BADRU v. IHUOMA
(2022)LCN/16034(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/L/257/2012
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
MR. DOLAPO BADRU APPELANT(S)
And
MRS. NGOZI NNAJI IHUOMA RESPONDENT(S)
RATIO
PRINCIPLES GOVERNING WHO CAN SIGN COURT PROCESSES
The law is well settled that Court processes, such as Writ of Summons, Originating Summons, Originating Motion, Petition, Statement of Claim, Statement of Defence, Notice of Appeal, etcetra, can only be signed by the Claimant/Applicant/Petitioner/Defendant/Appellant himself/herself or by a Legal Practitioner engaged by him/her. Section 2 (1) of the Legal Practitioners Act, provides that a person shall be qualified to practice as a Barrister and Solicitor only if his name is on the Roll of Legal Practitioners in Nigeria. Section 24 of the same Act defines Legal Practitioner to mean “a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Solicitor, either generally or for the purpose of any particular office or proceedings.” Any person whose name is not on the Roll of Legal Practitioners in the Supreme Court is not qualified to practice as a Legal Practitioner in Nigeria – PER MUHAMMAD IBRAHIM SIRAJO, J.C.A.
EFFECT OF A COURT PROCESS SIGNED BY A LAW FIRM
From the above passage, the learned trial Judge claimed to have read the decisions in Okafor vs. Nweke (supra) but failed to apply the legal principle enunciated in that case, that a Court process signed by a law firm is invalid as the law firm is not a Legal Practitioner called to the Nigerian Bar and enrolled to practice as such. There is no evidence that the name of Peter Ilegogie & Co exists on the Roll. Not being a Legal Practitioner therefore, Peter Ilegogie & Co is not qualified to issue, sign and file the Writ of Summons and Statement of Claim that activated the jurisdiction of the lower Court.
Providing a guide on how valid Court processes are to be signed, the Supreme Court, Per Rhodes-Vivour, JSC, in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt.1252) 317 at 337 said:
“All processes file in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, name and address of Legal firm.” -PER MUHAMMAD IBRAHIM SIRAJO, J.C.A.
In the very recent case of Yongo & Ors vs. Hanongon & Ors (2022) LPELR-57282 (SC), Abba Aji, JSC, held:
“It has not been contested that Albert Yawe & Co signed the Writ of Summons and Statement of Claim dated and filed on 24/10/2001, which is the stratum and foundation of the Appellant’s case at the trial Court to the present appeal. Albert Yawe & Co, not been a person whose name is on the roll of Legal Practitioners in the Supreme Court of Nigeria, cannot qualify to sign an originating process like the Writ of Summons and Statement of Claim dated and filed on 24/10/2001. Hence, the appeal owing its origin from the unsigned Writ of Summons and Statement of Claim is incompetent and liable to be struck out.”
It follows therefore that the Writ of Summons and Statement of Claim filed and signed by Peter Ilegogie & Co is incompetent and not capable of igniting the jurisdiction of the lower Court, in that the entity that filed and signed the said processes is not a registered Legal Practitioner. Consequently, the proceedings and judgment of the lower Court, having been founded on incompetent process, constitute a nullity and liable to be set aside. You cannot put something on nothing and expect it to stand, it will collapse. See MCfoy vs UAC (1961) 2 ALL ER 1169, 1172; (1962) AC 152. In the result, I hereby set aside the proceedings and judgment of the High Court of Lagos State in Suit No. ID/346/2005 and strike out the suit for being incompetent. – PER MUHAMMAD IBRAHIM SIRAJO, J.C.A.
By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent. A foremost authority was the case of Okafor v. Nweke (2007) LPELR-2412(SC).
About five years later, this position of the law was affirmed by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1. On whether the decision in Okafor v Nweke (supra) was mere technical justice, which ought to be revisited, the Supreme Court held, pages 15 – 16 of the E-Report:
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice gone. The Current vogue is substantial justice. See Dada v. Dosunmu (2006) 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is: not as it ought to be. There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel One should not talk of technicality when a substantive provision of the law is rightly invoked.”-PER ONYEKACHI AJA OTISI, J.C.A.
