ABODUNRIN & ORS v. AKINWALE & ANOR
(2022)LCN/15955(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/110/2012
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
1. ISIAKA ABODUNRIN (FOR HIMSELF AND ON BEHALF OF THE ABODUNRIN FAMILY) 2. LIADI ASANA ALAO (FOR HIMSELF AND ON BEHALF OF ALAO FAMILY) 3. SAKA AKINLEYE (FOR HIMSELF AND ON BEHALF OF THE AKINGBEHIN FAMILY) 4. ABASS GBADAMOSI AKINTOLA (FOR HIMSELF AND ON BEHALF OF THE AKINTOLA FAMILY) 5. DOKUN KEHINDE (FOR HIMSELF AND ON BEHALF OF THE OLAOJO FAMILY) 6. RASHIDI GBADAMOSI (FOR HIMSELF AND ON BEHALF OF THE ARIKEUYO FAMILY) 7. OLUMIDE ODEKUNLE (FOR HIMSELF AND ON BEHALF OF THE ADEKUNLE FAMILY) 8. OLUSEYE OYELAKIN (FOR HIMSELF AND ON BEHALF OF THE OYELAKIN FAMILY) 9. SAIDIA DAIRO ADEOYE (FOR HIMSELF AND ON BEHALF OF THE OGUNDIRAN FAMILY) APPELANT(S)
And
1. ALHAJI LATIFU AKINWALE 2. RASAKI MOMODU (FOR THEMSELVES AND ON BEHALF OF THE SANNI FAMILY) RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The issue of jurisdiction is fundamental and can be taken at any stage of the proceedings and even orally, see OLUTOLA V. UNILORIN (2004) LPELR-2632(SC) wherein the apex Court held thusly:
“…the issue of jurisdiction is a threshold issue, which may be considered at any stage, in the course of proceedings. This question has been determined in a long line of cases, that at any stage of the proceedings, be it at the pre-stage trial of the case during the trial, or during the hearing of the appeal by the Court of Appeal and even in the Supreme Court. On this point, I think it is desirable to quote the dictum of Obaseki, JSC, as propounded in Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508, (1988) 7 SC (Pt.1) at pp. 11-12, which reads: ”The issue of jurisdiction is very fundamental, as it goes to the competence of the Court or Tribunal. If a Court or Tribunal, is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase v. Agho (1972) 1 All NLR (Pt.1) 170.” Per EJIWUNMI, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT COURT PROCESSES CAN ONLY BE SIGNED BY A LEGAL PRACTITIONER
The most prominent is the signing of processes filed by Counsel. It is trite and now settled that Court processes can only be signed by a legal practitioner and that whenever a process was signed by a law firm, it renders the process incompetent and bound to be struck out. If the process is an originating process, then it deprives the Court of jurisdiction to entertain the matter. See Section 2(1) and 24 Legal Practitioners Act, the case of SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (Pt. 1252) 317, OKAFOR V NWEKE (2007) 10 NWLR (PT. 1042) 521 and HAMZAT V SANNI & ORS (2015) LPELR-24302 (SC). Looking at the records of Appeal, the processes therein are replete with the vice of their being signed by a law firm and obviously incompetent, some liable to be struck out if they are not initiating processes.
For a start, the suit of the Respondents was struck out for want of diligent prosecution upon the application of the Appellants Counsel, see page 8 of the Records of Appeal. The application was granted. However, the motion filed was signed by a legal firm of CHIEF M. L. LAGUNJU & CO. and going by Section 2 and 24 of the Legal Practitioners Act, only legal Practitioners are allowed to sign processes to be filed in Court, see the case of SLB CONSORTIUM LTD. V. NNPC (SUPRA) and OWOEYE & ORS V. ISIYEMI & ORS (2019) LPELR-48067(CA) wherein the Court held thusly:
“The starting point is Section 2(1) of the Legal Practitioners Act which provides thus: “2 (1) subject to the provisions of this Act a person shall be entitled to practice as a barrister and Solicitor if, and only if, his name is on the roll”. Section 24 of the Legal Practitioners Act further provides that: “24 in this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively that is to say- Legal practitioner means a 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 office or proceedings”. A Court process, whether writ of summons or notice of appeal or statement of claim or statement of defence must be signed by a named and identifiable legal practitioner. Any Court process not signed by a named and identifiable legal practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per Rhodes-Viviour J.S.C, has spelt out how it is to be signed thusly: “Once it cannot be said who signed a process it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e Act) All the processes filed in Court are to be signed as follows: First the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad.” Per TALBA, J.C.A. PER NIMPAR, J.C.A.
WHETHER OR NOT A FUNDAMENTALLY DEFECTIVE DOCUMENT CAN BE AMEND
It also follows that all subsequently amended processes, such as the Amended statement of defence and counter-claim are also irregular because the original statement of defence is incompetent and therefore cannot be amended, see NWAIGWE & ORS V. OKERE & ANOR (2008) LPELR-2095(SC) wherein the apex Court held thusly:
”It is settled law that you cannot amend a fundamentally defective document such as to infuse life into it. In other words, a fundamentally defective process cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead. See Awhinawhi v. Oteri (1984)5 S.C 38; Atuyeye v. Ashamu (1987) 1 S.C 333 at 358.” Per ONNOGHEN, J.S.C.
See also the case of OKWUOSA V. GOMWALK & ORS (2017) LPELR-41736(SC) wherein the apex Court held thusly:
“The law is also trite that an incurably defective process cannot be amended nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. See: Nwaigwe v. Okere (2008) 5 SCNJ 256 at 274.” Per KEKERE-EKUN, J.S.C.
The Statement of Defence and counter-claim is struck out along the reply and defence to counter-claim because it has no legs to stand on. Consequently, the proceedings conducted on the void processes are null and void and liable to be set aside. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON THE MANNER IN WHICH LEGAL PRACTITIONERS SHOULD SIGN PROCESSES TO BE FILED IN COURT
The manner Legal Practitioners should sign processes to be filed in Court was clearly stated in the case of SLB CONSORTIUM V NNPC (SUPRA) and adopted in a long line of cases, it should be in the following manner:
“First, the signature of counsel, which may be any contraption; secondly, the name of counsel clearly written; thirdly, who counsel represents; and fourthly, name and address of legal firm.”
Obviously, the counter-claim at page 10, the statement of Defence and counter-claim at page 27 and 28 were not signed as required by law. There is no name of Counsel.
