UNIQUE PHARMACEUTICALS LIMITED v. GETMA MARITIME NIGERIA LIMITED
(2019)LCN/13110(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/L/607/2015
JUSTICES
JOSEPH SHAGBAOR IKYEGH 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
UNIQUE PHARMACEUTICALS LIMITED – Appellant(s)
AND
GETMA MARITIME (NIGERIA) LIMITED – Respondent(s)
RATIO
WHETHER R NOT A JUDGEMENT OR ORDER OF COURT WHICH IS A NULLITY CAN BE SET ASIDE
An appeal against the refusal to set aside the judgment was dismissed for want of diligent prosecution. The Court below had held that it was functus officio and could not therefore set aside the judgment given on the merits on the ground of the defectiveness of the originating processes. The Supreme Court held in the case of Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506 at 526 thus ? If a judgment or order of a Court is a nullity, it can be set aside without much ado. Dealing with this question in Craig v. Kanseen (1943) K.B. 256, Lord Greene stated at page 262 – “Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex-debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it.” This principle of law has been cited with approval in many decisions of this Court particularly, Obimonure v. Erinosho (1966) 1 All NLR 250 at 252; Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6 at 26; Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250. at 273 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 547-548. PER IKYEGH, J.C.A.
THE PURPOSE OF SECTION 2 (1) AND 24 OF THE LEGAL PRACTITIONERS ACT
I believe, with respects, that Sections 2(1) and 24 of the Legal Practitioners Act is not intended to be applied mechanically. Its purpose is to ensure that imposters or fraudsters should not infiltrate the legal profession and file Court processes masquerading as legal practitioners. Once the identity of the person that signed the process is traced to be on the roll of legal practitioners entitled to practice law in Nigeria as in this case where a legal practitioner signed for another legal practitioner (all natural persons) the latter of whose name was written on the processes, then the process is valid. Be it appreciated that the statement of claim itself was not challenged at the Court below on the ground that it was not signed by a legal practitioner. Therefore, following the Supreme Court case of Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (pt. 1625) 420 per the lead judgment prepared by his lordship, Eko, J.S.C., the appellant is deemed to have waived the right to complain of the procedural defect of the statement of claim (if any) as it would have been a mere irregularity on procedural jurisdiction which can be waived in respect of a Court process like a statement of claim. Had the appellant?s appeal succeeded, the fact that it was an issue of jurisdiction would have led to the striking out of the case at the Court below with the option for the respondent (if it so desired) to file a fresh action as time does not run for the purpose of limitation period when a civil action is pending in Court vide Sifax (Nig.) Ltd. v. Migfo (Nig.) Ltd. (2018) 9 NWLR (pt. 1623) 138, Addax v. Pet. Dev. (2012) ALL FWLR (pt. 621) 1585; and also, for the fact that the striking out of the action at the Court below would not have deprived the real legal practitioner the opportunity to come back to Court to lift his veil and file a proper process as the legal practitioner whose name is on the roll of the Supreme Court vide F.B.N. Plc. v. Maiwada (2013) 5 NWLR (pt.1348) 444 at 489 per the lead judgment prepared by Fabiyi, J.S.C., (as he was) on behalf of the Full Court. PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the Federal High Court sitting in Lagos (the Court below) whereby it refused to set aside its decision given on the merit on the ground that it was functus officio.
The facts of the case howbeit brief were that the respondent obtained judgment against the appellant in the sum of N1,730,883 being the outstanding sum due to the respondent for services rendered to the appellant plus the accrued demurrage together with 20% interest until judgment is delivered and thereafter at the rate of 10% until the judgment sum is paid.
Trial commenced and closed. Judgment was delivered in favour of the respondent which was subsequently stayed by an order of the Court below by which the appellant was ordered to pay the judgment debt in Court.
