ALHAJI DAN’AZUMI BELLO v. ALH. MUSA ADAMU & ORS
(2011)LCN/4608(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of June, 2011
CA/K/235/09
RATIO
SIGNING OF A COURT PROCESS: WHETHER ONLY A LEGAL PRACTITIONER ,AND NOT Z FIRM OF LAWYERS, CAN SIGN A COURT PROCESS
The Supreme Court, in its wisdom decided to liberate all the subordinate Courts from the shackles of confusion that bedevilled them with regard to the proper person to sign a Court process, and, that, it outrightly analysed in the case of Emmanuel Okafor vs. Nweke (2007) NWLR Part 1043 p. 521. Several conflicting decisions had in the past been handed down particularly by this Court on who should or who should not sign a process. Thank God for the wisdom he endowed our law Lords with, particularly Onnoghen J.S.C., who opined in the said case inter alia thus: “…Since…J.H.C. Okolo SAN & Co is not a legal practitioner recognized by the law, it follows that the said J. H. C. Okolo SAN & Co. Cannot legally sign any/or file any process in the courts… I am of the firm view that the decision in Okafor vs. Nweke (supra) is all embracing, it does not matter whether the process was one filed at an interlocutory stage or one that deals with the finality of the case. A process is a process irrespective of whether it was filed at an Alkali court, Upper Sharia court, Customary Court, High Court or appellate court. So long as a person had set out to file a process in the court, it must be signed by a legally recognized person, not, a non-juristic person. In the instant appeal, A. Y. Musa & Co is merely a business name and not a juristic personality. In any case, as was clearly elucidated in Okafor vs. Nweke, a legal process is to be signed by a legal practitioner, must be signed by the individual, the legal practitioner who was called to the Nigerian Bar and was enrolled as a solicitor and advocate of the supreme court of Nigeria, not by a firm of lawyers. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
COURT PROCESS: DEFINITION OF A LEGAL PROCESS
Legal process as defined by Black’s Law Dictionary, 7th Edition at page 1205 includes a summons, writ, warrant, mandate or other process issuing from a Court. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
COURT PROCESS: WHETHER AN INCOMPETENT PROCESS CAN BE DISMISSED
If a process is incompetent, the resultant effect will be striking out of the same. It cannot be dismissed, and that was why the Supreme Court said that it could be re-filed. Incompetency leads to striking out and not dismissal, so, common sense dictates that even if a Notice of Appeal which had been argued by both parties was later found out to be incurably defective, it must be struck out as a result. If the affected party wishes, he or she can file a fresh Notice of Appeal complying with the dictates of the law. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI DAN’AZUMI BELLO Appellant(s)
AND
1. ALH. MUSA ADAMU
2. ALH. SALISU SA’IDU
3. ALH. TANIMU UMAR
(HON JUDGE U.S.C. I G.R.A. ZARIA)
4. ATTORNEY GENERAL, KADUNA STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): In this Notice of Appeal which is founded on three grounds of appeal, namely:
GROUND I
The learned lower Court Judge erred in law when she held that the laws governing Sharia Courts clothed the trial Upper Sharia Court with jurisdiction to entertain interpleader summons thereby occasioning miscarriage of justice.
GROUND TWO
The learned lower Court Judge erred in law when she held that the trial Upper Sharia Court could entertain interpleader application after the statutory period of six months had lapsed thereby occasioning a miscarriage of justice.
GROUND THREE
The learned lower Court Judge misdirected herself in law when she find thus:
“As next issue is whether the Upper Sharia Court I, can entertain the application after the period of six months had lapsed.
The relief being sought in this appeal is for the judgment of the Kaduna State High Court sitting in Zaria presided over by Justice B. F. Isa, and delivered on 3rd April, 2006 be set aside and the interpleader proceedings of the trial Upper Sharia Court I, G.R.A. Zaria be quashed.
The facts of this case are that following some legal problems encountered by the 1st Respondent, his house was raided upon a court order and in the course of that, a document covering one house he had allegedly sold to the 2nd Respondent was seized by the court, with a threat to sell the said house in accordance with the law. Immediately that was done, the 2nd Respondent filed a Motion on Notice before the upper Sharia court of Kaduna State sitting at Zaria, praying for the following orders:
1. an order exempting the house situate at Tudun Jakun Zaria formerly belonging to Mr. Musa Adamu now belonging to the claimant is amongst the properties to be attached or sold;
2. an order releasing the title documents of the said house situate at Tudun Jakun to the claimant forthwith.