All judicial decisions on the signing of the processes of Court by a legal practitioner agrees that the process must be signed in such a manner as to disclose clearly on the face of the process the name of the maker of the signature on it, as this would enable the verification of such disclosed name in the roll of legal practitioners in Nigeria. This is so especially where the process is signed on behalf of a firm of lawyers or a group of lawyers. See OKAFOR V NWEKE (2007) 3SC (PT 11) 55 and OGUNDELE & ANOR V AGIRI & ANOR (2009) 18 NWLR PT (1173) P.219 (SC).
The consequence of that cannot be lost on any legal Practitioner in these days, because once it cannot be said who signed a process, it is incurably bad. The non-disclosure of the identity of who made the said signature robs the Court of the opportunity of identifying whether the said person is a legal practitioner or not. As the Supreme Court further held in SLB CONSORTIUM V NNPC (SUPRA) that this is not a mere irregularity but a fundamental error which renders the process incompetent. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE M.O. BOLAJI YUSUF on the 17th day of November, 2011 wherein the lower Court entered judgment in favour of the Claimant/Respondent and dismissed the counter-claim of the Appellants in its entirety. The Appellants dissatisfied with the decision, filed a Notice of Appeal dated 23rd November, 2011 and then a Further and Better Amended Notice of Appeal dated the 1st day of July, 2021 setting out 5 Grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The Respondents being the Claimants at the lower Court wherein they claimed against the Defendant/Appellants the sum of N100,000.00 (One Hundred Thousand Naira) jointly and severally being general damages suffered when the Appellants trespassed on the Respondents’ piece or parcel of land situate lying and being at Sanni Village, Olonde Area, Off Onigambari/Ijebu-Ode Road, Ibadan and an order of perpetual injunction restraining the Appellants by themselves, their servants and/or agents, and/or privies from any further acts of trespass on the Respondents’ said piece or parcel of land. The Appellants counter-claimed by claiming possession of the land verge red and perpetual injunction to restrain the Respondents from further entering the land verged red in survey plan no.: LAY/D.0004/2001 dated 26th November, 2001.
It was the Respondents’ case at the trial Court that Sanni and his brother Akinwale settled on the land in dispute which was granted to Sanni in 1905 by one Adegbaro and that they occupied that land in dispute till 1934 when they alleged that one Dalley took over Sanni’s land and allotted same to some of the Appellants’ ancestor, however, the Appellants’ case that Dalley was just a boundary man who has no interest in the land and did not take any land from Sanni. That there were series of litigations over the land in dispute between the Appellants’ ancestors and one Sanni (who is not an ancestor to the Respondents) all of which were decided in the Appellants ancestor’s favour in suits Nos.: 20/39, 22/39, 31/39, 11/42, 65/50 and 99/50. During trial, the Appellants called 8 witnesses and tendered Exhibits H1-H5 while the Respondents called 5 witnesses and tendered Exhibits A, B, C and D. After due consideration, the trial Court entered judgment in favour the Respondents and dismissed the counter-claim of the Appellants in its entirety. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the appeal. The Appellants’ Further and Better Amended brief settled by KUNLE SOBALOJU, ESQ is dated 22nd day of September, 2021, filed on the same day but deemed on the 27th September, 2021. The Appellant distilled 2 issues for determination as follows:
1. Whether the learned trial Judge did not err in law by granting the Respondents’ claims as against all the defendants and dismissing the counter-claim. (Distilled from ground 1, 2 and 5)
2. Whether in view of the facts and circumstances of this case, the lower Court had jurisdiction to hear and determine this case when the motion to relist and the defence to counter-claim were void ab initio. (Distilled from grounds 3 and 4).
The Respondent’s Brief settled by IFE OLAMIJU, ESQ., dated 5th day of November, 2021 filed on the 8th November, 2021 but deemed 10th November, 2021. The Respondents formulated 3 issues as follows:
1. Whether the judgment of the lower Court is reasonable in the circumstance; and
2. Whether the Respondent’s suit at the lower Court was vitiated by the error contained in the application for relisting granted by Hon. Justice on 24th day of January, 2002, and
3. Whether the Appellants’ counter ought to succeed?
Thereafter the Appellant filed a reply brief dated 15th day of November, 2021.
PRELIMINARY OBJECTION
The Respondent filed a notice of preliminary objection dated 5th day of November, 2021
GROUNDS:
1. That the Further and Better Amended Notice of Appeal contained extraneous matters to wit: Reliefs sought from the Court of Appeal as contained in paragraph 4 thereof without the leave of this Honourable Court sought and obtained.
2. That the defects contained in the said Further and Better Amended Notice of Appeal fatally affect the validity of the Appellants further and better Amended Brief of Argument.
3. That the Further and Better Amended Notice of Appeal is anchored on the judgment of the Oyo State High Court Justice contained in the judgment of Hon. Justice M.O. Bolaji-Yussuf dated the 17th day of November, 2011 whereas grounds 3 and 4 thereof are in respect of a decision/ruling of the same High Court but which ruling was delivered on 25th January, 2002 by Honourable Justice K.A. Jimoh;
4. That issue two (2) of the issues for determination contained at paragraphs 5.00-5.79 (pages 12-27) of the Appellants’ further and better amended brief of argument is couched from grounds 3 and 4 of the Appellants’ further and better amended notice of appeal which have no bearing to the judgment appealed against.
5. That the statement of defense and counter-claim filed by the Appellants with which evidence was led at the lower Court is incompetent in that the said processes were signed in the name of a law firm i.e. Chief M.L Lagunju & Co.
ARGUMENT IN SUPPORT OF PRELIMINARY OBJECTION
According to the Respondents, the Appellants filed a Notice of Appeal dated 17th November, 2011 against the judgment of HON. JUSTICE BOLAJI YUSUFF (now JCA) , thereafter filed an application dated 5th March, 2020 seeking to add additional grounds of appeal and amend the said Notice of Appeal which was granted on 10th March, 2020 in terms of the motion papers, instead of the Appellant to comply with order of the Court on the prayers sought as contained in the motion papers, the Appellants rather filed further and better Amended Notice of Appeal dated 1st day July, 2021 and filed on 5th March, 2021 and on their own caused an amendment to paragraph 4 of the said Notice of Appeal which were not contained in the earlier process and without any leave sought from the Court. The Respondents submits that the provision of Order 7 Rule 2(1), 8 and 6 of the Court of Appeal Rules, 2016 and Form 3 of the schedule to the Rule empowers the Court to strike-out any Notice of Appeal which is vitiated by non-compliance with the rules of the Court. The Respondents relied on AFRICAN SONGS LIMITED & ANOR V. KING SUNDAY ADENIYI ADEGEYE (2019) 2 NWLR (PT. 1656) 335. Continuing, the Respondents submitted that the said paragraph 4 introduced additional relief from the one earlier without leave being sought and granted by the Court have dealt a blow on the validity of the process thus rendering it incompetent.
