CHIEF CHRISTIAN UCHE NWACHUKWU v. MR IGNATIOUS ETIM EKPIKEN (2014)

CHIEF CHRISTIAN UCHE NWACHUKWU v. MR IGNATIOUS ETIM EKPIKEN

(2014)LCN/7564(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/L/445/2008

RATIO

PRACTICE AND PROCEDURE: SIGNING COURT PROCESSES; WHO IS QUALIFIED TO SIGN COURT PROCESSES AND THE EFFECT OF AN ORIGINATING PROCESS THAT HAS NOT BEEN PROPERLY INITIATED

This action was filed under the Lagos State Civil Procedure Rules 2004. Order 13 Rule 34 and Order 15 Rule 2 provides that:
all processes are to be signed by a Legal Practitioner who has been enrolled as a Barrister and Solicitor.
Furthermore, the provision of Legal Practitioners Act cap 207 LFN 1990, defined a legal practitioner to be one who has received legal education and has been enrolled as Barrister and Solicitors.
Sections 2 (1) and 24 of the Legal Practitioners Act demands that only a legal Practitioner whose name is on the roll of the Supreme Court should sign court process.
In FBN V MAIWADA 51 NSCQR 154 @ 189 ADEKEYE JSC held that;
…”by this definition a law firm cannot practise as such by filing processes in Nigerian courts. Only legal practitioners; human beings called to the bar can practise by signing documents. In this case it was the Notice of Appeal that was affected”.

In MINISTRY OF WORKS AND TRANSPORT v. YAKUBU & ANOR 53.2 NSCQR 1 the Supreme Court held that there was a difference between the name of a firm and a Legal Practitioner, and that a Law Firm cannot perform the duty of a Legal Practitioner, since they both carry different Legal entities’ and one cannot be substituted for the other because they are not synonymous. I shall reproduce Section 2(1) & 24 of the Legal Practitioner’s Act.
Section 2 (1) provides thus;
“subject to the provisions of this Act, a person shall be entitle to practise as a Barrister and Solicitors if, and only if, his name is on the call roll”
Section 24 provides thus:
“In this Act, unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively that is to say -legal practitioner means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings”
The case of MINISTRY OF WORKS AND TRANSPORT V. YAKUBU (SUPRA) dealt with an Originating Process such as this, therein M. S. MUNTAKA-COMASSIE JSC AT P20 held that:
“The originating process having not been properly initiated, the action is incompetent and any appeal arising from such an incompetent processes is also incompetent”
The Supreme Court further held that the effect was fatal and renders the entire suit incompetent abinitio. It was dead at the point of filing.
The court described it thus;
“The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment”
Also, in the case of SLB CONSORTIUM V NNPC (2011) 4 SCNJ PG 211 and NIG ARMY V SAMUEL 56.2 NSCQR 845 the Supreme Court re-echoed the above position of law. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

CHIEF CHRISTIAN UCHE NWACHUKWU Appellant(s)

AND

MR IGNATIOUS ETIM EKPIKEN Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Lagos state delivered on 16th April 2007 by JUSTICE O. A ADEFOWOPE – OKOJIE wherein the Respondent filed an action commenced by writ of summons and further amended statement of claim for a declaration of title to a portion of that land lying and situate at No.19 Nwachukwu Drive, Okota Isolo, Lagos state measuring 1282.799sq meters and also sought for general damages of N500,000.00 for trespass. Judgment was entered in favour of the Appellant/Defendant and the Learned Trial judge granted all the reliefs sought by him.

The Respondent/Plaintiff being dissatisfied with the decision filed an Amended Notice of Appeal along with the Appellant’s brief of argument both dated and filed on 2nd December 2010 with 10 grounds of appeal. Appellant formulated three issues for determination in the Appellant’s Brief of Argument which was settled by BUKIE P. OBI as follows:
1. Whether the “signing” of all the processes in this suit (from the writ of Summons to the final address) by A. O. S. HODONU & CO. an incorporeal entity, which did not” and could not have received legal education, and has not, and could not, have been enrolled as a Barrister and Solicitor, and in breach of the provisions of Order 13 Rule 34 and 15 Rule 2 of the High Court of LAGOS State (Civil Procedure) Rules, 2004 and contrary to the decisions in OKAFOR & ORS V NWEKE & ORS (2007) 3 SC (PT.11) 55, 62/63, 64, 66-68 and OGUNDELE & ANOR V AGIRI & ANOR (2009) 12 SC (PT.1) 735 did not thereby invalidate / annul the processes thereof and the Judgment thereon (Ground one of the Grounds of Appeal).
2. Whether the allegation of trespass by annexation of a part only of a piece or parcel of land, which presupposed the occupation/retention/possession of the part not violated, does not thereby limit the dispute to establishing or proving the direction of the trespass and the part or quantum of land annexed by the trespass; if yes, whether even if proven (which is not the case) the reliefs claimed are not in dissonance (Ground two of the Grounds of Appeal).
3. Whether the pleadings in paragraphs 7, 8, 9, 10 and 16 of the 1st Amended Statement of Defence do not ipso facto manifest the Plea of Limitation, Laches and Acquiescence (Ground six of the Grounds of Appeal).
4. Whether an unstamped and unregistered registrable land instrument (Exhibit 2) is admissible in Law, at all, and whether same was duly admitted (Ground seven of the Grounds of Appeal)

