JIMOH OKEYALE & ORS v. MR. BASHIRU OGUNTOWO
(2018)LCN/12079(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of October, 2018
CA/IB/121/2013
RATIO
COURT AND PROCEDURE: THE ACT OF NULLITY
“Now, it is beyond dispute that an order of Court that is a nullity is as good as though it never existed. In the same vein, an order or judgment of a Court that has been made or given without jurisdiction is null and void. It is my view therefore that such order or judgment is incapable of leading to a charge of contempt. See Mustapha v. Governor or Lagos State (1987) 2 NWLR (pt.58) 539; Macfoy v. U.A.C. Ltd (1961) 33 All E.R. 1169; Abubakar & Ors v. Nasamu & Ors (2012) LPELR 7826 (SC); Menakaya v. Menakaya (2001) 16 NWLR (pt. 738) 203 and Nyesom v. Peterside & Ors (2016) LPELR ‘ 40036 (SC). Thus in Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221, Obadina, JCA said: ‘A nullity is in law a void act, an act which has no legal consequences. In that regard, a proceeding which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not also impose any obligation or liability on any one or make any party liable to suffer penalty or disadvantage. In other words, it does not of itself without more, make the Respondent liable or compellable to do or eschew from doing any act.'” PER HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASHADE OJO Justice of The Court of Appeal of Nigeria
Between
1. JIMOH OKEYALE
2. MR. JIMOH EGBEYALE
3. MR. ASHIRU OSENI
4. MR. SABAINA OKEDIRAN MOREKE
5. MR. AKANBI EGBELETI
6. MR. AKANBI Appellant(s)
AND
MR. BASHIRU OGUNTOWO Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Oyo State High Court, sitting at Eruwa delivered by O. I. Aiki, J., on the 6th day of February, 2012 in Suit No: HER/MISC5/2006.
Before the Grade C’ Customary Court, Oja-Oba, Igboora, one Adebisi Olojede (now deceased), had instituted a civil claim for trespass to land against Mr. Kareem Ige and Basiru Oguntowo (Respondens in this Appeal). The Trial Customary Court, upon hearing the matter found in favour of the Plaintiff therein – Mr. Adebisi Olojede. Being dissatisfied with the decision of the trial Customary Court, the duo of Kareem Ige and Basiru Oguntowo approached the Oyo State High Court in the Ibarapa Judicial Division, seeking inter alia, an order removing into the High Court for the purpose of being quashed the judgment of the said Grade ‘C’ Customary Court, Igboora. The Trial High Court, upon hearing the parties held as follows:
”The proceedings and the judgment based on the civil summons No. 39/44/2006 and No. 44/2006 is hereby quashed. The Plaintiff as 2nd Applicant is restrained in perpetuity from enforcing or taking any steps toward enforcing the judgment.”
On the 10th day of January, 2008, the Respondent herein applied to the Registry of the Oyo State High Court for the issuance of Forms 48 and 49 against Adebisi Olojede (deceased) and the Appellants on record for being in disobedience of the Court Order contained in the Ruling of Oyo State High Court quashing the decision of the Grade ‘C’ Customary Court, Oke-Odo, Igboora. The Respondent then filed separate Motions on Notice all dated and filed on the 18/1/2008, seeking that the Appellants be committed to prison for the contempt or disobedience of the order(s) of the Oyo State High Court on the following Grounds:
1. The Respondent retook possession, commenced farming activities on the said land, clearing and leasing out the parts of land to tenants for farming purposes and enforcing the Customary Court’s Judgment in Suit No. 39/2006 and 44/2006 which has been quashed by this Honourable Court and on which perpetual injunction has been granted against the Respondent in Suit No. HER/MISC5/06 dated the 22nd February, 2007.
2. The Respondent fails (sic) to obey the order of Perpetual Injunction granted by this Honourable Court having been served with a Notice in FORM 48.
The Motions for committal of the Appellants for contempt and the Counter Affidavits of the Appellants against the Motion for committal are contained in pages 82 – 161 of the Record of Appeal. Each of the Appellants then filed a separate Motion challenging the competence of the committal application. The respective applications are contained in pages 162 – 228 of the Records of Appeal while the Respondent’s Counter-Affidavits in opposition to the Appellants’ Motions are contained in pages 229 – 250 of the Record of Appeal. Further Affidavits were filed by the Appellants in response to the Counter-Affidavits of the Respondent. See pages 251 – 268 of the Records. The various applications in opposition to the Motions for committal were consolidated by leave of counsel. Basically, the various Motions of the Appellants prayed the Court for an order:
”Dismissing or setting aside Forms 48 and 49 issued in this matter together with Motion for committal for being incompetent, abuse of processes of Court and want of jurisdiction.”
