NIGERIAN UNION OF PENSIONERS & ANOR. V. JOSEPH KYUMEH & ANOR
(2013)LCN/6075(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/408/2007
RATIO
“A notice of appeal is an originating process which activates the jurisdiction of this court.” Per MSHELIA, J.C.A.
“There are situations where the court on its own after detecting fundamental defects like the Notice of Appeal at the stage of judgment would invite parties to address the court on the competency of the notice of appeal without formal objection being filed in accordance with Order 10 Rule 1 of the rules of court and the matter will be determined by the court.” Per MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN UNION OF PENSIONERS
2. NIGERIAN LABOUR CONGRESS Appellant(s)
AND
1. JOSEPH KYUMEH
2. NIGERIAN UNION OF PENSIONERS BENUE STATE CHAPTER Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Igoche J. of the High Court of Justice Makurdi, Benue State delivered on 1st day of November 2007 in suit No MHC/205/2007.
The briefs facts leading to this appeal are as follows: the 1st Plaintiff/Respondent was removed from office as Chairman of the 2nd Respondent following an administrative panel of inquiry constituted by the 2nd Appellant on the authority of the 1st Appellant. The respondents instituted suit No MHC/382M/2006 at the Benue State High Court challenging the aforesaid action of the appellants. The suit was determined in the respondents’ favour following which the suspension of the 1st respondent and the dissolution of the Exco of the 2nd respondent were quashed by the court below.
On 3/3/2007, the respondents by originating summons commenced suit No MHC/205/2007 at the Benue State High Court seeking for orders restoring the 1st respondent to office and for the appellants to also pay the 2nd respondent its check off dues. Since it was an originating summons, affidavit was adduced by the parties. After hearing the parties on their evidences, the court below ordered the restoration of the 1st respondent to office with full benefits and also restrained the appellants or their servants or staffs from acting in any office of the 2nd respondent. The judgment is at pages 205-213 of the record. The learned trial judge at page 212 of the record had this to say:-
“…I answer the question posed by the plaintiffs in the affirmative. Consequently, I make the following orders:-
1. An order directing the plaintiffs to be restored to their former positions with all the full powers, authority and benefits they hitherto enjoyed for 1 year and 6 months to complete their 4 year term of office
2. An order of injunction restraining the 1st and 2nd defendants and all the other members of the 1st defendant or anybody acting under them or thereafter constituted from acting on the office of the Benue State Council and or Executive of NUP which they are not entitled to act….”
Dissatisfied with the judgment, appellants appealed to this court vide Notice of Appeal dated 5th November 2007 containing two grounds which are reproduced hereunder as follows:
“GROUNDS OF APPEAL
i. The decision is against the weight of evidence.
ii. The learned trial judge erred in law when she held that the NOTICE AND GROUNDS OF APPEAL and the revenue receipt founded upon to show the existence of appeal against the decision in suit No MHC/328/2007 are inadmissible in evidence having not been duly certified as public documents.
PARTICULARS OF ERROR
a. An appeal is deemed filed once a notice of appeal thereof is filed in the appeal registry of the court of trial.
b. The notice and grounds of appeal and the revenue receipt of the payment therefor, copies of which were exhibited in the counter-affidavit of the Defendant as exhibit 2A and 2B respectively are primary documents which do not require any certification before admission in evidence,
c. The entire proceedings were determined on affidavit evidence to which all parties filing same annexed copious documents for the perusal and consideration of the Court. No oral evidence in respect of any issue arisen therein was sought by or proffered to the trial court.
iii. The learned trial judge misdirected herself in law when she held that, “There is no explanation from Defendants’ counsel why the evidence of the appeal was not available to the court at the time of making Exhibit 4”. This finding occasioned a gross miscarriage of justice.
PARTICULARS OF MISDIRECTION
a. Exhibit 4 referred to is a ruling by the trial court in a different matter concerning the respondent herein in a motion seeking an order of mandamus by the respondent herein where no issue as to the existence or non-existence of an appeal was canvassed.
b. There was therefore no reason for the Defendant counsel thereat to make available to the court evidence of the filing of an appeal against the judgment in suit No. MHC/328/2006.
c. The trial court even then refused to issue an order of mandamus sought in the proceedings under reference.
In compliance with the rules of court parties exchanged briefs of argument. Appellants’ brief settled by I. A Ututu Esq was dated 13.4.2009 and filed on 23.4.09 but deemed properly filed on 3.6.09, Respondents’ brief settled by Nathans Gwebe Esq was dated 15.7.09 and filed on 17.7.09 but deemed properly filed on 7.6.10.