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): Vide a Statement of Claim dated 1st April, 2005, filed along with a Writ of Summons, sealed and issued on 5th April, 2005, the Respondent, as Claimant, sought before the High Court of Lagos State (the lower Court or trial Court), reliefs against the Appellant, as Defendant, as follows:
1. Possession of the 3 shops forcefully taken over by the defendant at No. 5B, Abbi Street, Mende Maryland, Lagos which the claimant’s husband bought for valuable consideration from the rightful owner.
2. A declaration that the defendant being a tenant in the property in dispute is estopped from claiming ownership of the same and is bound to render account fully to the claimant in respect of all the monies he has unlawfully collected in the shops premises and appurtenant.
3. An order compelling the defendant to pay over the sum of N352,500 being monies collected by the defendant on 3 shops at the rate of N2,500 per month per shop from September 2000 to August 2004 and mense profit at the rate of N7,500 per month for the 3 shops from September 2004 until judgment and thereafter at the same rate until he vacates the premises.
4. An order directing the official recovery of the High Court Ikeja to take over the collection of rent in the 3 shops illegally taken over by the defendant and the proceeds thereof to be paid into an interest yielding account pending the final determination of this suit and thereafter to be handed over to the successful party.
5. N100,000 being the cost of prosecuting this suit.
Upon being served with the originating process, the Defendant/Appellant filed a Statement of Defence and Counter Claim dated 21st June, 2005. The Appellant later filed an Amended Statement of Defence and Counter-Claim on 2nd December, 2007, with the leave of the lower Court in which he counter-claimed against the Respondent as follows:
1. A declaration that the Claimant is the person entitled to the statutory right of occupancy of the property situate at No. 5B Abbi Street, Mende Maryland, Lagos, measuring 20ft by 30ft.
2. A declaration that the Claimant is the person entitled to possession of the land measuring 20ft by 30 feet at No. 5B, Abbi Street, Mende, Maryland, Lagos and having bought the land, by the virtue of the purchase receipt issued by the Kuyashi Awushe family dated 26th day of August, 2001 and Deed of Assignment executed in his favour dated 12th day of September, 2001.
3. A perpetual injunction restraining the Defendant, her agents, servants or privies from trespassing on the property known and described as No. 5B, Abbi Street, Mende, Maryland, Lagos.
The Claimant/Respondent filed a reply and defence to the Counter-Claim.
According to the Appellant, the summary of the facts of the case at the lower Court is as follows:
“The Appellant was initially a tenant of one Pa Amodu and Chief Bilesanmi Olaiya in respect of two kiosks on a parcel of land now known as No. 5b, Abbi Street, Mende, Maryland, Lagos, measuring about 20 by 30 feet. The Appellant became a tenant on this land in 1976, wherein he was paying a monthly rent of N3.00 (Three Naira) per month to the said Pa Amodu and Mr. Bilesanmi Olaiya.
However, there was a directive by the then Government of Lagos state in 1984 that all kiosks in Lagos State should be removed and the space occupied by these kiosks should be converted to permanent structures. The Appellant got the permission of Pa Amodu and Chief Bilesanmi Olaiya to erect a building on the parcel of land. Needless to say that the expenses for the erection of the building on the parcel of land was to be bored by the Appellant with an understanding that the expenses incurred in erecting the building shall be converted to rents.
It was the belief of the Appellant that while he was dealing with Chief Bilesanmi Olaiya he had a valid title over the land in dispute. But as events were unfolding and upon the claim of the Kuyashi Awushe, family the ancestral owners of the entire land at Mende, Maryland and Onigbogbo among others that they did not sell the land in dispute to Chief Bilesanmi Olaiya, it occurred to the Appellant that it would be tidier to accept the offer made by the Kuyashi Awushe family of Onigbogbo to purchase the land. On 26th August, 2001, the Appellant bought the land from the Kuyashi Awushe family and was issued with the family purchase receipt and a Deed of Assignment was executed between the Appellant and the Kuyashi Awushe family.