?Subsequent to the appellant paying the judgment debt to Court, it observed that the writ of summons by which the respondent?s suit had commenced was not signed by a legal practitioner known to law contrary to Sections 2 and 24 of the Legal Practitioners Act Cap. L11 Laws of the Federation of
1
Nigeria, 2004, therefore the Court below had no jurisdiction to hear the suit. Likewise, the motion on notice for release of the judgment debt paid by the appellant to Court to the respondent?s counsel?s firm, Ejide Sodipo & Co.
The Court below considered the two applications and held that it was functus officio and had no jurisdiction to review its decision and struck out the applications.
The appellant was dissatisfied with the judgment of the Court below and filed a notice of appeal with some grounds of appeal against it.
The brief of argument of the appellant was filed on 09.06.16, but deemed as properly filed on 07.02.18. It was argued in the brief that the writ of summons and statement of claim were signed for one EJIDE SODIPO followed by the name of the law firm, ?EJIDE SODIPO & CO.?, acting as the plaintiff?s counsel without any indication of the name of the actual person who signed the processes for him and being originating processes, both should have been signed by a legal practitioner and bear his name for identification that the process was issued by a legal practitioner vide Order 3 Rule 11(1)
2
of the Federal High Court (Civil Procedure) Rule 2009, Section 2(1) of the Legal Practitioners Act read with the cases of SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 at 337 ? 338, Buhari v. Adebayo (2014) 10 NWLR (pt. 1416) 560 at 585, Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521.
Consequently, it was contended that the originating processes were defective and incompetent ab initio and being a nullity, it struck at the root of the procedure by which the case was initiated and thus of such fundamental nature affecting the jurisdiction of the Court below which has the inherent powers to set aside its own judgment given without jurisdiction, therefore the Court below was wrong in striking out the two applications on the ground that it was functus officio vide Macfoy v. U.A.C. (1961) 3 ALL E.R. 1169, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Ohakim v. Agbaso (2010) 19 NWLR (pt. 1226) 172 at 243 ? 244, Okafor v. Ezenwa (1992) 4 NWLR (pt. 237) 611 at 617 ? 618, Ngere v. Okuruket XIV (2014) 11 NWLR (pt. 1417) 147 at 178.
The appellant finally contended that being an issue of jurisdiction it can be raised at any time and that
3
the writ of summons and the statement of claim being incompetent the proceedings and the judgment based on them are a nullity and the application setting the judgment aside should have been granted by the Court below.
The appellant concluded by urging that the appeal should be allowed and the judgment earlier given be set aside and the suit struck out for lack of jurisdiction.
The respondent?s brief was filed on 30.01.18. It was argued in the brief that the burden of proof is on the party who would fail if no evidence is given on either side vide S.P.D.C.N. Ltd. v. Amaro (2000) 10 NWLR (pt. 675) 248, Nwogo v. Njoku (1990) 3 NWLR (pt. 140) 570, Bala v. Bankole (1986) 3 NWLR (pt. 27) read with Sections 132 and 133(2) of the Evidence Act, 2011; that by Section 94 of the Evidence Act a document written and signed is admissible to show that such document was written or signed by a person existing having the same name, address, business or occupation as the maker of the document.
?Consequently, it was urged that the documents attached to the counter affidavit relating to the originating process, which bear the name and the specimen signature of
4
the legal practitioner that prepared them are reliable for identifying the person that signed the originating processes, as a legal practitioner whose name is on the roll of legal practitioners vide Section 131 of the Evidence Act read with Section 2 of the Legal Practitioners Act, the cases of Osubor v. Oshiomole (2009) ALL FWLR (pt. 463) 1389, Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252), R. T. A. C. L. A. v. Akindele (1967) NMLR 263, Buhari v. Adebayo (?) 10 NWLR (pt. 1416) 560, Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) 219 at 246 ? 247, Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63 at 73, New Nigerian Ban Plc v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549.
The respondent further argued that the statement of claim and accompanying processes in question were signed on behalf of Ejide Sodipo and not Ejide Sodipo & Co who is a legal practitioner recognised under the provisions of the Legal Practitioners Act; and that a Mr. Lawrence Balogun who is also a legal practitioner recognised under the Legal Practitioners Act signed the statement of claim and originating process for Mr. Ejide Sodipo
5
and attached his certificate of call and job application letter dated 14.04.05 to the processes filed bearing his signature as a legal practitioner vide pages 289 ? 292 of the record of appeal (the record).
