KLM ROYAL DUTCH AIRLINES & ANOR v. CHIEF YAKUBU TOBA & ORS (2014)

KLM ROYAL DUTCH AIRLINES & ANOR v. CHIEF YAKUBU TOBA & ORS

(2014)LCN/7451(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of September, 2014

CA/K/175/2013

RATIO

PRACTICE AND PROCEDURE: SIGNING COURT PROCESSES; WHO CAN SIGN COURT PROCESSES

The present position of the law as settled by the Supreme Court is that all court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria.

There the Court process in question is a statement of claim, as in the instant case, it cannot sustain a cause of action and a judgment predicated on such a statement of claim must be set aside. The Supreme Court maintained in all the cases that the requirement of having a court process signed by only a person listed on the Roll of Barristers and Solicitors, rather than in the name of a law firm, was one of substantive law, and not of procedural law, and it thus cannot be waived and that it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by the signing of the court process in the name of a law firm. The Supreme Court also stated in the cases that the signing of a court process in the name of law firm is not an issue that can be overlooked by the Courts under the doctrine of “doing substantial justice” or “interest of justice” and that it is one that touches on the vires of the Court to entertain the matter and can be raised for the first time even at the Supreme Court – Okafor Vs Nweke (2007) 10 NWLR (Pt.1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt.1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt.1252) 317, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt.1348) 444, Alawiye vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481 and Okarika Vs Samuel (2013) 7 NWLR (Pt.1352) 19. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: DUTY OF THE COURT; THE DUTY OF THE COURT OF APPEAL NOT TO CONCLUDE ITS DELIBERATIONS ON AN APPEAL BECAUSE IT RESOLVES THAT THE LOWER COURT HAD NO JURISDICTION AND WHETHER THE COURT OF APPEAL GOING AHEAD TO CONSIDER THE OTHER ISSUES SUBMITTED BY THE PARTIES WILL AMOUNT TO AN ACADEMIC EXERCISE

Ordinarily, a Court of Appeal should not conclude its deliberations on an appeal simply because it resolves that the lower Court had no jurisdiction to entertain the matter, if there are other issues submitted by the parties for its resolution in the appeal. This is because not being the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on issue jurisdiction is wrong – Katto vs Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126, Adah Vs National Youth Service Corps (2004) 13 NWLR (Pt.891) 639 and Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423. It is, however, the view of this court that this advise is apposite only where there is a difference of opinion between the trial court and the appellate court on the issue of jurisdiction of the lower court to hear the matter and the position of the law on the subject upon which the issue of jurisdiction is predicated is still in a flux and there are differing opinions of the Supreme court thereon. Where there are no differing opinions of the Supreme Court on the subject upon which the issue of jurisdiction is predicated and the position of the law on it has been settled beyond peradventure and resolved with finality by the Supreme Court, the Court of Appeal going ahead to consider the other issues submitted by the parties will amount to an academic exercise. Courts are enjoined not to engage in academic exercises – Uduaghan vs Ogboru (2012) 1 NWLR (Pt.1282) 521, and Madueke vs Madueke (2012) 4 NWLR (Pt.1289) 77. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PRACTICE AND PROCEDURE: COURT PROCESS; WHETHER COURT PROCESSES SIGNED IN THE NAME OF A LAW FIRM IS INCOMPETENT

Justice

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. KLM ROYAL DUTCH AIRLINES
2. MR. STEPHEN Appellant(s)

AND

1. CHIEF YAKUBU TOBA
2. MRS. C. P. TOBA
3. MR. OLUWAFEMI TOBA
4. MISS OMOLARA TOBA
5. MISS TITILAYO TOBA Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano state in suit No.K/152/2001 delivered by Honorable Justice Saka Yusuf on the 16th of June, 2003. The action in the lower Court was commenced by the Respondents, as plaintiffs, against the Appellants, as defendants, and their claim was for the total sum of N57.5 Million as damages payable by the Appellants jointly and severally for defamation of character and solicitor’s re-imburseable professional fees. The matter was heard on the pleadings filed by the parties and the Respondents called four witnesses in proof of their claims and the Appellants too called four witnesses in proof of their defence. At the conclusion of trial, and after the final addresses of counsel, the lower Court entered judgment in favour of the Respondents and it awarded the four Respondents damages in the sum of N5 Million against the Appellants, jointly and vicariously. The Respondents were also awarded the costs of the action assessed at N250,000.00.

The Appellants were dissatisfied with the judgment and they approached this Court by a motion on notice dated the 4th of February, 2010 praying for extension of time within which to appeal against the judgment. The application was heard and granted by this Court on the 13th of February, 2013 and consequent on which the Appellants filed a notice of appeal dated the 19th of February, 2013 against the said judgment. The notice of appeal contained eight grounds of appeal. By another motion dated the 29th of April, 2013 and filed on the 3rd of May, 2013, the Appellants sought the leave of this court to raise, for the first time on this appeal, the issue of the incompetence of the originating processes in this suit before the lower Court on the ground that they were signed by a law firm and not by a legal practitioner. This Court heard and granted the application on the 28th of November, 2013 and the amended notice of appeal filed alongside the application was deemed properly filed. The amended notice of appeal was dated the 30th of April, 2013 and it contained eight grounds of appeal.