The facts supporting the application were averred in the affidavit.
The motion was moved before the Upper Sharia Court and after considering the same, the Court granted the 2nd Respondent’s prayers 1 and 2 on 28/9/04.
However, on 10/5/2005, the Appellant filed a Motion before the High court of Kaduna State seeking the following orders:
(1) An order granting leave to apply for the order of certiorari to bring before the court for the purpose of being quashed the entire proceedings of ruling on interpleader summons of the Upper Sharia court I G.R.A. Zaria, presided over by Alhaji Tanimu Umar in case No. C/No. 184/04 for lack of jurisdiction.
The application was supported by an affidavit of four paragraphs.
On 11/5/05 leave was then granted to the Appellant herein to apply for an order of certiorari, following when a Motion on Notice to that effect was filed by the Appellant on 12/5/05. The same was moved before the lower Court on 8/12/05.
In determining the said Motion, the High court of Kaduna State sitting in its supervisory jurisdiction held thus:
“The main question before this court is has the Upper Sharia court I GRA, Zaria the necessary jurisdiction to entertain the inter-pleader proceedings. In other words has the lower Court acted in excess of its jurisdiction. To answer this, recourse must be had to the laws governing Sharia Courts, see the Sharia Penal Code 2002, section 317(1);
“Whenever a person is convicted for an offence attended by the criminal force or show of force criminal intimidation and it appears to the Court that any person has been dispossessed of any immovable property, the Court may if it thinks fit order that person to he restored to the possession of the same.
(2) No order under subsection (1) shall prejudice any right or interest to or in such immovable Property which any person may he able to establish in a civil suit” .
No doubt, the above provision governing Sharia court has adequately taken care of the act of the lower Court in releasing the house and it’s particulars to the 2nd Respondent. I therefore do not see the lower Court acting contrary to the law establishing it to warrant it’s orders being tempered with by this Court.
Further more, the argument that the lower Court did not comply with the provision of Section 33 Sheriff and civil law and Section 18 (1) of the same law and Order 27 Rule 4 (a) High court civil Procedure Rule can not avail the Applicant in this regard. This is so for the simple fact that the Sharia Court is being guided by the Sharia Penal Code Law 2002. For the lower court not to have complied with all these provisions does not make it’s procedure a nullity since it is not governed by the Sheriff and civil Process Law nor the High Court Civil Procedure Rule.
For the 2nd Respondent to have acted timeously by filling either inter-pleader proceeding, ask for an order releasing the document or whatever phrase was used for the release of his immovable property and it’s documents thereto, the 2nd Respondent was vigilant and equity comes to his aid for not sleeping over his right.
Exhibit ‘A’ annexed to the 2nd Respondent’s counter Affidavit before the Sharia court says it all. It has appropriately established the 2nd Respondent’s claim before the Sharia Court.
There was no counter Affidavit challenging all the deposition thereto. The 3rd Respondent acted upon the 2nd Respondent’s depositions as well as Exhibit ‘A’ in arriving at the decision which the Appellant is now challenging. In view of the above reasoning, I do not see any reason for me to disturb the 3rd Respondent’s finding in respect of suit No. C/No. 184/04 between Alh. Dan’aztrmi Bello vs. Alh. Musa Adamu.
Neither did the 3rd Respondent acted in excess of his jurisdiction. Consequently, the application lacks merit. The motion dated 12th May 2005 is hereby dismissed”.
It is against this perceived obnoxious interpretation of section 317 (1) of the Penal Code that this appeal was lodged, and the parties herein. Two issues particularly the Appellant and the 2nd Respondent filed and exchanged their Briefs of Argument.
Two issues were propositioned in the Appellant’s Brief of Argument for consideration by this Court. They are:
“1. Whether the learned lower Court Judge rightly held that the trial Upper Sharia Court has jurisdiction to entertain the 2nd Respondent’s application.
2. Whether the learned lower Court Judge did not misdirect himself in appraising the affidavit evidence of the parties placed before it.
The 2nd Respondent rather propounded only one issue for determination of this Court, that is to say. “whether the lower Court rightly refused the Appellant’s application before it”.