However, unknown to the Appellant Chief Bilesanmi Olaiya who claimed to buy the land in dispute from Onigbogbo Villager’s Council in 1972, had purportedly sold the land to one Mr. Ihuoma Nnaji (the Respondent’s late husband) sometime in May, 2001. There was a dispute between the Respondent’s husband and the Appellant as to the rightful owner of the land. The Respondent’s husband caused a petition to be written to Oduduwa Police Station and Panti Police Station respectively. At the two Police stations, the police demanded for the title document of the Respondent’s husband which he was unable to produce. The Appellant produced his title document given to him by the Kuyashi Awushe family and the parties were advised to maintain peace.”
The Respondent on the other hand summarized the facts thus:
The Respondent herein was substituted for her late husband who died after he filed his action at the lower Court for possession of three shops forcefully taken over by the Appellant herein at 5B Abbi Street, mende Maryland, Lagos which he bought for the sum of N1,500,000:00 from Chief Bilesanmi Olaiya.
The Respondent’s husband had contended that the Appellant had at all material times been a tenant of his vendor, Chief Bilesanmi Olaiya before he purchased the land and that his tenancy was never in dispute. According to the Respondent, when he served the Appellant with Notice to quit the one shop he was occupying, the Appellant, in a letter to the Respondent’s Solicitor, wrote that he rebuilt the shop with an understanding to recoup his expenses over a period of three years, which would have expired by 31/07/2002. Instead of yielding up possession, the Appellant started laying claim to the ownership of the land.
Hearing in the suit commenced on 17/03/2009. The Respondent called four (4) witnesses and tendered 19 exhibits. The Appellant on the other hand called three (3) witnesses and tendered 4 exhibits. At the conclusion of trial, the lower Court (Coram: Justice O.A. Olayinka (Mrs.), in a judgment delivered on 01/06/2011, found in favour of the Respondent in the following terms:
1. The Claimant is hereby granted Possession of the 3 shops forcefully taken over by the defendant at No. 5B Abbi Street, Mende Maryland, Lagos forthwith.
2. It is hereby declared that the Defendant is a tenant of the Claimant and is not entitled to claim ownership of the property in issue.
3. It is hereby ordered that the Defendant render account fully forthwith to the claimant in respect of all the monies he has collected in the shops premises and appurtenant in respect of the property.
4. It is hereby further ordered that the defendant to pay over the sum of N352,500 being monies collected by the defendant on 3 shops at the rate of N2,500 per month per shop from September 2000 to August 2004 and mense profit at the rate of N7,500 per month for the 3 shops from September 2004 until judgment and thereafter at the same rate until he vacates the premises.
Being aggrieved with the decision of the lower Court, the Appellant initiated this appeal by filing a Notice of Appeal dated 10/08/2011, but filed on 13/12.2011, predicated on seven (7) grounds. The reliefs sought by the Appellant in the Notice of Appeal is for an order allowing the appeal, setting aside the judgment of the lower Court and entering judgment for the Appellant as per the reliefs in his counter-claim. Parties to the appeal filed written Briefs of Argument in fidelity with the Rules of Court. Appellant’s Brief of Argument settled by Tayo Olukotun, Esq., and filed on 01/09/2015, was deemed properly filed on 16/11/2015. Respondent’s Brief of Argument, authored by Peter Ilegogie, Esq., was filed on 08/10/2020, while the Appellant’s Reply Brief was filed on 21/01/2021 but deemed on 09/05/2022. The appeal was argued on 09/05/2022, during which learned counsel for the parties, Oladipupo Yeye, for the Appellant and Peter Ilegogie with Femi Ishola, for the Respondent, adopted their respective Briefs. In the Appellant’s Brief of Argument, four (4) issues were nominated for the determination of the appeal, as follows:
1. Whether the lower Court was right to hold that a writ of summons signed in the name of a registered practice name other than the name of a Legal Practitioner is proper and regular before the Court. (See Ground 5 of the Notice of Appeal)
2. Whether the lower Court was right to have granted reliefs 1, 2 and 4 contained in the Respondent’s writ of summons when no evidence was adduced before the Court to support same. (See Grounds 6 & 7 of the Notice of Appeal)
3. Whether the Respondent placed sufficient materials before the lower Court, necessary to prove her root of title of the property in issue to warrant the grant of same in her favour by the Lower Court. (See Grounds 1 & 2 of the Notice of Appeal)
4. Whether the lower Court rightly dismissed the Appellant’s Counter-Claim. (See Grounds 3 & 4 of the Notice of Appeal)
In her Brief of Argument, the Respondent adopted the 4 issues nominated by the Appellant.
