ALHAJI LATEEF A. GBADAMOSI & ANOR v. CHIEF ALFRED BIALA & ORS
(2014)LCN/7513(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of November, 2014
CA/I/83/2011
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI LATEEF A. GBADAMOSI
2. GBADAMOSI BROTHERS NIGERIA LIMITED Appellant(s)
AND
1. CHIEF ALFRED BIALA
2. PASTOR EDWARD BIALA
(For themselves and on behalf of BIALA Family of Ologede)
3. COMMISSIONER FOR LANDS, HOUSING AND SURVEY
4. OYO STATE GOVERNMENT Respondent(s)
RATIO
FACTORS THAT CONSTITUTES AN ABUSE OF COURT PROCESS
Now, I think that the locus classicus on what constitutes an abuse of court process can be said to be the case of Saraki vs. Kotoye (1992) NWLR part 245 p.156 also reported in (1992) 11/12 SCNJ 26 where the Supreme Court stated thus:
“It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues”. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT MULTIPLICITY OF ACTIONS CONSTITUTE AN ABUSE OF COURT PROCESS
As explained by the Supreme Court per Karibi-whyte JSC in Okafor vs. A.G. Anambra (1991) 6 NWLR (Pt.200) p.659 also reported in (1991) 7 SC (Pt.111) p.138:
“It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter”.
From the above explanation by the Supreme Court, what constitutes abuse of process is lacking in this case. Issue 2 is also resolved against the appellants. The result is that the appeal lacks merit and is therefore hereby dismissed. I award N50,000 costs in favour of the 1st and 2nd Respondents. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT AN UNSIGNED DOCUMENT IS A WORTHLESS PIECE OF PAPER
This is because the law is trite that an unsigned document is a worthless piece of paper and therefore cannot confer any legal right or benefit on any party or the party who seeks to rely on it. In such a circumstance, the document is not capable of activating the jurisdiction of the court to adjudicate on the matter. In that respect, the law requires that the identity of the person who purported to sign a document must be clearly and unambiguously disclosed. See Adighije v. Nwosu (2010) 12 NWLR (Pt.1209) p.419 at 481; A.G; Kwara State v. Alao (2000) 9 NWLR (pt.671) p.89 at 104 and omega Bank Plc v. OBS Ltd (2005) 8 NWLR (pt.928) p.547 at 581. PER TSAMMANI, J.C.A.
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a Ruling of the Lower Court. The dispute in the Lower Court was over a piece of land. The Respondents who were the Plaintiffs in the Lower Court filed a Writ of Summons, a Motion on Notice for an Order of Interlocutory Injunction and a Statement of Claim. However the Appellants who were the Defendants in the Lower Court after entering a conditional appearance in the matter filed an application wherein they prayed:
(1) That the Lower Court lacked jurisdiction to entertain the case as the Writ of Summons dated 17th July 2009, the Motion on Notice for an Order of Interlocutory Injunction dated 17th July 2009 and the Statement of Claim dated 6th October 2009 were all not signed by a legal practitioner; and
(2) That the case before the Lower Court was an abuse of court process.
After hearing the interlocutory application, the learned trial judge in a considered ruling delivered on 4/3/11 dismissed it for lack of merit. Dissatisfied with the Ruling,the appellants on 15/3/11 filed a Notice of Appeal containing two grounds of appeal. The said Notice of Appeal was amended with the leave of court. The Amended Notice of Appeal was filed on 11/5/11. It was however deemed as having been properly filed and served on 23/1/12. The Amended Notice of Appeal also had two grounds of Appeal to which the particulars of appeal were included. The grounds of appeal excluding the particulars read as follows:
1. The learned trial judge erred in law by not following the decision of the Supreme Court in the case of Okafor vs. Nweke (2007) 19 WRN p.1 and the decision of the Court of Appeal in Onward Enterprises Ltd. vs. Olam (2010) ALL FWLR part 531 p.1503 when he consequently held that the Lower Court has jurisdiction to entertain this suit when the originating writ of summons dated 17th day of July 2009; motion on notice for an order of interlocutory injunction dated 17th day of July 2009 and statement of claim dated 6th day of October, 2009 were not signed by a legal practitioner known to law.
2. The learned trial judge erred in law when the court held that this case is not an abuse of court process.
In the Appellants’ Brief of Argument filed on 2/9/71 and deemed as properly filed and served on 23/1/12 following an order of this court, the appellants learned counsel Olakunle Faokunle Esq. identified two issues for determination, viz-
1. Whether the Lower Court has jurisdiction to entertain this suit when the originating writ of summons dated 17th day of July 2009, motion on notice for an order of interlocutory injunction dated 17th day of July 2009 and the statement of claim dated 6th day of October, 2009 were not signed by a legal practitioner known to law.
