MURAINO ONILEWAJI & ORS v. M.O. MUDKAS (NIGERIA) ENTERPRISE LIMITED & ORS (2014)

MURAINO ONILEWAJI & ORS v. M.O. MUDKAS (NIGERIA) ENTERPRISE LIMITED & ORS

(2014)LCN/7641(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of December, 2014

CA/L/456/12

RATIO

PRACTICE AND PROCEDURE: COURT PROCESS; WHETHER A COURT PROCESS MUST BE VALIDLY SIGNED AND THE MEANING OF PROCEEDINGS

In OKAFOR V NWEKE (supra) and SLB Consortium Ltd V NNPC (supra) the Supreme Court held that a court process must be validly signed.

Section 2(1) & 24 of Legal Practitioners’ Act refers to practice as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.

Proceedings means legal proceedings in court which include all court processes. If it is an initiating process it will be classified as not initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction – as put, it is one of the indices of jurisdiction to hear and determine a case. See MADEJOBI V NBA (2013) LPELR – 20940 (SC); MAGAJI VS MATARI (2000) 8 NWLR (PT 870) 237 AT 250. Should the initiating process be defective it could certainly affect the jurisdiction of the court to entertain the case, but if it is one of the processes same would be struck out. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: INITIATING PROCESS; WHICH OF THE PROCESS IS THE INITIATING PROCESS

Section 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules refers to pleadings to be signed by Legal practitioner or by the party (if he sues or defends in person). After the Writ of Summons, under the 2004 rules of High Court of Lagos State (Civil procedure Rules), the Statement of Claim is filed, and it specifies the entire claim the plaintiff relies on more particularly, while the Writ of Summons merely states the relief claimed.

See SULAIMAN VS SWORD SWEET & CONFECTIONARY (NIG) LTD & ORS (2009) LPELR – 8749 (CA)

Section 2(1) & (24) of Legal Practitioners’ Act (LPA) are mandatory provisions that cannot be waived by parties indeed. See FRN PLC v. MAIWADA (2013) 5 NWLR (PT 1348) 444 AT 456, OKARIKA V. SAMUEL (2013) 7 NWLR (PT 1352) 19 AT 24; MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE V YAKUBU & ANOR [2013] 6 NWLR (Pt. 1351) 481.

The initiating process here is the Writ of Summons together with the Statement of Claim, and one cannot exist without the other.
“Originating process” as defined by the High Court of Lagos State (Civil Procedure) Rules, 2004 is any court process by which a suit is initiated.
See Order 3 rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004, states thus:
1. Subject to the provision of the rules or any applicable law requiring any proceedings to be begun otherwise then by writ, writ of summons shall be the form of commencing all proceedings.
Mode of beginning civil proceedings 2(1) All Civil proceedings commenced by writ of summons shall be accompanied by:
(a) Statement of Claim
(b) List of witness to be called at trial
(c) Written statement on oath of witness and the
(d) Copies of any document to be relied on at the trial
(2)Where a claimant fails to comply with rules 2(1) above, his originating process shall not be accepted for filing by the Registry.
Therefore it is clear that the writ of Summons is one of the modes of initiating an action and if this method is adopted, it must be accompanied by the documents stated in Order 3 Rule (2) (1) of the Rules and the whole set of documents specified in (a-d) is the initiating process. Should one part not be fulfilled or missing, the whole initiating process will be defective. It is in this vein that I agree with the Appellant’s counsel that the Statement of Claim supersedes the Writ of Summons. See ARABANBI V ADVANCE BEVERAGE IND LTD (supra), ONYERO V NWADIKE (2011) 18 NWLR (PT 1279)954 at 987. 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

1. MURAINO ONILEWAJI
2. SANNI ONILEWAJI
3. HAMIDU ONILEWAJI
4. ABASI ONILWEWAJI
(Sued as accredited representatives of Maidan Village in Ibeju Lekki Local Government Area of Lagos State) Appellant(s)

AND

1. M.O. MUDKAS (NIG.) ENT. LTD
2. MOHAM PEDRO LIMITED
3. UNKNOWN PERSONS 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 Lagos State presided over by HON. JUSICE A.J. COKER and dated 25th day of September, 2008.

The judgment was delivered in favour of the Claimants/Respondents, in respect of an Agreement concerning a land. The Defendants/Appellants being dissatisfied, filed a Notice of Appeal with 9 grounds of Appeal dated 13/1/09, and filed on the same date.