It was the submission of the Respondents that Grounds 3 and 4 of the Appellants’ Further and Better Amended Notice of Appeal which was argued at issue 2 of the Appellants’ brief, the Appellants’ tagged the Grounds as raising fresh issue of law whereas what gave birth to the said issue emanated from the ruling of HON. JUSTICE K.A JIMOH delivered on 24th day of January, 2002 even the Appellants confirmed that they filed a counter affidavit to the application to relist as filed by the Respondents but with their opposition, the suit relisted, then how did this ground now qualify as a new issue of law when in fact the trial Court pronounced on it? The Respondents cited ATTORNEY GENERAL OF KWARA STATE & ANOR V. ALHAJI (HON.) ISHOLA LAWAL (2018) 3 NWLR (PT. 1606) 266. Continuing, the Respondents relied on STATOIL NIGERIA LTD V. INDUCON NIGERIA LTD & ANOR (2018) 9 NWLR (PT. 1625) 586 to submit that an issue is a fresh issue at the appeal Court if it was not an issue, either as a point of law or fact that was raised, tried, considered and pronounced upon by the lower Court, therefore the Respondent urged the Court to strike out Grounds 3 and 4 and issue two because the law is trite that when an Appellant lumps up both competent and incompetent grounds of appeal in the same issue for determination, that issue for determination would be rendered incompetent and struck out as held in KERIAN IKPARA OBASI V. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) 16 NWLR (PT. 1539) 335, DR. STEPHEN ADI ODEY V. CHIEF JOHN AGOM ALAGA (2021) 13 NWLR (PT. 1792) 1, AFRICAN SONGS LIMITED & ANOR V. KING SUNDAY ADEGEYE (SUPRA), OGUNLEYE SANMI V. STATE (2019) 13 NWLR (PT. 1690) 551, LABOUR PARTY V. YAHAYA BELLO & 2 ORS (2017) 2 NWLR (PT. 1548) 145 and PAUL AUDU & ANOR V. HYELLA MARJA GIDEON & ANOR (2015) 12 NWLR (PT. 1474) 495.
The Respondents argued that upon serving the Appellants the originating processes, the Appellants filed a Statement of Defence and counter-claim and at the signature column on the said process, it was signed by CHIEF M.L. LAGUNJA & CO., which is against the clear provision of Sections 2(1) and 24 of the Legal Practitioner’s Act which stipulates that a law firm lacks the capacity to practice law and file processes in Courts as BELLO & ANOR V. AWOLIYI (2018) LPELR-46535(CA) and AKAPO & ORS V. AGBOJO & ORS (2019) LPELR-49143(CA), therefore, the statement of defence and counter-claim filed by the Appellants at the trial Court is invalid because it is trite that an incompetent process such as the original statement of defence cannot be amended as held in OYEDE & ORS V. ALAKIJA & ANOR (2020) LPELR-49614(CA). The Respondents urge the Court to grant the reliefs sought on the preliminary objection.
APPELLANTS’ RESPONSE TO RESPONDENTS’ PRELIMINARY OBJECTION
The Appellants submit that paragraph 4 of the said Further and Better Amended Notice of Appeal was amended with the leave of Court, it is clear from the materials before the Court that the Appellants filed an application on the 5th of March, 2020 which proposed further amended notice of appeal and attached the proposed further amended notice of appeal which the Court granted on the 10th March, 2020. Further to that, the Appellants submitted that they filed another application on 20th November, 2020 which they attached it to the proposed Further and Better Amended Notice of Appeal and the Court granted the application on 23rd June, 2021 which the Respondents kept mute all through the proceedings and did not object then turn around to raise an objection and the law is trite that, such acts are frowned at by all Courts. The Appellants referred the Court to the case of AKINBADE & ORS V. BABATUNDE & ORS (2018) 7 NWLR (PT. 1618) 366 and OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-25820.
The Appellants contended that the additional relief is a consequential relief which the Court itself can make if the appeal succeeds because it is trite law that a consequential relief even if not sought, the Court can suo motu grant same as a consequential order which would be granted in order to give meaning to the decision of a Court as held in EMMANUEL OSAHENI EGHAREVBA V. MRS. COMFORT ORUONGHAE (2001) LPELR-10341(CA) and urge the Court to discountenance the Respondents’ objection. Continuing, the Appellants submit that the Respondents have also failed to show how the amendment of paragraph 4 of the notice of appeal has overreached them because Courts have moved from the era of technical justice to substantial justice such that a failure to comply with the rules of Court will not in most cases defeat a suit as held in OLORUNTOBA-OJU V. ABDULRAHEEM (2009) 5-6 S.C (PART II) 1 and SAMUEL AYO OMOJU V. THE FEDERAL REPUBLIC OF NIGERIA (2008) LPELR-2647(SC).
It is the submission of the Appellants that the Respondents urge the Court to strike out grounds 3 and 4 as contained in the Appellants’ Further and Better Amended Notice of Appeal and all arguments on the grounds that it is incompetent, however, it is now a settled principle of law that it is inappropriate for a party to challenge the competence of a ground of appeal or grounds of appeal by a notice of preliminary objection incorporated in the brief, and the Respondents ought to file a motion on notice not a notice of preliminary objection challenging the competence of a ground of appeal or some grounds of appeal. The Appellants cited NJC V. ALADEJANA reported in (2015) ALL FWLR (PT. 772) 1792 and urge the Court to hold that the notice of preliminary objection filed and incorporated in the Respondents’ brief is incompetent and to strike it out.
Again, the Appellants submitted that the Respondents urge the Court to remit the case back to the trial Court to be heard by another Judge, however, without leave of Court, it would not render the entire notice of appeal incompetent because the law is settled that a notice of appeal is not incompetent on ground of wrong wording as held in NWAETUK V. NWAETUK (2016) ALL FWLR (PT. 834) 68, EZIKE & ORS V. INEC & ANOR (2016) LPELR-40946 (CA), NWORA & ORS V. NWABUEZE & ORS (2011) LPELR-23008(SC) and BOLUWAJI FALANA & ORS V. SAMUEL OMODOLE OLORO & 2 ORS (2013) 10 WRN 85.
