LawCare Nigeria

Nigeria Legal Information & Law Reports

ACCESS BANK PLC & ANOR v. MATSGAL NIGERIA LIMITED (2019)

ACCESS BANK PLC & ANOR v. MATSGAL NIGERIA LIMITED

(2019)LCN/12510(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of January, 2019

CA/C/93/2014

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. ACCESS BANK PLC
2. MR. GODWIN SUNDAY UDOM – Appellant(s)

AND

MATSGAL NIGERIA LIMITED – Respondent(s)

RATIO

WHETHER OR NOT ISSUES FORMULATED FOR DETERMINATION MUST RELATE TO THE GROUNDS OF APPEAL

First, it is trite that any issue formulated for determination by the Respondent in an appeal must relate to the grounds of appeal filed by the Appellant. However, for the respondent to validly raise any issue not related to the grounds of appeal filed by the Appellant, he must file a cross appeal or a respondents notice. See MOMODU V MOMOH [1991] 1 NWLR [Pt. 169] 608 SC; OSSAI V WAKWAH [2006] 4 NWLR [Pt. 969] 208 SC; UTB (NIG) LTD. V AJAGBULE [2006] 2 NWLR [Pt. 965] 447.
Relatedly, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See IBATOR V BARAKURO [2007] 9 NWLR [Pt. 1040] 475 SC; DALORI V SADIKWU [1998] 12 NWLR [Pt. 576] 112 @ 116; SHITTA-BEY V AG, FEDERATION [1998] 10 NWLR [Pt. 570] 392 SC; J.C.LTD. V EZENWA [1996] 4 NWLR [Pt. 443] 391 @ 399 SC; ADELAJA V FANOIKI [1990] 2 NWLR [Pt. 131] 137 SC. PER OWOADE, J.C.A.

THE MEANING OF A “LEGAL PRACTITIONER”

The Supreme Court has starting from the case of OKAFOR V NWEKE [supra] interpreted the meaning of Legal Practitioner in Sections 2(1) and 24 of the Legal Practitioners Act[LPA] to mean the natural person and not any artificial entities entitled to practice as a Barrister and Solicitor and whose name appears on the Roll of Legal Practitioners in the Supreme Court of Nigeria. The case of OKAFOR V NWEKE [supra] and others decided after it explained that the purpose of Section 2(1) and 24 of the LPA is to ensure that only a Legal Practitioner whose name is on the Roll of the Supreme Court should sign Court processes, so as to eliminate quacks and impersonators in the legal profession. And perhaps more importantly, any processes not so signed by a Legal Practitioner whose name is on the roll or in the guise of an artificial person like a firm would be null and void and of no effect whatsoever.
See also OGUNDELE V AGIRI [2010] 180 LRCN 183; OKETADE V ADEWUMI [2010] 8 NWLR [Pt. 1195] 63; SLB CONSORTIUM LTD. V NNPC [2011] 4 SCNJ 211. It follows as it happened in this case, that a void process cannot be amended for the simple reason that something cannot be placed on nothing. The apex Court hit the nail on the head in the case of BRAITHWAITE V SKYE BANK PLC [2010] 15 WRN 26 @ 39, 43, where it held thus:
Since the initiating processes were not signed by a Legal Practitioner as dictated by the applicable law, the suit was not initiated with due process. It is no doubt, incompetent and the Court is robbed of jurisdiction ab initio.
In the case of FIRST BANK NIG. LTD. V MAIWADA [2012] Vol. 213 LRCN 121, the Notice of Appeal was signed by the Law Firm of David M. Mando & Co., and the Court of Appeal upheld a preliminary objection seeking to have the Notice of Appeal struck out as incompetent. An appeal to the Supreme Court failed as the Supreme Court upheld the decision of the Court of Appeal striking out the appeal. At page 199, the apex Court per Fabiyi, JSC, held as follows:
Every originating process of Court required to be, but not signed by a legally qualified persons that is registered in the Legal Practitioners Roll in the Supreme Court is void. It should be duly signed by a Legal Practitioner duly enrolled but not signed by a faceless and artificial person.
The decision in the classic case of OKAFOR V NWEKE [supra], was again revisited with approval in the case of FIRST BANK NIG. LTD. V MAIWADA [supra] at page 157, thus:

Any Court processes signed in the business name of a firms name as in the case of J.H.C. Okolo SAN & Co. having been rendered INCURABLY DEFECTIVE AB INITIO are liable to be struck out. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal in Suit No. HT/50/2009 from the decision of the High Court of Akwa Ibom State, holden at the Ikot Ekpene Judicial Division contained in the judgment of Hon. Justice Stephen Okon, J. delivered on the 13th day of January, 2014.