In ventilating the grievances of the Appellants on this appeal, their Counsel filed a brief of arguments dated the 29th of November, 2013 on the 2nd of December, 2013. The records of the Court showed that the Appellants’ brief of arguments was served on the counsel to the Respondents and the Respondents failed and/or neglected to file any response brief of arguments. The appeal came up for hearing on the 24th of June, 2014 and the Respondents were absent from Court and were not represented by Counsel despite the records of Court confirming that they were duly served with a hearing notice. The Appellants were granted leave to argue the appeal on the their brief of arguments alone and their counsel relied on and adopted the arguments in the brief as the submissions of the Appellants in this appeal and counsel urged this Court to allow the appeal.

Counsel to the Appellants formulated three issues for determination in this appeal and these were:

i. Whether the learned trial Judge was right to assume jurisdiction over a matter that was initiated by an entity with no authority in law to do so.

ii. Whether the trial Judge was right to hold that the words in question were defamatory and actionable per se and enter judgment for the Respondents, despite the fact that no independent witnesses testified to hearing the words and the Respondents themselves did not ascribe criminal imputations to the said words as to render them actionable per se.

iii. Whether the learned trial Judge was right to award the Respondents the special damages and costs that he did.

The Appellants’ first issue for determination raised the issue of the jurisdiction of the Lower Court to entertain the matter filed before it by the Respondents. The Supreme Court has stated many times over that the issue of jurisdiction of a Court to hear a matter filed before it is a threshold issue and it must be heard and decided first before proceeding to consider the merits of the matter – Ajayi Vs Adebiyi (2013) 11 NWLR (Pt.1310) 137, Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt.1316) 85, Emeka vs Okadigbo (2012) 18 NWLR (Pt.1331) 55, Attorney General of Lagos State vs Attorney General of the Federation (2014) 9 NWLR (Pt.1412) 217. This Court will thus first resolve the issue of jurisdiction raised by the Appellants before, if need be, proceeding to consider the other issues for determination.

On the first issue for determination, Counsel stated that the practice of law in Nigeria is the exclusive preserve of legal practitioners that have formally qualified to practice law in the country and he thereafter referred to the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act and stated, on the strength of the provisions, that it was beyond dispute that only persons whose names are listed on the Roll of Barristers and Solicitors can practice law in Nigeria. Counsel stated that the practice of law includes the drafting and signing of court processes and that as such, apart from the special exception of litigants who choose to represent themselves, all court processes signed by anyone other than a person qualified to practice law were in law null and void. Counsel stated that the writ of summons and statement of claim by which the Respondents commenced this present case in the lower court were not signed by a legal practitioner whose name was on the Roll of Barristers and Solicitors, but by the law firm of M/S Sanya Ogunkuade & Co.

Counsel stated that the propriety of signing a court process in the name of a law firm rather than in the name of a individual legal practitioner was considered by the Supreme Court in Okafor vs Nweke (2007) 10 NWLR (Pt 1043) 521 and that the conclusion of the Supreme Court in that matter was that such a process was incompetent and liable to be struck out. Counsel stated that the writ of summons and statement of claim relied upon by the Respondents in prosecuting their claims in the Lower Court were thus incompetent and that this tainted the entire proceedings and rendered them null and void as the jurisdiction of the lower Court was not properly ignited and he referred to the cases of Madukolu vs Nkendilim (1962) 1 All NLR 587 and Macfoy Vs United Africa Company Ltd (1961) 3 All ER 1169. Counsel stated that the position of the Respondents was not saved by the “interest of justice” doctrine not withstanding that with the striking out the proceedings before the lower Court, the Respondents would be unable to commence a fresh action by reason of the Limitation Law and he quoted extensively from the decision of the Supreme Court in Okafor vs Nweke supra and further referred to the case of In Re: Pritchard (deceased) (1963) 1 All ER 873. Counsel urged this Court to resolve this issue for determination in favour of the Appellants and to determine this appeal on the strength of this issue alone.

The records of appeal before the Court show that the Respondents prosecuted their case before the lower Court on the strength of an amended joint statement of claim dated the 13th of March, 2001. The records further show that the amended joint statement of claim was signed by and in the name of the law firm, M/S. Sanya Ogunkuade & Co. The Supreme Court has, in interpreting the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in a long line of cases, settled the question of the competence of court processes signed in the name of a law firm. The Supreme court opined in the cases that by the provisions of the Legal Practitioners Act only persons whose names are listed on the Roll of Barristers and Solicitors in Nigeria can practice law in this country and, that since the practice of law includes the drafting and signing of court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign court processes for filing in our courts, and the only exception is where processes are signed by a litigant who chooses to represent himself.
The present position of the law as settled by the Supreme Court is that all court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria.

