ISAIAH ATANSUYI v. B. O. KUFEJI & ORS
(2013)LCN/6610(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/L/583M/09
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ISAIAH ATANSUYI Appellant(s)
AND
1. B. O. KUFEJI
2. T. O. KUFEJI
3. FOLASHADE KUFEJI
(Administrators and Administratrix of the Estate of T. T. Kufeji Deceased) Respondent(s)
RATIO
THE ATTITUDE OF THE COURTS IN ADJUDICATING ON A MATTER
The attitude of the courts has shifted towards doing substantial and not, technical justice in matters brought before them and to endeavour as much as possible to hear and determine cases on their merits. As the notice of appeal is competent, I am of the view that it is in the interest of the parties to determine the appeal on the merits. See: Ogundele v. Osun State Government & Anor.(2011) LPELR – CA/I/280/208, a decision of the Akure Division of the Court of Appeal delivered on 12/12/2011. PER BAGE, J.C.A.
GUIDELINE ON HOW PROCESSES FILED IN COURT ARE TO BE SIGNED
It is agreed that the issue in the instant application, did not arise before the lower court nor it did form the basis of its judgment. It is however, a live issue before this; court, and capable of doing substantial justice between the parties as compliance must be to the settled position of the law. The Supreme Court per Rhodes Vivour, JSC in SLB Consortium Ltd v. N.N.P.C. set out a guideline on how all processes filed in Court are to be signed as follows:
(1) The signature of counsel, which may be any contraption.
(2) The name of counsel clearly written.
(3) Who counsel represents.
(4) Name and address of Legal Firm.
In the suit above, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law clearly spelt out in Registered Trustees of Apostolic Church Lagos V. R. Akindele (1967) NMLR 263, and Okafor v. Nweke (supra). In this case there is signature of counsel but no name of counsel. A signature without the name is incurably bad. The above decision is on all fours with the present application before this court. There is the signature but no name of counsel. The name beneath the signature is Lanre Ogunlesi & Co. which is not the name of a Legal practitioner within the meaning of Section 2 (1) and 24 of the Legal Practitioners Act. PER BAGE, J.C.A.
THE DOCTRINE OF STARE DECISIS
Before I conclude, let me make a word on the doctrine of stare decisis. The Supreme Court per Eso, JSC in the case of Isaac Madubuogo Okonjo v. D Mudiaga Odje & Ors. (1985) 10 SC 267 at PP.268 – 269 stated as follows:
In the hierarchy of the courts in this country, as in all other free common law countries,one thing is clear; however learned, a lower court considers itself to be and however contemptuous of the higher court, that lower court is still bound by the decisions of the higher court. I hope it will never happen again whereby the Court of Appeal in this country, or any lower court for that matter, would deliberately go against the decisions of this court, and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of the law. This is what makes the law certain and prevents it from being an ass. PER BAGE, J.C.A.
SIDI DAUDA BAGE, J.C.A. (Delivering the leading Judgment): The Appellant/Applicants who were Plaintiffs in suit No. LD/2884/93 at the High Court of Lagos State, Lagos Judicial division. The Appellants/Applicants had sought for in the main for the leave of this Court to raise fresh issue as to the jurisdiction of the lower court to entertain the Counter claim of the Respondents/Respondents dated the 7th of March, 1994 at pages 51-56 of the Record of Appeal in this suit and delivered judgment as it did on the 26th of February 2009. The said application is accompanied by a 10 paragraphs affidavit.
GROUND UPON WHICH THE APPLICATION IS BROUGHT
i.That the Respondent/Defendants/Counter Claimant’s Statement of defence and counter claim dated 7th of March 1994 is incompetent as it was not signed by any of the counter claimants and or legal practitioner of their choice but the Law Firm of Lanre Ogunlesi & Co.
ii. That the granting of this application will be in the interest of justice as it would afford the Honourable Court the opportunity to decide all the issues in this case on merit.
The Respondent/Respondent in opposing this application filed a counter affidavit of 8 paragraphs.
In compliance with the order of this Court, learned counsel to the parties each filed Written Addresses with respect to this application E. O. Clegg, Esq., for the Appellant/Applicants Written Address dated 18th June, 2013 in it, a sole issue was posited for declaration to wit:
“Whether upon the averment in the affidavit in support and exhibit are there enough material facts upon which the Honourable Court can grant the prayer herein.”
Learned senior counsel Lanre Ogunlesi SAN, for the Respondent Respondent pursuant to the order of this Court sought and obtained a Written Address in support of the Counter Affidavit dated 6th June, 2013 in opposition to the Motion on Notice dated 5th, April, 2013.
He identified a sole issue for determination to wit:
“Whether having regard to the fact that O. A. Ogunlesi signed the statement of Defence and Counter Claim the issue, the Appellant/Applicant intends to raise as a new issue is on a substantial point of Law.”
In response to the Respondent/Respondents Written Address, learned counsel to the Appellant/Applicant filed a Reply on points of law, dated 27th September, 2013.