Argument on Issue 1
Learned counsel for the Appellant, Tayo Olukotun, Esq., contended that the lower Court was wrong to have come to the conclusion that a Writ of Summons and other originating processes like the Statement of Claim signed in the name of a law firm other than a Legal Practitioner is proper and regular before the Court. He referred the Court to page 225 of the Record of Appeal where the learned trial Judge held in her judgment that the originating processes signed with the prefix “& CO” is not defective, since the owner of the registered law firm is a qualified Legal Practitioner.
Learned counsel submitted that there is no argument on the fact that the Respondent’s Writ of Summons, Statement of Claim, Reply to Statement of Defence and Defence to counter-claim were all signed in the name of Peter Ilegogie & CO., the law firm employed by the Respondent to represent her in Court. He argued that the law is trite law that before any process can activate the jurisdiction of the Court, such process must have been signed by a Legal Practitioner registered to practice in Nigeria and not a Law firm. That the name of any person called to the Nigerian Bar to practice as a Legal Practitioner was conspicuously absent on the originating processes, thereby rendering them defective in law. On the basis for this proposition of the law, the Court was referred to Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 which respectively state 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”.
“24 A legal practitioner means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.”
Counsel posited that from the above quoted provisions of the law, it is succinctly clear that a law firm is not a Legal Practitioner and therefore cannot practice as such by filing processes in our Courts, as only human beings actually called to the Bar can practice law by signing processes to activate the jurisdiction of the Court. It was contended that since all the originating processes and other processes filed by the Respondent before the lower Court were signed in the name of a Law firm as opposed to a Legal Practitioner as defined above, the whole processes and the proceedings before the lower Court are incompetent and liable to be struck out. The locus classicus case of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 at 531-532 was cited in support of this submission. Also cited are the cases of Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63 at 80-81; SLB Consortium Ltd v N.N.P.C (2011) 9 NWLR (Pt. 1252) 317 at 337-338; Nwani v Bakari (2007) 1 NWLR (Pt. 1015) 333, F.B.N Plc v Maiwada (2003) All FWLR (Pt. 151) 2001; Okarika v Samuel (2013) 7 NWLR (Pt. 1352) 19 at 38.
The Court was urged to hold that the lower Court was wrong to have held that the Respondent’s originating processes, signed in the name of a Law firm other than a Legal Practitioner known to law, was regular and proper. We were also urged to set aside the judgment of the lower Court which was premised on the defective originating processes and to strike out the said originating processes filed by the Respondent on the ground that they were incompetent to invoke the jurisdiction of the lower Court.
In his response to the Appellant’s argument on issue 1, learned counsel for the Respondent, Peter Ilegogie Esq., submitted that the law has since moved away from the rigid posturing of the Court as enunciated in Okafor vs Nweke (supra), placing reliance on Bello Ogundele & Anor vs. Shittu Agiri & Anor (2009) 12 SC (Pt.1) 351 where, learned counsel quoted the Supreme Court as saying:
“Even recently in the case of OKAFOR V. NWEKE (supra) this Court per Onnoghen JSC, dealt with this issue of fact. A partnership or firm, unless duly registered as such, with respect is not a legal practitioner recognised by law or a person entitled to practice as a Barrister and Solicitor….. If counsel who appear before this Court persist in this practice of signing any process of this Court as Co without evidence of being duly registered as such, it may be obliged to design or discountenance such process including briefs. Such signing in my respectful but firm view is NOT an irregularity as held by the Court.”
He submitted that from the judgment of the Supreme Court in Ogundele vs. Agiri (supra), it is clear that the Courts have deliberately shifted away from the narrow and technical approach to justice, which characterised some earlier decisions of Courts on the matter, in order to pursue the cause of substantial justice. This Court was urged to uphold the decision of the lower Court that the Writ was proper before it despite its being signed with the prefix, “& Co.” and is not defective, as the counsel signed the Writ under his registered practice name of Peter Ilegogie & Co., a registered Legal Practitioner.