By a writ of summons dated 4/6/2009 signed on page 3 of the Record of Appeal by N. A. Ibiloye & Co., the Respondent as plaintiff claimed against the 1st Appellant [then as Inter Continental Bank Plc]. Respondent filed a statement of claim on 2/12/2009. Consequent upon the joinder of the 2nd Appellant [Mr. Godwin Sunday Udom] as 2nd defendant, the Respondent filed another statement of claim on 10/8/2010 to reflect the joinder.

The claims of the Respondent as plaintiff against the Appellants as defendants as stated in the 2nd Statement of Claim on page 242 of the Record of Appeal are as follows:
1. A declaration that the Plaintiff is not indebted to the 1st defendant to the tune of Eighteen Million, Eighty Seven Thousand, Three Hundred and Eighty Seven naira, Eighty One kobo [N18,087,387.81] arising from an overdraft and

1

loan facilities granted the plaintiff by the 1st defendant; due to over deduction, manipulation and falsification of the plaintiffs account by the 1st defendant.
2. A declaration that the purported sale of the plaintiffs property at No. 140, Oron Road, Uyo; by the 1st defendant to the 2nd defendant is null, void and of no effect whatsoever.
3. An order of perpetual injunction restraining the 1st defendant by herself, agents, assigns, servants, privies and aides [howsoever called] from selling, disposing, dealing or interfering with the interest and right over the property situate at No. 140, Oron Road, Uyo, without reconciling and rectifying the anomalies discovered in the account of the plaintiff.
4. Fifty Million Naira [N50,000,000.00] as general damages against the defendants jointly.

The facts of the case are straight forward. There exists a banker/customer relationship between the Respondent and the 1st Appellant. The 1st Appellant granted overdraft facilities to the Respondents company. Consequent on default in payment, the 1st Appellant exercised its right of foreclosure on the Respondents mortgaged property and sold the mortgaged property to the 2nd Appellant.

2

Respondent brought this action disputing the amount of its total indebtedness arising from the overdraft facilities and a declaration to nullify the purported sale of the claimant property at No. 140, Oron Road Uyo by the 1st Defendant to the 2nd defendant.

Pleadings were filed and exchanged, the Appellants Defendants joined issues with the claimant respondent by statement of defence and counter claim. The Respondent as plaintiff called two (2) witnesses. The Appellants as Defendants called DW1 and DW2 respectively.

After the Respondents witnesses concluded their evidence and before the opening of the case for defence, the learned trial judge granted an order on page 561 of the Record of Appeal,
1. That the writ of summons in this suit be and is hereby ordered to be amended as shown in Exhibit A attached to the supporting affidavit.
2. That the said Amended Writ of Summons be and is hereby deemed properly filed and served appropriate fees having been paid.

3

Thereafter the defence opens its case and called DW1 and DW2. The trial was concluded on the exchange of written addresses by the parties.

On 13/1/2014, the learned trial judge found for the Respondent Plaintiff as from pages 596 598 of the Record of Appeal as follows:
I am therefore, having regard to the evidence before the Court, both oral and documentary, of the firm view that the mortgaged property was illegally sold by the 1st defendant to the 2nd defendant. The 1st defendant could therefore not have granted an unimpeachable title to the 2nd defendant.
I hold further that the claimant has successfully proved by Exhibit A that the 1st Defendant debited the claimants account in excess of the sum of N4, 319,827.73 as at the 31st May, 2009. That was unlawful.
The purported sale of the claimants property at No. 140, Oron Road, Uyo, by the 1st December to the 2nd defendant was invalid and a nullity.
Consequently, I hold that the claimants suit succeeds and I make the following orders:
1. IT IS HEREBY DECLARED that the claimant is not indebted to the 1st Defendant to the tune of Eighteen Million, Eighty Seven Thousand, Three Hundred and Eighty Seven naira, Eighty One kobo [N18,087,387.81] 

4

arising from an overdraft/term loan facilities granted to the claimant by the 1st defendant, due to over-deductions, manipulation and falsification of the claimants account by the 1st defendant.
2. IT IS HEREBY FURTHER DECLARED that the purported sale of the claimants property at No. 140, Oron Rd., Uyo, by the 1st defendant to the 2nd defendant is null, void and of no effect whatsoever.
3. That the 1st defendant, by herself, agents, assigns, servants, privies and aides [however called] are hereby restrained from selling, disposing of, dealing or interfering with the interest and right of the claimant over the property situate and lying at No. 140, Oron Road, Uyo, without reconciling and rectifying the anomalies discovered in the claimants account as highlighted in the Audit Report, Exhibit A aforesaid.
4. That the 1st and 2nd defendants shall jointly pay to the claimant the sum of N2,000,000.00 [Two Million Naira] being general damages for trespass.
I assess costs in favour of the claimant at N50,000.00.
I had earlier alluded to the counter-claim made by each of the two defendants.