The Respondent filed an Amended Brief of Argument dated and filed the 14th February, 2014 and deemed properly filed on 25th September 2014.The brief was settled by A. S. O. HODONU wherein he formulated four issues as follows:
1. (a) Whether by virtue, of Section 1(1) and (3), 241, 242 as well as Section 318 of the 1999 Constitution (as amended) an appeal can lie from the High Court to the Court of Appeal on an issue which has, not been argued and decided upon by the lower court.
(b) Whether the judgment of court delivered on 15th April, 2007 by his lordship, JUSTICE O. A. ADEFOWOPE OKOJIE of the High Court of Lagos should be overruled on the sole ground the Process initiating the proceeding in 2000 were signed by “A. O. S HODONU & CO.” without the name A. O. S HODONU.
(c) Whether Section 2 (1) and Section 24 of the Legal Practitioner Act is not void for the reason that it hinders the determination of the civil rights and obligations of parties as provided by Section 6 (6) (b) of the 1999 Constitution as amended.
2. Whether the court was right when it held that the cause of action arose upon the trespass of the Appellant on the land thus the Rule of Limitation, Laches and Acquiescence does not apply to the case.
3. Whether from the totality of evidence adduced by parties, the Lower Court was right to hold that the Appellant is a trespasser on the land in dispute lying, being and known as No.19 Nwachukwu Drive, Okota – Isolo, Lagos.
4. Whether the document Exhibit P2 admitted by the lower court, even if it did not comply with Section 2 and 16 of Land Instrument Registration Law was inadmissible, null and void and worthless for all purposes in the circumstances of the case.

The facts of this case is that parties in the lower court had adjoining lands as neighbours, following a trespass on a portion of his land by the Defendant /Appellant, the Plaintiff /Respondent herein sought a relief to declare him the person entitled to Statutory Right of Occupancy of the land lying and situate at No. 19 Nwachukwu Drive, Okota Isolo Lagos. The Plaintiff/Respondent also sought N500,000 as general damages for trespass committed by the Defendant/ Appellant on the Plaintiff/Respondent piece of land, as well a perpetual injunction restraining same.

At the end of trial, the court found for the Plaintiff/respondent.

ISSUE 1
Issue 1 of the Appellant’s brief of Argument and issues 1(a), (b), & (c) of the Respondents Brief of Argument are the same. I shall therefore deal with them together, as they bother on the jurisdiction of the court abinitio to entertain the appeal.

The Appellant complains about the manner in which the initiating process at the lower court were signed i.e “A. O. HODONU & CO LEGAL PRACTITIONERS AND PROPERTY CONSULTANTS” as seen on all the initiating processes from the Writ of Summons to the final address. Counsel submitted that it was signed in a corporate name contrary to the provisions of Order 13 rule 34 and Order 15 rule 2 of the High Court Civil Procedure Uniform Rules of Lagos State and relied on the following cases:
OKAFOR & ORS V NWEKE (2007) 3 SC (PT.11) 55, OGUNDELE & ANOR V AGRIC & ANOR (2009) 12 SC (PT 1) 35, UNITY BANK PLC v. OLUWAFEMI (2007) ALL FWLR (382) 1923, COLE V MARTINS (1958) ALL NLR 161.
Counsel urged the court to set aside the decision.