Continuing, the Appellants narrated what occurred on 10/3/2020 when this matter came up, the Respondent raised this issue before the Court, and the Court held that the ground raised the issue of jurisdiction which can be raised at any time even on appeal. According to the Appellants, by ground 3 the Appellants are saying that the motion to relist the suit dated and filed on 22nd October, 2001 was incompetent having been signed by Agbo. Olaleye & Co. and that the suit could not have been revived and as decided by this Court and that a process not signed by a legal practitioner is incompetent and would rob the Court of jurisdiction such that any proceeding consequent on an incompetent process is void because at the time of relisting, the case lacked the jurisdiction to relist, hence if the Court agrees with the Appellants, the relisting and all proceedings after the relisting including the judgment of the trial Court will become a nullity.
Still on the above point, the Appellants submit that assuming without conceding that the Appellants are challenging the decision of the trial Court, the law is now settled that an appeal against an interlocutory decision may be filed when appealing, against a final judgment provided leave of the Court is obtained to raise such ground of appeal. The Appellants relied on SPDC NIG LTD V. KATAD NIG LTD (2005) ALL FWLR (PT. 263) 689 and ONWE V. NWAOGBUINYA (2001) LPELR-2709(SC) to submit that grounds 3 and 4 are competent because they are issues that challenged the jurisdiction of the Court which can be raised at any time. The Appellants cited UTB LTD V. DOLMETSCH PHARM (NIG) LTD (2007) ALL FWLR (PT. 385) 446, NIG ENG WORKS LTD V. DENAP LTD (2002) FWLR (PT. 89) 1062, MONO V. LAWAL (2008) ALL FWLR (PT. 4400) 717 and OKE V. OKE (2006) 17 NWLR (PT. 1008) 224.
Relying on DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355 and OJOH V. KAMALU (2005) 18 NWLR (PT. 958) 523, the Appellants submit that assuming without conceding that the defence and counter-claim are incompetent, it is not an automatic ground for the judgment to be delivered in favour of the Respondents as the Respondents have to prove their case and the judgment of the trial Court can be questioned if the Appellants are of the view that the claimants did not establish their case and that the evidence of the witnesses called by the claimants have been discredited under cross-examination. The Appellants further submitted that the competence of the Appellants’ defence at the trial Court cannot be a bar to the exercise of his right of appeal as enshrined in the constitution, hence, the submission that because the defence and counter-claim of the Appellants are incompetent, then the Appellants cannot appeal against the decision of the trial Court is misconceived which are liable to be discountenanced as the Respondents have not filed a Respondents’ notice to urge the Court to affirm the judgment of this Court on other grounds as held in SHARING CROSS EDUCATIONAL SERVICE LTD V. UMARU ADAMU ENTERPRISES LTD & ORS (2015) LPELR-24661(CA).
It is the contention of the Appellants that the law is settled that a party seeking that the judgment of the trial Court be affirmed on other grounds must file a Respondent’s notice and failure of which the Court will discountenance any argument canvassed in that direction as held in SHARING CROSS EDUCATIONAL SERVICE LTD V. UMARU ADAMU ENTERPRISES LTD & ORS (2015) LPELR-24661(CA) and OBI V. INEC & ORS (2007) LPELR-24347(SC), hence, the issue of signing of the Appellants’ statement of defence and counter-claim are clearly outside the issues raised by the Appellants in this appeal. Continuing, the Appellants submits that the law is settled that appeals are generally determined on the issues presented to the Court for adjudication by the Appellant and a Respondent is not permitted to raise or canvass issues outside those raised by the Appellant where he has neither cross-appealed or filed a cross Respondent’s notice as held in SYLVANUS EMESONYE V. THE STATE (2016) LPELR-40549 CA and OSAZUWA & ORS V. ISIBOR & ANOR (2004) 3 NWLR (PT. 859) 16.
The Appellants argued that the originating processes were signed by Baale Agbo. Olaleye and the Respondents’ defence to counter-claim was signed by Agbo Olaleye & Co which can be attested to that Baale Agbo Olaleye and Agbo Olaleye & Co are not competent names of legal practitioner on the roll of call and the law is settled that an originating process must be signed by a legal practitioner and anything to the contrary renders it incompetent and such incompetence cannot be cured by an amendment and thus robs the Court of jurisdiction. The Appellants relied on OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521 and AGBEBIYI & ORS V. BALOGUN & ORS (2016) LPELR-40226.
APPELLANTS ISSUE TWO
ISSUE TWO
The Appellants argued that the issue of jurisdiction can be raised at any time and at any stage of the proceedings as held in EZOMO V. OYAHIRE (1985) 2 SC, MANAGEMENT ENTERPRISES LTD V. OTUSANYA (1986) 1 NWLR (PT. 55) 179 and SAUDE V. ABDULLAHI (1989) 4 NWLR (PT. 116) 397. The Appellants submitted that the Respondents’ case before the trial Court was struck out on the 15th October, 2001 and the Respondents filed an application to relist which was signed by Agbo Olaleye & Co. even though it was amended subsequently by Abiodun Abdul Raheem, Esq., however, the Respondents’ cannot do that because it is void ab initio and there was no application to amend the signature column that is even if such could be amended. The Appellants relied on EQUITY BANK OF NIGERIA LIMITED V. HALILCO LIMITED (2006) ALL FWLR (PT. 337) 438 and PETROJESSICA ENTERPRISES LTD V. LEVENTIS TECHNICAL (1992) 6 SCNJ (PT. 1) 54 to submit that the issue of jurisdiction is foundational and cannot be waived makes it available for being raised in the adjudicatory process and even on appeal.
Continuing, the Appellants submits that the writ of summons, the statement of claim and defence to counter-claim which the Respondents already admitted are defective and cannot ignite the jurisdiction of the Court below and same cannot be amended to give life to a process that was dead ab initio as held in MACFOY V. U.A.C (1962) A.C., FAYEMI V. LOCAL GOVERNMENT SERVICE COMMISSION, OYO STATE (2005) ALL FWLR (PT. 254), MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE & ORS V. ALHAJI YAKUBU (2013) VOL. 1, MJSC (PT. II) 65, FRIN V. GOLD (2007) ALL FWLR (PT. 380), N.A.C.B BANK LTD V. OZOEMELAM (2016) NWLR (PT. 1517) 376 and MRS. WURAOLA BABALOLA & 1 OR V. ALH. KAMAL NANGERI- APPEAL NO.: CA/I/136/2012 delivered on 13th JULY, 2018.