Resolution of Issue 1
The law is well settled that Court processes, such as Writ of Summons, Originating Summons, Originating Motion, Petition, Statement of Claim, Statement of Defence, Notice of Appeal, etcetra, can only be signed by the Claimant/Applicant/Petitioner/Defendant/Appellant himself/herself or by a Legal Practitioner engaged by him/her. Section 2 (1) of the Legal Practitioners Act, provides that a person shall be qualified to practice as a Barrister and Solicitor only if his name is on the Roll of Legal Practitioners in Nigeria. Section 24 of the same Act defines Legal Practitioner to mean “a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Solicitor, either generally or for the purpose of any particular office or proceedings.” Any person whose name is not on the Roll of Legal Practitioners in the Supreme Court is not qualified to practice as a Legal Practitioner in Nigeria. The originating processes that ignited the jurisdiction of the lower Court in the case now on appeal, i.e., the Writ of Summons and the Statement of Claim, together with subsequent processes filed on behalf of the Respondent, such as List of Witnesses, List of Documents, Reply to Statement of Defence/Defence to Counter Claim were all signed by “Peter Ilegogie & Co” Claimant’s Solicitor, 10 Olukole Street, Surulere Street, Lagos. See pages 2, 3 – 6, 20, 21 – 22, 83 – 84 of the Record of Appeal for these processes. All these processes, as agreed by learned counsel to both parties, were not signed by the Claimant or Respondent whose name is Mrs. Ngozi Nnaji Ihuoma. Certainly, Peter Ilegogie & Co, who signed the processes, contrary to the holding of the lower Court at page 225 of the Record, is not the name of a Legal Practitioner registered to practice law in Nigeria. The lower Court was in serious error when it turned the law on its head by holding at page 225 of the Record:
“In the instant case, the Defendant is praying the Court to strike out the summons on the authority of OKAFOR V NWEKE (2007) 10 NWLR Pt. 1047 pg. 521 that the summons signed with the prefix & Co., is defective. The learned counsel to the defendant relying on (2009) 12 SC part 1 page 351 has submitted that since he signed the writ under my registered practice name of PETER ILEGOGIE & CO., the writ is proper and regular before the Court. I have read the cases of OKAFOR V NWEKE and BELLO OGUNDELE & ANOR V SHITTU AGIRI & ANOR. There is evidence before the Court that the Claimant Counsel is registered to practice as a legal practitioner which is not contradicted. I agree with the learned Counsel for the Claimant Mrs. Amughamo Okoro, that the writ is proper before the Court.”
From the above passage, the learned trial Judge claimed to have read the decisions in Okafor vs. Nweke (supra) but failed to apply the legal principle enunciated in that case, that a Court process signed by a law firm is invalid as the law firm is not a Legal Practitioner called to the Nigerian Bar and enrolled to practice as such. There is no evidence that the name of Peter Ilegogie & Co exists on the Roll. Not being a Legal Practitioner therefore, Peter Ilegogie & Co is not qualified to issue, sign and file the Writ of Summons and Statement of Claim that activated the jurisdiction of the lower Court.
Providing a guide on how valid Court processes are to be signed, the Supreme Court, Per Rhodes-Vivour, JSC, in SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt.1252) 317 at 337 said:
“All processes file in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of the counsel clearly written. Thirdly, who the counsel represents. Fourthly, name and address of Legal firm.”
