CHIEF FATAI AGBEBIYI & ORS v. CHIEF SIKIRU BALOGUN & ORS (2016)

CHIEF FATAI AGBEBIYI & ORS v. CHIEF SIKIRU BALOGUN & ORS

(2016)LCN/8114(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of January, 2016

CA/I/4/2012

RATIO

PRACTICE AND PROCEDURE: COUNTER-CLAIM; HOW COUNTER-CLAIM OUGHT TO EXIST

As for the Counter-claim, it ought to exist independently of the main suit which as we have said is a nullity but regrettably the Counter-claim was not “initiated’ by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction” in that appropriate fees was not paid for the claims therein.
In Onnogbufor v. Okoye (1996) 1 SCNJ 1, the Plaintiffs, with the leave of the trial Court, amended their statement of claim, incorporating therein a new relief of, forfeiture of tenancy against the tenants, But the plaintiffs failed to pay the Court fees stipulated for this relief, even though they included it in the amended statement of claim.
In the Supreme Court, the defendants contended that the relief of forfeiture was incompetent as the requisite Court fees were not paid. This contention was upheld by the Supreme Court which affirmed that the claim for forfeiture was incompetent and improper before the Court and ought to be struck out for non-payment of the appropriate Court fees. Said the Court:
It is the responsibility of the plaintiff inter alia, to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the Court judicial function to commence. A Court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry, Non-Ministerial Governmental Department of Local Government. per. NONYEREM OKORONKWO, J.C.A.

PRACTICE AND PROCEDURE: ORIGINATING PROCESSES: WHETHER ORIGINATING PROCESSES MUST BE SIGNED BY AN INDIVIDUAL HUMAN CAPABLE AND ENTITLED TO PRACTICE LAW IN NIGERIA

The law is now well defined and settled. It is beyond controversy, conjecture or speculations. The very strong views of ONNOGHEN, JSC in NWEKE v. OKAFOR (supra) that originating processes must be signed by an individual human being capable and entitled to practice law in Nigeria and not by a law firm has been replicated and re-echoed in a number of subsequent decisions of the Supreme Court and this Court. See SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt 1252) 317 and FIRST BANK OF NIGERIA PLC v. MAIWADA & ORS. (2012) LPELR = 9713 34 as per Fabiyi JSC at 105. Per. ALI ABUBAKAR BABANDI GUMEL, J.C.A. per. NONYEREM OKORONKWO, J.C.A.

JUSTICES:

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF FATAI AGBEBIYI
2. YAHAYA AHMED
(for themselves and on behalf of Isalu family lyesi Ota)
3. AKANNI OWONIMESI
4. SALAU OKE AKANBI – Appellant(s)

AND

1. CHIEF SIKIRU BALOGUN
2. JAMES DADA
3. LASISI KAFARU
4. CHEF AUGUSTINE OMILELEWE
(for themselves and on behalf of lkibawo family)
5. TIMOTHY OGUNROUNBI
6. TAIWO OGUNROUNBI
7. AWENI OGUNROUNBI – Respondent(s)

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Ogun State High Court delivered on October 24th, 2011 by A.A. Akinyemi, Judge wherein judgment was entered in favour of the claimants herein 1st – 4th respondent as follows:
1. The claimants are declared to be entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke village via Ota, verged RED and more particularly described in Exhibit “A” i.e. Survey plan No. KOA/OG 97/DP 13 drawn by Surveyor Apatira dated 13/8/97.
2. The relief of damages for trespass is dismissed.
3. An Order of perpetual injunction is granted restraining the defendants by themselves, their agents, servants or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the said land at Ijaba near Osuke village via Ota, verged RED and more particularly described in Survey plan No….KOA/OG 97/DP 13 by Surveyor Apatira dated 13/S/97.
4. The counter-claims of both sets of defendants are hereby dismissed for lack of merit.
5. Cost of #100,000.00 (One Hundred

Thousand Naira) is awarded against each set of defendants in favour of the claimants