The Grounds upon which the application to dismiss or set aside the Forms 48 and 49 were predicated are that:
(a) Forms 48 and 49 are not issued in accordance with relevant rules and with necessary particulars and therefore incompetent.
(b) The Respondent contemptnor not being party to the action, requires to be joined for committal proceedings with Leave of Court which leave was never sought or obtained.
(c) The application is not in accordance with due process.
(d) There is no breach of any order of Court and the committal application is therefore an abuse of Court processes.
Respective counsel filed and exchanged Written Addresses and in a considered Ruling delivered on the 06/2/2012, the learned trial Judge dismissed the Appellants’ Motions/Objections and assumed jurisdiction to entertain the applications to commit the Appellants for contempt. Being aggrieved with the Ruling, the Appellants have filed this Appeal.
The Original Notice of Appeal at pages 336 – 344 of the Record of Appeal was dated the 18/2/2013 and filed on the 19/2/2013. It consisted of thirteen (13) Grounds of Appeal. This Appeal was however heard on the Amended Notice of Appeal dated the 13/12/2016 and filed on the 14/12/2016 when this Court granted leave to the Appellants to raise and argue fresh issue of jurisdiction. The Amended Notice of Appeal therefore consists of 14 Grounds of Appeal.
The Appellants’ Brief of Arguments was filed on the 29/12/2016 but deemed filed on the 04/5/2017. Thus, from the 14 Grounds of Appeal, four (4) issues were distilled for the determination of this Court as follows:
1. Whether the Learned Trial Judge was not in error and acted without jurisdiction, when he assumed jurisdiction to try Appellants for contempt of order that is a nullity, having been predicated on Originating Process for certiorari which was not in accordance with due process, not having been signed by legal practitioner in accordance with provisions of Sections 2(1) and 24 of the Legal Practitioners’ Act, Cap. L11, 2004 Laws of the Federation of Nigeria.
[Distilled from Ground 14].
2. Whether the learned trial Judge at the Court below was not wrong in assuming jurisdiction to try Appellants for purported breach of order that is a nullity having been made without or in excess of jurisdiction.
[Distilled from Grounds 2, 3, 4, 6, 7 and 13].
3. Whether the learned trial Judge of the lower Court was not wrong in overruling the appellants? objection to the competence of the committal application, when Appellants are not in breach of any order of Court to warrant their trial for committal.
[Distilled from Grounds 1, 5 and 11].
4. Whether the decision of the learned trial Judge assuming jurisdiction to try Appellants for committal for breach of order of Perpetual Injunction is not erroneous and unjust when the decision was reached in breach of Appellants’ Constitutional Rights to Fair Hearing, in gross abuse of judicial process and engendering serious miscarriage of justice. [Distilled from Grounds 8, 9, 10 and 12].
Despite being served the Appellants’ Brief of arguments, the Respondent did not file any Brief of Arguments. Thus, by order of this Court granted on the 16/1/2018, the Appeal was set down for hearing on the Appellants’ Brief alone.
This Appeal was therefore heard on the 18/9/18 without the Respondent’s Brief of Arguments in accordance with Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
After a careful perusal of the four issues formulated by the Appellant, I propose to consider the issues seriatim, beginning with issue one 1.
Arguing issue one (1), Alhaji A. Lasun Sanusi, SAN for the Appellant drew our attention to the application for certiorari at pages 1 – 3 of the Record of Appeal and the Statement made in Support thereof at pages 19 – 23 and 41 – 42 of the Record of Appeal to contend that the two processes were without any doubt signed by ‘NIYI OGUNJIMI & Co’ and that there is no legal practitioner registered as Niyi Ogunjimi & Co. Referring to Section 2(1) and 24 of the Legal Practitioners’ Act, Cap. L.11, Laws of the Federation, 2004, Learned Senior Counsel submitted that, for a Court to possess the jurisdiction in a case, the case must have been initiated in accordance with due process. That the Court process must have been initiated by a Legal Practitioner known to law. The cases of Madukolu v. Nkemdilim (1962) All N.L.R. (reprint) (pt. 2) 581 at 589 – 590; Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521; Ministry of Works & Transport, Adamawa State v. Yakubu (2013) 6 NWLR (pt. 1351) 481 at 495 – 496 and Nwachukwu v. Ekpiken (2015) All FWLR (pt. 788) 958 at 969 were cited in support.
Learned Senior Counsel for the Appellant went on to submit that since the Originating Process are incompetent and therefore nullity, the order of certiorari quashing the judgment of the Customary Court is also a nullity and therefore cannot confer any right or benefit. We were urged to set same aside as having been made without jurisdiction and that there cannot be a breach of a null order.
