P. W. NIG. LTD v. SELLMETALS LTD (2020)

P. W. NIG. LTD v. SELLMETALS LTD

(2020)LCN/15426(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/IB/67/2011

RATIO

COURT PROCESSES: THE POSITION OF THE LAW IS THAT WHEN COURT PROCESSES ARE ENDORSED IN THE NAME OF A LAW FIRM RATHER THAN A LEGAL PRACTITIONER

The position of the law is that when Court processes are endorsed in the name of a Law Firm rather than a Legal Practitioner as recognized under the Act, such processes are rendered incurably defective ab initio and liable to be struck out.
This is because where a Court process is signed by an inanimate entity such as a Law Firm, it is impossible to identify who in fact signed the process.
See the following cases:-
-KIDA VS OGUNMOLA (2006) 13 NWLR PART 997 PAGE 137.

-TANIMU VS RABIU (2017) ALL FWLR PART 900 PAGE 391
In OKAFOR VS NWEKE (2007) 10 NWLR PART 1043 PAGE 521 AT 531-532 PARAGRAPHS H-A, the Supreme Court per Onnoghen JSC held among others as follows: –
“Since both Counsel agree that J. H. C. Okolo SAN & Co is not a Legal Practitioner recognized by the law, it follows that the said J.H.C. OKOLO SAN & Co cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th December, 2005 notice of cross appeal, and Applicant’s brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. OKOLO SAN & Co are incompetent in law particularly as the said firm of J.H.C. OKOLO SAN & Co is not a registered legal Practitioner”.
See also the following cases: –
– SHELL PETROLEUM DEV. CO. (NIG) LTD VS SAM ROYAL HOTEL NIG LTD (2016) ALL FWLR PART 831 PAGE 1584.
-OKPE VS FAN MILK PLC (2017) 2 NWLR PART 1549 PAGE 282.
-F.B.N. PLC VS MAIWADA (2013) 5 NWLR PART 1348 PAGE 444.
-NIGERIAN ARMY VS SAMUEL (2013) 14 NWLR PART 1375 PAGE 466. PER JIMI OLUKAYODE BADA, J.C.A.

JURISDICTION: RELEVANCE OF THE COMPETENCE OF A COURT

Where a Court lacks jurisdiction or competence, the entire proceedings is a nullity no matter how well conducted and decided. This is because jurisdiction operates as the life and blood of all legal proceedings. PER JIMI OLUKAYODE BADA, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

P. W. NIGERIA LIMITED APPELANT(S)

And

SELLMETALS LIMITED RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Ogun State, Agbara Judicial Division holden at Ota in Suit No: HCT/63/2004 BETWEEN – SELLMETALS LIMITED Vs P. W. NIGERIA LIMITED delivered on 26th day of April, 2010 wherein Judgment was delivered in favour of the Respondent.

Briefly the facts of this case are that the Respondent issued a Writ of Summons against the Appellant on 4th day of March, 2004. (See pages 10-11 and 24-25 of the record of appeal). The Statement of Claim dated 30th day of June, 2004 was also filed and signed by Fayemi, Folarin, Sonoiki & Co. (See pages 50-51 of the Record of Appeal).

The Respondent also filed a Reply to the Appellant’s Statement of Defence which was dated 4th day of April, 2005. The said Reply was also signed in the name of Fayemi, Folarin, Sonoiki & Co. (See pages 60-61 of the Record of Appeal).

The case went on trial and at the conclusion of hearing, Judgment was delivered in favour of the Plaintiff now Respondent against the Defendant now Appellant in the sum of (N5,000,000.00) Five Million Naira being damages for trespass. An order of perpetual injunction restraining the defendant now Appellant, its agents, servants, privies from committing further acts of trespass on the said land.

The Appellant who is dissatisfied with the Judgment of the trial Court appealed to this Court.