Being dissatisfied, the appellants who were 7th – 10th defendants at the High Court lodged this appeal against the judgment vide Notice of Appeal of January 5, 2012 which shorn of their particulars raise the following nine (9) grounds of appeal. see pages 223 – 228 of the record.
The learned trial judge erred in Law holding that the evidence of the claimants’ witnesses appear to be consistent, conclusive, credible, and therefore probable and without any significant contradictions in the evidence of traditional history of the founding of the land in dispute by llebiyi their said ancestor, and how the land has devolved over the years on Ilebiyi’s descendants.
The learned trial judge erred in Law when he held that a lot of the evidence of the 2nd set of Defendants was at variance with their pleadings, as most of their evidence only show that they have land at lyesi, and not Ijaba as they claim and that by their own showing through their witnesses, they have absolutely no business with ljaba land, to which they are no more than mere boundary men.
The learned

trial judge erred in Law in arriving at the decision that upon the preponderance of evidence he is satisfied that the claimants have established and so find and hold that the land on which the salvation Army School and Church are built at Ijaba Dada Erin was granted by the claimants family rather than any of the defendants, families.
The learned trial judge erred in Law in holding that the Oruku stream, which is a major feature of the case, is and has been propitiated to ages by the Claimants’ family at Ijaba, indicative of the fact that they are the original owners of the land in dispute, as against the assertion to the contrary by the Defendants.
The learned trial judge erred in Law when he held that Taiwo Agbotu was a customary tenant of the Claimants rather than of any of the Defendants at Ijaba Dada Erin.
The learned trial judge erred in Law when he decided that as for the counter-claims of the 2nd sets of Defendants, based on all the evidence proffered, the narration and assessment of which I have done above and which I hereby adopt and rely upon in determining the two counter-claims, I hold that there is no merit whatsoever in them.<br< p=””>

</br<>

The learned Trial Judge erred in Law in declaring that the claimants are entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke viilage via ota, verged RED and more particularly described in Exhibit “A” i.e. Survey plan No. KOA/OG 97/DP 13 drawn by Surveyor Apatira dated 13/8/97
The Learned Trial Judge erred in Law in granting an Order of perpetual injunction restraining the Defendants by themselves, their agents, servants or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the said land at Ijaba near Osuke virlage via ota, verged RED and mote particularly described in Survey Plan No. KOA/OG 97/DP 13 by Surveyor Apatira dated 13/8/97 when the claimants have not been able to prove that they are the owners of the land in dispute.
The Learned Trial Judge erred in Law in awarding the cost of #100,000.00 (One Hundred Thousand Naira) against the 2nd set of Defendants in favour of the claimants when same was not claimed by the Claimants.
Subsequently, with leave of this Court, appellants filed an amended notice of appeal of ten (10) grounds

which grounds without their prolix particulars are reproduced.
The Learned Trial Judge erred in Law in holding that the evidence of the claimants, witnesses appear to be consistent, conclusive credible, and therefore probable and without any significant contradictions in the evidence of traditional history of the founding of the land in dispute by llebiyi their said ancestor, and how the land has devolved over the years on llebiyi’s descendants.
The Learned Trial Judge erred in Law when he held that a lot of the evidence of the 2nd Set of Defendants was at variance with their pleadings, as most of their evidence only show that they have land at lyesi, and not Ijaba as they claim and that by their own showing through their witnesses, they have absolutely no business with ljaba land, to which they are no more than mere boundary men.
The learned trial judge erred in Law in arriving at the decision that upon the preponderance of evidence he is satisfied that the claimants have established and so find and hold that the land on which the salvation Army school and church are built at ljaba Dada Erin was granted by the claimants’ family rather than any

of the defendants, families.
The learned trial judge erred in Law in holding that the Oruku stream, which is a major feature of this case is and has been propitiated for ages by the claimants’ family at Ijaba, indicative of the fact that they are the original owners of the land in dispute as against the assertion to the contrary by the Defendants.
The learned trial judge erred in Law when he held that Taiwo Agbotu was a customary tenant of the claimants rather than of any of the Defendants at Ijaba Dada Erin.
The Learned Trial Judge erred in Law when he decided that as for the counter-claims of the 2nd sets of Defendants based on all the evidence proffered, the narration and assessment of which I have done above and which I hereby adopt and rely upon in determining the two counter-claims, I hold that there is no merit whatsoever in them.
The Learned Trial Judge erred in Law in declaring that the claimants are entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke village via ota, verged RED and mot particularly described in Exhibit ‘A” i.e., Survey plan No. KOA/OG 97/DP 13 drawn