It is not in doubt that for a Court to hear and determine any dispute, it must have the jurisdiction to do so. Jurisdiction is the authority which a Court has to decide on matters instituted before it for adjudication or the authority to take cognizance of matters presented before it in a formal way for determination. Generally, the jurisdiction of Courts are donated by the Constitution or other Statutes or Law that established the Court. See FBN Ltd v. Abraham (2008) LPELR 1281 (SC); Musaconi Ltd v. Aspinall (2013) 14 NWLR (pt. 1375) 435 and Aladejobi v. N.B.A. (2013) 15 NWLR (pt. 1376) 66. It has therefore been said that jurisdiction is the threshold issue in the judicial process, as without jurisdiction, no Court is competent to hear and determine any cause or matter. It is therefore the life blood of any litigation and so fundamental that any proceeding conducted without jurisdiction will be a nullity. SeeAkere & Ors v. Gov. of Oyo State & Ors (2012) 12 NWLR (pt. 1314) 240; Dingyadi & Anor v. INEC & Ors (2010) LPELR ? 40142 (SC) and Okoro & Ors v. Egbuoh & Ors (2006) 15 NWLR (pt. 1001) 1.
That being so, a Court would be said to have jurisdiction to hear and determine any cause or matter where:
(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction;
(b) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
(c) The Court is properly constituted with respect to the number and qualification of its members.
Those are the requirements as set out by the Supreme Court in several cases such as Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Mbah v. State (2014) LPELR 22729 (SC); P.D.P & Ors v. Ezeonwuka & Anor (2017) LPELR 42563, Sun Insurance (Nig.) Plc v. Umez Engineering Construction Co. Ltd (2015) LPELR 24737 (SC).
In the instant case, the complaint of the Appellant rests on the second element. It is therefore the case of the Appellant that, the certiorari proceeding which gave birth to the order said to have been breached by the Appellants is a nullity as it was not instituted by due process of the law. That the exparte application which sought the leave of Court to institute or initiate the certiorari proceeding, the statement made in support of the application and the Motion on Notice thereof, were all signed in the name of Niyi Ogunjimi & Co, a Law Firm. That, a Law Firm is not the name of a person whose name is on the Roll of Legal Practitioners kept in the Supreme Court registry, and therefore cannot validly and lawfully sign or initiate any Court process.
The Law has long been settled by the Supreme Court, particularly in the case of Okafor & Ors v. Nweke & Ors (2007) LPELR 2412 (SC) where the Supreme Court held as follows:
”The question that follow is whether J.H.C. OKOLO, SAN & CO., is a Legal Practitioner recognized by the Law? From the submissions of both counsel, it is very clear that the answer to that question is in the negative. In other words, both Senior Counsel agree that J.H.C. OKOLO, SAN & CO is not a Legal Practitioner and therefore cannot practice as such by say, filling processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of Learned Senior Advocate for the Applicants that to determine the actual person who signed the processes, evidence would have to be adduced which would necessarily establish that the signature on top of the inscription J.H.C. OKOLO, SAN & CO. actually belongs to J.H.C. Okolo, SAN who is a Legal Practitioner in the roll Since both counsel agree that J.H.C. OKOLO, SAN & CO. is not a Legal Practitioner recognized by the Law, it follows that the said J.H.C. OKOLO, SAN & CO., cannot legally sign and/or file any process in the Courts and as such the Motion on Notice filed on 19th December, 2005, Notice of Cross-Appeal and Applicants’ Brief of Argument in support of the said Motion all signed and issued by the firm known and called J.H.C. OKOLO, SAN & CO., are incompetent in Law, particularly as the said firm of J.H.C. OKOLO, SAN & CO is not a registered Legal Practitioner.”
The above cited decision stirred a lot of divergent comments within the circle of Legal Practitioners in Nigeria. To that end, when the opportunity presented itself in the case of F.B.N. Plc v. Maiwada (2013) 5 NSLR (pt. 1348) 444 at 488, the Chief Justice of Nigeria empanelled a full compliment of the Supreme Court to resolve the issue. At page 488 paragraphs A – D, Fabiyi, JSC who prepared and delivered the lead judgment in F.B.N v. Maiwada (supra) to which other Justices of the Supreme Court concurred held as follows:
”I wish to repeat that we are interpreting a Law which seeks to make Legal Practitioners responsible and accountable, more especially in modern times that we are presently operating. I see nothing technical in insisting that a Legal Practitioner should abide by the dictates of the Law in signing Court processes? The decision in Okafor v. Nweke is not in any respect wrong in Law and I cannot summise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy.. The Law as enacted should be followed. I do not for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and Legal Practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.”
