IGP & ORS. v. NWAFOR
(2022)LCN/16848(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, November 09, 2022
CA/A/809/2017
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
INSPECTOR GENERAL OF POLICE AND 3 ORS. APPELANT(S)
And
CHINONSO NWAFOR RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHAT QUALIFIES AS AN APPROPRIATE SIGNING OF A LEGAL PRACTITIONER AS IT RELATES TO AN ORIGINATING PROCESS
The Appellants’ counsel argued that the originating summons that initiated this matter was not signed by someone known to law. The Courts in a multiplicity of cases have emphasized the need for Court processes to be properly signed to foist jurisdiction on the Court. In EMEKA VS. CHUBA-IKPEAZU (2017) LPELR, 41920, the Supreme Court per PETER-ODILI, JSC held.
This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) 317 AT 337 – 333, the Supreme Court per Rhodes-Vivour, JSC stated thus: 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 the counsel written. Thirdly, who the counsel represents. Fourthly, name and address of the legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law. (i.e., the Legal Practitioners Act.)
Also, Onnoghen, JSC (as he then was) in his lead judgment held:
“A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and 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 carries out his practice. “At 332 (PARA E) it was further held thus” ‘It has been argued that non-compliance with the provision of Order 26 Rule 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of MADUKOLU V. NKEMDILIM (supra) … the provision of the rules of Court involved herein are by the wordings mandatory not discretionary.” PER NDUKWE-ANYANWU, J.C.A
WHETHER OR NOT IT IS THE DUTY OF A COUNSEL TO SIGN HIS ORIGINATING PROCESSES
It is the duty of counsel to sign most especially his originating processes well as envisaged by law. Failure to do so robes the Court of the necessary vires.
a process filed in Court and which is not signed by a legal practitioner as has been settled by a plethora of authorities is void: OKAFOR vs. NWEKE (supra), SLB CONSORTIUM LTD VS. NNPC (2011) LPELR (3074) 1 at 16 and FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR – 9713 (SC) Without much ado, I have no equivocation in holding that the Originating Summons of the Respondent was not properly signed to foist on the Court below the necessary vires to adjudicate on this case. See OKAFOR VS. NWEKE (SUPRA) SLB CONSORTIUM LTD. VS. NNPC (SUPRA). PER NDUKWE-ANYANWU, J.C.A
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the FCT delivered on 4th of July, 2017. Coram: Hon. Justice M. B IDRIS.
The Respondent had instituted this action against the 1st- 4th Respondents for the enforcement of his Fundamental Rights. The Originating processes run from pages 1- 67 of the record of appeal. The Appellants as the Respondents in the High Court filed their Counter affidavit and the matter was set down for hearing. At the close of hearing, the learned trial Judge delivered his considered judgment and held inter alia.
“On the whole, I am satisfied that the right of the applicant has been infringed upon, by the respondents and he is therefore entitled to damages.
Subsequent upon the above consideration, I make the following declaration and orders:
That the shooting/use of lethal force on the applicant 4 times on 14h of December 2016 by the 4th respondent acting under the authority of the 1st, 2nd and 3rd respondents is a violation of the applicant’s fundamental rights. The sum of N50,000,000 (Fifty Million Naira Only) is awarded in favour of the applicant as general damages and against the respondents severally and jointly.
The sum of N162,700.00 is awarded as special damages in favour of the applicant and against the respondents.
The brief facts of this case is that the Respondent a coloured taxi driver picked some three (3) young men with a Fireman generator for N2,000.00 as fare around 5.00 am going to Karimu. Barely 10 minutes into the journey around Efab/Life Camp junction, a police vehicle blocked the taxi. The three (3) young men jumped out of the car and ran away.
In confusion, the Respondent sat in his vehicle and one policeman alighted from their vehicle, entered the passenger side of the Respondent’s car and shot at him multiple times. Four of those shots hit him in various parts of his body for which he was hospitalized and treated.
The Respondent thereafter brought this action and claimed the following reliefs.
(a) A Declaration that the shooting/use of lethal force on the person of the Applicant four times on the 14h of December 2016 by the 4th Respondent acting under the authority of the 1st, 2nd and 3rd Respondents for no justifiable reason constitutes a wanton violent violation of his fundamental rights to dignity of person and inhumane treatment as guaranteed by the provision of Section 34(1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4 and 5 of the African Charter on Human and people’s Rights and hence Ultra Vires the Respondents, illegal and unlawful.