The learned Counsel for the Appellant formulated (5) five issues for the determination of this appeal. The said issues are reproduced as follows:-
(1) Whether or not the Respondent’s processes particularly the Statement of Claim and the Reply to the Statement of Defence are competent.
(2) Whether the Statement of Claim and the Reply to the Statement of Defence are not liable to be struck out for being incompetent.
(3) Whether evidence led on the incompetent processes could be considered and ascribed any probative value thereto.
(4) Whether the damages awarded is not outrageous, unreasonable, unfair and unsupportable by any credible evidence in the circumstances of this case.
(5) Whether the costs awarded was not unfounded, outrageous and punitive in the circumstances of this case.

The learned Counsel for the Respondent though duly served with processes filed on behalf of the Appellant failed to file the Respondent’s brief of argument. He did not turn up for hearing of this appeal despite being duly served on 22/10/2020.

At the hearing of this appeal on 28/10/2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 26/4/2010. The Notice of Appeal was filed on 4/5/2010. The Record of Appeal was transmitted to this Court on 28/3/2011 and deemed as properly transmitted on 9/5/2018.

The Appellant’s brief of argument was filed on 5/10/2011, deemed as properly filed on 28/5/2012 and further deemed as properly filed on 9/5/2018.

The learned Counsel for the Appellant adopted and relied on the said Appellant’s brief as his argument in urging that this appeal be allowed and the suit before the trial Court struck out.

ISSUE NO. 1, 2 & 3 (Taken Together)
Issue Numbers 1, 2 & 3 are distilled from Grounds 1, 2 and 3 of the Notice of Appeal.
Learned Counsel for the Appellant submitted that issue Numbers 1, 2 and 3 border on the competence of the Statement of Claim and the reply to the Statement of Defence.

He contended that the Statement of Claim and Reply to the Statement of Defence are void because they were signed in the name of Fayemi, Folarin and Sonoiki & Co.
He relied on Sections 2(1) and 24 of the Legal Practitioners Act cap 207 Laws of the Federation 2004.

Learned Counsel for the Appellant also relied on the following cases:-
-OKAFOR VS NWEKE (2007) 3 S.C. PART 2 PAGE 55
-SLB CONSORTIUM LTD VS NNPC (2001) 4 S.C. PART 1 PAGE 86.

RESOLUTION
In this appeal, Issue Numbers 1, 2 and 3 affects the competence of the Statement of Claim and Reply to the Statement of Defence, it is a challenge to the jurisdiction of the trial Court to entertain the suit.
Where a Court lacks jurisdiction or competence, the entire proceedings is a nullity no matter how well conducted and decided. This is because jurisdiction operates as the life and blood of all legal proceedings.
A perusal of the Respondent’s Statement of Claim and Reply to the Statement of Defence would reveal that the processes were issued and signed by Fayemi, Folarin, Sonoiki & Co contrary to the provisions of Section 2(1) and 24 of the Legal Practitioners Act Cap 207 Laws of the Federation of Nigeria 2004.

Section 2(1) of the Legal Practitioners Act 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”.
Section 24 of the Legal Practitioners Act also provides thus:-
“In this Act unless the context otherwise requires, the following expressions have the meaning hereby assigned to them respectively, that is to say “Legal Practitioner” means a person entitled in accordance with the provision of this Act to practice as a Barrister” or as a “Barrister and Solicitor” either generally or for the purposes of any particular office or proceedings”.
The Provisions of the Act set out above when applied to Court processes, the Supreme Court in the case of SLB CONSORTIUM LTD VS NNPC (2011) 9 NWLR PART 1252 PAGE 317 AT 337-338 PARAGRAPHS H-A held among others that processes filed in Court are to be endorsed as follows:-
(a) First, the signature of Counsel which may be any contraption;
(b) Secondly, the name of Counsel clearly written;
(c) Thirdly, who Counsel represents;
(d) Fourthly, name and address of legal firm.
It was held further that where it cannot be said who signed a process, it is incurably bad.
In this appeal under consideration, the Statement of Claim and the Reply to the Statement of Defence were signed by “Fayemi, Folarin and Sonoiki & Co”.
“Fayemi, Folarin and Sonoiki & Co” is the name of a Law firm and not a Legal Practitioner recognized by the Legal Practitioners Act.
The defect in the processes filed on behalf of the Respondent at the trial Court referred to above goes to the root of this case.
The position of the law is that when Court processes are endorsed in the name of a Law Firm rather than a Legal Practitioner as recognized under the Act, such processes are rendered incurably defective ab initio and liable to be struck out.
This is because where a Court process is signed by an inanimate entity such as a Law Firm, it is impossible to identify who in fact signed the process.
See the following cases:-
-KIDA VS OGUNMOLA (2006) 13 NWLR PART 997 PAGE 137.