2. Whether this suit before the Lower Court is an abuse of court process.
The 1st and 2nd Respondents Brief of Argument was filed on 19/9/11. It was however by an order of this court of 23/9/14 deemed as having been properly filed and served on 23/1/12. In the said Brief of Argument learned counsel for the 1st and 2nd Respondents Michael F. Lana Esq. identified two issues for determination. The issues are not different from the issues for determination formulated by the appellants learned counsel.
The 1st and 2nd Respondents’ issues were however tersely stated.
They read:
1. Whether the person who signed for Michael F. Lana is a person known to law; and
2. Whether the suit is an abuse of process.
I prefer the issues for determination as formulated by the Respondents. They go straight to the point, are crisp and clear.
Let me state here that although the 3rd and 4th respondents were served with the Appellants Brief, they failed to respond to the said brief as they did not file any brief of argument. It is also necessary to state here that the 1st and 2nd Respondents filed a Notice of Cross-Appeal on 20/4/11. However their counsel withdrew the said Notice of Cross Appeal and same was dismissed pursuant to Order 11 Rule 5 of the Court of Appeal Rules; 2011.
In respect of issue 1, the appellants learned counsel submitted that the writ of summons dated 17/7/2009 and the motion on notice dated 6/10/2009 were both signed by an unidentified person for Michael F. Lana
Esq. The unidentified person he submitted, cannot be identified as a legal practitioner known to law. Learned Counsel referred to the case of onward Enterprises Ltd. vs. Ilam Int. Ltd. (2010) ALL FWLR part 531 at p.1503 at p.1512. It was submitted that the Lower Court was wrong to have relied on Ogunsakin vs. Ajidara (2008) 6 NWLR part 1082 p.1. and Dalhatu vs. Dikko (2005) ALL FWLR part 242 p.483 as the cases are not applicable in this case. It was submitted that Dalhatu vs. Dikko was decided before the case of Okafor vs. Nweke while the said case of Okafor vs. Nweke was not brought to the notice of the court in Ogunsakin vs. Ajidara. Had it been brought to the notice of that court it was submitted, the decision in Ogunsakin vs. Ajidara might have been different.
In his argument in response, Respondents learned counsel contended that the questions before the Lower Court were whether the person who signed the processes was identifiable and if he were whether he could be identified as a legal practitioner known to law. In answer to those questions, the signatory to the processes one Babatunde Akinola, learned counsel submitted, filed a counter-affidavit wherein he (Babatunde Akinola) deposed to the fact that he is a legal practitioner. No further affidavit was filed by the appellants to counter that deposition. That being the case, learned counsel urged that the facts in the counter affidavit would be deemed as admitted. He cited in support Anah vs, Anah (2008) 9 NWLR part 1091 p.75 at 83; Zakari vs. State (2008) 10 NWLR part 1096 p.458 at 479. Learned Counsel submitted that the Lower Court accepted the counter- affidavit deposed to by Babatunde Akinola to the effect that he was the legal practitioner that signed the processes for and on behalf of his principal in chambers. The Lower Court it was further submitted, was satisfied that the processes were signed by a legal practitioner known to law. It was contended that the finding of the Lower Court that Babatunde Akinola signed the processes and is a legal practitioner was not appealed by the appellants and that the finding therefore binds the parties. The cases of Anyaduba vs. NRTC (1902) 5 NWLR part 243 p.535 at 553. Nwabueze vs. Okoye (1988) 4 NWLR part 91 p.564 at 679; Udom vs. Micheletti & Sons (1997) 8 NWLR part 516 p.187 at 200 were cited in support.
Learned Counsel submitted that there is nothing to sustain the appeal and that all the cases cited by the appellants’ counsel are irrelevant to this case.
In resolving issue 1, I think it is proper to give a brief summary of the facts that were presented before the Lower Court and which that court considered in its Ruling. Before the Lower Court were three processes which the appellants counsel contended were “signed by a legal practitioner unknown to the law. The processes were a writ of summons, a motion on notice for an order of interlocutory injunction and a statement of claim.