The only way the Respondents could have saved and rescued the proceedings taken before the lower Court was perhaps if their Counsel had taken advantage, before this Court, of the decision of the Supreme Court in Unity Bank Plc Vs Denclag Ltd (2012) 18 NWLR (Pt.1332) 293 which states that court processes signed in the name of a law firm can be rectified and amended to add the name of the individual legal practitioner who appended the signature thereon and also of the long line of decisions in cases such as Amadi Vs Thomas Aplin & Co Ltd (1972) 1 All NLR (Pt.1) 409, Okafor vs Ikeanyi (1979) 3 & 4 SC 99 and Bankole vs Dada (2003) 11 NWLR (Pt.830) 174, that say that pleadings of parties can be amended, even at the appellate Court, if it can be done without injustice to the other side. Counsel did not do so and the amended joint statement of claim of the Respondents is a nullity and it is void ab initio. The concomitant effect of this is that the entire evidence led by the Respondents in proof of their case before the lower Court went to no issue and the judgment predicated on the amended joint statement of claim is liable to be set aside. The first issue for determination is resolved in favour of the Appellants.

This resolution of the first issue for determination effectively determines this appeal. Ordinarily, a Court of Appeal should not conclude its deliberations on an appeal simply because it resolves that the lower Court had no jurisdiction to entertain the matter, if there are other issues submitted by the parties for its resolution in the appeal. This is because not being the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on issue jurisdiction is wrong – Katto vs Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126, Adah Vs National Youth Service Corps (2004) 13 NWLR (Pt.891) 639 and Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423. It is, however, the view of this court that this advise is apposite only where there is a difference of opinion between the trial court and the appellate court on the issue of jurisdiction of the lower court to hear the matter and the position of the law on the subject upon which the issue of jurisdiction is predicated is still in a flux and there are differing opinions of the Supreme court thereon. Where there are no differing opinions of the Supreme Court on the subject upon which the issue of jurisdiction is predicated and the position of the law on it has been settled beyond peradventure and resolved with finality by the Supreme Court, the Court of Appeal going ahead to consider the other issues submitted by the parties will amount to an academic exercise. Courts are enjoined not to engage in academic exercises – Uduaghan vs Ogboru (2012) 1 NWLR (Pt.1282) 521, and Madueke vs Madueke (2012) 4 NWLR (Pt.1289) 77.

The issue of the incompetence of court processes signed in the name of a law firm, and without stating the name of the legal practitioner who appended the signature thereon, has been affirmed by different panels of the Supreme Court and it was reaffirmed by the Full Panel of seven Justices of the Supreme Court in First Bank of Nigeria Plc Vs Maiwada & Ors (2013) 5 NWLR (Pt.1348) 444. This Court is thus on very firm ground if it terminates this appeal on the resolution of the first issue for determination, without the necessity of going ahead to consider the other issues for determination formulated by the Appellants.

In conclusion therefore, this Court finds merits in this appeal and it is hereby allowed. The amended joint statement of claim filed by the Respondents in Suit No.K/152/2001 in the lower Court is hereby struck out and judgment of the High Court of Kano State predicated on the said amended joint statement of claim and delivered by Honorable Justice Saka Yusuf on the 16th of June, 2003 in the said suit is hereby set aside. The Appellants shall bear their costs of this appeal. These shall be the orders of this Court.

UWANI M. ABBA AJI, J.C.A.: I have had a preview of the judgment of my learned brother, Habeeb A. O. Abiru, JCA just delivered. I agree entirely with the reasoning and conclusion arrived at by my learned brother. The propriety of signing a court process in the name of a law firm, as in the instant appeal rather than in the name of the individual legal practitioner has long been settled by the Supreme Court in the case of Okafor vs. Nweke (2007) 10 NWLR (Pt.1043) 527, that such a process not signed by individual lawyer concerned is incompetent and liable to be struck out. The lower Court is therefore robbed of jurisdiction to hear and determine the matter. See Madukolu vs. Nkemdilim (1962) 1 All NLR 587.

This appeal is therefore meritorious and it is also allowed by me. The judgment of the lower court delivered on the 16th June, 2003 is hereby set aside. I abide by the consequential order as to costs.

ABDU ABOKI, J.C.A.: I have the privilege of reading the judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA which has just been delivered. I agree with his conclusion that this appeal has merit and ought to be allowed on the first issue for lack of jurisdiction and as rightly observed in the lead judgment going ahead to consider the other issues will amount to an academic exercise.

I also strike out the amended joint statement of claim filed by the respondents in suit No.K/152/2001 at the lower court and set aside the judgment of the High Court of Kano State predicated on the said amended joint statement of claim delivered by Hon. Justice Saka Yusuf on the 16/06/2003.

I abide by the consequential orders as to costs contained therein.

Appearances

J. M. M. Majiyagbe with M. O. OmorogbeFor Appellant

AND

No appearance for the Respondents.For Respondent