(b) An Order directing the 1st, 2nd and 3rd Respondents to release forthwith the properties of the Applicant in their possession; namely; A Mazda 323F vehicle with registration number ABJ 731 YJ and 3 mobile phones (1 Nokia and 2 Tekno phones).
(c) An order awarding the Applicant the sum of N200,000,000 (Two Hundred Million Naira Only) against the Respondents jointly and severally being general damages for the aforesaid malicious and unjustifiable use of lethal force with a firearm on the Applicant and to compensate him for the permanent physical and mental harm done to him as well as for the loss of earnings, medical bills and legal services.
(d) Compensation in the sum of N100,000,000 (One Hundred Million Naira Only) against the Respondents jointly and severally being exemplary and aggravated damages for the aforesaid gross violation of the Applicant’s dignity to person.
(e) An order for the award of special damages in the sum of N162,700.00 (One Hundred and Sixty Two Thousand, Seven Hundred Naira Only) being part of the receipted medical bills incurred as at 20th January, 2017
(f) For such further or other orders as the Court may deem fit in the circumstance.
After the trial, the learned trial Judge awarded the reliefs sought by the Respondent as recapped earlier in this judgment.
The Appellants were generally aggrieved and filed their notice and grounds of appeal on 13th of September, 2017. The Appellants filed their Appellants’ brief on 29th of December, 2017 but deemed properly filed and served on 7th of June, 2022. In it, the Appellants articulated Four (4) issues for determination as follows:
(1) Whether the proceedings of the lower Court which rested on an originating motion on notice signed by an unknown person was not conducted without jurisdiction and therefore a nullity (ground 6).
(2) Whether the lower Court did not occasion a miscarriage of justices in the affidavit evidence before it and thereafter proceeded to enter judgment against the appellants, (grounds 3 and 4 ).
(3) Whether the decision of the lower Court is not perverse having been based on inadmissible affidavit evidence and for failure of the lower Court to evaluate and consider necessary facts and materials placed before it (ground 1, 2 and 7).
(4) Whether the award by the lower Court of the sum of N50,000,000 (Fifty Million Naira) as general damages in favour of the respondent was not improper in law and unjustifiable in the circumstances, (ground 5)
The Respondent in answer to this appeal filed his Respondent’s brief on 18th of May, 2019, but deemed properly filed and served on 7th of July, 2022. In it, the Respondent articulated two (2) issues for determination as follows.
1. Whether the trial Court rightly assumed jurisdiction over the case? (Ground 6)
2. Whether considering the facts of the case and evidence adduced in respect thereof; the learned trial Judge was right to hold that the Applicant has established a case to be entitled to judgment at the trial Court? (Grounds 1,2,3, 4,5, and 7)
In both sets of issues, there is a preliminary issue on jurisdiction of the Court which must be dealt with first before proceeding with any other issue
The Appellant raised it as its first issue.
Whether the proceedings of the lower Court which rested on an originating motion on notice signed by the unknown person was not conducted without jurisdiction and therefore a nullity (ground 6)
The Respondent raised it also as his first issue namely
Whether the trial Court rightly assumed jurisdiction over the case
The question of jurisdiction is very fundamental that it should be determined first by the Court before starting any proceedings. If the Court proceeds without jurisdiction, all proceedings however well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal to the Supreme Court.
However, it is important to note that issues of jurisdiction must be resolved first before embarking on further proceedings.
MESSRS N. V. SCHEEP VS THE M. V. “S ARAZ” (200) 12 SC PT 1 PG 164,
JERIC NIG LTD VS UBA PLC (2000), 12 S.C PT. II PG 133,
A.G. LAGOS STATE VS DOSUNMU (1989) 3 NWLR PT III PAG 552,
NNONYE VS ANYICHE (2005) 2NWLR PT 916 PG 623
Where the jurisdiction of a Court over a suit is challenged, the Court is entitled under S. 6 of the 1999 Constitution to consider the party’s claim before it, in order to decide, whether it has jurisdiction to entertain it.
ADELEKE VS O.S.H.A. (2006) 16 NWLR PT 1006 PG 608, EGBEBU VS I.G.P. (2006) 5NWLR PT972PG 146.
It is settled that a Court is competent when the Court is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other, 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 the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. All the requirements must co-exist conjunctively before jurisdiction can be exercised by the Court.
It therefore, means that where a Court has no jurisdiction to hear and determine a case but goes ahead to do so, it becomes an exercise in futility as the decision arrived at in such a case amounts in law as a nullity irrespective of how well the proceedings was conducted.