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Consequent upon the foregoing, Issue Numbers 1, 2 and 3 are hereby resolved in favour of the Appellant and against the Respondent.

The resolution of the above-mentioned issues in favour of the Appellant has rendered the consideration of Issue Numbers 4 and 5 unnecessary because it would amount to an academic exercise. See – OKOTIE – EBOH VS MANAGER (2004) 18 NWLR PART 905 PAGE 242.
In the result, it is my view that this appeal has merit and it is hereby allowed.

The Judgment of the trial Court in Suit No: HCT/63/2004 SELLMETALS LIMITED VS P. W. NIGERIA LIMITED delivered on 26th day of April 2010 is hereby set aside.

In its place, the suit before the trial Court which led to this appeal is hereby struck out for being incompetent.
There shall be (N100,000.00) One Hundred Thousand Naira costs in favour of the Appellant and against the Respondent.
Appeal Allowed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment prepared and delivered by my learned brother, Jimi Olukayode Bada, JCA.

The issue of an originating process, indeed any other Court process, signed in the name of a Law Firm has long been settled by a full panel of the Supreme Court in the case of F. B. N. v. Maiwada (2013) 5 NWLR (pt. 1348) 444. It is that any such Court process would be a nullity and liable to be struck out. See also Okafor v. Nweke (2007) 10 N.W.L.R (Pt. 1043) 521. The facts of this case reveal that the Writ of Summons, the Statement of Claim and Reply to Statement of Defence were all signed in the name of Fayemi, Folarin, Sonoiki & Co, a Law Firm. Those processes, on the authorities are null and void and liable to be struck out.

For the above reasons, I agree with the conclusion arrived at by my learned brother in the lead judgment that this appeal has merit and should be allowed. It is hereby allowed. The Writ of Summons, Statement of Claim and Reply to the Statement of claim are hereby struck out. With the striking out of those process the Suit in the trial Court could not be sustained. Accordingly, the proceedings of the Court below and the judgment thereon are hereby set aside. The Notice of Appeal predicated on such void judgment is also struck out.
I abide by the order on costs.

FOLASADE AYODEJI OJO, J.C.A.: I have had the opportunity of reading in draft, the lead judgment just delivered by my learned brother JIMI OLUKAYODE BADA, JCA.

It is very glaring from the facts contained in the printed Record that the Statement of Claim and Reply to Statement of Defence were signed in the name of Fayemi, Folarin and Sonoiki & CO, a law firm.
I completely agree with my learned brother that signing the Statement of Claim and Reply to Statement of Defence in the name of a law firm, who is not a legal practitioner with his name on the Roll of Legal Practitioners is a gross violation of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. This renders the processes incompetent and fundamentally defective. They are accordingly struck out by me.

It thus becomes clear that the claim of the Respondent granted by the lower Court was placed on nothing. It is trite that you cannot place something on nothing and expect it to stay there. It will collapse. See Macfoy vs. UAC (1962) AC 162; Dakan vs. Asalu (2015) 13 NWLR (Pt. 1478) 47; Odekilekun vs. Hassan (1997) 12 NWLR (Pt. 531) 56.

It is for this reason and the more elaborate reasons elucidated in the lead judgment that I also set aside the judgment of the lower Court and allow this appeal. I abide by the consequential Order as to costs.

Appearances:

MR. J. D. OLANIYAN, with him, M. O. OLAYIWOLA Esq. and E. O. AJALA-ADEOYE Esq. For Appellant(s)

Respondent’s Counsel Absent For Respondent(s)