5

In view of the judgment given in favour of the claimant, it is obvious that the 1st defendants counter-claim cannot be sustained. I hereby dismiss the 1st defendants counter-claim. I make no order as to costs.
As for the 2nd defendants counter-claim, the Court has already held that the purported sale of the Mortgaged property at No. 140, Oron Road, Uyo by the 1st Defendant to the 2nd defendant was invalid and a nullity. There is no basis for the 2nd defendants counter-claim to succeed.
It cannot succeed. I hereby dismiss the 2nd defendants counter claim. I make no order as to costs.

Dissatisfied with the above judgment, the Appellants filed a Notice of Appeal containing five (5) grounds of appeal in this Court on 16/1/2014. The Appellants grounds of appeal devoid of their particulars are reproduced below:
GROUND ONE
The Honourable Trial Court Judge erred in law and occasioned a gross miscarriage of justice when he entertained the claimants suit as the purported writ of summons upon which the suit was commenced was not signed and stamped by a Legal Practitioner or by the Plaintiff as mandatorily required by Order 6 Rule 2(3) of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State.

6

GROUND TWO
The Honourable Trial Court Judge erred in law and occasioned a gross miscarriage of justice when he purportedly allowed an amendment of a non-existent or null and void writ of summons on 23rd May 2013, after conclusion of evidence of the witnesses, as the purported writ of summons sought to be amended was not signed and stamped by a Legal Practitioner or by the Plaintiff as mandatorily required by Order 6 Rule 2(3) of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State.
GROUND THREE
The learned trial judge erred in law and occasioned grave miscarriage of justice when he set aside the auction sale of the mortgaged property merely because the mortgagor disputes the exact amount owing and due from him to the mortgagee.
GROUND FOUR
The honourable trial Court judge erred in law and in fact when he failed and or refused to uphold the counter-claim of the defendants, and order as claimed when the plaintiff constructively admitted the defence/counter-claims by his failure and or refused to file written statement on oath in support of his reply to each of the

7

defendants statement of defence to counter-claim or lead oral evidence on his reply to each of the defendants statement of defence/counter-claim.
GROUND FIVE
The learned lower Court judge erred in law and in fact and occasioned a miscarriage of justice when he granted damage of N2,000,000.00 to the Plaintiff/Respondent in the suit regarding breach of contract.
GROUNDS OF ERROR
i) It is trite that general damages cannot be ordered in a suit of breach of contract. Only specific damages can be ordered in upon prove of the extent specific damages incurred by the plaintiff.
ii) The plaintiff never proffered any damages suffered by him due to the alleged breach of the contract between him and the defendants/appellants upon which basis damages could be assessed and awarded to him.

The relevant briefs of argument for the appeal are:
1. Appellants brief of argument dated 6/5/2014 and filed on the same day. It is settled by O. Ikpe Imeh, Esq.
2. Respondents brief of argument dated 16/10/2015 was filed on 19/10/2015. It is settled by N. A. Ibiloye, Esq.

8

Learned counsel for the Appellants nominated four (4) issues for determination. They are:
1. Whether there was a competent writ of summons originating Suit No. HT/50/2009 in view of the fact that the said writ was signed by a Law Firm, rather than a Legal Practitioner.
2. Whether in view of the Supreme Court decision in BRAITHWAITE V SKYE BANK PLC [2010] 15 WRN 26, the learned trial judge was right to have granted leave to the Respondent to amend a writ that was obviously null and void ab initio.
3. Whether the mere fact that the Respondent as mortgagor disputes the exact amount it is indebted to the 1st Appellant as Mortgagee can affect the mortgagees right and power of foreclosure and sale under a legal mortgage.
4. Whether the learned trial judge was right in granting general damages in a suit founded strictly on the contract of mortgage between the parties.

Learned counsel for the Respondent on the other hand formulated two (2) issues for determination of the appeal. They are:
1. Whether the Akwa Ibom State High Court Rules is a subsidiary legislation made pursuant to the Constitution of the Federal Republic of Nigeria, 1999 [as amended].
2. Whether the Akwa Ibom State High Court has power to amend its process.