UMANAH VS ATTAH (2006) 17 NWLR PT. 1009 PG 503, MADUKOLU VS NKEMDILIM (1981) 1 ALL NLR PG587, SKEN CONSULT VS UKEY (1981) II SC PG 6, BENIN RUBBEN PRODUCERS LTD VS OJO (1997) 8 NWLR PT. 521 PG 388, MAGAJI VS MATARI (2000) 5 SC PG 46, ALAO VS A.C.B LTD (2000) 6 SC PT 1 PAG 27 GALADIMA VS TAMBAL (2000) 6 SC PT 1 PG 196, ARAKA VS EJEAGWU (200) 12 SC PT 1 PG 99.
On considering whether a Court has jurisdiction to entertain a matter, the Court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim
GAFAL VS GOVT KWS (2007) 4 NWLR PT 1024 PG 378, ONUORAH VS KRPC (2005) 6 NWLR PT 921 (2005) 6 NWLR PT 921 PG 393, TUKUR VS GOVT OF GONGOLA STATE (1989) 4 NWLR PT 117 PG 517. NKUMA VS ODILI (2006) 6 NWLR PT. 977 PG 587.
The Appellants in this appeal challenged the jurisdiction of this Court to hear this appeal. The Appellant’s Counsel posited that the signature of an unknown person appeared on the originating processes of the Respondent. Counsel referred the Court to pages 1-67 of the Record of Appeal. Counsel also referred the Court to S. 2 & 24 of the Legal Practitioner’s Act L II LFN 2004. Counsel also referred to a legion of cases where the Court decided on this principle of franking of processes.
See. OKAFOR VS NWEKE (2007) ALL FWLR PT 368 PG 1016, EWUKOYA VS BUAR (2017) ALL FWLR PT 893 PG 1206, TANIMU VS RABIU (2017) ALL FWLR PT887PG 157. Counsel reiterated that the Courts have a very firm stance on this question of franking of Court processes. See again: TANIMU VS RABIU (SUPRA) where KEKERE- EKUN, JSC held as follows:
This Court has emphasized in many decisions that the provisions of the law referred to above are meant to protect the legal profession. They are to ensure that no person other than a person whose name is on the roll signs legal documents. They are also to eliminate impersonators and fake lawyers from legal practice.
Counsel argued that for a Court process to be valid, it must be signed by an identifiable legal practitioner. See AROMIRE VS AJOMAGBERIN (2011) ALL FWLR PT 586 PG 540. In KIDA VS. OGUNMOLA (2006) ALL FWLR PT 327 PG 402 MUSDAPHER, JSC (as he then was) has this to say:
“The validity of the originating process in a proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.”
Also in OYAMA VS. AGIBE (2016) ALL FWLR PT. 840 PG 1274 OTISI, JCA held:
“The issue of signing of a Court process, including a brief of argument is not a mere technicality or irregularity that can be overlooked. The Supreme Court described it as a fundamental error per OGBUAGU, JSC in OGUNDELE V. AGIRI (2009) LPELR-2328 (SC) 18 NWLR (PT. 1173) 219 SC (2010) ALL FWLR (PT. 507) 1.”
Counsel further argued that it is not obvious which one of the legal practitioners listed in the originating summons signed it. It is trite that the seal of Okeke Ikenna was on the process but that name was not identified in the list of counsel. Also, in TANIMU VS. RABIU (SUPRA), the Supreme Court was again confronted with an improperly signed Notice of Appeal affixed with an NBA seal, in holding that mere affixation of the seal on a Court process does not cure the defect. PER KEKERE-EKUN, JSC.
In BELLO SARAKIN YAKI RTD VS SENATOR ATIKU ABUBAKAR BAGUDU & ORS (2015) ALL FWLR PT 810 PG 1026 held:
In keeping with the effort to weed out impostors and charlatans in the legal profession, the provisions reproduced above are directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria. It saves the time that would have been expended in conducting a search at the Supreme Court to determine whether the legal practitioner is so qualified. It is thus a means of authenticating the claim of the signatory of a legal document to being a legal practitioner whose name is on the roll. In effect, the mere presence of the stamp and seal of the Nigerian Bar Association on a document without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal belong to the person who signed the document or conversely, that the signature that appears on the document belongs to the person whose stamp and seal is affixed, thereto.
Counsel finally urged the Court to hold that the Originating Summon in this appeal was signed by an unknown person which goes to the validity of the process upon which this proceeding was founded. See SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR PT 1252 PG 317 where RHODES-VIVOUK JSC held:
“Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law.”