A look at the originating processes initiating this suit before the lower Court reveals that while there is a signature and name and address of the legal firm, the name of counsel who signed the originating processes is not decipherable therefrom. On all the processes mentioned earlier, the name immediately below the signature is Peter Ilegogie & Co, which is the name of a Law firm and not the name of a Legal Practitioner. Learned counsel for the Respondent, Peter Ilegogie Esq., argued that the processes were signed by a registered Law firm which, by the decision of the Supreme Court in Ogundele vs. Agiri (supra), signing of a Court process with “& Co” is not an irregularity. He submitted that once there is evidence that the law firm is registered to practice as such, the Court accepts the process as valid and good. I have read the decision of the Supreme Court in the case of Ogundele vs. Agiri (supra), also reported as (2009) LPELR-23281 (SC), particularly the lead judgment delivered by Muntaka-Coomassie, JSC, and the concurring judgment of Ogbuagu, JSC, which was quoted by learned counsel in the Respondent’s brief. The issue of how Court processes are to be signed was not one of the issues submitted to the Supreme Court by the parties for determination. It was in the course of preparing his concurring judgment that Ogbuagu, JSC, raised the issue without inviting counsel to address the Court. No wonder, none of the other four Justices who sat on the panel dealt with that issue. The issue was only raised by the way by his lordship, Ogbuagu, JSC. Even at that, his lordship did not sanction the signing of Court process with “& Co” as proper and valid. Far from what the Respondent’s counsel attributed to the revered Ogbuagu, JSC and the Apex Court, the Court stated that the practice of signing of Court process with the prefix “& Co” is not only an irregularity, it is a fundamental error. This is what the Apex Court, per Ogbuagu, JSC, said at pages 35-36 of the E-Report:
“Before the reservation of the judgment, I had drawn the attention of Mr. Ajibola off record, to the fact that their brief was faulty in that it was signed by Ajibola & Co and there is/was no evidence that it was a firm duly registered as such. He did not respond to my observation. Even recently in the case of Okafor & Ors vs. Nweke & Ors (2007) 10 ALL FWLR (Pt.368) 1016 this Court – per Onnoghen JSC, dealt with this issue of fact. A partnership or firm, unless duly registered as such, with respect is not a legal practitioner recognised by law or a person entitled to practice as a Barrister and Solicitor….. If learned counsel who appear before this Court, persists in this practice of signing any process of this Court as & Co without evidence of being duly registered as such, it may be obliged to disregard or discountenance such process including Briefs. Such signing in my respectful but firm view is NOT an irregularity as held by the Court of Appeal – per Allagoa, JCA in the case of Unity Bank PLC vs. Oluwafemi (2007) ALL FWLR (Pt.382)1923 relying on the case of or decision in Cole vs. Martins (1968) ALL NLR161 (Lardner’s case). It is a fundamental error.”
Learned counsel for the Respondent decided to doctor the dictum of the Supreme Court by removing the portion of the judgment of Ogbuagu, JSC, which I underlined above, in order to mislead this Court and to suit his parochial interest. This is indecorous, immoral, unethical and dishonest.
To say that I am not highly disappointed at counsel’s desperate attempt to mislead this Court is an understatement.
The resultant effect of all my legal analysis above is that the originating processes which initiated the Respondent’s action at the lower Court are fundamentally defective as they were not signed by a Legal Practitioner but by a law firm. This fundamental defect is incurable. The endorsement of the Writ of Summons and Statement of Claim by Peter Ilegogie & Co., renders the originating processes invalid and incompetent. Talking about the effect of such wrongly signed originating process, Onnoghen, JSC (as he then was) while delivering the lead judgment in SLB Consortium vs. NNPC (supra), puts it this way:
”Adesokan & Co., on the originating summons of the appellant robs the process of competence ab initio as the said firm is not a registered Legal Practitioner….”
From the above decision, handed down in 2011, it is not correct, as postulated by learned counsel for the Respondent, that the Supreme Court has moved away from the rigid posturing in Okafor vs. Nweke (supra), rather, the position taken by the Supreme Court in that case has continued to be followed and strengthened in subsequent cases up to date. See FBN Plc vs. Maiwada (2013) 5 NWLR (Pt.1348) 1433, Oketade vs. Adewunmi (2010) 8 NWLR (Pt.1195) 63, Williams & Anor vs. Adold/Stamm International Nigeria Ltd (2017) LPELR-41559 (SC), Okpe vs. Fan Milk Plc & Anor (2016) LPELR-42562 (SC), Arueze & Ors vs. Nwaukoni (2018) LPELR-46352 (SC), Ajibode & Ors vs. Gbadamosi & Ors (2021) LPELR-53089 (SC). In the very recent case of Yongo & Ors vs. Hanongon & Ors (2022) LPELR-57282 (SC), Abba Aji, JSC, held:
“It has not been contested that Albert Yawe & Co signed the Writ of Summons and Statement of Claim dated and filed on 24/10/2001, which is the stratum and foundation of the Appellant’s case at the trial Court to the present appeal. Albert Yawe & Co, not been a person whose name is on the roll of Legal Practitioners in the Supreme Court of Nigeria, cannot qualify to sign an originating process like the Writ of Summons and Statement of Claim dated and filed on 24/10/2001. Hence, the appeal owing its origin from the unsigned Writ of Summons and Statement of Claim is incompetent and liable to be struck out.”