Needless to add, the appellants counsel wanted the Lower Court to decline jurisdiction to hear the matter on account of his contention that the processes were not signed by a legal practitioner known to law. The appellants approached the Lower Court in this regard via a motion on notice filed on 7/19/10. Paragraph 4(a) and (b) of the affidavit in support of the motion constitute the gravamen of the appellants’ position. The said paragraph reads:
“4. That Olakunle Faokunle Esq. counsel to the 1st and 2nd Defendants/Applicants informed me in his office at SwB/162B Lagos Bye Pass, Oke-Ado Ibadan on 1st September, 2010 at about 1.30pm, on the circumstances of this case and I very believed him as follows:-
(a) That the writ of summons dated 17th day of July 2009, motion on notice for an order of interlocutory injunction dated 17th day of July, 2009 and statement of claim dated 6th day of October, 2009 were signed by an unidentifiable person for Michael F. Lana Esq.
(b) That the unidentifiable person cannot be identified as a legal practitioner known to law.
In answer to the above deposition, the Respondents filed a counter-affidavit. The deponent was Babatunde Akinola. In paragraph 5 and 6, the said Babatunde Akinola averred that he is a legal practitioner and one of the counsel for the respondents in MFL Chambers. He also averred that he had the consent of his principal Michal F. Lana to sign all processes in the case on his behalf. The appellants filed no further affidavit to controvert the facts stated by Babatunde Akinola in the counter-affidavit. It is clear to me that from the above facts, the appellants queried the identity of the person that signed for Michael F. Lana as to whether that person is a legal practitioner. Babatunde Akinola stepped forward through his counter-affidavit and identified himself as a legal practitioner and the one that signed the processes for Michael F. Lana with the consent of the said Michael F. Lana.
I think the answer of Babatunde Akinola via his counter-affidavit sufficiently laid to rest any doubts that the appellants may have had about the identity of the person that signed the processes for Michael F. Lana. Consequently, the learned trial judge in my humble view cannot be faulted in the following finding that he made:
“I agree with the submission of claimants in paragraphs 1 to 6 of the counter-affidavit deposed to by Babatunde Akinola to the effect that the said Babatunde Akinola is a legal practitioner in M. F. Lana Chambers who signed the processes for and on behalf of his principal in chambers and with the consent of his principal in chambers and it is enough to conclude that the processes were signed by a legal practitioner known to law”.
Let me say in agreement with the learned counsel for the respondents that the above finding of the trial judge was not in anyway challenged in this appeal. The finding therefore remains intact and inviolate.
Several cases have been cited by learned counsel. I have read the cases and I do not see their relevance in this case although they deal with the general subject of the signing of processes in court.
It is the law that cases are decided on their peculiar facts. The facts in this case do not require a peregrination to cases such as Okafor vs. Nweke. Issue 1 is resolved against the appellants.
The second issue is whether the suit before the Lower Court is an abuse of court process.
On this issue, learned counsel to the appellants drew our attention to the writ of summons in the Lower Court at page 1- 2 of the Record of Appeal and urged us to compare same with the Amended Statement of Defence and Counter-Claim of the defendants and also the Further Amended Statement of Claim in Suit No.I/1092/95 at page 53 – 57 and at pages 60 – 64 respectively of the Record of Appeal. Furthermore, our attention was drawn to the parties in Suit No.I/1092/95. Also brought to our attention is the 2nd relief of the Defendants in their counter-claim in Suit No.I /L092195 at page 56 of the Record of Appeal. It was submitted that the pleadings and claims to which our attention had been drawn show that Alhaji L. Gbadamosi and Gbadamosi Brothers Nig. Ltd. were parties in Suit No.I/1092/95. Learned Counsel referred to the definition of “parties” in the case of Balogun vs. Afolayan (2001) vol.45 WRN p.48 at p.65. it was contended that Alhaji L. Gbadamosi and Gbadamosi Brothers Nig. Ltd. respectively had direct interest in the subject matter in Suit No.I/1092/95.
It was contended that if the court had held that Alhaji L. Gbadamosi and Gbadamosi Brothers Nig. Ltd. were parties in Suit No.I/1092/95, then it would have been apparent that they were also parties in the suit before the Lower Court. We were urged that the parties in Suit No.I/1092/95 and the ones in suit No.1987/09 in the Lower Court are the same.
Learned Counsel also referred us to the reliefs before the Lower Court as well as the reliefs in the counter-claim in Suit No.I/1092/95. It was contended that the reliefs are the same. Learned Counsel referred to the Ruling of the trial judge at page 107 of the Record of Appeal and submitted that the trial judge should have found that the reliefs and the parties in the two cases are the same. It was contended that the case before the Lower Court will have the same effect and result as the earlier Suit No.I/1092/95 which is still pending. By reason of that it was further contended, the case before the Lower Court is an abuse of court process. We were referred to the case of Agwasim vs. Ojiche (2004) ALL FWLR part 212 p.1600 at 1608 and 1609.