See also OKPE VS. FAN MILK PLC (2017) ALL FWLR PT. 887 PG 157, MADUKOLU VS NKEMDILIM (1962) SC NLR PG 341
Counsel urged the Court to hold that this appeal is a nullity as the lower Court lacked the necessary vires to adjudicate.
In response, the Respondents’ Counsel is in agreement with the Appellant that only a person whose name is on the roll of Legal Practitioners shall sign legal documents.
“The Courts have held in a line of authorities that there is nothing inherently wrong in setting out names of more than one legal practitioner whose names are on the roll of Legal Practitioners in a Court process, provided that there is some manner by which the particular legal practitioner who signed can be identified out of the names set out. See the case of TODAYS CARS LTD V. LASACO ASSURANCE PLC & ANOR (2016) LPELR-41260(CA)
A “tick” is one out of other available options used in identifying which of the legal practitioners signed a process.
In SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT. 1252) the Supreme Court held as follows;
“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”
Counsel referred the Court to TODAY CARS LTD. VS. LASACO ASSURANCE PLC (SUPRA) where the counsel opined that what was important was that the particular counsel that signed must be identified. The lawyer who filed and signed is the one whose seal was attached or affixed to the originating summons. Counsel also referred the Court to Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007 which provides as follows:
”A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any government department or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on such document a seal and stamp approved by the Nigerian Bar Association.”
Counsel also argued that the Appellants’ counsel did not tick his name on the Appellant’s Brief. See G. T. B. PLC VS. INNOSON NIG. LTD. (2017) LPELR 42368 where the Supreme Court held:
“Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.”
Counsel urged the Court to take judicial notice of all materials that constitute part of the Records in resolving any issue before it. See OLANREWAJU VS. INEC & ORS (2010) LPELR 4749 where the Court held:
“It is the law that the Court can utilize its records and make use of information gathered therein in considering any issue or matter before it. In my recent decision in CA/I/EPT/NA/NA/91/08. AJIBOLA ISRAEL FAMUREWA VS. OLUGBENGA ONIGBOGI & 334 ORS. At pages 27 – 28 (unreported) delivered in this Court and Division on 16th April, 20101 held thus: “The law allows the Court to look at the record in its possession and make use of the information. See WEST AFRICAN PROVINCIAL INSURANCE CO. LTD. V. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (PT. 56) 299 A T306. Similarly, in the case of TEXACO PARAMA INC. V. SPDC LTD (2002) 5 NWLR (PT. 759) 209 AT 234, THE APEX COURT PER KALGO, JSC held that an Appeal Court is fully and correctly entitled to look or refer to the record of appeal before it in consideration of any matter before it. See also FUNDUK ENGINEERING CO. LTD VS. MC ARTHUR (1995) 4 NWLR (PT. 392) 640.” PER UWA J. C. A. (PP. 12 -13, PARAS E-B).
ADO VS. MEKARA & ORS. (2008) LPELR 3628, ONWUKA VS. OWOLEWA (2001) 7 NWLR PT 713 PG 695.
Counsel also argued that in FREP Rules, any activist, advocate or group may institute actions to enforce on behalf of applicants. Therefore, anyone may sign the originating process. IN OMONYAHUYVS. IGP (2015) LPELR 25581 this Court held:
“One of the overriding objectives of the 2009 FREP Rules in preamble 3(e) is “the Court shall encourage and welcome Public Interest Litigations”, and Public Interest Litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.”
Counsel reiterates that the FREP Rules particularly Rule 3(c) of the Preambles. The Rules provided in Rule 3 (c) of the Preamble is very important.
The Rules shall be applied for the purposes of advancing but never for the purpose of restricting the applicants’ rights and freedoms and that the Court is empowered to make consequential orders as may be just and expedient.
Counsel finally urged the Court not to allow the question of who signed the originating summons to obviate the importance of this matter to the Respondent. Counsel urged the Court to discountenance the submissions of the learned counsel to the Appellants.
RESOLUTION
I have earlier on in this judgment laid down the importance of jurisdiction in any matter before the Court. Where the jurisdiction of a Court over a suit on an appeal is challenged, the Court is entitled under Section 6 of the 1999 Constitution to consider the party’s claim before it in order to decide, whether it had the jurisdiction or not.