On the other hand Hodonu Esq. as counsel to the Respondent, while arguing Issues 1 (a), (b), &(c) together submitted that it was a ground raised for the first time by the Appellant. He averred further that this Ground 1 of the appeal, together with all arguments thereon is unconstitutional and should be struck out. This is because it was not raised at the court below and not based upon any given decision and therefore, the appeal lack a ground to rest on. He referred to Sections 241 & 242 of 1999 constitution (as amended), which spells out the powers of the Appeal Court to consider Appeals from the High court either as of right or with leave. He contended further that, that being the case, no decision was taken upon which an appeal should lie. He referred to MOHAMMED & ANOR V OLAWUMI & ORS (1990) 2 NWLR (PT 133) 458, EYO EKPO V THE STATE (1972) 2 S.C 26.

Counsel further argued that, since appellant did not object to same at lower court it will not be in the interest of justice and the public to allow such. He cited A.G FEDERATION V A. GABIA STATE (2001) 11 NWLR (PT.725) 639 to the effect that the Respondents act of not objecting at the lower court constituted a waiver, he also referred the cases of OKAFOR VS NWEKE (SUPRA), UNITY BANK V ABDULKAREEM ABIOLA (2009) ALL FWLR (Pt.452) 1082.

Counsel proceeded to define “decision” as provided in Section 318 of the 1999 Constitution (as amended) stating meaning that a decision has been taken. He proceeded to distinguish the decisions where the manner of signing was in a Notice of Appeal. Hodonu Esq. further stated that even if the said process was not properly signed, it should be regarded as an irregularity and to this effect he referred to A.G FEDERATION VS A.G ABIA STATE (2001) 11 NWLR (Pt.725) AT 689 @ 706. He submitted further that in cases referred to by Appellant’s counsel, it was the Notice of Appeal and Interlocutory Motions that were considered and not the Writ of Summons and Statements of Claim.

He further referred to OKAFOR VS NWEKE (SUPRA), UNITY BANK PLC vs MR ABDULKAREEM ABIOLA (2009) ALL FWLR (PT.452) PG 1082, OGUNDELE VS AGIRI (2010) ALL FWLR (PT 507) PG 1 @ 27, UNITY BANK V OLUWAFEMI (SUPRA), OKETADE V ADEWUMI (2010) ALL FWLR (PT 526) PG 511.

Finally, he urged the court to take another look at Section 2(1) and Section 24 of Legal Practitioners’ Act Cap 207, LFN 1990, vis-a-vis the 1999 Constitution of the Federal Republic of Nigeria. He submitted that Sec 6 (6) b of 1999 Constitution (as amended) vest judicial powers of the federation in the courts, and stated further that such judicial powers shall extend to all matters between persons, or between governments or authority and to any person in Nigeria and to all actions and proceedings relating thereto and for determination of any question as to the civil rights and obligations of that person. He stated that the case between the Respondent and the Appellant for the determination of their civil rights and obligations. He stated that any law which prevents the determination of the said civil rights and obligations of the parties is void by the import of Section 6(6) (b) of the 1999 Constitution (as amended) and to this effect Section 2(1) and 24 of the Legal Practitioners Act Cap 207, LFN 1990 as a subsidiary legislation should be declared void.

He further contended that since the suit was not between any of the parties and the legal practitioner insofar as it hinders the determination of the civil rights and obligations of the parties.

In resolving this issue, at page 2 of the records is the Writ of Summons filed on 7th September, 2000. It is signed by a stamp of A. O. S HODONU & CO, 3RD AVENUE FESTAC, LEGAL PRACTITIONERS & CO with a signature at the end of the stamp issued by the same A. O. S. HODONU & CO. Same appears on the Statement of Claim dated 4th September 2000, Summons for Direction, and Reply to Statement of Defence dated 10th April 2002 as well as the Amended Statement of Claim of 27th September 2002. These are the Originating Processes and they are all signed in the same manner, apparent in pages 1- 29 of the Records of Appeal.

In his submission, Hodonu Esq. urged the court to declare the said section of the Legal Practitioner’s Act as inconsistent with the 1999 Constitution. This will not be done. The Supreme Court has severally stated that the law has come to stay and there is no valid reason to revisit the courts position on the issue and that it is not an issue of procedural irregularities or instant technicalities but that of tardiness of the legal practitioners in their duties to client.