by Surveyor Apatira dated 13/8/97.
The Learned Trial Judge erred in Law in granting an Order of perpetual injunction restraining the Defendants by themselves, their agents, servants or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the said land at ljaba, near osuke viilage via ota, verged RED and more particularly described in Survey Plan No. KOA/OG 97/DP 13 by surveyor Apatira dated 13/8/97 when the claimants have not been able to prove that they are the owners of the land in dispute.
The Learned Trial Judge erred in Law in awarding the cost of #100,000.00 (One Hundred Thousand Naira) against the 2nd set of Defendants in favour of the claimants when same was not claimed by the Claimants.
The Learned Trial Judge erred in Law when he assumed, jurisdiction in this suit and gave judgment in favour of the claimants/1st – 4th respondents when he had no jurisdiction to do so.

Of particular relevance to this appeal because of the issue of jurisdiction it raises is ground 10 of the Amended Notice of Appeal aforesaid. The ground i.e. Ground 10 and its particulars are herewith reproduced.
The

learned trial Judge erred in law when he assumed jurisdiction in this suit and gave judgment in favour of the claimants/1st – 4th Respondents when he had no jurisdiction to do so.
PARTICULARS OF ERROR
A. The originating writ of summons dated 8th day of January 1991 and the third Amended Statement of Claim and plan dated 11th day of November, 2003 in this case were not signed by a Legal Practitioner called to the Nigeria Bar and entitled to practice law pursuant to the provisions of Sections 2 (1) and 24 of the Legal practitioners Act 1975 Cap L11 Laws of the Federation of Nigeria 2004.
B. The entire proceedings at the Lower Court including the Judgment appealed against in this appeal is a nullity not having been commenced in accordance with the procedure stipulated by law.
C. The Writ of Summons and the Statement of Claim in this case were signed by Peluola, Lalude & Co., contrary to the decision of the Supreme Court in Okafor v. Nweke (2007) 10 NWLR (pt 1043) 521 and other recent decisions of the Supreme Court on the issue.

It is on the basis of the last mentioned notice of appeal that parties contested this appeal by filing

their respective briefs of arguments.

In the further amended brief of argument of the appellants, five issues were formulated as follows:-
(1) WHETHER the learned trial Judge had the jurisdiction to entertain and give judgment in favour of the Claimants/1st – 4th Respondents in this suit at the lower Court when the Writ of Summons and amended Statement of Claims were signed by peluola, Lalude & Co. in breach of the provisions of Sections 2 (1) and 24 of the Legal practitioners Act 1975. (Ground 10).
(2) WHETHER from the oral and documentary evidence of the parties especially their respective survey plans, the trial Court was right in awarding judgment to the claimants and declaring them entitled to the right of occupancy in and over all that parcel of land lying being and situate at ljaba, near Osuke village via Ota, verged RED and more particularly described in Exhibit, A,, i.e., Survey Plan No.KOA/OG 97/DP 13 drawn by surveyor Apatira dated I3/8/97 (Grounds 1, 2, 3, 4, 5 and 7).
(3) WHETHER the Learned Trial Court was right in granting an Order of perpetual injunction restraining the Defendants by themselves, their agents, servants

or privies from trespassing upon or interfering with the rights of the claimants on and in respect of the land at ljaba near Osuke Village via Ota, verged , RED and more particularly described in Survey Plan No KOA/OG 97/DP 13 by Surveyor Apatira dated I3/8/97. (Ground 8).
(4) WHETHER the Appellants/7th – 10th Defendants have proved their counter-claim based in the evidence adduced at the trial Court. (Ground 8).
(5) WHETHER the trial Court was right in awarding the cost of #100,000.00 (One Hundred Thousand Naira) against the Appellants in favour of the 1st – 4th Respondents when same was not claimed by them. (Ground 9).