Having perused the application and grounds upon which it is anchored, vis-a-vis the issue formulated for determination by each counsel to the parties, I am satisfied that the sole issue formulated by the learned senior counsel to the Respondent/Respondent is apt and will be considered for the determination of this application.
ISSUE FOR DETERMINATION
“Whether having regard to the fact that O. A. Ogunlesi signed the Statement of Defence and Counter Claim the issue, the Appellant/Applicant intends to raise as a new issue is on a substantial point of law.”
Learned counsel to the Appellant/Applicant argued that, the issue of a litigant filing a writ personally 2nd through his legal practitioner and or signing process is an issue of law which is a condition precedent that must be complied with by the litigant or legal practitioner of his choice. See Order 5 Rule 1 of the High Court of Lagos Civil Procedure Rules 1973 cap 52 incorporated into Order 6 Rule 1 of the High Court of Lagos Civil Procedure Rules 2012. See SLE Consortium Ltd. v. N.N.P.C. (2012) 52, 11 NSQR 269 at 285 – 286; UAC v. Mcfoy (1962) AC 152 at 160; Madukolu v. Nkendilim (1962) 2 MCCC 3749 at 379 – 380. The failure of the Respondent’s/Respondents Defendants/Counter Claimants in the lower court to sign the defence/counter claim is a fundamental defect and goes to the root of their case. The Appellant/Applicant is seeking for leave to raise fresh issue never raised at lower court, and it is an issue of law.
In response, the learned senior counsel to the Respondents/Respondent argued that, an application to raise a fresh issue at the Appellate court is not granted as of right even though, it is an exercise of the discretion of the Court. See Okpaku v. Okpaku (1947) 12 WACA 137; Akpene v. Barclays Bank of Nigeria (1977) 1 SC 47; A.G. Oyo v. Fair Lakes Hotel Ltd. (1988) 5 NWLR (Pt. 92) 1.
Learned counsel argued further that the signatory of the Defence/Counter Claim is ascertainable Mr. O. A. Ogunlesi of counsel. See Fatoki v. Baruwa (2012) 14 NWLR (pt. 1319) 1 at 16 paras. A – B. The attempt to raise the issue is a waste of time of this Honourable Court.
Appellant/Applicant argued in reply on points of law that, the submission of the Respondent’s that O. A. Ogunlesi signed the Statement of defence and counter claim is not the position of the law. See: SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 at 337 – 338 EA. Once it cannot be said who signed the process, it is incurably bad.
On the part of this court, submissions of counsel is careful examined. The issue in this application is within a now compass, and presents no complexity. The counter claim which is Exhibit “A” to the motion of the Appellant/Applicant filed 5/4/13 was itself dated 7th March, 1994 and filed on the 17th of March 1994. The said Exhibit “A” a certified true copy had had a signature on it, and underneath is “Lanre Ogunlesi & Co. 48, Kakawa Street, Lagos.”
Learned senior counsel for the Respondents/Respondents maintained that the signatory of the Defence/Counter Claim once it is ascertainable as Mr. O. A. Ogunlesi of counsel, as in the instant case, the requirement of the law that legal practitioner can sign such a counter-claim on behalf of the Claimants is met. The Learned senior counsel placed reliance on the decision in Fatoki v. Baruwa (supra).
Learned counsel to the Appellant/Applicant maintained that the submission of the Respondent that O. A. Ogunlesi signed the statement of defence and counter claim is not the position of the law. Learned counsel relied on the decision in SLB Consortium Ltd v. N.N.P.C. (supra). Once it cannot be said who signed the process it is incurably bad.
I read both the decisions in Fatoki v. Baruwa (supra) and SLB Consortium Ltd v. N.N.P.C (supra). The former is a decision of this court by Kekere-Ekun, J.C.A. (as he then was) while the latter is a decision of the Supreme Court, the judgment of Rhodes Vivour J.S.C. in Fatoki v. Baruwa (supra) this court states at pages 16 and 17 as follows:
Interpreting Order 5 Rule 12 (1) of the Kwara State High Court (Civil Procedure) Rules 1989 (which is in pari material with the provisions of Order 5 Rule 12 (1) of the Oyo State High Court (Civil Procedure) Rules 1988, the Ilorin Division of this Court in David v. Jolayemi (2011) 13 WRN 55 at 85 lines 5 – 22; (2011) 11 NWLR (Pt. 1258) 320 per Agube, JCA, held that under the provisions, the Legal Practitioner who sued on behalf of the plaintiff had the option to endorse the writ with either his name or practitioner’s/firms name). There are two parts in the writ of summons. The portion to be signed by the plaintiff or his legal practitioner and the portion for endorsement of the Plaintiff’s address and the legal practitioner’s name or firm and a business address of his within the jurisdiction. In the instant case, the Respondent’s solicitor complied with the applicable rules at the time of filing the writ of summons with respect to the endorsement of the name of his firm and business address within the jurisdiction. However, the aspect of the writ to be signed by the plaintiff or his legal practitioner was signed by Yemi Ajibola & Co. I agree with his lordship that the decision in Okafor v. Nweke (2007) vol. 29 NSCQR 467 at 466 – 487,is sound and binding on this court under the doctrine of stare decisis.