When the appeal came up for hearing both Counsel adopted their respective briefs of argument.
Appellants formulated sole issue for determination as follows:-
“1. Whether the learned trial judge of the lower court was right in holding that copies of the Notice and Grounds of Appeal annexed to the counter-affidavit of the defendants were inadmissible in evidence having not been duly certified as public documents.”
Respondents also distilled two issues from the three grounds of appeal for determination as follows:-
1. Whether the court of (sic) below was right in holding that copies of the Notice and Grounds of Appeal annexed to the counter-affidavit of the Defendant/Appellants were inadmissible in evidence having not been duly certified as public documents formulated by the appellants.
2. Whether the refusal by the court below to admit the Notice and Grounds of Appeal has occasioned a serious miscarriage of justice to the appellants.”
In the course of hearing the appeal on 18.3.13 respondents’ counsel raised a point of law which we cannot gloss over. It has to be resolved before we consider the merit of the substantive appeal. Respondents’ Counsel after adopting the Respondents brief of argument drew our attention to the fact that the Notice of appeal which is the originating process was signed by I.A. UTUTU & Co a law firm instead of a qualified legal practitioner whose name is on the roll as having qualified to practice as Barrister and Solicitor in Nigeria under Section 2(1) and 24 of the Legal Practitioner’s Act, Cap 207 of the Laws of the Federation of Nigeria 1990. He urged the court to strike out the Notice of Appeal as same is fundamentally defective.
Learned counsel for the appellants was asked to respond. Counsel did not deny the fact that the notice of appeal was signed in the name of a law firm but argued that respondents’ counsel did not come by way of preliminary objection as required by Order 10 of the Rules of Court 2011. Learned counsel further contended that the signing of the notice of appeal by a law firm did not occasion miscarriage of justice since respondents filed their brief of argument based on the notice of appeal said to be defective.
As rightly observed by appellants’ counsel respondents did not comply with Order 10 Rule 1 of the Court of Appeal Rules, 2011. Respondents are required to raise such complaint by way of preliminary objection. Respondents raised the objection orally and on the date fixed for the hearing of the appeal. We agree the procedure adopted is wrong but would it serve any useful purpose if we exercise our discretion under Order 10 Rule 3 of the rules of court and adjourn the matter to enable the respondent comply with the Rules? I will answer the question posed in the negative. Appellants’ counsel conceded that the Notice of Appeal in issue was signed by a law firm and not qualified legal practitioner. It would therefore not serve any useful purpose to adjourn the appeal for the purpose of giving the respondents time to comply with the rules. It is my considered view that the oral submissions made by both counsel would suffice.
There are situations where the court on its own after detecting fundamental defects like the Notice of Appeal at the stage of judgment would invite parties to address the court on the competency of the notice of appeal without formal objection being filed in accordance with Order 10 Rule 1 of the rules of court and the matter will be determined by the court.
Having regard to the circumstances of this case I would proceed to resolve the point of law on merit, before delving into consideration of the merit of the appeal.
It is a very common factor, that similar problem as the one in question had time without number been addressed by the apex court and this court. In other words, the grounding authority decided by their lordships of the apex court in the case of Okafor & Ors v. Nweke & Ors (2007) 10 NWLR (Pt. 1043) 521 at 530-532 is the locus classicus authority applicable wherein the learned jurists therein intensely interpreted the provisions of Sections 2(1) and 24 of the Legal Practitioners Act which reproduction would be seen as necessary for better appreciation.
“2(1)
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
(24) In this Act unless the con otherwise requires the following expressions have the meanings hereby assigned to them respectively, that is to say-
“Legal Practitioner” means 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 Proceedings.”
From the foregoing provisions, the questions that arise from the provisions are:
(1) Is the name I.A Ututu & Co. a name of a person and entitled to practice as Barrister and Solicitor in accordance with the Legal Practitioners Act?
(2) In consonance to section 2(1) of the same Act, can the said name be properly found on the roll of legal practitioners who are entitled to practice as Barrister and Solicitor in Nigeria?
The answer to these questions have been given by their lordships in the case of Okafor v. Nweke supra per Onnoghen JSC while considering the said two provisions of the Legal Practitioners Act wherein he said at page 531 thus:
“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.”