The respondent also argued that the underlying requirement is for the name of the legal practitioner appearing in the signature column of the process to be on the roll of legal practitioners vide Okafor v. Nweke (supra), SLB Consortium v. NNPC (supra), Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63, Buhari v. Adebayo (supra), therefore the processes were valid as they bear the name of Ejide Sodipo as the legal practitioner that authored them.
The respondent pointed out that the appellant had appealed against the judgment of the Court below which it had sought to set aside at the Court below but did not pursue the appeal which was dismissed for want of diligent prosecution; and that the appellant had continued to file ?frivolous application to deprive, frustrate the respondent of the fruit of the judgment delivered? over 9 years ago thus amounting to an abuse of the process of the Court; therefore the appeal should be dismissed
6
with costs.
The appellant?s reply brief was filed on 11.05.18, but deemed as properly filed on 04.02.19. It was argued in the reply brief that the respondent had admitted in the counter affidavit dated 20.05.2013 wherein a certificate of call to the bar and a job application letter ?allegedly? written and signed by a Mr. Lawrence Balogun showing by documentary evidence that the person who signed the writ of summons and the statement of claim dated 03.03.2006 is not Ejide Sodipo who prepared the processes as his name appeared on the processes as the preparer thereof, therefore the appellant submitted that any signature which is not of the person whose name is stated as the legal practitioner on the face of the writ of summons and statement of claim renders the said Court processes null and void vide SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 331.
The appellant argued in the reply brief that the legal practitioner, Ejide Sodipo Esqr, whose signature was not inscribed on top of his name as required by law; that it was a signature of another person, the identity of whom is unascertainable on the face of the writ of summons and
7
statement of claim that is on the processes rendering them null and void; and that the documentary Exhibit bearing the call to the bar of a Mr. Lawrence Balogun, no matter how weighty, cannot cure the ?grievous defect? of a process which is improperly signed vide Okafor v. Nweke (supra), SLB Consortium Ltd. v. NNPC (supra).
Consequently, the appellant advocated in the reply brief that as the signature on the writ of summons and statement of claim belonged to a legal practitioner whose name is not stated in the processes made the said Court processes incurably defective, therefore the appeal should be allowed.
The judgment the appellant had unsuccessful sought to set aside was a judgment given on the merits. An appeal against the refusal to set aside the judgment was dismissed for want of diligent prosecution. The Court below had held that it was functus officio and could not therefore set aside the judgment given on the merits on the ground of the defectiveness of the originating processes. The Supreme Court held in the case of Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506 at 526 thus ?
?If a judgment or order of a Court
8
is a nullity, it can be set aside without much ado. Dealing with this question in Craig v. Kanseen (1943) K.B. 256, Lord Greene stated at page 262 –
“Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex-debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order and that it is not necessary to appeal from it.”
This principle of law has been cited with approval in many decisions of this Court particularly, Obimonure v. Erinosho (1966) 1 All NLR 250 at 252; Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC 6 at 26; Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250. at 273 and Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 547-548. In other words such judgments or orders are rendered null and void by fundamental defect and can be set aside. On these authorities therefore, the Court of Appeal, indeed like any other superior Court, has inherent jurisdiction to set aside its own judgment or order which is a nullity.?
9
So, in appropriate cases, a Court can set aside its own judgment given without jurisdiction.
The unchallenged affidavit evidence of the respondent has the certificate of call to the bar of a Mr. Lawrence Balogun dated 28.09.99 and the LL.B. (Hons.) Certificate attached to it vide pages 289 and 290, respectively, of the record. He owned up the signature in the processes showing his identity as a legal practitioner on the roll of legal practitioners is not in doubt. He also signed for a Mr. Ejide Sodipo, a legal practitioner of the law firm of Ejide Sodipo and Co., whose name can also be traced on the roll of legal practitioners, showing in terms of substantial justice that the writ of summons and statement of claim were signed by a legal practitioner or natural person on behalf of another legal practitioner or natural person of the law firm of Ejide Sodipo and Co.
