SIMEON A. OLADIMEJI v. PRUDENT STOCKBROKERS LIMITED & ANOR
(2010)LCN/4168(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of December, 2010
CA/L/343/04
RATIO
NOTICE OF APPEAL: WHETHER IT IS A REQUIREMENT OF THE LAW THAT A NOTICE OF APPEAL MUST BE SIGNED BY THE APPELLANT OR HIS LEGAL PRACTITIONER
The requirement of the law is that a notice of appeal should be signed by the appellant or his legal practitioner. See Form 3 of the first schedule to the Court of Appeal Rules 2007. PER ADAMU JAURO, JCA
SIGNING OF A COURT PROCESS: WHETHER ANY PERSON SIGNING A PROCESS ON BEHALF OF A PRINCIPAL PARTNER IN THE CHAMBERS MUST STATE HIS NAME TO SHOW THAT HE IS A LEGAL PRACTITIONER IN CONFORMITY WITH THE REQUIREMENT OF THE LAW
I am of the firm view that any person signing a process on behalf of a principal partner in the chambers must state his name to show that he is a legal practitioner in conformity with the requirement of the law. By indicating a name on the process, it reduces the chances of abuse whereby anybody other than a legal practitioner can sign processes on behalf of the principal. PER ADAMU JAURO, JCA
POWER OF COURT: WHETHER THE COURT OF APPEAL HAS THE UNFETTERD POWER TO STRIKE OUT AN INCOMPETENT NOTICE OF APPEAL
It’s trite that by virtue of the provision of order 5 Rule 6 of the Court of Appeal Rules 2007, this court has the unfetted power to strike out an incompetent notice of appeal, such as the instant one, or for any other sufficient reason. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
SIMEON A. OLADIMEJI
(Substituted for original Appellant by order of court made on 25/10/07) Appellant(s)
AND
1. PRUDENT STOCKBROKERS LIMITED
2. A.G. LEVENTIS NIGERIA PLC. Respondent(s)
ADAMU JAURO, JCA (Delivering the Lead Ruling): The notice of appeal in respect of this appeal dated 7th June, 2004 and contained on pages 126 to 133 of the record of proceedings, was signed by an unnamed person for Olatunde Adejuyigbe Esq, appellant’s counsel. Consequent upon this discovery, the parties in this appeal were invited to address the court as to the competence of the notice of appeal.
Mr. Olatunde Adejuyigbe for the appellant, stated that the notice of appeal was signed on his behalf by Miss. Oluwabunmi Jolaoso, though her name was not stated therein. Learned counsel submitted that any non compliance with the Rules of Court can be waived for the benefit of hearing the appeal pursuant to Order 19 Rule 3 of the Court of Appeal Rules 2007. Learned counsel urged the court to take a cue from the cases of Ogundele v. Agiri (2009) 18 NWLR (Pt.1170) 219 at 246 – 247 and Ogunsakin v. Ajidara (2008)6 NWLR (Pt. 1082)1 at 24 and 35, with a view of saving the appeal, learned counsel concluded by urging the court to hold that the notice of appeal is competent.
Mr. J. A. Badejo SAN for the 1st Respondent, conceded that the name of the person who signed the notice of appeal was not indicated on the face of it, hence it is incompetent, learned senior counsel however, urged the court to waive the non compliance and allow counsel to sign the notice of appeal. Learned counsel for the 2nd respondent, was not in court to make any contribution, though served healing notice on 3rd November, 2010.
The requirement of the law is that a notice of appeal should be signed by the appellant or his legal practitioner. See Form 3 of the first schedule to the Court of Appeal Rules 2007. The notice of appeal in contention at page 133 of the record was signed thus:
Sgd
F: OLATUNDE ADEJUYIGBE
PP: OLATUNDE ADEJUYIGBE & CO.
APPELLANT’S COUNSEL
19. UNITY ROAD
IKEJA, LAGOS.”
From the endorsement reproduced above, the notice of appeal was not signed by the appellant. The next issue worthy of consideration, is whether it can be said to have been signed by the legal practitioner representing the appellant.