In line with the rules of court, Appellant filed their Appellant brief which is dated and filed 21/11/2012 but deemed filed on 23/9/14. Appellant also filed a Reply brief dated 8/11/2013 and deemed filed on 23/9/14. It was settled by Otunba Segun Oladitan. The Respondents also filed their Respondents briefs dated and filed 20/1/14 and was settled by R.O. Samuel Esq.

The summary of facts of the case is that the Appellants as customary owners entered into an Agreement with the Respondent via the Director of the 1st Respondent to get Maidan Village excised from the Lagos State Government’s acquisition some time in 1988. An agreement was executed between the parties and a photocopy of the agreement was given to the Appellant’s family. After waiting for a long time in expectation of the result of the assignment undertaken by the Respondents, the Appellant had recourse to accompany the Respondent to the Surveyor General’s Office.

On getting there, the parties later discovered that the Appellant could not seek excision through agents, and that only members of the Appellants’ village would be entitled to information. They also discovered that excision had been granted as back of 1991 and further enquiry on such will not be welcomed.

The Appellants’ later led government surveyors to the village and eventually produced a survey plan without any input from the Respondent.
The pillars and perimeter survey of the land was done by the surveyor General’s office, while Appellant cleared and did the layout of the area through third parties.

The said agreement was found to have been executed on a Saturday before a commissioner for Oaths of the Magistrate court and there was no proper illiterate jurat on the face of it.

Judgment was entered for the Respondent in the lower court upon a statement of claim which was signed in the name of a law firm and not in the name of a legal practitioner.
The Appellants in their brief had four issues for determination. Thus:
1. Whether the judgment of the lower court is not completely flawed on the ground that the statement of claim was signed in the name of a law firm, instead of in the name of a legal practitioner
2. Whether a contract can be said to have been wholly or substantially performed in the absence of any evidence of the work done or the furnish in g of consideration,
3. Whether the Agreement is not void and unenforceable where the acts to be performed are in breach of the law and public policy.
4. Whether an order of specific performance will be made when title to the land is vested in a third party and there is no clear identity of the land.

The Respondent adopted the issues of the Appellants which also shall form the issues for determination.

ISSUES 1
This issue complains about the Statement of Claim which was signed in the name of a law firm instead of in the name of a legal practitioner.

Appellants counsel submitted that the original Statement of Claim dated 4th October 2004 (as seen in pages 3-5 of the Record) and the Amended Statement of Claim dated 20th March, 2006 (at pages 21-24 of Record) were signed in the name of “R.O. Samuel & Associates” and the signatory is not disclosed.

He referred to Order 15 Rule 2 of High Court of Lagos State (Civil Procedure Rules 2004). He further submitted that apart from not complying with the above rules, the provision of Sec 2(1) and 24 of Legal Practitioners Act was also not complied with.

Counsel submitted that Supreme Court has held that failure to sign a court process in the name of a legal practitioner goes to the jurisdiction of the court, and that “R.O. Samuel & Associates” is not a legal practitioner known to law. He cited MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 on the ingredients of jurisdiction to hear and determine a case.

Oladitan Esq. submitted that the action at the lower court was not initiated by due process of the law and upon fulfillment of a condition precedent to the exercise of jurisdiction.

He referred to the following cases: OKAFOR V NWEKE (2007) 10 NWLR (PT 104) 352; SLB CONSTRUCTION LTD v NNPC (2011) 9 NWLR (PT 1252) 317.

Counsel also contended that it is immaterial that the Writ of Summons was signed in the name of a legal practitioner and that the Statement of Claim supersedes the Writ of summons. He placed reliance on ARABAMBI V ADVANCE BEVERAGES IND LTD (2005) 19 NWLR (PT 959) 1 at 32; ONYERO v NWADIKE (2011) 18 NWLR (PT 1279) 954 at 957.
Counsel submitted that once this issue is resolved in favour of the Appellants, the incompetent Statement of Claim has reduced all other issues into complete insignificance and they may be discountenance. He cited UWEZURIKE v A.G. FEDERATION (2007) 8 NWLR (PT 1035) 1; APAPA V INEC (2012) 18 NWLR (PT 303) 409 at 32 to buttress his argument.

The Respondents on the other hand submitted on the issue that originating process means court processes by which an action is initiated. Counsel placed reliance on Order 1 Rule 3 of the High Court of Lagos State Civil Procedure Rules 2004.

