DANGURU v. UNITY BANK PLC (2020)

DANGURU v. UNITY BANK PLC

(2020)LCN/14057(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, March 27, 2020

CA/K/128/2011

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALHAJI MOHAMMAD DANGURU APPELANT(S)

And

UNITY BANK PLC RESPONDENT(S)

RATIO

REQUIREMENT WHERE A PLAINTIFF SUES A LEGAL PRACTITIONER

Now, Order 5 Rule 12(1) of Kano State High Court (Civil Procedure) Rules, 1988 provides thus: “Where a plaintiff sues by a legal practitioner, the Writ shall be endorsed with the plaintiffs address and the Legal Practitioner’s name or firm and a business address of his within the jurisdiction and also if the legal practitioner is the agent of another the name of firm and business of his principal…” (Emphasis is placed on the words underlined i.e where the plaintiff sues by a Legal Practitioner…)
A “Legal Practitioner” is defined at Section 24 of the Legal Practitioner’s Act, to mean “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 or proceedings” and by Section 2(1) of the Legal Practitioner Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll of Legal Practitioners.
A careful reading of Order 5 Rule 12(1) of the High Court (Civil Procedure) Rules of Kano State, mandate the Legal Practitioner who prepared and filed a process on behalf of his client to endorse that process by stating his name as that legal practitioner and by extension, sign the process. A mere endorsement of a process by the firm of solicitors is useless as it does not satisfy the requirement set out in the Legal Practitioners Act. A law firm is not a person, neither is it on the roll of Legal Practitioners. See SLB Consortium vs. NNPC (2011) 9 NWLR (Pt. 317), Ibrahim Aliyu vs. State (2008) LPELR-4274 (CA). A firm of Legal Practitioners cannot sign a process in place of Legal Practitioner. PER HUSSAINI, J.C.A.

WHETHER OR NOT SIGNATURE ON A PROCESS MUST BE THE SIGHNATURE OF AN IDENTIFIABLE LEGAL PRACTITIONER

The signature on a process must be the signature of an identifiable legal practitioner authorized to sign the process. The signature which cannot be identified as such is incurably bad. See further Aisien vs. Akinnuli (2012) LPELR-9700 (CA); Oyewole vs. Lasisi & Anor (2014) LPELR-23076. There must be strict compliance with the law as clearly spelt out in the Registered Trustees of the Apostle Church vs. Akindele (supra), Okafor vs. Nweke (supra). In SBL Consortium vs. NNPC (supra) it was held; per Rhodes Vivour, JSC that:
“All processes filed in Court are to be signed 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…”
The case of Augusta/Cole vs. Sargius Olatunji Martins & Anor (1968) NSCC 120 cited by the Respondent at page 7 of their brief of argument does not support their stance. Rather, the case is supportive of the position of the appellant herein. In Cole vs. Martins (supra) the Court held thus: “In our view, the business name was correctly given as that of the Legal Practitioner representing the appellant. In signing the Notice of Appeal, Mr. Cole used his own name, that is to say, the name in which he is registered as a Legal Practitioner. We hold that on any interpretation of the rules that was sufficient compliance with them and we do not accept the submission that the addition of the words (for J. A. Cole & Co) would invalidate the signature if a signature in a business name was not permitted.” PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Respondent herein was the Plaintiff at the High Court of Kano State. By the Exparte application made on their behalf, dated the 24th October, 2002, they sought leave of the Court below to place their case under the Undefended List in accordance with the Rules of the High Court of Kano State; (Civil Procedure) Rules, 1988. Upon the Exparte application being heard and granted, the Respondent took out a Writ of Summons dated the 8th November, 2002 claiming against the Appellant the sum of N10,668,021.78, among other reliefs sought, hence the matter was placed under the Undefended List.

The case was set down for hearing on the 28th November, 2002 on the Orders of the Court, but had to be adjourned a couple of times until on the 13th March, 2003 when the case was again adjourned and fixed against the 8th April, 2003 for hearing at the request of Respondent’s counsel. The Appellant was not in Court and was not represented by counsel, on the said date but the Court in granting the request for adjournment gave an order and directed that hearing Notice be prepared and served on the Appellant against the new date.

The matter came up again on the 8th April, 2003 but the Appellant and his Counsel were still not in Court. However, on the application of the counsel for the Respondent the Court was constrained to enter Judgment on the Undefended List in favour of the Respondent. The Respondent at this point in time, now the Judgment Creditors, made attempts to execute the judgment given in their favour, which the Appellant resisted. He filed an application by way of Motion on Notice wherein, he sought to set aside the judgment delivered on the 8th April, 2003. The prayers were couched in the following terms, i.e:
“1. An Order of the Honourable Court setting aside its Judgment delivered on the 8th April, 2003 for want of Jurisdiction.
2. An Order of the Honourable Court setting aside its Judgment delivered on the 8th day of April, 2003 for non-compliance with the Rules of Natural Justice to wit, a violation of the rules of audi autem patem”.