9

I noticed that none of the two issues formulated by the Respondent has any relationship with the Five Grounds of Appeal donated by the Appellants Notice and Grounds of Appeal.

First, it is trite that any issue formulated for determination by the Respondent in an appeal must relate to the grounds of appeal filed by the Appellant. However, for the respondent to validly raise any issue not related to the grounds of appeal filed by the Appellant, he must file a cross appeal or a respondents notice. See MOMODU V MOMOH [1991] 1 NWLR [Pt. 169] 608 SC; OSSAI V WAKWAH [2006] 4 NWLR [Pt. 969] 208 SC; UTB (NIG) LTD. V AJAGBULE [2006] 2 NWLR [Pt. 965] 447.
Relatedly, issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See IBATOR V BARAKURO [2007] 9 NWLR [Pt. 1040] 475 SC; DALORI V SADIKWU [1998] 12 NWLR [Pt. 576] 112 @ 116; SHITTA-BEY V AG,

10

FEDERATION [1998] 10 NWLR [Pt. 570] 392 SC; J.C.LTD. V EZENWA [1996] 4 NWLR [Pt. 443] 391 @ 399 SC; ADELAJA V FANOIKI [1990] 2 NWLR [Pt. 131] 137 SC.
In the instant case the Respondents issues which are in no way related to the Appellants grounds of appeal are incompetent and struck out.

On issue One, learned counsel for the Appellant noted that the writ of summons in the subject suit was prepared and signed by the Law Firm of N. A. Ibiloye & Co., the said law firm is not at the Supreme Court of Nigeria or at all to practice law any way in Nigeria. That Order 6 Rule 1 of the Rules of the High Court 2009 of Akwa Ibom State provides in a mandatory tone that originating processes shall be prepared by a claimant or his Legal Practitioner and shall be clearly printed on good quality white opaque paper. That Order 6 Rule 2 (3) thereof further provides that each copy shall be signed and stamped by the legal practitioner or by a claimant where he sue in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.

11

These provisions of the Rules of the lower Court said counsel complement Sections 2(1) and 24 of the Legal Practitioners Act [LPA]. Section 2(1) of the LPA provides that subject to the provisions of the 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 LPA defines a Legal Practitioner as a person entitled in accordance with the provisions of the LPA to practice as a Barrister and Solicitor, either generally or for the purpose of any particular office of proceedings. He referred to the case of BRAITHWAITE V SKYE BANK PLC [2010] 15 WRN 26 @ 39 where the Supreme Court held that the purpose of Section 2(1) and 24 of the LPA is to ensure that only a Legal Practitioner whose name is on the Roll of the Supreme Court should sign Court processes, so as to eliminate quacks and impersonators in the profession.

He added that the above position of the apex Court started with the case of OKAFOR V NWEKE [2007] 10 NWLR [Pt. 1043] 521, and the Supreme Court has been consistent in following and applying the decision in several other cases such as OGUNDELE V AGIRI [2009] 18 NWLR [Pt. 1173] [2010] 180 LRCN 183;

12

OKETADE V ADEWUMI [2010] 8 NWLR [Pt. 1195] 63; S.L.B. CONSORTIUM LTD. V N.N.P.C [2011] 4 SCNJ 211. He submitted that the provision of Order 6 Rule 2(3) of the Rules of the High Court 2009 is of mandatory application, failure of which the originating process will be incurably bad. Appellants counsel referred again to the Supreme Court decision in SLB CONSORTIUM LTD. V NNPC [2011] 9 NWLR [Pt. 1252] 317 @ 332 where the apex Court interpreted and gave effect to Order 26 Rule 4(3) of the Federal High Court Rules 2000 which requires originating processes including pleadings to be signed by a Legal Practitioner [similar to the requirements of Order 6 Rule 2(3) of the Rules of the High Court 2009 in issue] and held that the said provision requiring a legal practitioner to sign an originating process is mandatory and not discretionary. It cannot be waived.

Appellants counsel submitted further that an unsigned document is worthless and void. Even judgment or a ruling of a Court will be worthless if it was merely certified by a Registrar but without the signature of the Judge or Justice who delivered it and the date of delivery. He referred on this to the case of AJAOKUTA STEEL CO. LTD. V ROLE [2011] 27 WRN 124 @ 144-145.

13

Learned counsel for the Appellants went on to submit on his issue two that the learned trial Court judge granted leave to the Respondent to amend its null and void writ. The purported amended writ of summons is contained at pages 457 – 458 of the Record of Appeal. Counsel referred to the cases of FIRST BANK OF NIG. LTD. V. MAIWADA [2012] Vol. 213 LRCN page 121 and OKAFOR V NWEKE [supra] and submitted that at the time of amendment of the purported writ, there was none to be so amended. It is trite that one cannot put something on nothing and expect it to stand. He urged us to strike out the Respondents suit.