It is the argument of the Appellants that it is settled without any reproach that Court processes signed in corporate name or the name of a firm are void and incapable of being adopted to properly invoke the jurisdiction of the Court as provided by Section 24 and 2(1) of the Legal Practitioner’s Act LFN 2004, therefore, Agbo Olaleye & Co that signed a motion to relist and a defence to counter-claim of the Respondents is not a person entitled to practice as a barrister and solicitor in Nigeria neither is it a person called to the Nigeria Bar to practice law in Nigeria nor the name written on the roll. The Appellants referred the Court to OKETADE V. ADEWUMI (2010) MJSC VOL. 3 (PT. 11) 31, OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 533, MINISTRY OF WORKS AND TRANSPORT ADAMAWA STATE V. YAKUBU (2013) ALL FWLR (PT. 694) 23, FIRST BANK OF NIGERIA PLC V. MAIWADA (2013) ALL FWLR (PT. 1487), Appeal No.: CA/I/222/ 2006, ALHAJI (CHIEF) SALAWU AJADI V. ASANI ALIYU ALASO & 1 ORS and NWABUNEZE (2012) ALL FWLR (PT. 613) (PT. 1841), hence, there was no legal basis upon which the Respondents’ case was based at the lower Court.
The Appellants contends that the Court has the power to review a judgment or order of a Court which is a nullity and a person who is affected by an order which can be properly described as a nullity is entitled, es-debito justitae to have it set aside as held in EKE V. OGBONDA (2006) 18 NWLR (PT. 1012) 506 SC and TOMTEC (NIG) V. FHA (2009) 8 NWLR (PT. 1173) 385, therefore, that the order made pursuant to the defective application for relisting was void ab initio and all the proceeding conducted subsequent to it was equally a nullity and should be set aside.
Relying on BAKARE V. SHINABA (2013) ALL FWLR (PT. 690) 1421, U.A.C (NIG) PLC V. AKINYELE (2013) ALL FWLR (PT. 702) 1857, OKEKE V. EZE (2013) ALL FWLR (PT. 711) 1554, JERIC (NIG) LTD V. UBN (2000) 15 NWLR (PT. 691), ADEWUYI V. ODUKWE (2005) 14 NWLR (PT. 945) and Sections 133 and 134 of the Evidence Act, 2011, the Appellants defined counter-claim and submit further that since the Respondents’ case is void ab initio by virtue of the Motion on notice dated 22nd October, 2001 and the defence to counter-claim dated 25th May, 2005, the order and judgment made pursuant to it, is null and void and should be set aside and the Court should also grant the reliefs sought in the Appellants’ counter-claim having led evidence to substantiate their counter-claim. According to the Appellants, there is therefore no valid defence against the counter-claim hence it is bound to succeed and the judgment of the trial Court was given without evidence supporting it, therefore it goes to no issue as held in LONG-JOHN V. BLAKK (1998) 6 NWLR (PT. 555) 524, F.G.N V. AIC LTD (2006) 4 NWLR (PT. 970) 337, OFOMAJA V. COMMISSIONER FOR EDUCATION (1995) 8 NWLR (PT. 411) 81, DAWODU V. MAJOLAGBE (2001) 4 NWLR (PT. 703) 234. The Appellants urge the Court to resolve this issue in favour of the Appellants and against the Respondents.
RESPONDENTS ISSUE TWO
The Respondents submits that the Appellants’ argument is that the effect of the motion to relist of the Respondents suit which was initially struck out was signed in the name of a law firm contrary to the provision of the extant laws, however, it is true that the suit was initially struck out and by an application it was relisted and the second application for relisting which the Appellants are complaining of, after relisting, Hon. Justice K.A Jimoh struck out that suit again and that suit was spent and the Appellants cannot complain. The Respondents place reliance on CHIEF UFIKARO MONDAY EFET V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 2 ORS (2011) 7 NWLR (PT. 1247) 423 and YOUNG SHALL GROW MOTORS LIMITED V. AMBROS O OKONKWO & ANOR (2010) 15 NWLR (PT. 1217) 539. Continuing, the Respondents submitted that subsequently another proper application for relisting was filed on the 1st day of February, 2010 and was granted without any objection by the Appellants on 11th day March, 2020 by Hon. Justice Bolaji-Yusuf which resulted to this appeal, therefore, the arguments relating to the initial order of relisting is of no moment. The Respondents urge the Court to resolve issue two against the Appellants.
APPELLANTS REPLY ON ISSUE OF JURISDICTION
What the Appellants are saying is that the motion to relist the suit dated and filed on 22nd October, 2001 was incompetent having been signed by Agbo Olaleye & Co and that the suit could not have been revived through an incompetent process and it is also trite that a process not signed by a legal practitioner will be incompetent and would rob the Court of jurisdiction to entertain the proceedings initiated with such incompetent process. Further on this issue, the Appellants submits that ground 4 has nothing to do with the motion to relist, ground 4 is in respect of Respondent’s Defence to counter-claim filed at the trial Court which was signed therefore, grounds 3 and 4 raise pure issue of jurisdiction which goes to the root of the suit as to whether the Court had jurisdiction to have proceeded to hear a case resuscitate by an incompetent process and to have granted the reliefs based on the appraisal of incompetent process like the defence to counter-claim.
According to the Appellants, the argument of the Respondent that order striking out the suit, the irregularity occasioned by the earlier motion to relist has been spent should be discountenanced because, they are badly damaged by the process with which it was relisted and cannot be cured by any subsequent steps that might be taken in the case. The Appellants relied on UAC LTD v. MCFOY (1962) AC 150 and NWORA V. NWABUEZE (2012) ALL FWLR (PT. 613) 1841. The Appellants submit that the case of YOUNG SHALL GROW MOTORS V. OKONKWO and MARKUS GUNDIRI V. NYAKO cited by Respondents does not support the case of the Respondents. Continuing, the Appellants submits that in any suit where no defence is filed, any evidence adduced goes to no issue and the only evidence cognizable by the Court is that in support of the claim and since there is no competence defence to the counter-claim all evidence elicited by the Respondents in defence to the Appellants’ counter-claim goes to no issue, therefore, in essence all issues raised in the counter-claim having not been disputed are admitted as held in BELLO V. EWEKA PHARMACEUTICAL LTD (1991) 2 NWLR (PT. 171) 15 and INSURANCE BROKERS OF NIGERIA V. ATM OIL (NIG) LTD 1996 (PT. 466) 8 NWLR 316.
RESOLUTION OF THE PRELIMINARY OBJECTION & ISSUE TWO
The Respondents raised a preliminary objection as summarized above. The Appellant’s issue two also dwells on a challenge to jurisdiction founded on irregular signing of processes, being of the same tenor, the Court shall consider both jurisdictional issues at this stage to avoid repetition and to determine what will be competent to proceed for determination in the main appeal.