The Appellants’ counsel argued that the originating summons that initiated this matter was not signed by someone known to law. The Courts in a multiplicity of cases have emphasized the need for Court processes to be properly signed to foist jurisdiction on the Court. In EMEKA VS. CHUBA-IKPEAZU (2017) LPELR, 41920, the Supreme Court per PETER-ODILI, JSC held.
This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB CONSORTIUM LTD. V. NNPC (2011) 9 NWLR (PT. 1252) 317 AT 337 – 333, the Supreme Court per Rhodes-Vivour, JSC stated thus: 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 the counsel written. Thirdly, who the counsel represents. Fourthly, name and address of the legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law. (i.e., the Legal Practitioners Act.)
Also, Onnoghen, JSC (as he then was) in his lead judgment held:
“A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and 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 carries out his practice. “At 332 (PARA E) it was further held thus” ‘It has been argued that non-compliance with the provision of Order 26 Rule 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of MADUKOLU V. NKEMDILIM (supra) … the provision of the rules of Court involved herein are by the wordings mandatory not discretionary.”
The Respondent’s counsel in furtherance of his argument referred the Court to the case of WILLIAMS VS. ADOLD/STAMM INTERNATIONAL LTD. (2017) 41559 where. the Supreme Court held:
“there is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whose name appears on the Roll of legal practitioner and who is entitled to practice as a barrister and solicitor as provided for in Section 2 and 24 (2) (1) of the LPA Cap 3, LFN 2004 is incompetent and liable to be struck out. See OKETADE VS. ADEWUNMI (SUPRA); OKAFOR VS. NWEKE (SUPRA); FBN PLC VS. MAIWADA (2013) 5 NWLR (PT. 1252) 317 AT 331 B-332A, this Court affirmed its earlier decision in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA VS. RAHMAN AKINDELE (1967) NMLR 263 and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner and 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 carries out his practice “
On page 14 of the applicants’ written address, at the bottom of the page the handwritten name, LADI WILLIAMS appears above two names, Chief Ladi Williams, SAN and Chris I. Eneje. The grouse of the respondents appears to be that there is no mark beside either of the two names to identify which of them signed the process. In the instant cases, the name Ladi Williams, though handwritten is very dear and legible. The respondents are not contending that Chief Ladi Rotimi Williams, SAN is not the same person as Ladi Williams who signed the process or that the person who signed the process is not a legal practitioner whose name is on the Roll of legal practitioners entitled to practice law in Nigeria. I am satisfied that there is no doubt as to who signed and that he is a legal practitioner whose name is on the Roll. The omission to place a tick beside the name Chief Ladi Rotimi Williams, SAN has not misled the respondents nor this Court as to who signed the process and such omission cannot invalidate it. I therefore hold that the applicant’ written address filed on 16th November 2015 is competent”
This case can easily be distinguished from this current appeal before this Court. In the case above, Ladi Williams wrote down his name in full in writing, depicting the fact that he in fact initiated this process. In the present appeal, there is a signature on top of three names. The pertinent question here is which of the three names own the signature? That question cannot be answered by this Court on its own. It therefore, takes the Court back to the need for a counsel to tick his name to decipher with certainty who amongst the trio signed the originating summons.
It is true that Okeke Ikenna owns the seal affixed to the processes but no one is sure who signed the processes. The learned counsel for the Respondent had urged the Court to hold that it is the owner of the seal that had also signed the process in issue. This is the claim of the Respondent’s counsel.
In franking of legal processes due care must be taken by the counsel to sign the processes of his client in conformity with the law i.e. Section 2 of the Legal Practitioners’ Act. See SLB CONSORTIUM ASSURANCE LTD VS. NNPC (SUPRA) where the Supreme Court held
“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”
Also, the Court in GTB VS INNOSON NIG LTD (SUPRA) held
“Court processes prepared and filed by a legal practitioner clearly demonstrated that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name,”
Having said as much by the Apex Court, can it be said that the originating process filed by the Respondent’s counsel is in compliance with the law and the ratio in a plethora of the Supreme Court cases? I think not!
The supposed originating summons bore the stamp of Okeke Ikenna. The contraption or signature on top of the three names cannot be said to belong to Okeke Ikenna whose name is the second on the list. The Supreme Court had in a plethora of cases, held that where there is a multiplicity of names of counsel, the one who signs the process must as a matter of great importance tick; his name. This action of ticking is to identify him as the one with the signature. See HIS GRACE INTEGRATED AYNAMIC SYSTEM LTD VS OGIEMWONYI (2021) LPELR 54566.