In arguing the appeal, learned Counsel for the Appellant, K. A. Adedokun Esq, took a dramatic twist and firstly contended that the 2nd Respondent’s Motion on Notice filed on 17/10/2003 was signed by A. Y. Musa & Co i.e., the 2nd Respondent’s Counsel’s Law firm and not by any human being. He argued that A. Y. Musa & Co is not a legal practitioner recognized by the law and in that con the 2nd Respondent’s Motion dated 17/10/2003 is fundamentally defective, incompetent, null and void as it offends sections 2(1) and 24 of the Legal Practitioners’ Act. He relied on the decisions in N.N.B. Plc. vs. Denclay Ltd. (2005) 4 NWLR Part 549 at 573 para Ho 582 583 paras F Bo Okafor vs. Nweke (2007) 10 NWLR Part 1043 p. 521 at 521 where the Supreme Court held since J. H. C. Okolo SAN & Co, is not a legal practitioner recognized by the law, it follows that the said J. H. C. Okolo SAN & Co. cannot legally sign and/or file any process in the Courts and as such the Motion on Notice filed on 19th December, 2005, Notice of Cross-Appeal and Applicant’s Brief of Argument in support of the said Motion, all signed and issued by the firm known and called as J. H. C. Okolo & Co are incompetent in law. He further cited Thomas vs. Maude (2007) ALL FWLR Part 301 p. 1749 – 1770, Madukolu vs. Nkemdilim (1962) 2 SCNLR 341, Obi vs. INEC (2007) 11 NWLR Part 1046 p. 436 at 520 paras F – H, Action Congress vs. INEC (2007) l8 NWLR Part 1065 p.50 at 71 -72 paras E – A and then submitted that by the Motion on Notice filed on 17/10/2003 being incompetent for having been signed by a law firm, the trial upper Sharia Court had no jurisdiction to entertain it.
In furtherance to his argument, Counsel pointed out that the 2nd Respondent filed his first application on 2/8/99 which was pending before the Upper Sharia Court I, GRA, Zaria before the Court was disbanded by the Area Court (Repeal) law, 2001. He referred to section 5 subsections (1) and (2) of being the transitional provisions of the Area Courts (Repeal) law of Kaduna State, 2001 and submitted that since the inter-pleader Motion which was pending before Upper Area Court I, GRA, Zaria before the disbandment of the Area Courts in 2001, was not completed within the six months grace after the disbandment as provided in section 5(1) of the law, the proper step to have been taken was to have waited for the Chief Judge of the State to transfer it to the appropriate Court to have it rather than usurping the power of the Chief Judge by filing the application before the 3rd Respondent and even conferred jurisdiction on the 3rd Respondent to have the same, the jurisdiction he lacks. He stressed that the 2nd Respondent later abandoned the said Motion dated 2nd August, 1999 and filed a new one dated 17/10/2003 that had the same contents with that of 2nd August, 1999. Counsel cited Ugwuanyi vs. Nicon Insurance Plc (2004) 15 NWLR part 897 p.612 at 634 per Ogunbiyi, J.C.A., where it was held that no Court can, therefore, assume jurisdiction in the absence of such having been constitutionally or statutorily conferred upon it.
In other words, the consequential assumption where none exist would amount to a nullity. It is trite law therefore, that proper jurisdiction of a court can only be assumed upon satisfaction of certain basic conditions precedent. Counsel further cited obi vs. INEC (supra) and persuaded the court to hold that the 3rd Respondent lacked the requisite jurisdiction to entertain the second application fired by the 2nd Respondent and that the lower court erred when it adjudged that the 2nd Respondent rightly assumed jurisdiction on the 2nd Respondent’s application filed on 17/10/2003.
Counsel further argued that the lower court did not properly evaluate the averments in the 2nd Respondent’s counter-affidavit and Exhibit A attached thereto, paragraphs 3(d) and (e), 3(a) and (b) of the affidavit in support of exhibit ‘A’ annexed to the said counter affidavit.