That application was predicated on the four (4) grounds listed in the Motion paper as well as the supporting affidavit of 5 paragraphs and a further and better affidavit. See pages 190-198 of the record of appeal.

Upon the application being heard, the trial Court, by “the Ruling delivered on 3rd June, 2010, granted same and further set aside that Judgment for failure to put the Appellant on Notice before hearing, which gave rise to the Judgment, now set aside. The trial Court was however, loathe granting the prayer, nullifying the process which originated the action. See the Ruling appealed against at pages 93 – 106 of the record of appeal. The appeal, to this Court is against this aspect of the Ruling of the trial Court who refused to nullify the Exparte motion, the Writ of Summons and the Amended Statement of claim. Leave to appeal the ruling had earlier been sought and obtained.

The Notice of appeal as at pages 263 – 268 of the record of appeal contains just one (1) ground of appeal and same is reproduced hereunder together with the particulars, namely:

“GROUND ONE (1)
The learned trial Judge erred in law when he applied Order 12 Rule 5 of the Kano State Civil Procedure Rule 1988 and held that the Supreme Court case:

“In the clear provision of the above quoted rule it is obvious that the endorsement of legal practitioner firm in a writ or process is not defective as to rend the writ or process irregular”.
PARTICULARS OF ERROR
A. By S. 24 of the Legal Practitioner Act LFN 2004 only legal practitioner whose name are enrolled at the Supreme Court of Nigeria have the license to execute and endorse Court processes.
b. By Order 5 Rule 12 of the High Court of Kano State Civil Procedure Rule liberty is given to a law firm to endorse a writ of summon (not other Court processes) to commence an action in Court.
c. That the Legal Practitioner Act being an act of National Assembly supersedes the Kano State Civil Procedure Rules being an act of a State Assembly.
d. That Order 5 Rule 12 of the Kano State High Court Civil Procedure Rule 1988 is null and void to the extent of its inconsistency with S. 24 of the Legal Practitioners Act 2004”.

The Appellant in his brief of argument filed on the 18th March, 2015 distilled one (1) issue for determination thus:
“Whether the learned trial Judge was right to refuse to follow the decision in Okafor v. Nweke on the ground that it is a

case decided in 2007 and therefore cannot have an effect on a case decided in 2003”

The Respondent, similarly formulated one (1) issue in their brief thus:
“Whether the learned trial Judge was not right to follow the relevant Provisions of the Kano State High Court Civil Procedure Rules, 1988 and deviate from the principle in the case of Okafor and Nweke decided in 2007 to determine the application to set aside his Judgment in 2003.”

On the facts, presented in this case and as they appear in the record of appeal, the single question which I think is the live issue has to do with the validity or otherwise of the process or processes, by which the suit was commenced at the trial Court, hence the question or issue that this Court is called upon to determine is identified as follows:
“Whether the trial Court was right to depart from the principle established in the case of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 (SC) in obedience to Order 5 Rule 12(1) of the Kano State High Court (Civil Procedure) Rules, 1988?”

In arguing the appeal both counsel adopted their arguments in their respective briefs as at pages

3 – 7 in the Appellant’s brief of argument and at pages 4 – 9 in the Respondent’s brief of argument. In arguing the appeal, learned counsel for the Appellant has contended that the process which heralded the suit, that is, the Originating Exparte Motion filed by the Respondent at the trial Court was signed in the name of “M. T. Abeda & Co.” based on which the application was argued and granted. He argued further, stating that the Writ of Summons issued and filed after the grant of the Exparte application was also signed in the name of “M. T. Abeda & Co.”. In both cases, it is argued, the processes so filed were invalid ab-initio as the same were not in tune with Sections 24 and 2(1) of the Legal Practitioners Act and for which reason the Court ought not to have acted on those processes for the simple reason that “M. T. Abeda & Co” is not a Legal Practitioner recognized by law. He relied on the decision in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 52 (SC).

With reference to Order 5 Rule 12 (1) of the Kano State High Court (Civil Procedure) Rules acted and relied upon by the

trial Court, he argued that the said provision only prescribe how a writ of summons can be endorsed but that the rule did not prescribe how an Originating Exparte application or motion like the one under reference can be endorsed. He argued, stating that the trial Court was wrong to assume that Order 5 Rule 12(1) of the High Court (Civil Procedure) Rules was applicable to the Originating Exparte application as it is to the Writ of Summons. This assumption, it is argued, led the trial Court to hold wrongly, that the decision in Okafor vs. Nweke was not applicable or binding on the Court. Okafor’s case (supra), it is argued, did not attempt to create any new law let alone intended to have retrospective effect. Rather the principle established in Okafor’s case (supra) was borne out of Sections 2(1) and 24 of the Legal Practitioners Act, a law said to be in existence since 1962. We were urged to hold that the decision in Okafor vs. Nweke (supra) was/is binding on the trial Court. We were referred to the case of Ogunshola vs. Nicon (2010) ALL FWLR (Pt. 536) 423, 431 and Amimike Investment Ltd vs. Ladipo (2008) ALL FWLR (Pt. 426) 1929 on the binding nature

of the decisions of higher or Superior Courts on lower Courts. We were urged to resolve this lone issue in favour of the appellant and allow this appeal.