The issue of jurisdiction is fundamental and can be taken at any stage of the proceedings and even orally, see OLUTOLA V. UNILORIN (2004) LPELR-2632(SC) wherein the apex Court held thusly:
“…the issue of jurisdiction is a threshold issue, which may be considered at any stage, in the course of proceedings. This question has been determined in a long line of cases, that at any stage of the proceedings, be it at the pre-stage trial of the case during the trial, or during the hearing of the appeal by the Court of Appeal and even in the Supreme Court. On this point, I think it is desirable to quote the dictum of Obaseki, JSC, as propounded in Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508, (1988) 7 SC (Pt.1) at pp. 11-12, which reads: ”The issue of jurisdiction is very fundamental, as it goes to the competence of the Court or Tribunal. If a Court or Tribunal, is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore, an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase v. Agho (1972) 1 All NLR (Pt.1) 170.” Per EJIWUNMI, J.S.C.
The issue of jurisdiction is also prominent amongst the points raised in the Preliminary Objection and issue two of the Appellants’ Brief in the appeal. Jurisdiction being a threshold issue, the Court must determine it at the onset before taking any step in the main appeal.
The most prominent is the signing of processes filed by Counsel. It is trite and now settled that Court processes can only be signed by a legal practitioner and that whenever a process was signed by a law firm, it renders the process incompetent and bound to be struck out. If the process is an originating process, then it deprives the Court of jurisdiction to entertain the matter. See Section 2(1) and 24 Legal Practitioners Act, the case of SLB CONSORTIUM LTD V NNPC (2011) 9 NWLR (Pt. 1252) 317, OKAFOR V NWEKE (2007) 10 NWLR (PT. 1042) 521 and HAMZAT V SANNI & ORS (2015) LPELR-24302 (SC). Looking at the records of Appeal, the processes therein are replete with the vice of their being signed by a law firm and obviously incompetent, some liable to be struck out if they are not initiating processes.
For a start, the suit of the Respondents was struck out for want of diligent prosecution upon the application of the Appellants Counsel, see page 8 of the Records of Appeal. The application was granted. However, the motion filed was signed by a legal firm of CHIEF M. L. LAGUNJU & CO. and going by Section 2 and 24 of the Legal Practitioners Act, only legal Practitioners are allowed to sign processes to be filed in Court, see the case of SLB CONSORTIUM LTD. V. NNPC (SUPRA) and OWOEYE & ORS V. ISIYEMI & ORS (2019) LPELR-48067(CA) wherein the Court held thusly:
“The starting point is Section 2(1) of the Legal Practitioners Act which provides thus: “2 (1) subject to the provisions of this Act a person shall be entitled to practice as a barrister and Solicitor if, and only if, his name is on the roll”. Section 24 of the Legal Practitioners Act further provides that: “24 in this Act unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively that is to say- Legal practitioner means a 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 office or proceedings”. A Court process, whether writ of summons or notice of appeal or statement of claim or statement of defence must be signed by a named and identifiable legal practitioner. Any Court process not signed by a named and identifiable legal practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per Rhodes-Viviour J.S.C, has spelt out how it is to be signed thusly: “Once it cannot be said who signed a process it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e Act) All the processes filed in Court are to be signed as follows: First the signature of counsel, which may be any contraption. Secondly, the name of counsel clearly written. Thirdly name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel. The position is that there must be strict compliance with the law. In this case, there is signature of counsel but no name of counsel. A signature without name is incurably bad.” Per TALBA, J.C.A.
Therefore, the Appellants’ application to strike out the suit in the first place was incompetent and is hereby struck out therefore the order striking out the suit also goes with the incompetent process and in the eyes of the law, the Respondents’ suit was not struck out. The order at pages 17 of the record is unnecessary and without transmission. That also means that the claim was proper before the Court for determination.
The next irregular process as identified by the Respondents’ Counsel is the Statement of Defence and counter-claim which was also signed irregularly, that is by a law firm. The manner Legal Practitioners should sign processes to be filed in Court was clearly stated in the case of SLB CONSORTIUM V NNPC (SUPRA) and adopted in a long line of cases, it should be in the following manner:
“First, the signature of counsel, which may be any contraption; secondly, the name of counsel clearly written; thirdly, who counsel represents; and fourthly, name and address of legal firm.”
Obviously, the counter-claim at page 10, the statement of Defence and counter-claim at page 27 and 28 were not signed as required by law. There is no name of Counsel.
All judicial decisions on the signing of the processes of Court by a legal practitioner agrees that the process must be signed in such a manner as to disclose clearly on the face of the process the name of the maker of the signature on it, as this would enable the verification of such disclosed name in the roll of legal practitioners in Nigeria. This is so especially where the process is signed on behalf of a firm of lawyers or a group of lawyers. See OKAFOR V NWEKE (2007) 3SC (PT 11) 55 and OGUNDELE & ANOR V AGIRI & ANOR (2009) 18 NWLR PT (1173) P.219 (SC).
The consequence of that cannot be lost on any legal Practitioner in these days, because once it cannot be said who signed a process, it is incurably bad. The non-disclosure of the identity of who made the said signature robs the Court of the opportunity of identifying whether the said person is a legal practitioner or not. As the Supreme Court further held in SLB CONSORTIUM V NNPC (SUPRA) that this is not a mere irregularity but a fundamental error which renders the process incompetent. In the light of the foregoing, there was no defence and counter-claim before the trial Court.
Therefore, if there was no statement of defence and counter-claim, the reply to defence and counter-claim which the Appellants contend was unnecessary. The process it seeks to respond to has collapsed for being irregular.
It also follows that all subsequently amended processes, such as the Amended statement of defence and counter-claim are also irregular because the original statement of defence is incompetent and therefore cannot be amended, see NWAIGWE & ORS V. OKERE & ANOR (2008) LPELR-2095(SC) wherein the apex Court held thusly:
”It is settled law that you cannot amend a fundamentally defective document such as to infuse life into it. In other words, a fundamentally defective process cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one, which in the eyes of the law is non-existent or dead. See Awhinawhi v. Oteri (1984)5 S.C 38; Atuyeye v. Ashamu (1987) 1 S.C 333 at 358.” Per ONNOGHEN, J.S.C.
See also the case of OKWUOSA V. GOMWALK & ORS (2017) LPELR-41736(SC) wherein the apex Court held thusly:
“The law is also trite that an incurably defective process cannot be amended nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. See: Nwaigwe v. Okere (2008) 5 SCNJ 256 at 274.” Per KEKERE-EKUN, J.S.C.
