MADAM BIKE FADEYI & ANOR v. MUFUTAU OWOLABI & ANOR
(2014)LCN/6841(CA)
RATIO
WHETHER THE FIRM OF A LEGAL PRACTITIONER IS THE SAME AS THE LEGAL PRACTITIONER IN SIGNING COURT PROCESSES
The rule with regard to the signing of initiating processes such as the writ of summons and the statement of claim as in the current circumstances is that they are to be signed by legal practitioner recognized by law or a person entitled to practice as a Barrister and Solicitor either generally or for the purpose of any particular office or proceeding. This principle is captured in sections 2(1) and 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation, 1990; and also in the cases of:
Registered Trustee of Apostolic Church, Lagos Area vs. Rahman Akindele (1967) NWLR 263, 265; Sulaiman vs. Sword Sweet & Confectionery (Nig.) Ltd. & Ors. (2009) LPELR-8749 (CA); NNB PLC. VS. DENCLAG LTD. (2005) 4 NWLR (Pt.916) 549.
The combined effect of the provisions of sections 2(1) and 24 of the Legal Practitioners Act, (supra) is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll at the Supreme Court and without which he cannot engage in any form of legal practice in Nigeria. It does not say that his signature must be on the roll but his name. It follows from the foregoing that “Yemi Ajibola & Co.” and or “A. Ajibola & Co.” as the case may be is/are not legal practitioner(s) as recognized by law. In Okafor vs. NWEKE (supra), the Supreme Court, per Onnoghen, JSC at 531-532 H-A held:
“Since both counsel agree that J. H. C. Okolo, SAN & Co. is not a legal practitioner recognised by the law, it follows that 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.”
A careful reading of OKAFOR vs. NWEKE (supra) leaves me with no doubt that the Apex Court has settled it once and for all that a firm of legal practitioners as in the instant case, is not the same thing as a legal practitioner as envisaged by sections 2(1) and 24 of the Legal Practitioners Act (supra). The material point here is the name of the legal practitioner as it appears on the roll of Legal practitioners at the Supreme Court.Only that legal practitioner or legal entity so enrolled in the Supreme Court register can as a matter of fact sign processes filed before the court for its use. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
TORT: INGREDIENTS THAT MUST BE PROVED TO ESTABLISH MALICIOUS PROSECUTION
It is trite that the four ingredients for proving malicious prosecution of the respondents as laid down in Alhadi vs. Allie (supra); and Mandillas & Karaberies vs. Lamidi Apena (supra) are:
a) The absence of reasonable and probable cause for their prosecution.
b) That the appellant instigated their prosecution with malice.
c) The termination of the criminal proceedings in favour of the respondent.
d) That the respondent suffered damages by reason of the prosecution.
All the four ingredients as mentioned above must be established for the respondent to succeed. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