“Ex facie” the Respondents’ Brief of Argument, it can be observed that, although a signature has been appended thereon, the said signature cannot be ascribed to any of the three persons whose names are listed as being from the Chambers of the Respondents’ Counsel who had purportedly filed the said brief of argument for the Respondents. Again, albeit the seal of one Imafu Evbaunegbe Festus, names similar to the names of the first listed person, there is no indication that the provision of Section 2(1) and 24 of the Legal Practitioners Act, Cap. 207 Laws of the Federation of Nigeria, 2004, only persons who have been called to the Nigerian Bar and whose names are on the Roll of Legal Practitioners in Nigeria can validly sign Court processes. See the cases of: OYAMA V. AGIBE (2016) ALL FWLR (PT. 840) P. 1274 AT P. 1284, PARAS. B-C AND (2) EWUKOYA V. BUARI (2017) ALL FWLR (PT. 881) P. 1099 ATP. 1115, PARAS. D-G.
It is now a well settled principle of Law that where a Court process is required to be signed by a Legal Practitioner, such process should mandatorily be signed by the relevant Legal Practitioner. Failure to do so will therefore, amount to a fundamental vice. See the case of: WEEKLY INSIGHT & COMMUNICATION NETWORDE LTD. V. PETER (2019) LPELR-46847 (CA), where this Court reiterating the position of the Apex Court in the case of:SLB CONSORTIUM LTD. V. NNPC (2011) ALL FWLR (PT.583) P. 1902 is emphatic that, once it cannot be said who signed a process, the process is in law substantially incurably bad, so much so that even where there is a rule of Court designed to provide a remedy for such an error, such rule of Court will be of no moment, as a procedural rule of Court cannot override the provisions of a substantive law.”
In EZEA VS UGWUANYI (2015) LPELR 40644, OREDOLA JCA. opined
“Admittedly, non-compliance with the rules of Court can either be curable or incurable. A non-compliance will be curable if it is intangible, marginal, peripheral and not affecting the core essence or merits of the matter. It is however, incurable if it affects the jurisdiction and competence of the Court to adjudicate on the matter. See the decided case of CARRIBEAN TRADING & FIDELITY CORPORATION VS. NNPC (1999) 7 NWLR (PT.252) 161/183.”
TSAMMANI, JCA IN ADETONA VS OBAOKU (2016) LPELR 41931 has this to say about non-compliance.
“…Having held as above, it is my view, which I hold, that the entire proceedings of Court below, including the evidence led on the invalid processes and the judgment thereon were conducted without jurisdiction. This means that the conditions precedent that will confer jurisdiction on the Court below to hear and determine the suit had not been satisfied. In the case of SUNDAY APE V. DISU OLOMO (2010) LPELR – 4988 (CA), I held as follows: “The law is settled that, where any proceedings are began in a manner other than as provided by the rules, such proceedings are incompetent. In other words, where such mandatory rules are not complied with and they go to the root of the action, the process initiating same will not only be a nullity, but the entire proceeding predicated on it shall become void, as you cannot put something on nothing and expect it to stay. It will certainly fall. See NWABUEZE V. NWORA (2005) 1 NWLR (PT. 926) P. 7; E.B.S.N. LTD. V. HALILCO (NIG.) LTD. (2006) (PT.980) P. 568.”
From the foregoing, it is obvious that the franking of the originating summons on page 6 of the Record of Appeal did not conform with the Legal Practitioners Act. The signature is that of an unknown person.
The learned counsel for the Appellants had urged the Court to look at all the other processes filed in this appeal in urging the Court to hold that the signature is that of Okeke Ikenna.
It is the duty of counsel to sign most especially his originating processes well as envisaged by law. Failure to do so robes the Court of the necessary vires.
a process filed in Court and which is not signed by a legal practitioner as has been settled by a plethora of authorities is void: OKAFOR vs. NWEKE (supra), SLB CONSORTIUM LTD VS. NNPC (2011) LPELR (3074) 1 at 16 and FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR – 9713 (SC) Without much ado, I have no equivocation in holding that the Originating Summons of the Respondent was not properly signed to foist on the Court below the necessary vires to adjudicate on this case. See OKAFOR VS. NWEKE (SUPRA) SLB CONSORTIUM LTD. VS. NNPC (SUPRA)
I therefore, hold that the originating process on page 1 – 6 of the Record of Appeal was not properly signed to foist jurisdiction on the Court below.
The proceedings and the considered judgment of the lower Court is hereby declared as a nullity.