At the same page 531 paragraph F – A of the same report his lordship Onnoghen, JSC observed as follows:-
“The law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart it is very clear that by looking at the documents, the signature which learned senior advocate claims to be lies, really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo SAN & Co. is not a legal practitioner recognized by law, it follows that the said J.H.C. Okolo SAN & Co. cannot legally sign or file any process in the courts and as such the motion on notice filed on 19th December, 2005, notice of cross-appeal and applicants 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.”
His lordship Oguntade J.S.C. in his contribution condemned the practice as unacceptable and wrong even though it had long been followed and which should not be an excuse.
The position of the law was re-affirmed in the case of Ogundele & anor v. Agiri & anor (2009) 12 SC (Pt 1) 135 at 165. In a more recent case of S.L.B Construction Ltd V. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 paras A-G per Fabiyi J.S.C had this to say:
“In reality “Adesokan & Co.” which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act Cap 207 of the Laws of the Federation of Nigeria 1990. This is so since it is not a person entitled to practice as a Barrister and Solicitor with its name on the roll.”
See also Oketade V. Adewunmi (2010) 3 SC page 140 at 146 – 147 where a statement of claim signed by Olujimi and “Akeredolu & Co.” was held by the Supreme Court to be an incompetent and void document. There are too many authorities in this regard.
In the absence of any evidence that I. A. UTUTU & Co is a legal practitioner enrolled to practice in Nigeria in accordance with the Legal Practitioners Act, the purported notice of appeal dated 5th November, 2007 is incompetent.
It is incapable of initiating the appeal and thereby robbing this court of the jurisdiction to hear and determine the appeal on merit. A notice of appeal is an originating process which activates the jurisdiction of this court. The notice of appeal under consideration is in the circumstance fundamentally defective and is liable to be struck out.
The provisions of the Legal Practitioners Act, 1990 are statutory and therefore matters of substantive law which cannot be waived. See S.L.B. Construction Ltd. v. NNPC supra at 322 para E.
Since there is no valid notice of appeal to activate the jurisdiction of this court to determine the appeal on merit same would be struck out for being incompetent. This court is empowered by virtue of Order 6 Rule 6 of the Court of Appeal Rules, 2011 to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.
In consequence therefore and in the absence of any valid notice of appeal, the appeal rests on nothing. This appeal must be and it is hereby struck out pursuant to Order 6 Rule 6 of the Court of Appeal Rules, 2011. I however order that parties bear their own costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I am in agreement with the reasoning and conclusion of my learned brother A.G. Mshelia JCA, just delivered. I also find that the notice of appeal being incompetent be and is hereby struck out.
I abide by the order as to cost.
MOHAMMED A. DANJUMA, J.C.A.: The Notice of Appeal in the instant appeal was signed by I. A. Otutu & Co., a firm of Legal Practitioners. This fact was noticed by the learned Counsel for the Respondents at the hearing of the appeal and hence a verbal or oral application for the striking out of the appeal on ground of incompetence for the none signing of the Notice by a legal practitioner as enjoined by the Legal Practitioners Act, Section 2(i) and 24 of Cap. 207, 1990.
The learned counsel for the Appellant concedes to this fact and violation but contended that the mode of the objection raised, not being by way of a preliminary objection, as required by Order 10, Court of Appeal Rules 2011 and being raised at the hearing without prior notice was incompetent.
Rather than adjourn to be heard as may be done under Order 10 Rule 3 of the 2011 Rules of this Court, this court directed and was addressed on this fundamental issue that borders on the provisions of a statute and its jurisdiction to entertain the appeal at all.
My Lord, Mshelia, JCA has exhaustively and clearly captured the facts of the case leading to the appeal and the necessary essence of the objection raised. She has characteristically hit the nail on the head by her conclusion that the provisions of the Legal Practitioners Act that was violated in the manner of the taking out of the Notice of Appeal in the name of I. U. Ututu & Co. was a violation of a statutory or substantive law, which cannot be waived and which therefore made the Notice of Appeal in this matter on appeal incompetent and devoid of any legal strength to ground any appeal, which can be argued.
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 uptenth 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 authorized 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 Sc. 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. Nkemdilim & Mohammed Maikida Vs. A.D. Ogunmola (2006) 6 SC. 147 (2006) 13 NWLR (PT. 997).”
As the Apex Court pointed out in Braithwaite v. Skye 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 vs. 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 re-affirmed 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.
Appearances
I. A. UtutuFor Appellant
AND
G. N. GwebeFor Respondent