He stated that by implication the 2nd Respondent is saying that the said Upper Sharia court I, Zaria should declare him the owner of the property. He submitted that the property in question is situated in the Urban Area of Zaria Local Government, and it is a subject of Statutory Right of Occupancy issued by the Governor and as such it is only the High Court that has original jurisdiction to adjudicate over that under the Land Use Act. He also referred to section 22(1) and Read Schedule of Sharia Courts Law of Kaduna State which gave the 3rd Respondent jurisdiction over land matters still subject to Land Use Act, He further referred to Erhumwunse vs. Ehanire (2008) 13 NWLR Part 837 p. 353 at 370 para A-B and Yari vs. Ibrahim (2002) 5 NWLR part 761 p. 587 at 603 – 604 paras H – B on the exclusive jurisdiction of the High Court to determine issue of title to land in Urban area, and section 39(1)(a) of the Land Use Act and urged the Court to resolve the issue in favour of the Appellant.
Turning to issue No. 2, Counsel argued that the reason adduced by the Appellant for this delay in filing the application for certiorari should not have been relied upon by the 2nd Respondent for justifying their failure to comply with section 5(1) and (2) of the Upper Area Courts (Repeal) law of Kaduna State, 2001 which non-compliance supposed to have robbed the trial Upper Sharia Court of the jurisdiction to have entertained 2nd Respondent. He argued that the lower court misdirected itself which affected substantially the reasoning and the conclusion of the lower Court. He then cited Okotie Eboh vs. Manager (2004) 18 NWLR part 905 p. 242 at 280 – 281 and submitted that where misdirection has led to a wrong conclusion, the appellate court will interfere and set aside the judgment of the lower court. He persuaded the court to allow the appeal.
Reacting to the submissions of learned counsel and in particularly, tackling the lone issue raised by the 2nd Respondent, learned counsel for the Respondents A. Y. Musa Esq, submitted that the Appellant who never complained of violation of section 5(1) of the Area courts (Repeal) law of Kaduna State 2001 cannot be heard now complaining of same before the lower court or this court. He cited AIh. Dahiru Saude vs. Alh. Halim Abdullahi ACLC Vol. 3 p. 144 at 188 on the issue of a party taking active part in the proceedings without complaining cannot be heard subsequently to seek to set aside the action on the grounds of the irregularity acquiesced.
On the part raised that the Motion filed at the said upper Sharia Court by the Respondent and was signed by the law firm of the Respondent’s counsel, argued that the rule that a party or his Counsel should sign the process, under the Sharia Courts Law of Kaduna State with emphasis on section 29(1)(a) is not the same. He argued that under the Sharia Court’s Law, even a party’s servant can appear for or represent him, just like A. Y. Musa & Co did. The only thing one needs to show is that he has the party’s authority to so appear and or represent. He cited the cases of Unity Bank plc vs. Abdulhakeem Abiola (2009) ALL FWLR part 452, Cole vs. Martins (196s) 1 ALL NLR p. l6t where the case of Okafor vs, Nweke (supra) was distinguished. He further cited Onijade vs. Olayanwola (1990) 11 SCNJ p. 10 and Amuroti vs. Agbeke (1991) 6 SCNJ p. 54 in support.
On issue No’ 2, learned Counsel stressed that if the reasons adduced by the Appellant was believed by the lower Court, then nothing stops the Court too from using the same reason to arrive a decision.
He urged the Court to dismiss this appeal and uphold the lower Court’s decision.
Learned Counsel for the Appellant raised an issue that touched on the substratum of the appeal before this Court, although the learned Counsel for the Respondent treats it as a wishy-washy principle particularly in the light of the decision decided by the Benin Division of this Court in Unity Bank vs. Abiola (supra) on the issue of the competent person to sign a Court process. I must, confess that I am one of those ardent believers in or apostles of stare decisis. I am so adamant about it, that the moment the oracle had spoken I must comply irrespective of whatever view or opinion I may have. The Supreme Court, in its wisdom decided to liberate all the subordinate Courts from the shackles of confusion that bedevilled them with regard to the proper person to sign a Court process, and, that, it outrightly analysed in the case of Emmanuel Okafor vs. Nweke (2007) NWLR Part 1043 p. 521. Several conflicting decisions had in the past been handed down particularly by this Court on who should or who should not sign a process. Thank God for the wisdom he endowed our law Lords with, particularly Onnoghen J.S.C., who opined in the said case inter alia thus:
“…Since…J.H.C. Okolo SAN & Co is not a legal practitioner recognized by the law, it follows that the said J. H. C. Okolo SAN & Co. Cannot legally sign any/or file any process in the courts…
I am of the firm view that the decision in Okafor vs. Nweke (supra) is all embracing, it does not matter whether the process was one filed at an interlocutory stage or one that deals with the finality of the case. A process is a process irrespective of whether it was filed at an Alkali court, Upper Sharia court, Customary Court, High Court or appellate court. So long as a person had set out to file a process in the court, it must be signed by a legally recognized person, not, a non-juristic person. In the instant appeal, A. Y. Musa & Co is merely a business name and not a juristic personality. In any case, as was clearly elucidated in Okafor vs. Nweke, a legal process is to be signed by a legal practitioner, must be signed by the individual, the legal practitioner who was called to the Nigerian Bar and was enrolled as a solicitor and advocate of the supreme court of Nigeria, not by a firm of lawyers. It is indisputable that the Motion on Notice dated 17th October, 2003 filed at the Upper Sharia Court is a Court process.
