZEGWU & ORS.

(2017) LPELR-43056 (CA) AT 8-9 (C-A) AND ARUEZE & ORS. V. NWAUKONI (2018) LPELR-46352 (SC) AT 8-10 (C-B). By a combined reading of Order 5 Rule 6(2) and Order 6 Rules 1 and 2, it is clear that a writ of summons is issued by the Registrar of the Court. When a writ properly signed by the claimant or his legal practitioner is presented to the Registrar, the registrar shall seal the writ where upon it is deemed to be issued. There is a world of difference between the signing of the writ of summons and issuance of same. By the clear words of the Rules of Court, a writ of summons is issued by the Registrar of the Court, not by a claimant or the legal practitioner. See RABIU V. ABDULLAHI (2015) LPELR-25914 (CA) AT 9-13 (C-F), ANUNOBI V. HASSAN & ANOR (2013) LPELR-21870 (CA) AT 16-19 (E-F). The argument of the learned silk that the distinction made between issuance and signing of a writ of summons by the Court below is technicality taken too far and therefore perverse is absolutely wrong in law. So also is the submission of the learned silk that the distinction between Joseph S. Bamigboye & Co., and Joseph S. Bamigboye Esq., is one without a difference.

Joseph S. Bamigboye & Co., is a firm of Legal Practitioners and a business outfit. It cannot sign or issue a writ of summons. It is not a person called to the bar and enrolled at the Supreme Court of Nigeria to practice as Barrister and Solicitor in the Federal Republic of Nigeria. Joseph S. Bamigboye, Esq., is a person called to the bar and enrolled at the Supreme Court of Nigeria and is qualified to practice as Barrister and Solicitor in the Federal Republic of Nigeria. He is a person known to Law by virtue of Sections 2(1) and 24 of the Legal Practitioners Act and can sign a Court process or any other legal document prepared by him.

(2018) LPELR-43711 (SC) AT 30-31 (D-F), FIRST BANK OF NIG. V. MAIWADA (2012) 5 SC (PT.3) 1 AT 28-29, SALAMI V MUSE (2019) LPELR-47038 (SC) AT 8-19 (B). The effect all that I have said is that issue 2 must be resolved in the negative and against the appellant and it is so resolved.

In conclusion, I find that this appeal lacks merit. It is hereby dismissed. Each party should bear his own costs.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUF, JCA. I am in agreement with his reasoning, however, I must comment on the issue of signing of Court processes.

Signing a Court process and signing it correctly is very fundamental to the vires of the Court. It is a fundamental requirement of Law, that all processes filed in a Court of law must be duly signed by a Legal Practitioner known to law. See OYAMA VS. AGBIJI (2012) LPELR 13766; OKAFOR VS. NWEKE (Supra). It is now firmly settled that a Court process that is not signed by a legal Practitioner whose name appears on the Roll of Legal Practitioners and who is entitled to practice as a Barrister

and Solicitor as provided for in S. 2 and 24 of LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. OKETADE VS. ADEWUNMI (Supra); F.B.N. PLC VS. MAIWADA (2013) 5 NWLR PT. 1348, PG. 1433; SLB CONSORTIUM LIMITED VS. N.N.P.C. (2011) 9 NWLR PT.1252, PG.317; WILLIAMS VS. ADOLD/STAMM INTERNATIONAL (NIGERIA) LIMITED (2017) LPELR 41559.
In the present Appeal, it is obvious that the signature of who ever signed the Writ of Summons is on a caption stated thus: “Joseph S. Bamigboye and Co.”
The above name is the name of Legal Firm which is not a name known to the Legal Profession nor is it on its Nominal Roll of Legal Practitioners.
The Supreme Court in a plethora of cases had cautioned that the signing of a legal document is a serious affair and should not be treated lightly.

For this and the more robust reasoning in the lead judgment, I also find the Appeal lacking in merit. It is dismissed.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree the appeal has no substance, therefore, it is dismissed by me. I have nothing useful to add to the erudite judgment delivered by my Lord, MISITURA OMODERE BOLAJI-YUSUFF, JCA, I abide by the order made on cost.

Appearances:

Alamoyo Sulaiman For Appellant(s)

Olukayode Oloyede For Respondent(s)