The 1st – 4th respondents in their amended brief of argument at Paragraph 3.01 of the Amended 1st – 4th respondents’ brief of argument raised four issues namely:
(i) Whether the Learned Trial Judge conducted in incisive and proper evaluation of the evidence proffered by the parties before granting the claims of the Claimants and dismissing the Appellants, Counter Claim (Grounds l, 2, 3, 4, , 6 and 7).
(ii) Whether the Learned Trial Court was right in granting an Order of perpetual injunction restraining the

Defendants by themselves their agents, servants or privies from trespassing upon or interfering with the rights of the Claimants on and in respect of the land in dispute claimed by the Claimants (Ground 8),
(iii) Whether upon granting the claims of the Claimants and considering the history of the case, the Learned Trial Judge was not right in awarding costs in favour of the Claimants and against the Appellants (Ground 9).
(iv) Whether the lower Court had jurisdiction to entertain the Claimants’ claims and whether the counter claim of the Appellant is not liable to be dismissed, ( Grounds 6 and 10)

For the 5th and 7th respondents three (3) issues were formulated thus:
(i) Whether the Counter-claim of the Appellants was competent before the High Court.
(ii) If the counter-claim is competent, whether the Appellants were not stopped from filing it against the 5th – 7th Respondents.
(iii) If the 1st two issues are answered in the negative, whether the Appellants are entitled to succeed on their counter-claim for an entitlement to the statutory right of occupancy in respect of the land covered by their survey plan i.e. Plan No.

LANKS/OG92/038.

From the briefs of the parties, one issue runs as paramount; i.e. the issue of jurisdiction of the lower Court to entertain the case or put differently the question of competence of the action to merit judicial adjudication. It is issue No.1 in the appellants’ brief and issue No.4 of the 1st – 4th respondents brief. For the 5th – 7th respondent, no mention was made of the issue of jurisdiction or competence neither was any attention or response given to it. For 5th – 7th respondents, it would appear the issue did not exist but however one may wish away an issue of competence, it remains the focal point and substratum of every case and cannot be waived away however unpleasant it may seem.

We shall therefore in this appeal deal with the underlying issue of jurisdiction and competence poignantly raised in this appeal.

In his issue No.1, the appellants asked;
(i) Whether the Learned Trial Judge conducted an incisive and proper evaluation of the evidence proffered by the parties before granting the claims of the Claimants and dismissing the Appellants’ counter claim (Grounds I, 2, 3, 4, 5, 6 and 7).

In arguing this issue,

the appellants’ counsel Olusegun Fabumi Esq., states that the Writ of Summons and the amended statement of claim in the case were purportedly signed by Peluola, Lalude & Co. and that it was contrary to Section 2(1) and 24 of the Legal Practitioners Act 1975 citing the Supreme Court case of Okafor v. Nweke (2007) 10 NWLR (pt 1043) 521at 534 where that Court held thus:
“Now Section 2 (1) of Legal Practitioner Act, Cap. 207 of the Laws of the Federation 1990 provides. 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. And Section 24 of the same Act provides:- a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding. The simple question that arises, in view of the clear provisions of Cap., 207 reproduced above is whether or not J.H.C. OKOLO & CO. SAN is a person entitled to practice as a barrister and solicitor. It seems to me that only human beings actually called to the Bar could practice or practice by signing

documents as a motion paper. The argument that it is an over adherence to technicality to annul the process improperly signed and filed by J.H.C. OKOLO & CO. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere compliance with Court Rules. In conclusion, I uphold the objection of Mr. G.R.I. EGONU, SAN .and agree with the views of my brother, Onnoghen, JSC. I would uphold the conclusion that the processes filed in the application, particularly the motion on notice filed on l9/12/05 and the proposed notice of cross appeal are incompetent.’ PER OGUNTADE J.S.C. (now retired).

It was further argued that in this case, the anomaly was made worse by the fact that the capacity of the one who signed for Peluola, Lalude & Co. was not stated citing case of Ogundele v. Agiri & Anor. (2009) 12 S.C.. (pt. 1) 135 at 165 or (2008) 18 NWLR (pt. 1173) 219 where it was stated thus:
“Any person signing process on behalf of a principal partner in the chambers must state his name and designation to show that he is a Legal practitioner whose name

is ascertainable in the roll of registered Legal practitioners”.