We were urged that even if it is assumed although not conceded that the case before the Lower Court and the earlier one in Suit No.I/1095/95 are on different grounds, there will still be an abuse of court process as both cases involved the same parties and were simultaneously pending in different courts. We were urged to resolve the second issue against the 1st and 2nd respondents and in favour of the appellants.
In his Brief of Argument, the 1st and 2nd Respondents’ Counsel was quite brief on his submissions on issue 2. Learned Counsel simply referred to the Ruling of the trial judge at page 107 in lines 16 – 26 of the Record of Appeal where the learned trial judge held that there was no abuse of court process. The finding of the trial judge it was submitted was not appealed against. We were urged to dismiss the appeal.
I must state most respectfully and straightaway that I disagree with the 1st and 2nd respondents learned counsel that the appellants did not appeal against the finding that the matter before the Lower Court was not an abuse of court process. A look at ground 2 of the Amended Notice of Appeal will show that learned counsel cannot be right in his submission.
The said ground reads:
“The learned trial judge erred in law when the court held that this case is not an abuse of court process”.
Now, I think that the locus classicus on what constitutes an abuse of court process can be said to be the case of Saraki vs. Kotoye (1992) NWLR part 245 p.156 also reported in (1992) 11/12 SCNJ 26 where the Supreme Court stated thus:
“It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues”.
Appellants’ Learned Counsel strove to make the case that the parties in Suit No.I/1092/95 in another High Court and in Suit No I/1987/2009 in the Lower Court are the same. He submitted that the pleadings in paragraph 29 of the Fufther Amended Statement of Defence and Counter-Claim as well as the reliefs claimed therein show that Alhaji L. Gbadamosi and Gbadamosi Brothers Nig. Ltd. had direct interest in the land.
Now the parties in Suit No.I/1092/95 are Lasisi Adelakin Amosun, Oladoyinbo Amosun and Akamu Amosun for themselves and on behalf of Amosun family, all against Joseph Adeniyi Biala, Alfred Oladoyinbo Biala, Pastor Edward Amusan Biala and Pastor Emmanuel Ariwoola Biala for themselves and on behalf of Biala family. Alhaji Lateef A. Gbadamosi and Gbadamosi Brothers Nig. Ltd. are not parties in that case. The fact that Alhaji Lateef A. Gbadamosi and Gbadamosi Brothers Nig. Ltd. are according to appellants counsel persons that “had direct interest” in the subject matter in Suit No.I/1092/95 did not make them parties in that case. The pleadings in paragraph 29 of the Further Amended Statement of defence and Counter- Claim of the Defendants in Suit No.I/1092/95 at page 53 – 57 of the Record of Appeal shows that Lateef Gbadamosi and Gbadamosi Nig. Ltd. featured in that case only to the extent that the defendants in that case averred that the plaintiffs in that case made an iltegal sale of a portion of the land in dispute to them, noting more.
If Lateef A. Gbadamosi and Gbadamosi Nig. Ltd. were sufficiently worried about the pleadings concerning them as to want to be part of the case, it was up to them to apply to be joined as parties in the suit. If either of the parties in that suit also felt sufficiently that Lateef A. Gbadamosi and Gbadamosi Nig. Ltd. should be parties in the case, it was also up to them to apply for their joinder in the suit. Until that is done, Lateef A. Gbadamosi and Gbadamosi Brothers Nig. Ltd. cannot be conferred with the status of parties in Suit No.I/1092/95. That being so the parties in Suit No.I/1092/95 and the parties in the Lower Court are not the same. That is not the only difference in the parties in both cases. In the case at the Lower Court the commissioner for Lands, Housing and survey and the Oyo State Government are the 3rd and 4th defendants. They are not parties in Suit No.I/1092/95. In the circumstances, I cannot fault the learned trial judge where he held in the penultimate paragraph of his Ruling at page 107 of the Record of Appeal as follows:
“A close look at claims in the two suits above shows that only relief (ii) in both suits could be said to be the same, the other reliefs are not exactly the same. The parties as stated in the suits are not definitely the same even though the defendants in Suit No.I/1095/95 include Pastor Edward Biala who is the 3rd defendant in Suit No.I/1092/95 and the 2nd claimant in the present suit. But it seems that the subject matter is the same. Since the reliefs and the parties are not the same, the fact that the subject matter is the same is not sufficient to hold that the present case has been brought in abuse of the process of court”.
As explained by the Supreme Court per Karibi-whyte JSC in Okafor vs. A.G. Anambra (1991) 6 NWLR (Pt.200) p.659 also reported in (1991) 7 SC (Pt.111) p.138:
“It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter”.