At this juncture, I deem it necessary to make reference to the Legal Practitioner’s Act, Cap 207, LFN 1990. Section 24 of the aforementioned Act defines a Legal Practitioner as:
“a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.”
Section 2(1) of the same 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.”
The above provisions were interpreted by the apex court in the case of Okafor v. Nweke (2007)10 NWLR (Pt. 1043)521. In the said case, court processes were signed in the name of a law firm to wit “JHC OKOLO SAN & Co.” On an objection as to the competence of the processes, the apex court held that the said processes signed in the name of a law firm are incompetent in law, particularly as the said firm of “JHC OKOLO SAN &Co.” is not a registered legal practitioner.
There is no doubt whatsoever and from the record of this appeal, that the counsel representing the Appellant is Mr. Olatunde Adejuyigbe. The name of the said counsel was appended at the bottom of the notice of appeal at page 133 of the record, however somebody signed for and on behalf of the counsel.
The name of Mr. Olatunde Adejuyigbe is no doubt that of a legal practitioner as it is identifiable from the roll of legal practitioners, however the name of the person that signed the notice of appeal on his behalf has not been indicated to enable the court determine whether the signatory is a legal practitioner or not. An unknown person cannot qualify as legal practitioner under the earlier cited Sections of’ the Legal Practitioners Act, more so where a mere signature cannot give any information for purpose of specific identity. The name of the signatory is therefore necessary in order to determine whether the name could be traceable to the roll of legal practitioners in Nigeria.
Consequent upon the foregoing, I am of the firm view that any person signing a process on behalf of a principal partner in the chambers must state his name to show that he is a legal practitioner in conformity with the requirement of the law. By indicating a name on the process, it reduces the chances of abuse whereby anybody other than a legal practitioner can sign processes on behalf of the principal. The cases of Ogundele v. Agiri (supra) Ogunsakin v. Ajidara (supra) do not support the contention of learned counsel for the appellant. See the cases of NNB Plc. v. Denclag Ltd (2003) 4 NWLR (pt. 916) 549 at 573. Edet v. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 4 at 65-66. See also the cases of Peak merchant Bank ltd. v. NDIC No. CA/L/572/05 delivered on 14th May 2010, Onward Enterprises Ltd v. Olam International Ltd & Ors, No. CA/L/365/08 of 24th June 2010 and Sunday Adeneye & Anor v. Alhaji Bukar Yaro, CA/L/266/02 of 25th June, 2010.
As the name of the signatory to the notice of appeal has not been disclosed, it cannot be ascertained whether the signatory is a legal practitioner or not. Consequently, the notice of appeal dated 7th June, 2004 on page 133 of the record of appeal was neither signed by the appellant nor a legal practitioner known to law, hence incompetent. The said notice of appeal dated 7th June, 2004 is hereby struck out for being incompetent pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007. There will be no order as to costs.
R.C. AGBO, J.C.A.: I have had the opportunity of reading in advance a copy of the lead judgment just delivered by my learned brother ADAMU JAURO, JCA, And I agree with his reasoning and conclusions.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read, before now, the draft of the lead ruling just delivered by my learned brother Hon. Justice Adamu Jauro, JCA. I concur, with the reasoning and conclusion reached there-in, to the effect that the notice of appeal dated June 7, 2004 filed in the instant appeal is incompetent.
In the circumstance, the court has no option other than to strike out the notice of appeal in question.
It’s trite that by virtue of the provision of order 6 Rule 6 of the Court of Appeal Rules 2007, this court has the unfetted power to strike out an incompetent notice of appeal, such as the instant one, or for any other sufficient reason.
Having adopted the reasoning and conclusion reached in the said lead ruling as mine, I hereby strike out the notice contained at page 133 of the record of appeal.
There shall be no order as to cost.
Appearances
Mr. Olatunde Adejuyigbe with U. Nwaokolo Esq Ike EsqFor Appellant
AND
Mr. J. A. Badejo, SAN with B.C. OkenwaFor Respondent