This issue having being adjudged as bothering on incompetence is a jurisdictional issue. See the cases of MADUKOLU V NKEMDILIM (1962) 1 ANLR 587, ABBAS V TERRA (2013) 2 NWLR (PT.1338) 284 AT 29, ALHAJI ABDUL RAUF TIJANNI & ANOR V FIRST BANK OF NIG PLC 2013 LPELR-20656 (CA), BRAITHWAITE VS SKYE BANK PLC (2013) 5 NWLR (PT.1346) 1, where the courts held that a court process signed by a Law Firm is incompetent and robs the court of jurisdiction to adjudicate on it. It’s trite that jurisdiction can be raised at any time even on appeal, jurisdiction goes to the root of the matter, and it’s the spinal cord and life wire of a court of law.
This case is on all fours with the FBN V MAIWADA (SUPRA). Therefore, initiating processes as highlighted at the earlier part of this judgment are fatal and rendered the suit dead on arrival, it robbed the lower court of the jurisdiction to have heard same to finality, and amounts to a nullity.

Contrary to Respondents Counsels submission that, it was not raised at the court below in this case, it is incurably bad and a crucial issue that cannot be waived or cured by any amendment. It is a statutory provision and it is a jurisdictional issue that can be raised at any time.

On the above reasoning, the judgment of the lower court is a complete nullity and of no effect.

In addition, it has nothing to do with the 1999 Constitution (as amended), the Legal Practitioner’s Act is a statute drafted by legislature, which in fact prescribes a condition precedent to initiating an action and necessarily clothes a court with jurisdiction to adjudicate.

In the light of the above, I disagree with Respondent counsel’s submission. FABIYI JSC at pg 177 of FBN V MAIWADA (SUPRA) stated clearly that the law has come to stay, and that, the lawyers should reframe their minds. I resolve this issue in favour of the Appellant.

Having declared the proceedings and judgment of the lower court a nullity there is nothing to decide, it is clear that there is nothing to decide. You cannot put something on nothing and expect it to stand. See SKEN CONSULT NIG (LTD) V UKEY (1981) 1 SC 6 @ 15 to the effect that any appeal arising from such an incompetent process is also incompetent.

This Appeal hereby succeeds. The lower court lacked jurisdiction to have entertained the suit. The judgment of O. A. ADEFOWOPE-OKOJIE J. of the High Court of Lagos delivered on 16th of April, 2007 is hereby set aside. Costs of N50,000 is awarded to Appellant.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: The privilege was mine to have read before now the lead judgment just delivered by my learned brother, A. O. OBASEKI-ADEJUMO JCA.

I am in agreement with the reasoning and conclusion contained therein. The current position of the law regarding the signing of processes by a Legal Practitioner since the case of OKAFOR V NWBKE (2007) 10 NWLR (PT.1043) 521 was restated by the Supreme Court in OKARIKA V SAMUEL (2013) 7 NWLR (PT.1352) 19 at 24 where it was held per I. T. Mohammed JSC that-:
“It is improper where a law firm is consulted for legal services to indicate on the initiating process, that such process is signed by the law firm. The law firm is incapable of signing a process. It is incapable of pursuing the appeal to its logical conclusion as it lacks the human qualities; it has to act through a human being. Once an initiating process be it a writ of Summons or Notice of Appeal is not signed or authenticated either by the litigating party, or the legal Practitioner on his behalf, then the process is invalid and the jurisdiction of the court is ousted. The defect is taken as incurable, and the process signed in the name of the legal firm would not suffice.”
In the recent case of FBN PLC V MAIWADA (2013) 5 NWLR (PT 1348) 444 at 456, the Supreme Court while declining an invitation to revisit the decision in OKAFOR V NWEKE (supra) re echoed its stance on the issue with a strong admonition per FABIYI JSC that.:
“It is my view, that if the decision in OKAFOR V NWEKE is revisited as urged, more confusion will be created. The decision in OKAFOR V NWEKE is not in any respect wrong in law and I cannot surmise areal likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. The convenience of counsel should have no preeminence over the dictates of Law. The law enacted d should be followed. I do not for one moment see any valid Reason why the decision of this court in OKAFOR V NWEKE should be revisited, it has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for due protection four Profession…. ”

In the instant case it is not in dispute that the originating processes in the suit were signed by (A. O. S. HODONU & CO). It thus renders the processes invalid and incurable and consequently ousts the jurisdiction of the court to entertain it.

I therefore hold that the appeal is meritorious and it is accordingly allowed. I also abide by the consequential orders in the lead judgment including that of costs.

TIJJANI ABUBAKAR, J.C.A.: I read the lead judgment rendered by my learned brother Obaseki-Adejumo JCA. I am in agreement with the reasoning and conclusion. I fully endorse the judgment and all consequential orders including orders on costs.

Appearances

Peter ObiFor Appellant

AND

A. S. O. HodonuFor Respondent