In this regard and failure thereof appellants submit as in Paragraph 4.6 of their brief thus:
We submit that the incompetence of the Writ of Summons and the Third Amended statement of claim goes to the root of the action and the jurisdiction of the Court. The incompetence of the action robs the lower Court of the jurisdiction to entertain the suit and deliver judgment and we respectfully urge this Honorable Court to so hold. we further submit that since the learned trial judge did not have jurisdiction to entertain this action and assumed jurisdiction in error, the judgment delivered by her was a NULLITY.

On the effect of such failure or procedural defect, counsel cites this Court in Ogundairo v. Onyekigbo (2005) 16 NWLR (pt. 950) at 80 where it was held, on issue of competence and jurisdiction thus:
“As the question jurisdiction strikes at the root of any cause or matter and consequently raise the issue of the competence of the Court to adjudicate in the particular proceedings. Any defect in competence is total as such become null and void. It would not matter how well

conducted and decided the proceedings were it would be a nullity. Competence of the Court includes the subject matter of the case being within the jurisdiction of the Court and there is no feature in the case, which prevents the Court from exercising its jurisdiction. In effect jurisdiction is a radical and crucial question of competence. Madukolu v. Nkemdilim (1962) 2 SCNLR 34I at 348; Ogunmokun v. Military Administrator Osun State (1999) 2 NWLR (pt 594) 261. Per ADEKEYE JCA (as she then was).

It was further argued on behalf of the appellants that the defect in this regard is not a mere procedural to the root of the matter itself citing irregularity but one of substance going in support thereof the Supreme Court in SLB Consortium v. NNPC (2011) 4 SC (pt 1) 86 – 107 where the practice was stated to be –
i. That a process prepared and filed in a Court of Law by a Legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he caries out his practice.
ii. That the issue is not a matter of irregularity in

procedure but of substantive law – an issue of jurisdiction of the Courts to hear and determine the matter as constituted and it is settled law, that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings, even for the first time in the Supreme Court and that Okafor and Ors v. Nweke and 4 Ors, shows clearly how counsel should sign processes.
iii. That all processes filed in Court are to besigned as follows: First, the signature of Counsel, which may be any contraption. Secondly the name of Counsel clearly written.Thirdly, who Counsel represents. Fourthly name and address of Legal Firm.
iv. That the case is caught by one of the principles enunciated in the case of Madukolu v. Nkemdilim (1962) 2 NSCC 374, on the competence of a Court, which borders on jurisdiction. The principle as stated in the case is as follows: – “The case coming up before the Court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
v. That in reality, Adewale Adesokan & Co., which signed the originating summons is not a legal practitioner known to the

applicable Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1999. This is so, since it is not a person entitled to practice as a barrister and solicitor with its name on the roll.
vi. That in the prevailing circumstance, all the proceedings which rested on the inchoate originating summons are deemed not to have taken place in law, One cannot put something on nothing and expect it to stand. UAC v. McFoy (1962) AC I52 at 160.

Concluding, learned counsel submits that “since the Originating Process commencing this action was incompetent having been signed by a Law firm and not a Legal practitioner, this fundamental error in initiating the action is so fatal and has robbed the lower Court of the jurisdiction to entertain the suit and give judgment in favour of the 1st – 4th respondents and the 5th – 7th respondents counter-claimants.

For the 1st – 4th respondents, in their brief by J.O. Akinfenwa Esq, the said issue of jurisdiction was raised in their issue No. 4 thus:
Whether the lower Court had jurisdiction to entertain the claimants’ claims and whether the counter claim of the Appellant is not liable to be

dismissed. (Grounds 6 and 10)
And argued thus in Paragraphs 7.01 and 7.02
The Appellants by their Further Amended Brief of Argument, have strenuously urged your Lordships to hold that the trial Court had no jurisdiction to have entertained and entered judgment in the matter. we respectfully leave the decision on this point to the absolute discretion of your Lordships.
It is our humble submission that in the exercise of the discretion of this Honorable Court, it is long settled that same must be exercised both judicially and judiciously and the end aim of it all should be justice of the matter.
The point of the submission is that in some cases thought to be appropriate the Court should see the defect as procedural and not visit the error of counsel on the litigant by vitiating the proceedings citing case of Ibodo v. Enarofia (1980) 7 SC 42; Chief Lamal v. Chief Orbih (1980) 5 – 7 SC 28 at 34; Fidelity Bank v. Monye (2012) 10 NWLR (pt. 1307) 22.