The Statement of Defence and counter-claim is struck out along the reply and defence to counter-claim because it has no legs to stand on. Consequently, the proceedings conducted on the void processes are null and void and liable to be set aside.
If there was no counter-claim to be considered by the Court below, the Appellant’s appeal has no basis. The case before the Court below was just the Respondents’ claim which the trial Judge determined and entered judgment in favour of the Respondents, it was not contested in any way. I agree with the Appellants’ Counsel that evidence proffered by their witnesses goes to no issue because it was not founded on pleadings, see AKPAPUNA & ORS V. NZEKA & ORS (1983) LPELR-384(SC) wherein the apex Court held thusly:
“… parties are to be bound by their pleadings. Their case stands or falls in accordance with the averments made in the pleadings and the evidence produced in proof of those averments. Any evidence not supported by the pleadings such as in the case in hand should be ignored as it goes to no issue. This is my understanding of AKINOLA & ANOR. vs. OLUWO & ORS. (1962) 1 ALL N.L.R. p.224 and KODILINYE VS. ODU – 2 W.A.C.A. (1935) p. 336.” Per IRIKEFE, J.S.C.
What then is the effect of not having a defence to a claim? The apex Court in the case of FUTMINA & ORS V. OLUTAYO (2017) LPELR-43827 (SC) said:
“In the proceedings at the Court of first instance, culminating in the appeal at the lower Court, the appellants filed no defence or counter-affidavit. The facts constituting the cause of action were deemed taken as admitted and therefore established against the appellants. The basic principle of our adversarial jurisprudence is that it is the duty of the defendant to raise his defence. The trial Court owes the defendant no duty to raise a defence to the claims against him. Per EKO, J.S.C.
See also the following: AKAHALL & SONS LTD V. NDIC (2017) LPELR-41984 (SC), LAWAL & ANOR V. UMARU (2018) LPELR-46695 (CA) and WAZIRI & ORS V. ABUBAKAR (2004) LPELR-5267 (CA).
What then is so important about the way Counsel chooses to sign processes? Once it cannot be said who signed a process, it is incurably bad, and the Rules of Court that seems to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act).
Let me also reproduce what the apex Court said that should serve as an operational manual and advice to Counsel, my lord KEKERE-EKUN, JSC in the case of SPDC V SAM ROYAL (NIG) LTD (2016) LPELR-40062 (SC) said thusly:
“I agree entirely that this appeal, not having been initiated by due process of law is incompetent and must be struck out.
There is now a veritable body of authorities of this Court on the effect of signing a process in the name of a law firm, not being a person whose name appears on the roll of legal practitioners and authorised to practice law in Nigeria by virtue of Sections 2 (1) and 24 of the Legal Practitioners Act Cap. L11 Laws of the Federation of Nigeria (LFN) 2004. Some of the authorities are as follows: N.N.B. PLC V. Denclag Ltd. (2005) 4 NWLR (pt.915) 549 @ 582; Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521; Oketade V. Adewunmi (2010) 2-3 SC (pt. 1) 140; FBN Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 @ 488 A-D; SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (pt.1252) 317. It therefore behoves any legal practitioner practicing before the Courts in Nigeria to fully acquaint himself with the law and the precedents set by this apex Court. It has been said time and again that in upholding the sanctity of Sections 2 (1) and 24 of the Legal Practitioners Act, this Court being a policy Court, has a responsibility to ensure that standards of legal practice are maintained. Hear His Lordship, Fabiyi, JSC in FBN Plc V. Maiwada (supra) at 488 A-D: I wish to repeat that we are Interpreting in law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see noting technical in insisting that a legal practitioner should abide by the dictates of the law in signing Court processes… 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 law as enacted 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 the due protection of our profession. Learned counsel should be well guided. For these and the more detailed reasons contained in the lead judgment, I also strike out this appeal for being incompetent.”
In the light above resolution of the preliminary objection particularly on jurisdiction which succeeds which was also considered along with the Appellant’s issue two on jurisdiction, the appeal is hereby struck out for being incompetent.
FOLASADE AYODEJI OJO, J.C.A.: I read before now, the draft of the lead judgment delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. The issue of the competence of a Court process signed in the name of a law firm has again reared its head in this appeal.
The law is well settled that any document or process for filing in Court (not just an originating process) must be signed by a person qualified to practice under the Legal Practitioners Act, CAP. L11, Laws of the Federation of Nigeria, 2004. The signing of a Court process goes to the competence of the process and touches on the jurisdiction of the Court. A process signed in violation of the provisions of the Act cannot be said to have been duly filed before the Court. Such process does not exist in the eyes of the law. See ILOKSON & COMPANY (NIG.) LIMITED VS. UNION BANK OF NIGERIA (2022) 2 NWLR (PT. 1813) 115; AJIBODE VS. GBADAMOSI (2071) 7 NWLR (PT. 1776) 475; SALAMI VS. MUSE (2019) 13 NWLR (PT. 1638) 301; R.A. OLIYIDE & SONS LIMITED VS. OBAFEMI AWOLOWO UNIVERSITY, ILE-IFE (2018) 8 NWLR (PT. 1622) 564.
In this case, the Appellants’ Statement of Defence and counter-claim does not exist because it was signed in the name of a law firm. It follows therefore that all evidence given by the Defendants go to no issue. It is elementary law that evidence adduced on facts which are not pleaded goes to no issue. See ADEKEYE VS. ADESINA (2010) 18 NWLR (PT. 1225) 449; ABUBAKAR VS. JOSEPH (2008) 13 NWLR (PT. 1104) 307; OLOHUNDE VS. ADEYOJU (2000) 10 NWLR (PT. 676) 562.
The Appellants who were the Defendants at the lower Court had no defence before the Court since the Statement of Defence and counter-claim were signed in the name of a law firm. They therefore had nothing to agitate before us. You cannot place something on nothing and expect it to stand. See PETGAS RESOURCES LIMITED VS. MBANEFO (2018) 1 NWLR (PT. 1601) 442; MARWA VS. NYAKO (2012) 6 NWLR (PT. 1296) 199; SHELIM VS. GOBANG (2009) 12 NWLR (PT. 1156) 435.
It is for the above and the fuller and comprehensive reasons given in the lead judgment that I also strike out the notice of appeal.
ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. I am in agreement with the final conclusion that this appeal is unmeritorious and deserves to be dismissed.