For the Respondents, arguing the appeal, per contra, anchored their submissions mainly on Order 5 Rule 12(1) of the High Court (Civil Procedure) Rules 1988 of Kano State to submit that the Respondent sufficiently complied with the provisions of Order 5 Rule 12(1) by endorsing the name of the Firm of its Legal Practitioners “M. T. Abeda & Co” on the Writ of Summons as well as the Motion Exparte. He cited the decision in Augusta Cole vs. Sergius Olatunji Martins & Anor (1968) NSCC 120 as supporting their stance. We were urged to resolve this issue in favour of the respondents.

OPINION
The trial Court below in its ruling, granted appellant’s prayer No. 2 in the Motion which sought to set aside the Judgment but refused to void the process or processes by which the suit was initiated. At pages 99-100 of the record of appeal, the trial Court held thus:
“It is the General Principle of law that no Legislation or regulation will be allowed to apply retroactive to

confer a disadvantage on a party or the Court. When this case was heard and determined on the 8th of April, 2003, the applicable law for filing and the initiation of a suit in the Court was the Kano State High Court Civil Procedure Rules 1988 and Order 5 Rule 12(1) provides as follows: where a plaintiff sues by a legal practitioner, the writ shall be endorsed with the plaintiff’s address and the legal practitioner. Be that as it is, the first issue raised by the learned counsel to the judgment debtor is whether the judgment of this court dated 8th April, 2003, is one which could be set aside by this Court. It will be recalled that counsel submitted that the method by which this suit was initiated motion exparte dated the 24th October, 2002 having been signed by M. T. Abeda & Co. does not qualify as a process initiated by a Legal Practitioner Act Cap. 207 of 2004. Of recent, it is obvious to all of us on the bench and the bar that there are conflicting decisions of our superior Court on counsel signing Writ Summons and Motions in the name of a Firm. These decisions include, 1. Okafor vs. Nweke 2007, 10 NWLR (Pt. 1043) Page 521, NAME OF FIRM (Emphasis)

and business address of his within jurisdiction… in the clear provisions of the above quoted rules, it is obvious that the endorsement of a Legal Practitioner’s firm on a Writ or process is not defective as to render the Writ or process irregular. All I wish to add here is that the Supreme Court has its case of Okafor vs. Nweke supra which was decided in 2007 and this Court has its High Court Civil Procedure Rules 1988. In any event, this case was heard and determined in 2003 whereas Okafor vs. Nweke was decided in 2007. I am of the view therefore, that a case decided in 2007 cannot and should not have an effect on a case decided in 2003.”

This decision or ruling is premised on the provisions of the High Court (Civil Procedure) Rules of Kano State, Order 5 Rule 12(1). Thus, by that ruling, an Originating process endorsed in the name of a firm is a valid process of Court.

Now, Order 5 Rule 12(1) of Kano State High Court (Civil Procedure) Rules, 1988 provides thus:

“Where a plaintiff sues by a legal practitioner, the Writ shall be endorsed with the plaintiffs address and the Legal Practitioner’s name or firm

and a business address of his within the jurisdiction and also if the legal practitioner is the agent of another the name of firm and business of his principal…” (Emphasis is placed on the words underlined i.e where the plaintiff sues by a Legal Practitioner…)
A “Legal Practitioner” is defined at Section 24 of the Legal Practitioner’s Act, to mean “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 or proceedings” and by Section 2(1) of the Legal Practitioner Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll of Legal Practitioners.
A careful reading of Order 5 Rule 12(1) of the High Court (Civil Procedure) Rules of Kano State, mandate the Legal Practitioner who prepared and filed a process on behalf of his client to endorse that process by stating his name as that legal practitioner and by extension, sign the process. A mere endorsement of a process by the firm of solicitors is useless as it does not satisfy