This appeal is allowed. The judgment of the lower Court is hereby set aside.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now, the leading judgment delivered by my learned brother, UZOAMAKA I. NDUKWE- ANYANWU, JCA.
This appeal once again brings to fore, the issue of the certainty of the identity of the legal practitioner who authored a Court process. The instant Appellants contend that the processes filed by the Respondent at the lower Court were not signed by an identifiable legal practitioner. In resolving this issue, my learned brother considered decisions of the Supreme Court in TANIMU VS. RABIU (2017) ALL FWLR (PT, 887) 157 and WILLIAMS VS., ADOLD/STAMM INTERNATIONAL LIMITED (2017) LPELR- 41559 amongst others. He distinguished the two decisions and I completely agree that the one that is most apt given the peculiar circumstances of this appeal is that in TANIMU VS. RABIU (SUPRA). By the doctrine of stare decisis, all Courts are bound to follow the decisions of the Supreme Court. The settled position of the law is that it is the more recent decision that should be followed. See OBIUWEUBI VS. CENTRAL BANK OF NIGERIA (2011) 7 NWLR (PT, 1247) 465 AT 501, PARAGRAPHS A-D , per Rhodes-Vivour, JSC. It is for this that I have checked the date the two decisions of the Supreme Court were delivered.
WILLIAMS VS. ADOLD/STAMM INTERNATIONAL LIMITED (SUPRA), was delivered on 13th of January, 2017 while TANIMU VS. RABIU (SUPRA) was delivered on 12th of May, 2017. The case of TANIMU VS. RABIU (SUPRA) is therefore the most recent of the two decisions.
In TANIMU VS. RABIU (2018) 4 NWLR (PT, 1610)505 AT 523, PARAGRAPHS G-H, the Supreme Court while interpreting its decision in YAKI VS. BAGUDU (2015) 18 NWLR (PT, 1471) 288 held, per Kekere-Ekun, JSC as follows:
“In effect, the mere presence of the stamp and seal of the Nigerian Bar Association on a document without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal belongs to the person who signed the document, or conversely that the signature that appears on the document belongs to the person whose stamp and seal is affixed thereto.”
It follows that a legal practitioner must go beyond affixing the Nigerian Bar Association seal on the Court process. He must link it to the name of the person whose signature is endorsed thereon. Essentially, where the name of more than one legal practitioner is stated on a Court process, the name of the legal practitioner whose signature is contained thereon should be ticked. See GUARANTY TRUST BANK PLC VS. INNOSON NIGERIA LIMITED (2017) 16 NWLR (PT, 1591)181 AT 197, PARAGRAPHS B-D, where the Supreme Court per Eko, JSC held as follows:
“A Court process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB Consortium Ltd. v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner.”
The essence of ensuring certainty in the identity of the legal practitioner whose name is endorsed on a Court process is to ensure that the author of such process is a legal practitioner who can be held responsible for the contents. In FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348)444 AT 483, PARAGRAPHS B-D, the Supreme Court held, per Fabiyi, JSC as follows:
“It is not in doubt that in deserving situations, purposive interpretation should be employed by the Court. The purpose of a legislation is of paramount factor. The purpose of Sections 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this Court should sign Court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a Court process. It is to ensure that fake lawyers do not invade the profession. This, in my considered opinion, accords with the sacred canon of interpretation of law. See: Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513; United Agro Ventures v. F.C.M.B. (1998) 4 NWLR (Pt. 547) 546; LB.W.A. v. Imano (Nig) Ltd, & Anr. (1988) 2 NSCC 245, (1988) 3 NWLR (Pt 85) 633.”
Legal practitioners who sign documents and processes of Court must be ready to be held responsible and accountable for the contents of such documents and/or processes.
Again, in OKAFOR VS. NWEKE (2007) 10 NWLR (PT, 1043)521 AT 532, PARAGRAPHS A-D, the Supreme Court held, per Onnoghen, JSC (Former CJN) as follows:
“In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious-minded practitioners, particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged,”
In this appeal, the signature pages of the processes filed for the Respondent contain three names. They are Chuka Iloeje, Esq; Ikenna Okeke, Esq and Chibuike Amezube, Esq. Affixed thereto is the Nigerian Bar Association seal of Okeke Ikenna. The Appellants complaint is that no one can be sure which of the above named three persons signed the processes. The question which arises therefore is who signed amongst the three persons named on the processes. Furthermore, can it be said that the person that signed is the one whose Nigerian Bar Association seal is affixed to the processes. It is obvious that these questions cannot be answered without calling evidence. They cannot be answered by the Judge in the recess of his chambers. It follows therefore that since the identity of the person whose signature is endorsed on the affected Court processes cannot be identified, the processes are incompetent.