Appellants issues One and Two are not only inter-wined but both deal with the jurisdiction of the Court below to entertain the suit, subject matter of appeal.

The Supreme Court has starting from the case of OKAFOR V NWEKE [supra] interpreted the meaning of Legal Practitioner in Sections 2(1) and 24 of the Legal Practitioners Act[LPA] to mean the natural person and not any artificial entities entitled to practice as a Barrister and Solicitor and whose name

14

appears on the Roll of Legal Practitioners in the Supreme Court of Nigeria. The case of OKAFOR V NWEKE [supra] and others decided after it explained that the purpose of Section 2(1) and 24 of the LPA is to ensure that only a Legal Practitioner whose name is on the Roll of the Supreme Court should sign Court processes, so as to eliminate quacks and impersonators in the legal profession. And perhaps more importantly, any processes not so signed by a Legal Practitioner whose name is on the roll or in the guise of an artificial person like a firm would be null and void and of no effect whatsoever.
See also OGUNDELE V AGIRI [2010] 180 LRCN 183; OKETADE V ADEWUMI [2010] 8 NWLR [Pt. 1195] 63; SLB CONSORTIUM LTD. V NNPC [2011] 4 SCNJ 211. It follows as it happened in this case, that a void process cannot be amended for the simple reason that something cannot be placed on nothing. The apex Court hit the nail on the head in the case of BRAITHWAITE V SKYE BANK PLC [2010] 15 WRN 26 @ 39, 43, where it held thus:
Since the initiating processes were not signed by a Legal Practitioner as dictated by the applicable law, the suit was not initiated with due process.

15

It is no doubt, incompetent and the Court is robbed of jurisdiction ab initio.
In the case of FIRST BANK NIG. LTD. V MAIWADA [2012] Vol. 213 LRCN 121, the Notice of Appeal was signed by the Law Firm of David M. Mando & Co., and the Court of Appeal upheld a preliminary objection seeking to have the Notice of Appeal struck out as incompetent. An appeal to the Supreme Court failed as the Supreme Court upheld the decision of the Court of Appeal striking out the appeal. At page 199, the apex Court per Fabiyi, JSC, held as follows:
Every originating process of Court required to be, but not signed by a legally qualified persons that is registered in the Legal Practitioners Roll in the Supreme Court is void. It should be duly signed by a Legal Practitioner duly enrolled but not signed by a faceless and artificial person.
The decision in the classic case of OKAFOR V NWEKE [supra], was again revisited with approval in the case of FIRST BANK NIG. LTD. V MAIWADA [supra] at page 157, thus:

Any Court processes signed in the business name of a firms name as in the case of J.H.C. Okolo SAN & Co. having been rendered INCURABLY DEFECTIVE AB INITIO are liable to be struck out.

16

In the instant case, the writ of summons was signed by the law firm N. A. IBILOYE & CO., and being incurably defective ab initio there was none left to have been amended as purportedly done by the learned trial Court judge as in pages 457, 458 of the Record of Appeal.
As rightly captured by the learned counsel for the Appellants, at the time of amendment of the purported writ, there was none to be amended.

In the circumstance, Issues One and Two are resolved in favour of the Appellants. Having resolved issues One and Two bordering on jurisdiction in favour of the Appellants, I do not consider it necessary to consider other issues in the appeal.
This appeal is meritorious and it is allowed.

The Judgment and Order made in Suit No. HT/50/2009 by Hon. Justice Stephen E. Okon of the High Court of Akwa Ibom State sitting at Ikot Ekpene delivered on 13/1/2014 are hereby set aside.
There shall be costs of N30,000.00 in favour of the Appellants.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the honour to read in draft the judgment just delivered by my

17

learned brother, MOJEED ADEKUNLE OWOADE, JCA and I am in complete agreement with the position of law eloquently restated. I have nothing more to add. The appeal is meritorious and is allowed. I also abide by other orders made in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA just delivered. I agree entirely with the reasoning and conclusion that the appeal is meritorious and should be allowed. I too allow the appeal and abide by all the consequential orders including the order as to costs.

18

Appearances:

O. Ikpe Imeh, Esq. For Appellant(s)

N. A. Ibiloye, Esq. For Respondent(s)

 

Appearances

O. Ikpe Imeh, Esq. For Appellant

 

AND

N. A. Ibiloye, Esq. For Respondent