the requirement set out in the Legal Practitioners Act. A law firm is not a person, neither is it on the roll of Legal Practitioners. See SLB Consortium vs. NNPC (2011) 9 NWLR (Pt. 317), Ibrahim Aliyu vs. State (2008) LPELR-4274 (CA). A firm of Legal Practitioners cannot sign a process in place of Legal Practitioner.
In the case on hand, the Writ of Summons and the Originating Exparte Motion were both signed in the name of a firm of solicitors, i.e “M. T. Abeda and Co”, who is not a legal practitioner, and this makes the process or processes, incurably bad, hence any portion of Order 5 Rule 12(1) of High Court (Civil Procedure) Rules, 1988, that seems to provide a remedy, are of no use as rules cannot override the law, in this case, the Legal Practitioners Act, 1990 and in particular, Sections 2(1) and 24 of the Legal Practitioner Act, See: SBL Consortium vs. NNPC (Supra). It is this same point that is being made in Okafor vs. Nweke (2007) 16 NWLR (Pt. 1043) 521 (SC). Okafor’s case (supra) is a restatement of the law, the principles of which, as far back as 1967, had been established in the case of the

Registered Trustees of the Apostolic Church, Lagos vs. Akindele (1967) 4 NMLR 263. The signature on a process must be the signature of an identifiable legal practitioner authorized to sign the process. The signature which cannot be identified as such is incurably bad. See further Aisien vs. Akinnuli (2012) LPELR-9700 (CA); Oyewole vs. Lasisi & Anor (2014) LPELR-23076. There must be strict compliance with the law as clearly spelt out in the Registered Trustees of the Apostle Church vs. Akindele (supra), Okafor vs. Nweke (supra). In SBL Consortium vs. NNPC (supra) it was held; per Rhodes Vivour, JSC that:
“All processes filed in Court are to be signed 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…”
The case of Augusta/Cole vs. Sargius Olatunji Martins & Anor (1968) NSCC 120 cited by the Respondent at page 7 of their brief of argument does not support their stance. Rather, the case is supportive of the position of the appellant herein. In Cole vs. Martins (supra) the Court held thus:

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“In our view, the business name was correctly given as that of the Legal Practitioner representing the appellant. In signing the Notice of Appeal, Mr. Cole used his own name, that is to say, the name in which he is registered as a Legal Practitioner. We hold that on any interpretation of the rules that was sufficient compliance with them and we do not accept the submission that the addition of the words (for J. A. Cole & Co) would invalidate the signature if a signature in a business name was not permitted.”
There was no signature of counsel on the Originating Exparte Motion and on the Writ of Summons (as amended) among other processes before that Court. This is why those processes are indeed, incurably bad, same not having been endorsed by a legal practitioner. Hence, the judgment given on the undefended list amount to nothing, given the fact that something cannot be placed on nothing. It will not stand. See Macfoy vs. UAC (1962). The case on appeal was simply not commenced in line with due process of the law. See Madukolu vs. Nkemdilim (1962) 2 NSCC 374, on the competence of action or suit before a Court of law. In this case on appeal

the suit not having been commenced in line with due process, the jurisdiction of the trial Court was ousted from the very beginning. The suit was dead on arrival (D.O.D).

It is for this and other reasons, that the sole issue identified for determination in this appeal, must be resolved in favour of the appellant and the appeal, allowed. Consequently, the decision or the Ruling of the Trial High Court rendered on the 3rd June, 2010 is set aside, i.e the ruling upholding the process or processes signed by “M. T Abeda & Co.”. Suit No. K/617/2002 before the trial High Court, is in effect, struck out for being incompetent.
Cost is the sum of N100,000.00 is assessed for the appellant and against the respondent.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Saidu Tanko Husaini JCA. This appeal has raised the vexed issue of whether the decision in Okafor v Nweke Supra on whether the signing of a Court process in the name of a firm should invalidate decisions made before that judgment.
I understand the frustration of the lower Court, as to how a decision made in 2007 in Okafor V Nweke Supra can affect a case decided in 2003.

This appeal throws up inequities and, as held by the lower Court, the paradox of sanctioning a retrospective application of the principle in that case. Unfortunately, unless the decision in Okafor v Nweke and its retrospective effect is revisited, the Courts are bound by the principles therein and in its application to cases determined even before that decision.

By the position of the Apex Court, as highlighted by my learned brother Saidu Tanko Husaini in the lead judgment, I have no option but to resolve the sole issue for determination in favour of the Appellant and allow the appeal. The solace of the Respondent is that time is frozen during litigation, with the result that the Respondent will not be caught by the Statute of Limitations. See the unreported decision of Sifax (Nig) Ltd v Migfo (Nig) Ltd SC 417/2015 delivered on 16/2/18 per Amina Augie JSC.
I make no order as to costs.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the judgment of my learned brother, SAIDU TANKO HUSAINI, JCA. I agree with him that this appeal is meritorious. It is therefore allowed.

Consequently, the ruling of the trial Court delivered on 3rd June, 2010 is set aside. In effect, Suit No. K/617/2002 is struck out on ground of incompetence.

Appearances:

Okechukwu Nwaeze Esq. For Appellant(s)

Victor Oronu Esq. For Respondent(s)