Counsel to the Respondents stated that suit was initiated by Writ of Summons at page 1 and 2 of the Record of Appeal and not the Statement of Claim as submitted by the Appellant.

He cited to Order 3 Rule 2 of the High Court of Lagos State Civil Procedure Rules 2004 and argued that Statement of Claim, List of Documents, and Statement on Oath merely accompanies the writ of summons and does not make them originating processes.

Against this background, he submitted that the in the case of OKAFOR V. OKEKE (Supra), the Supreme Court concluded that the Leave to Appeal and Notice of Appeal was invalid and that in S.L.B, CONSTRUCTION V NNPC (Supra), it was the Writ of Summon and Statement of Claim that was not signed by legal practitioner but by a law firm and that it is only when it touches on the originating processes that it robs a court of jurisdiction.

Respondents’ Counsel submitted that the case at hand is different from OKAFOR & SLB’S case (Supra). He submitted further that the Writ of Summons in this case was signed by a legal practitioner fulfilling all legal requirements. Respondents submitted that he won the suit at the trial court on merit and executed the judgment and that it would amount to visiting the mistake of counsel on the Respondents and its consequence on the innocent client who provided the evidence and the professional fee.
Counsel cited WEST CONSTRUCTION LTD V BATALA [2006] 6 NWLR (Pt. 986) 5.

The Appellants in their reply brief submitted that the Statement of Claim having not been signed by a legal practitioner has affected the Statement on Oath as it has nothing to stand on. He relied on MACFOY V UAC (1961) 3 AER 1169 at 1173.

Furthermore, in support of his argument, Counsel defined “process” of court or “proceedings” as contained in Order 1 Rule 2(3) of the High Court of the Lagos State (Civil Procedure) rules, 2004. He referred to OKETADE v ADEWUNMI & ORS (2010) 8 NWLR (PT 1195) 63 at 78, REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS DIOCESES VS AKINDELE (1967) NWLR 263 at 265; FIRST BANK OF NIGERIA LTD VS MAIDAMA CA/3/162/2000 delivered on 7/12/04 to submit that the processes so signed were incompetent and invalid while the judgment written based on such documents should be declared null and void and of no effect.

On the alternative argument that sins of counsel should not be visited on a litigant, he relied on EMMANUEL OKAFOR & ORS VS. AUGUSTINE NWEKE & ORS (2007) 10 NWLR (PT 1043) 521 at 531 – 532, NIGERIAN ARMY v. SAMUEL (2013) 14 NWLR (PT 1375) 466 at 483.

This issue bothers on jurisdiction of the court which will affect the competency of the suit in the lower court when it was heard, and if it succeeds it would affect the entire proceedings and terminate the appeal.

The writ of Summons is signed in the name of “R.O. Samuel” a legal practitioner with the requisite address at page 1-2 of the record. The Statement of Claim, List of Documents and List of Witnesses accompanying it were signed in the name of “R.O. Samuels and Associates”, the Solicitors to the plaintiff.

The Respondents’ counsel has submitted that the originating process is limited to the Writ of Summons and that the writ was properly signed.

In OKAFOR V NWEKE (supra) and SLB Consortium Ltd V NNPC (supra) the Supreme Court held that a court process must be validly signed.

Section 2(1) & 24 of Legal Practitioners’ Act refers to practice as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.

In this case, the question is which one of the process is the initiating processes? This case was commenced by way of Writ of Summons and a Statement of Claim filed along.

See SULAIMAN VS SWORD SWEET & CONFECTIONARY (NIG) LTD & ORS (2009) LPELR – 8749 (CA)

It follows that, the Statement of Claim not being signed by a legal practitioner is a fundamental defect and the whole proceedings having been concluded on it stands on nothing.

In OKETADE V ADEWUNMI (SUPRA) the notice of appeal and Appellant’s brief were affected and consequently declared incompetent, invalid, and therefore null and void. See ALAWIYE V OGUNSANYA [2013] 5 NWLR (Pt 1348) 570.