It is for the foregoing and the more elaborate reasons in the leading judgment that I too find merit in this appeal. It is accordingly allowed. I abide by the consequential Order in the leading judgment setting aside the decision of the lower Courts
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I had the privilege of reading the draft of the judgment delivered by U. I. Ndukwe-Anyanwu, J. C. A. and I agree with the conclusion reached in the judgment and the order made therein.
I will only add that there is need to establish a link between the professional stamp and seal of learned counsel named on a Court process filed and the identity of the person whose signature authenticates the process.
In this Court, there are two streams of decisions, which appear to be saying two opposite things, on the question of whether names of legal practitioners should be ticked, in addition to affixing professional seal and stamps to processes filed by legal practitioners.
One stream took the position that there is no need to establish a link between the professional stamp and seal affixed to a Court process and the name of the person signing the process, as it should be presumed to be a document signed by the person whose professional stamp and seal is affixed to the document filed. Decisions of this Court in this category are N. C. Angus (W/A) FRN [2021] LPELR – 52837(CA); Maina v. EFCC [2020] 2 NWLR (Pt. 1708) 230 at 241-242; Ikeme v. Sulayman & Ors. [2022] LPELR – 58258(CA); Abubakar v. Fulani [2022] LPELR – 57048(CA); N. U. C. v. Uyo [2022] LPELR – 58199(CA); Awad v. FRN [2017] LPELR – 45362(CA); Ugiagbe v. A. G. Edo State & Ors. [2021] LPELR – 54861(CA) etc.
However, we should recall that the clearest pronouncement on the issue, which insisted that there must be an established relationship between the professional seal and stamp and the name of the person whose signature appears on the document, is the decision in the case of Tanimu v. Rabiu [2018] 4 NWLR (Pt. 1610) 505 at 522, where Kekere-Ekun, J. S. C. stated, emphatically, that:
“In any event, the stamp and seal of the NBA cannot take the place of the actual signature of a legal practitioner on a document.”
At pages 523-524 of the Law report, his Lordship further stated:
“As held by this Court in Bello Sarakin Yaki (Rtd.) & Anor. v. Senator Atiku Abubakar Bagudu & Ors. (2015) LPELR – SC.722/2015, (2015) 18 NWLR (Pt. 1491) 288, in keeping with the effort to weed out impostors and charlatans in the legal profession, the provisions reproduced above are directed at the legal practitioner to provide evidence of his qualification to practice law in Nigeria, in addition to his name being on the roll at the Supreme Court in Nigeria. It saves the time that would otherwise have been expended in conducting a search at the Supreme Court to determine whether the legal practitioner is so qualified. It is thus a means of authenticating the claim of the signatory of a legal document to being a legal practitioner whose name is on the roll. In effect, the mere presence of the stamp and seal of the Nigerian Bar Association on a document without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal belongs to the person who signed the document, or conversely that the signature that appears on the document belongs to the person whose stamp and seal is affixed thereto.
In the instant case, the notice of appeal is signed by an unknown person on behalf of Garba U. Shehu & Co., which is not a person whose name appears on the roll of legal practitioners in Nigeria.
The defect is fundamental and goes to the root of the competence of this Court to entertain the appeal.”
The decision, quoted above, appears to be the forerunner followed by this Court in the cases of Fingesi & Anor. v. INEC & Ors. [2019] 49144(CA); His Grace Integrated Dynamic System Limited & Anor. v. Ogiemmwonyi & Anor. [2021] LPELR – 54566(CA); Uyina v. Uyi [2021] LPELR – 54128(CA) and Cornelius & Anor. v. Nwajah & Ors. [2021] LPELR – 54861(CA)
In my view, the decision in Tanimu v. Rabiu (supra) appears to be what is binding on the lower Courts on the issue, in order to ensure certainty and predictability in our decisions. I hereby apply the decision in this appeal and hold that the identity of the person who signed the originating process in the lower Court is not certain, which compromised the jurisdiction of the lower Court.
Again, I confirm my agreement with and adoption of the leading judgment of his Lordship in this appeal.
Appearances:
John Ijagbemi For Appellant(s)
Chuka Iloeje, Princes Okofu, with him, David Aiyedun For Respondent(s)