Starting with the Respondents’ notice of preliminary objection, the settled law is that a preliminary objection to an appeal must be one which challenges the competence of the appeal and not some of its grounds. See: AYORINDE v KUFORIJI (2022) LPELR-56600(SC), per Eko, JSC at pages 7-8. Para. C: and OPEYEMI v THE STATE (2019) LPELR-48764(SC). per Peter-Odili. JSC at pages 8-10. paras. F – A. The Respondent’s preliminary objection which seeks to challenge only some of the grounds of appeal (grounds 3 and 4), is therefore incompetent and is accordingly struck out.
As for the appeal proper, the two major contentions upon which the Appellants have brought this appeal, as borne from the two issues they distilled, is that the trial Court was wrong to have granted the Respondent’s claim instead of their counter-claim, and that the trial Court had no jurisdiction to hear and determine the suit in the first place because the Respondents’ motion by which it relisted the suit, as well as the Respondents’ defence to the counter-claim were all void ab initio.
As the second contention (second issue of the Appellants) relates to jurisdiction of the trial Court to entertain the matter, it is pertinent that same be considered first. As adequately elaborated in the lead judgment, the Record of Appeal shows that the Appellants’ application through which they got the trial Court to strike out the Respondents’ suit was signed in the name of a law firm of CHIFF M. L. LAGUNJU & CO. instead of an identifiable legal practitioner.
The position of the law on the invalidity of Court processes signed in the name of law firms instead of identifiable legal practitioners who are the only persons entitled to practice as barristers and solicitors under Section 2(1) of the Legal Practitioners Act, has long been settled by plethora of judicial decisions of the Appellate Courts. Suffice it for me to state that the Apex Court had severally pronounced on the invalidity of those processes to the extent that this has now become elementary. See: Sections 2 and 24 of the Legal Practitioners Act and the cases of: SALAMI v MUSE (2019) 13 NWLR (Pt. 1689) 301, per Muhammad, JSC at 323 and per Nweze, JSC at 320-321: ONYEKWULUJE v ANIMASHAUN (2019) 4 NWLR (Pt. 1662) 242, per Bage, JSC at 260–261, paras. E-E: FIRST BANK OF NIGERIA PLC v MAIWADA (2013) 5 NWLR (Pt. 1348) 444, per Fabiyi, JSC at page 483. paras. B-G; SLB CONSORTIUM LIMITED v NNPC (2011) 9 NWLR (Pt. 1252) 317, per Onnoghen. JSC (as he then was) at pages 331-332, paras. H-B; and per Rhodes-Vivour, JSC at pages 337-338, paras. G-B: and AJIBODE v GBADAMOSI (2021) 7 NWLR (Pt. 1776) 475 at 500. All the above cases are to the effect that a process signed in the name of a law firm instead of a legal practitioner, in violation of the Legal Practitioners Act, does not exist in the eyes of the law.
In the instant appeal, the implication of the invalidity of the motion by which the Appellants got the trial Court to strike out the Respondent’s suit for want of diligent prosecution is that the order of the trial Court striking out the Respondent’s suit was a nullity and the Respondents’ suit was alive before the trial Court. Therefore, the argument of the Appellants over the jurisdiction of the trial Court to entertain the suit because of the invalidity of the Respondents’ motion to relist same is of no moment, since the Respondent’s suit was not properly struck out in the first place. I therefore hold that the trial Court was properly seized of the jurisdiction to entertain the matter, the Respondent’s case having been alive before it. The Appellants’ second issue challenging the jurisdiction of the trial Court to entertain the Respondents’ suit is therefore overruled and the said issue is resolved against the Appellants.
As for the Appellants’ contention in their first issue, that their counter-claims ought to be granted instead of the Respondents’ claims, the Record shows, as elaborated in the lead judgment, that the Appellants’ Statement of Defence and counter-claim, as well as the Respondents’ Reply and Defence to the counter-claim are also invalid, having been afflicted by the same vice of being signed by law firms instead of legal practitioners. The implication of that is that the Appellants who, by their first issue, are essentially contending that the trial Court was wrong in not granting their counter-claim, had neither a defence nor a counter-claim worthy of any consideration by the trial Court. In other words, they had no case before the trial Court upon which they can found this appeal, their pleading having been signed by a law firm instead of a legal practitioner as required by the Legal Practitioners Act.
It is significant for me to state that in ordinary civil proceedings, pleadings and evidence are imperative twin tools with which parties prosecute their respective cases before the trial Courts. The pleadings clearly set out the factual parameters of the parties’ cases, while the evidence provide the means by which the parties establish the factual parameters they set out in their pleadings. It is for this reason that the law stipulates that those two twin tools of adversarial civil litigations must be in consonance with each other. Pleading which is not supported by evidence is legally deemed abandoned and must be discountenanced by the Court. Conversely, evidence which is at variance with pleadings goes to no issue and must be disregarded by the Court. See: AKPAPUNA & ORS v NZEKA & ORS (1983) LPELR-384(SC), per Irikefe, JSC at pages 22-23, paras. C- E; MBANEFO v MOLOKWU & ORS (2014) LPELR-22257(SC), per Peter-Odili, JSC at pages 46, paras. A-D; ACHONU v OKUWOBI (2017) LPELR-42102(SC), per Galinje, JSC at pages 28-19, paras. E-B; and SOGUNRO & ORS v YEKU & ORS (2017) LPELR-41905(SC), per Nweze, JSC at pages 23-24, paras. E-D. In the instant appeal, it is evident that the Appellants filed invalid Statement of Defence and counter-claim, and made what is a futile effort to establish by evidence their evidently invalid pleadings, same having been signed by a law firm instead of a legal practitioner as required by law.
As ably highlighted in the lead judgment just delivered, the effect of not having a defence to a claim is that no issue has been joined on the claim and the cause of action or claim is taken as admitted and therefore established. See: C.O.P. ANAMBRA STATE & ANOR v A. A. OMOKHUI INTERNATIONAL LTD. (2018) LPELR-48693(CA), per Ogunwumiju, JCA ( as he then was) at pages 13-14, Para. C; OKOEBOR v POLICE COUNCIL & ORS (2003) 12 NWLR (Pt. 832) 444; and EGESIMBA v ONUZURUIKE (2002) 12 NWLR (Pt. 791) 466.
The Appellants herein, who had no valid defence and counter-claim before the trial Court, are deemed to have admitted the Respondents’ claims and they have no foundation in this appeal upon which they can contend that the trial Court ought to have granted their counter-claim instead of the Respondents’ claims. The Appellants’ issue one is therefore, also resolved against them.
In consequence of the above, and the more elaborate reasons espoused in the lead judgment, I also dismiss this appeal for lack of merit and affirm the judgment of the trial Court.
Appearances:
…For Appellant(s)
…For Respondent(s)