I think the underlying consideration is that any process filed in Court should be signed by a legal practitioner whose identity can be traced on the roll of legal practitioners entitled to practice law in Nigeria vide the Supreme Court case of
10
Williams and Anor. v. Adold/Stamm International (Nig.) Ltd. (2017) 6 NWLR (pt. 1560) 1 at 19 ? 20 where his lordship of the Supreme Court, Kekere-Ekun, J.S.C., held inter alia that ?
?On page 14 of the applicant’s written address, at the bottom of the page, the handwritten name, Ladi Williams, appears above two names, Chief Ladi Rotimi Williams, SAN and Chris I. Eneje. The grouse of the respondents appears to be that there is no mark beside either of the two names to identify which of them signed the process. In the instant case, the name Ladi Williams though handwritten, is very clear and legible. The respondents are not contending that Chief Ladi Rotimi Williams, SAN is not the same person as Ladi Williams who signed the process or that the person who signed the process is not a legal practitioner whose name is on the roll of legal practitioners entitled to practice law in Nigeria. I am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name Chief Ladi Rotimi Williams, SAN has not misled the respondents nor this Court as to who signed the
11
process and such omission cannot invalidate it?.
(My emphasis).
I believe, with respects, that Sections 2(1) and 24 of the Legal Practitioners Act is not intended to be applied mechanically. Its purpose is to ensure that imposters or fraudsters should not infiltrate the legal profession and file Court processes masquerading as legal practitioners. Once the identity of the person that signed the process is traced to be on the roll of legal practitioners entitled to practice law in Nigeria as in this case where a legal practitioner signed for another legal practitioner (all natural persons) the latter of whose name was written on the processes, then the process is valid. Be it appreciated that the statement of claim itself was not challenged at the Court below on the ground that it was not signed by a legal practitioner. Therefore, following the Supreme Court case of Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (pt. 1625) 420 per the lead judgment prepared by his lordship, Eko, J.S.C., the appellant is deemed to have waived the right to complain of the procedural defect of the statement of claim (if any) as it would
12
have been a mere irregularity on procedural jurisdiction which can be waived in respect of a Court process like a statement of claim. Had the appellant?s appeal succeeded, the fact that it was an issue of jurisdiction would have led to the striking out of the case at the Court below with the option for the respondent (if it so desired) to file a fresh action as time does not run for the purpose of limitation period when a civil action is pending in Court vide Sifax (Nig.) Ltd. v. Migfo (Nig.) Ltd. (2018) 9 NWLR (pt. 1623) 138, Addax v. Pet. Dev. (2012) ALL FWLR (pt. 621) 1585; and also, for the fact that the striking out of the action at the Court below would not have deprived the real legal practitioner the opportunity to come back to Court to lift his veil and file a proper process as the legal practitioner whose name is on the roll of the Supreme Court vide F.B.N. Plc. v. Maiwada (2013) 5 NWLR (pt.1348) 444 at 489 per the lead judgment prepared by Fabiyi, J.S.C., (as he was) on behalf of the Full Court.
In conclusion, I find no merit in the appeal and hereby dismiss it and affirm the Ruling of the Court below (Idris, J., as he then was).
13
Parties to bear their costs.
TIJJANI ABUBAKAR, J.C.A.: I agree with the leading Judgment prepared and rendered in this appeal by my learned brother Joseph Shagbaor Ikyegh JCA. I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read the judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I also find the appeal unmeritorious and it is hereby dismissed and the decision of the lower Court is affirmed.
14
Appearances:
Mr. C. O. Erhieyovwe with him, Mr. O.O. IkuforijiFor Appellant(s)
M. A. Y. AjanaFor Respondent(s)
Appearances
Mr. C. O. Erhieyovwe with him, Mr. O.O. IkuforijiFor Appellant
AND
M. A. Y. AjanaFor Respondent