It follows therefore that the Writ of Summons and Statement of Claim filed and signed by Peter Ilegogie & Co is incompetent and not capable of igniting the jurisdiction of the lower Court, in that the entity that filed and signed the said processes is not a registered Legal Practitioner. Consequently, the proceedings and judgment of the lower Court, having been founded on incompetent process, constitute a nullity and liable to be set aside. You cannot put something on nothing and expect it to stand, it will collapse. See MCfoy vs UAC (1961) 2 ALL ER 1169, 1172; (1962) AC 152. In the result, I hereby set aside the proceedings and judgment of the High Court of Lagos State in Suit No. ID/346/2005 and strike out the suit for being incompetent.
With the determination of issue 1, which goes to the root and stratum of the suit at the lower Court, it will be academic and a waste of precious judicial time to proceed to determine the other issues in this appeal.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Muhammad Ibrahim Sirajo, JCA made available to me in advance, a draft copy of this Judgment in which this appeal was allowed. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support.
By the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation, 2004, a legal practitioner who can, within the meaning of the relevant Rules of Court, validate a Court process, whether writ of summons, notice of appeal, statement of claim or statement of defence, must be a named legal practitioner whose name is on the Roll of Legal Practitioners in the Supreme Court of Nigeria, registered to practice as a Barrister and Solicitor in this Country. These provisions have received frequent and consistent judicial interpretation such that it is now well settled that a process prepared and filed in a Court of law by a legal practitioner, which has not been signed by the legal practitioner, is incompetent. A foremost authority was the case of Okafor v. Nweke (2007) LPELR-2412(SC).
About five years later, this position of the law was affirmed by the Apex Court sitting as a full Court in First Bank of Nigeria Plc v. Maiwada (2012) LPELR-9213(SC); (2012) 5 SC (Pt. 111) 1. On whether the decision in Okafor v Nweke (supra) was mere technical justice, which ought to be revisited, the Supreme Court held, pages 15 – 16 of the E-Report:
“There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice gone. The Current vogue is substantial justice. See Dada v. Dosunmu (2006) 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is: not as it ought to be. There is nothing technical in applying the provisions of Sections 2(1) and 24 of the Legal practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel One should not talk of technicality when a substantive provision of the law is rightly invoked.”
The Supreme Court then declined the invitation to revisit the decision in Okafor v. Nweke since it was not in any respect wrong in law.
The decision in Okafor v Nweke (supra) and the subsequent decision of FBN v Maiwada (supra), have been followed in a number of decisions of the Apex Court and of this Court. To mention but a few. See SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317; (2011) LPELR-3074(SC), Okarika v. Samuel (2013) LPELR-19935(SC), Oketade v Adewunmi (2010) 8 NWLR (Pt. 1195) 63, SPDC v Sam Royal (Nig) Ltd (2016) LPELR-40062(SC), Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Williams & Anor v. Adold/Stamm International Nigeria Limited & Anor (2017) LPELR-41559(SC), GTB v. Innoson Nigeria Ltd (2017) LPELR-40063(SC) Arueze & Ors v. Nwaukoni (2018) LPELR-46352(SC), Akinsanya & Anor v. Federal Mortgage Finance Ltd (2010) LPELR-3687(CA), lgiriga v. Bassey (2013) LPELR-20346(CA), N.N.P.C. v. Roven Shipping Ltd (2014) LPELR-22140(CA), Kpezanyashi & Ors v Jezhi & Ors (2018) LPELR-44402(CA), Ewukoya & Anor v. Buari & ors (2016) LPELR-40492(CA).