It is also correct as observed by my learned brother in David v. Jolayemi (supra) that provisions similar to the Oyo State High Court (Civil Procedure) Rules 1988 under reference here were not considered in Okafor v. Nweke. It is however not in doubt that Yemi Ajibola & Co. is not the name of a Legal practitioner within the meaning of Section 2 (1) and 24 of the Legal Practitioners Act. The writ of summons ought therefore to held to be incompetent.
It must however be noted that, the competence of the writ of summons and further amended statement of claim was an issue raised suo motu by this court. It did not arise before the lower court. Now did it form the basis of its judgment. It is not a live issue before this court nor is it an issue that would enable the court to do substantial justice between the parties.
The attitude of the courts has shifted towards doing substantial and not, technical justice in matters brought before them and to endeavour as much as possible to hear and determine cases on their merits. As the notice of appeal is competent, I am of the view that it is in the interest of the parties to determine the appeal on the merits. See: Ogundele v. Osun State Government & Anor.(2011) LPELR – CA/I/280/208, a decision of the Akure Division of the Court of Appeal delivered on 12/12/2011.
No doubt, looking at the decision of the learned jurist above, some degree of activism was introduced to it. Having ascertained the law, and the circumstance which is in pari materia with the instant application it was said that the writ of summons ought therefore to be held to incompetent, following the doctrine of stare decisis. The learned jurist did not stop there, but became more active, or pragmatic, in view of the circumstance of the case he had before him. That decision in my humble view cannot be of a general application because it came with its uniqueness. I do not again see how the said decision becomes helpful to the present Respondents, as the issue of the competency of that writ of summons was raised suo motu by that court itself and not by one of the party as with the present application. It is agreed that the issue in the instant application, did not arise before the lower court nor it did form the basis of its judgment. It is however, a live issue before this; court, and capable of doing substantial justice between the parties as compliance must be to the settled position of the law. The Supreme Court per Rhodes Vivour, JSC in SLB Consortium Ltd v. N.N.P.C. set out a guideline on how all processes filed in Court are to be signed as follows:
(1) The signature of counsel, which may be any contraption.
(2) The name of counsel clearly written.
(3) Who counsel represents.
(4) Name and address of Legal Firm.
In the suit above, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law clearly spelt out in Registered Trustees of Apostolic Church Lagos V. R. Akindele (1967) NMLR 263, and Okafor v. Nweke (supra). In this case there is signature of counsel but no name of counsel. A signature without the name is incurably bad. The above decision is on all fours with the present application before this court. There is the signature but no name of counsel. The name beneath the signature is Lanre Ogunlesi & Co. which is not the name of a Legal practitioner within the meaning of Section 2 (1) and 24 of the Legal Practitioners Act.
Before I conclude, let me make a word on the doctrine of stare decisis. The Supreme Court per Eso, JSC in the case of Isaac Madubuogo Okonjo v. D Mudiaga Odje & Ors. (1985) 10 SC 267 at PP.268 – 269 stated as follows:
In the hierarchy of the courts in this country, as in all other free common law countries,one thing is clear; however learned, a lower court considers itself to be and however contemptuous of the higher court, that lower court is still bound by the decisions of the higher court. I hope it will never happen again whereby the Court of Appeal in this country, or any lower court for that matter, would deliberately go against the decisions of this court, and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of the law. This is what makes the law certain and prevents it from being an ass.
On the whole therefore, the motion on notice dated and filed 5th April,2013 brought by the Appellant?Applicant is hereby granted as prayed for:
(1) Leave is hereby granted by this court to the Appellant/Applicant to raise fresh issue as to the jurisdiction of the lower court to entertain the counter claim of the Respondents/Respondents dated the 7th of March, 1994 at page 51 to 56 of the record of appeal in this suit and deliver judgment as it did on the 26th, of February, 2009.
The Respondents/Respondents counter affidavit dated and filed 6/6/13 is hereby struck out by this court.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the Ruling prepared by my learned brother, Sidi Dauda Bage, J.C.A., with which I agree and adopt as my Ruling with nothing useful to add.
TIJJANI ABUBAKAR, J.C.A.: As a matter of general principal, Appellant may not ordinarily be allowed to raise fresh points on appeal, which was not raised, tried or considered by the court below, but where such points involve substantial point of law, substantive or procedural, and it appears plain that no further evidence needs to be adduced which may affects the decision, this court will allow the point to be raised to prevent obvious miscarriage of Justice. See Owie v. Ighiwi (2005) 5 NWLR (Part 917) 184.
My learned brother Bage, J.CA. predicated his ruling on the settled position of the law, I have no more to add, except to say, I am in complete agreement.
Appellant Applicant is granted leave to raise fresh issue as to jurisdiction of the lower court to entertain counter claim of the Respondent.
Respondents counter affidavit dated and filed on 6/6/13 is also struck out by me.
I make no order as to cost.
Appearances
E. O. Clegg – Appellant/ApplicantFor Appellant
AND
Lanre Ogunlosi, S.A.N. with T. Jimoh, Esq.For Respondent