Legal process as defined by Black’s Law Dictionary, 7th Edition at page 1205 includes a summons, writ, warrant, mandate or other process issuing from a Court. If a process is incompetent, the resultant effect will be striking out of the same. It cannot be dismissed, and that was why the Supreme Court said that it could be re-filed. Incompetency leads to striking out and not dismissal, so, common sense dictates that even if a Notice of Appeal which had been argued by both parties was later found out to be incurably defective, it must be struck out as a result. If the affected party wishes, he or she can file a fresh Notice of Appeal complying with the dictates of the law. It is on this ground that I am inclined to strike out this appeal and then set aside the judgment of the lower court, High Court of Kaduna state sitting in its supervisory jurisdiction.
Further, the order made by the trial upper Sharia Court based on the incompetent Motion on Notice filed by the Respondent before it is hereby set aside. Then, the said Motion on Notice filed on 17th October, 2003 and signed by A. Y. Musa & co is hereby struck out for being incompetent. No order as to costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment by my Lord T.N. Orji-Abadua, JCA, and I concur.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by my learned brother, T.N. Orji – Abadua, JCA, and I am at one with the reasons and conclusions. The facts, issues and argument in this appeal had been adequately articulated in the leading judgment. I will, therefore, desist from recapitulating them.
Let me consolidate the point that the second respondent’s motion on notice, filed on 17/10/2003, before the trial Upper Sharia Court, was absolutely and irredeemably incompetent. It is now a cliche that any court process signed by a firm of legal practitioner, like A. Y. Musa & Co., flies in the face of the law in that such a firm is not a legal practitioner as contemplated by the sacred provision of section 2(1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria 2004. To solidity this, I draw on the recent case of Oketade V. Adewunmi (2010) 8 NWLR (Pt.1195) 63. Therein, the appellant’s notice of appeal and brief of argument were signed by a firm of legal practitioners, Olujimi and Akeredolu, and the Supreme Court, with one voice, declared them in competent. Tobi, JSC, elaborately castigated them thus:
“Learned counsel called the attention of the court to Olujimi and Akeredolu and submitted that it being a name of a firm and not a name of a legal practitioner, offends sections 2(1) and 24 of the Legal Practitioners Act….
It does not appear that counsel for the appellant has an answer for the objection. There is a big legal difference between the name of a firm of legal practitioners and the name of a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is a name qua solicitor and Advocate of the supreme court of Nigeria which has no corporate connotation. As both carry different legal entities in our jurisprudence of parties, one cannot be a substitute for the other because they are not synonym. It is clear that Olujimi and Akeredolu is not a name of a Legal Practitioner in Nigeria. I say this because there is no such name in the roll of legal practitioners and that violates sections 2(1) and 24 of the Legal Practitioner Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner and the definition of the legal practitioner in section 24 of the Act does not include Olujimi and Akeredolu. This, to me, is not a technicality that can be bruised aside. It is fundamental to the judicial process as it directly affects the legal processes that brought this case on appeal.
I am in entire agreement with counsel for the respondent that as the processes which brought the appeals are incompetent, the appeal itself is incompetent….
Taking shelter under this current position of the in law, as dissected Oketade’s case supra, I, too, hold that the said motion was incurably incompetent.
Obviously, the incurably incompetent motion contaminated or infected the validity of the appeal in the lower court and rendered the latter incompetent too. For these reasons, plus other reasons stated in the leading judgment, I strike out the appeal. I abide by the orders for costs made in the reading Judgment.
Appearances
K. A. Adedokun EsqFor Appellant
AND
A. Y. Musa Esq,For Respondent