Without going into much detail, it is important to note that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (2018) 3 NWLR (PT 1625) 420, per Eko, JSC, and in Bakari v. Ogundipe & ors (2020) LPELR-49571(SC), per Rhodes-Vivour, JSC, which appeared to have espoused the contrary position of waiver of the right to object to a defective process that has not been appropriately signed by a legal practitioner, where the party objecting had participated in the proceedings, were not decisions of the Supreme Court sitting as a full Court. In First Bank of Nigeria Plc v. Maiwada (supra), the reason for which the full Court was empaneled was stated, per Fabiyi, JSC thus, page 3 of the E-
“The core issue in my considered opinion is – whether a Court process not personally signed by a legal practitioner duly registered in the roll of this Court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.
Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full Court. A host of amicus curiae got invitation to address the Court on the issue.”
In other words, it was to avoid confusion and discordant judicial pronouncements on the competence or validity of a Court process not personally signed by a legal practitioner duly registered in the roll of the Supreme Court as provided in the Legal Practitioners Act that the Supreme Court sitting as a full Court was empaneled. As earlier stated, that full panel validated the position of the law in Okafor v Nweke (supra).
In this regard therefore, and with utmost respect. it is my humble opinion that the decisions in Heritage Bank Ltd v Bentworth Finance (Nig.) Ltd (supra) in 2018, and in Bakari v. Ogundipe & Ors (supra) in 2020, which were not decisions of the Supreme Court sitting as a full Court, cannot be said to represent the extant position of the law on this issue. Therefore, the decision in Okafor v Nweke (supra), duly affirmed in FBN v Maiwada (supra), still represents law. See also the recent affirmation by the apex Court in Ajibode & Ors v Gbadamosi & Ors (2021) LPELR-53089(SC), per Ngwuta. JSC (of blessed memory); Ojikutu & Ors v. Kuti & Ors (2021) LPELR-56231(SC), Skypower Express Airways Ltd v. UBA Plc & Anor (2022) LPELR-56590(SC), Yongo & Ors v. Hanongon & Ors (2022) LPELR-57282(SC).
The failure of the Respondent’s Counsel to sign the Statement of Claim before the lower Court was a defect that impacted on the jurisdiction of the lower Court to entertain the matter. Jurisdiction is always a threshold issue, for when the Court has no jurisdiction to entertain a matter, the proceedings are a nullity, no matter how well conducted and brilliantly decided they may have been; Lakanmi v Adene (2003) LPELR-1750(SC); Ekulo Farms Ltd v UBN Plc (2006) LPELR-IIOI(SC); Obaba v Military Governor Of Kwara State (1994) LPELR-2147(SC). It is also trite that a jurisdictional issue can be raised at any time, even at the Apex Court; Adegoke v Adibi (1992) LPELR-95(SC); Adesola v Abidoye (1999) LPELR- 153(SC); Olutola v University of Ilorin (2004) LPELR-2632(SC).
It is for the above reasons, and for the fuller reasons given in the leading judgment that I also allow this appeal. I abide by the orders made therein.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had earlier carefully gone through the Draft Copy of the judgment just delivered by my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA and found that he has justly resolved all the issues involved in this instant appeal.
A Court is competent when:
1. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and,
3. The case comes before the Court, initiated by due process of law, and upon the fulfilment of any condition precedent to the exercise of any jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity, however well conducted and decided: the defect is extrinsic to the adjudication. See MADUKOLU VS NKEMDILIM (1962) 1 ALL NLR (PART 4) 587, ATTORNEY-GENERAL, FEDERATION VS GUARDIAN NEWSPAPERS LTD (1999) 9 NWLR (PART 618) 187.
My Lords, an originating process must be endorsed by the party or his Legal practitioner. Section 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004, provlde thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Section 24: In this Act, unless the context otherwise requires, the following expressions have the meanings assigned to them respectively, that is to say ‘Legal Practitioner’ means a person entitled to 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.
My learned brother has carefully analyzed that the Respondent’s motion for judgment which birthed the judgment in this instant appeal was not properly signed by the Legal Practitioner. This means the process is adjudged not to be signed by any legal practitioner. This goes to the root of the Court and it renders all the proceedings conducted on it a nullity.
In view of this, I also allow this appeal and I abide by all the orders made by my learned brother.
Appearances:
Oladipupo Yeye For Appellant(s)
Peter Ilegogie with him, Femi Ishola For Respondent(s)