From the above explanation by the Supreme Court, what constitutes abuse of process is lacking in this case. Issue 2 is also resolved against the appellants. The result is that the appeal lacks merit and is therefore hereby dismissed. I award N50,000 costs in favour of the 1st and 2nd Respondents.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Daniel-Kalio, JCA, I totally agree with all his reasonings and conclusions very ably set out I have nothing more to add. I too would dismiss this appeal for being of any merit.
I abide by all the consequential orders of my learned brother, including the order for costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the judgment delivered by my learned brother Obietonbara Daniel-Kalio; JCA.
My learned brother has adequately stated and ably resolved the germane issues that were presented for determination in this appeal. I am in total agreement with his conclusion thereon.
I only wish to add that, the grouse of the Appellant in this appeal is not whether the processes complained against were not signed at all or that they were signed by a firm of legal practitioners, but whether those processes signed “for” a known legal practitioner by an unidentified or undisclosed person are valid in law. This argument is very valid in the determination of the competence and thus jurisdiction of the court below to have heard or adjudicated on the matter. This is because the law is trite that an unsigned document is a worthless piece of paper and therefore cannot confer any legal right or benefit on any party or the party who seeks to rely on it. In such a circumstance, the document is not capable of activating the jurisdiction of the court to adjudicate on the matter. In that respect, the law requires that the identity of the person who purported to sign a document must be clearly and unambiguously disclosed. See Adighije v. Nwosu (2010) 12 NWLR (Pt.1209) p.419 at 481; A.G; Kwara State v. Alao (2000) 9 NWLR (pt.671) p.89 at 104 and omega Bank Plc v. OBS Ltd (2005) 8 NWLR (pt.928) p.547 at 581.
In the instant appeal, the documents in question are the Writ of Summons, Motion on Notice for an order of Interlocutory Injunction and the statement of claim which clearly show that they were signed “for” Michael F. Lana; Esq a known legal practitioner. The identity of the person who signed “for” the said legal practitioner was not disclosed nor was it indicated that those documents were signed by a lawyer or the Respondent personally.
The law requires that the person who signs a document or other judicial process should disclose his identity. This is especially in view of the decision of the Supreme Court in the locus classicus case of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) p.521 which has been sustained in plethora of other cases. Thus in the case of Hon. Okechukwu Igwe v. I.N.E.C & Anor (2012) LPELR – 9834 (CA) (a case in which I sat on the panel), Uwani Musa Abba Aji, JCA observed as follows:
“The relevance of the disclosure of the identity of the person who signed a document filed in court is to assist the court to confirm that the person who signed the document is a legal practitioner or the Appellant. It is glaring that the mischief which the rule of disclosure of the identity of the person who signs a court process on behalf of a legal practitioner intends to cure is to avoid a situation where a person who is not a legal practitioner signs court processes which are to be filed in court.”
In that respect, counsel are enjoined to be very meticulous in the preparation of documents to be filed in court. If that is done, a situation such as that in the instant case would be avoided. It is obvious therefore that, if counsel for the Respondent had done his work right by ensuring that he signed the processes to be filed in court or junior counsel in chambers who signed “for” him disclosed his identity on the face of the documents, the controversy that has been generated in this case would have been avoided. It is not the end for counsel to merely prepare documents, but he must ensure that they are properly and correctly signed.
Thus, Onnoghen, JSC admonished in the case of Okafor v. Nweke (supra) as follows:
“The issue of substantial justice must be balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents particularly processes for filing in the court have not been receiving serious detention they deserved from some legal practitioners. Legal practice is a very serious business that is to be taken by serious minded practitioners particularly as both the legally trained and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.”
I hope this advice from the highest citadel of justice in our land will be well taken and adhered to, Meanwhile, the learned trial Judge did well by not following Okafor v. Nweke (supra) as the facts of this case are clearly different from that in Okafor v. Nweke (supra). It is indeed the duty of every court to always ensure that substantial justice is done in each case between the parties, and therefore rules of court must always be interpreted as to avoid undone adherence to technicalities.
It is for the above reasons and the detailed reasons able marshalled by my learned brother in the lead judgment, that I agreed that this appeal is bereft of merit and is thus dismissed by me. I also abide by the order on costs.
Appearances
Olakunle Faokunla with O. B. Otukoya and B. T. AgboluajeFor Appellant
AND
Micheal F. Lana with Babatunde Akinola and Akinbanjo Akinwalire for the 1st and 2nd Respondents
3rd Respondent dully served but absent.For Respondent