Learned Counsel for the 1st -4th respondents at Paragraphs 7.03 and 7.04 argued in conclusion that;
It is obvious that the claimants’ originating processes were erroneously signed in the

name of the law firm of Peluola, Lalude & Co. However, it is equally undisputed that a real, living and qualified legal practitioner appeared in Court to conduct the case of the Respondents from its inception to the conclusion.
In view of our foregoing submissions, we respectfully urge Your Lordships to exercise your discretion to alleviate the hardship and undeserved trauma that may be visited on the litigants (especially the 1st – 4th Respondents) if their case as constituted as Plaintiffs in the lower Court is struck out.

For the 5th – 7th respondents, their concern was not so much as the incompetence of the writ of summons and the amended statement of claim as with the incompetence of the counter-claim of the appellant which the 5th – 7th respondents contend is incompetent because no filing fee was assessed and paid for the counter-claim. In arguing this point which 5th – 7th respondents raised as their issue No.1, Chief O.T. Akinbiyi of Learned counsel argued thus at Paragraphs 3.01, 3.03 and 3.04 of their 5th – 7th . respondents’ brief:
My Lords, it is by now a trite position of the law, that a Court is competent when
1. It is

properly constituted with respect to the number and qualification if its member.
2. The subject matter of the action is within its jurisdiction
3. The action is initiated by due process of law and,
4. Any condition precedent to the exercise of its jurisdiction has been fulfilled,
I respectfully, refer my Lords to the case of MADUKOLU & ORS, v. NKEMDILIM (1962) ALL NLR pg. 581 at 583.
This case was instituted on the 8th January, 1991 by the 1st to 4th Respondents against the 5th to 7th Respondents, the Appellants were joined in 1999 but they had been served with the Application for joinder in 1993. They did not deem it fit to file any counter-claim until June, 2006, The Counter-claim of the Appellants was first brought in their Further Amended Statement of Defense and Plan (filed in 2006), upon an Order for amendment of their statement of Defence). There is no evidence showing that the Appellants paid the required filing fees for their counter-claim. This issue was raised at the trial Court (I respectfully refer to page 188 of the Record of Appeal lines 18-20 – Akinbiyi’s oral submission) but the Appellants did not take any

step to regularize same and neither did his Lordship make any pronouncement on it.
My Lords, non-payment of filing fees is a fundamental vice that can rob the Court of jurisdiction to entertain a matter. In the case of NELSON NWOSU ONWUGBUFOR & ORS. v. HERBERT OKOYE & ORS. (7996) 1 S.C.N.J.1 Supreme Court at page 36 held per A.I. Iguh J.S.C. as follows”
“A Court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry or non Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the Plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the Court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly.”
In the present case, no payment whatever was made by the Appellants in respect of this new claim for forfeiture. Payment of the prescribed fees being a condition

precedent to the filing of a valid claim before the Court, it seems to me clear that the claim for forfeiture in the present suit is incompetent improperly before the Court and ought to be struck out.”
On this, I also respectfully refer to the case of PATRICK IZUAGBE OKOLO & ANOR. v. UNION BANK OF NIGERIA LIMITED (2004) 1 S.C. (PT. 1)

The contention of these respondents relate to the non-payment of filing fees for the Counter-claim of the appellant which to all intent and purposes is an independent action. The argument is similar to those of the appellant contending that Peluola, Lalude & Co. being a firm is not a Legal Practitioner who can now initiate a writ of summons as required by law.

The various High Court Civil Procedure Rules provide copiously for mode of commencing civil actions by writ of summons. Upon the requisite endorsements such writ of summon shall be signed by the intending Claimant or his Legal Practitioner.
In practice, most suits are signed off by a Legal Practitioner and who a Legal Practitioner is, is aptly defined in Section 24 of the Legal Practitioners Act 1975 as a person entitled in accordance with the

provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.