This courts in SCC NIG LTD & ANR V EKENNA [2009] ALL FWLR (PT. 497) 53 have held that it is not adhering to technical justice.
In FIRST BANK V MAIWADA (SUPRA), it was held that “substantial justice can only be attained not by bending the law but applying it as it is; not as it ought to be and Section 24 of LPA cannot be brushed aside. It goes to the root of the law as it directly affects the jurisdictional competence of the court.Counsel for Respondents made several prepositions why this court should accord this case a safe landing, which is to say that we, should eschew technical justice and in imbibe substantial justice. See OLUWATUNYI V OWEJUYIGBE (2014) LPELR – 23529 (CA); DENTON WEST, (JCA) reiterated in pages 21 pages E – G that;
“we must not lose sight of the fact that we are enjoined to apply substantial justice accordingly to law.
There is no gainsaying that where technical justice and substantial justice are competing on a level Playing ground, substantial justice will always prevail.

The Respondent also canvassed that it is mistake of counsel, and it will amount to visiting the sin of Counsel on litigant. Fabiyi JSC has stated in FBN V. MAIWADA (SUPRA) that the strict operation of the Legal Practitioners’ Act has come to stay and it is lawyers that should change their attitude.

In this case, it is very clear that, since the statement of claim accompanying documents are signed in the name of a law firm, it is defective and the initiating process incompetent and therefore void. On this ground they are struck out.

Having been struck off, the suit derives from nothing, it is therefore incompetent. See NIGERIAN ARMY V SAMUEL (2013) 14 NWLR (PT 1375) 466 at 483.

In the light of the above, the defective initiating processes upon which the trial proceedings were conducted renders the proceedings a nullity, thereby rendering the judgment null and void.

I allow the appeal, judgment of the Coker A.J.J dated 25th September, 2008 is hereby set aside.

Each party to bear their own cost.

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 NWEKE (2007) 10 NWLR (PT1043)521 was restated by the Supreme Court in OKARIKA V SAMUEL (2013) 7 NWLR (PT1352) 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 (PT1348) 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 conclusion will be created. The decision in OKAFOR V NWEKE is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre-eminence 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 (R.O. SAMUEL & ASSOCIATES). 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 accordingly allowed. I also abide by the consequential orders in the lead judgment including that of costs.

TIJJANI ABUBAKAR, J.C.A.: The issue in this appeal keeps coming up now and again, The law is fairly settled in seemingly endless judicial decisions that a law firm is not a legal practitioner, and therefore cannot practice as such by filing processes in our Courts, that only legal practitioners, human beings called to the Nigeria Bar, can practice law by signing documents.

In the decision of the Supreme Court in FBN V. MAIWADA (2013) 5 NWLR (PT.1348) page 10 ADEKEYE JSC said:
“Order 1 Rule 2 of the Supreme Court Rules, states that, Appellant means a party appealing from a decision for or on behalf thereof, and includes the legal practitioner retained as assigned to represent him in a proceeding before the court. A person shall be entitled to practice as a barrister and Solicitor in Nigeria if only if, his name is on the roll. Section 2 (1) of the Legal Practitioners Act Cap L11, laws of the Federal of Nigeria 2004, the foregoing provision reads subject to the provisions of this act, and person shall be entitled to practice as Barrister and Solicitor if and only if his name is on the roll. Section 24 of the Legal Practitioner Act.
In this act unless the con otherwise requires, the following expressions have the meaning hereby assigned to them respectively. In effect, by virtue of Section 24 of the legal practitioners Act a legal practitioner in Nigeria is 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 offence or proceedings”.

It is proper to note that by the above definition, a law firm is not a legal practitioner, and therefore cannot practice as such by filing processes in our courts; only legal practitioners human beings called to the Nigeria Bar can practice by signing documents.

In lending my support to the elaborate Judgment rendered by my learned brother Obaseki-Adejumo, JCA. I may just need to state that, the Supreme Court in the decision in OKAFOR V. NWEKE & ORS. (2007) NWLR (PT.1043) 521, which appears to form the pedestal and plant upon which this principle of law stands made it clear that the rational behind the decision is for members of the Bar to note that processes signed by firms of legal practitioners in their firm name have no standing in law, such processes are out and out incompetent.

I see the decision as a wake up call to legal practitioners, it is a design to achieve sanity and quality in legal practice, it is not a principle that has the effect of shutting the door of the court house against a litigant, because he has the option to return to court to start all over again.

For this short reason and the more elaborate reasons in the lead Judgment of my learned brother; I also allow the appeal, and set aside the Judgment of Coker J. delivered on 25th September 2008.

Partied shall bear their respective costs.

Appearances

O. E Odetoki with O. O OladitanFor Appellant

AND

Olumide Ajie with R. SamuelFor Respondent