In this case, the Writ of Summons was initiated or signed by Peluola, Lalude & Co., a firm of solicitors which is not a person entitled to practice as a barrister and solicitor and whose name is not on the roll of Barristers and solicitors in the Supreme Court of Nigeria.
The cases of Okafor v. Nweke (2007) 10 NWLR (pt 1043) 521 at 534 and Peak Merchant Bank v. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 and Ogundele v. Agiri & Anon (2009) 12 S.C. (pt, 7) 135 at 165 have been cited in support and the consensus of judicial opinion from the apex to the base seem to be that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.
The reason, in my view, why the entire proceedings become a nullity is that it was not begun at all. If it was not begun, there is nothing to cure or remedy as the learned counsel for the 1st – 4th respondents tearfully pleaded. Being a nullity, it does not exist. As it does not

exist, every superstructure founded or erected thereupon rests on nothing and therefore is vitiated. The superstructures include the proceedings and the judgment of the lower Court the subject of this appeal. They all rest on nothing and are therefore vitiated by being set aside.

the claim for forfeiture was incompetent and improper before the Court and ought to be struck out for non-payment of the appropriate Court fees. Said the Court:
It is the responsibility of the plaintiff inter alia, to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the Court judicial function to commence. A Court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry, Non-Ministerial Governmental Department of Local Government.

In this case, the Counter-claim not having been paid for, in respect of the reliefs claimed therein, has not been initiated by due process as stated in Madukolu v. Nkemdilim (1962) 2 NSCC 374 1962 All NLR 581 at 583, It therefore is incompetent and liable to be struck out.

As it is, there was interplay of errors in the manner of commencement of the claims in the action. Both the main suit and the Counter-claim are incompetent and are struck out. The judgment of Ogun State High Court of October 24,2011 is set aside for lack

of jurisdiction. For the above reasons, appeal is allowed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of a preview of the lead judgment of my learned brother, Okoronkwo, JCA, I fully agree with his conclusions that this appeal ought to be allowed.

This appeal is on the competence of processes of Court issued and signed off in the name of a law firm. With respect to that it would then pertain to the interpretation and application of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act CAP L 11 Laws of the Federation of Nigeria, 2014. The Supreme Court of Nigeria considered and applied these 2 provisions in the case of NWEKE v. OKAFOR (2007) ALL FWLR (Pt. 368) 1061 and came to the conclusion, with respect to the facts and circumstances of that matter, that “J. H. C. Okolo and Co. SAN” was not a person entitled to practice as a barrister and Solicitor in Nigeria. This decision has settled and scrupulously defined the law on the subject and controversy surrounding the issuing of originating Court processes under the name of a firm at legal practitioners, i.e. “A. B. C. and Co.” as an example.

The law is now well defined and settled. It is beyond controversy, conjecture or speculations. The very strong views of ONNOGHEN, JSC in NWEKE v. OKAFOR (supra) that originating processes must be signed by an individual human being capable and entitled to practice law in Nigeria and not by a law firm has been replicated and re-echoed in a number of subsequent decisions of the Supreme Court and this Court. See SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt 1252) 317 and FIRST BANK OF NIGERIA PLC v. MAIWADA & ORS. (2012) LPELR = 9713 34 as per Fabiyi JSC at 105. I find the principles of law and practice outlined in these decisions of the Supreme Court greatly helpful and meaningful in the resolution of the main issue in this appeal.

It is therefore for this reason and the other ones so ably relied on in the lead judgment that I too would allow this appeal. I accordingly so do and abide by all the consequential orders in judgment.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of a preview of the judgment of my lord Nonyerem Okoronkwo J,C,A. I agree with the reasoning and conclusions therein. The position of the law

is now clear and firm. A law firm cannot file processes in Court, it is only a legal practitioner whose name is on the roll of Legal Practitioners that can. Okafor v. Nweke(2007) 10 NWLR part 1043 p. 521 and a host of other cases have made this position absolutely clear. A legal practitioner who has filed a process in Court in the name of a law firm will do well to file a fresh process in the name of a legal practitioner. To proceed in the name of a law firm will, unfortunately, only result in a cul-de-sac.

Appearances

Olusegun Fabunmi, Esq. For Appellant

AND

O.O. Ojutalayo with him, A.A. Isiolaotan for 1st – 4th Respondents

O.T, Akinbiyi for 5th – 7th Respondents For Respondent