With the above pronouncement of the Supreme Court, the law as stated by that Court, which is the final and Supreme Court of the land, in Okafor v. Nweke (supra) has been settled. That decision has been dutifully followed by this Court, and indeed the Supreme Court itself in plethora of cases. Thus see, SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (pt. 1252) 317; Okwuosa v. Gomwalk & Ors (2017) LPELR 41736 (SC); Hamzat & Anor v. Sanni & Ors (2015) LPELR 24302 (SC); Dankwambo v. Abubakar & Ors (2015) LPELR 25716 (SC); Okarika & Ors v. Samuel & Anor (2013) 7 NWLR (pt. 1352) 19; etc. The Law now, as settled by the Supreme Court is that, for any process purported to be signed by a Legal Practitioner to be valid, it must have been signed or initiated by a person whose name is on the Roll of Legal Practitioners kept in the Supreme Court Registry. For a person to qualify as such Legal Practitioner, he must be such a person as defined in Sections 2(1) and 24 of the Legal Practitioners’ Act (supra). As has been found, a Law Firm does not qualify as a Legal Practitioner within the contemplation of Sections 2(1) and 24 of the Legal Practitioners’ Act. Consequently any Court Process signed or initiated in the name of a Law firm is incompetent, null and void ab initio. See Okpe v. Fan Milk Plc & Anor (2016) LPELR 42562 (SC).
The issue is therefore that of substantive Law, i.e, the Legal Practitioners’ Act. That being so, a breach of such statutory provision affects the competence of the process, and therefore, the jurisdiction of the Court to entertain an action initiated by such invalid process. In other words, any Originating Process filed in breach of a statutory provision is null and void and cannot be relied upon in any judicial proceeding. The defect goes to the competence and therefore jurisdiction of the Court to adjudicate on the matter brought before it on that invalid process. It is settled law that, the issue of jurisdiction is very fundamental and thus constitute the foundation of the powers of any Court to hear and determine a matter; and once there is absence of jurisdiction, the proceedings conducted by that Court and the decision or judgment consequent thereon is a nullity no matter the level of industry and brilliance exerted in conducting the proceeding. See Ukwu v. Bunge (1997) 8 NWLR (pt.5 18) 527; Nnonye v. Anyichie (2005) 2 NWLR (pt. 910) 625 and Kida v. Ogunmola (2006) 60 All FWLR (pt. 327) 402 at 412. Thus, such a decision given without jurisdiction being a nullity is liable to be set aside.
In the instant case, the Originating Processes upon which the certiorari proceeding was conducted were signed or initiated by a Law Firm, to wit: NIYI OGUNJIMI & Co. No doubt, those processes are void and therefore incapable of sustaining the certiorari proceeding and the order made thereon, which is the subject of the contempt proceeding initiated in the Court below. The result therefore is that, there is no valid order of the Court, the breach of which is capable of being punished by committal for its contempt.
Now, it is beyond dispute that an order of Court that is a nullity is as good as though it never existed. In the same vein, an order or judgment of a Court that has been made or given without jurisdiction is null and void. It is my view therefore that such order or judgment is incapable of leading to a charge of contempt. See Mustapha v. Governor or Lagos State (1987) 2 NWLR (pt.58) 539; Macfoy v. U.A.C. Ltd (1961) 33 All E.R. 1169; Abubakar & Ors v. Nasamu & Ors (2012) LPELR 7826 (SC); Menakaya v. Menakaya (2001) 16 NWLR (pt. 738) 203 and Nyesom v. Peterside & Ors (2016) LPELR ‘ 40036 (SC). Thus in Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221, Obadina, JCA said:
“A nullity is in law a void act, an act which has no legal consequences. In that regard, a proceeding which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not also impose any obligation or liability on any one or make any party liable to suffer penalty or disadvantage. In other words, it does not of itself without more, make the Respondent liable or compellable to do or eschew from doing any act.”
I need not restate that an order that is a nullity can be set aside without much ado. See Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506 and Bello v. INEC & Ors (2010) 8 NWLR (pt. 1196) 342. In that respect, having determined that the judgment of the Oyo State High Court, delivered by M. L. Abimbola, J (as he then was) on the 22/2/2007 in Suit No. HER/MISC.5/2006, is a nullity, the order contained therein is incapable of sustaining any charge of contempt. That judgment being a nullity, was incapable of conferring any right or benefit to the parties thereto. It was equally incapable of imposing any penalty on the parties. That being so, it is my view that the learned trial Judge erred when he assumed jurisdiction to entertain the Respondent?s Application seeking that the Appellants be committed for contempt.
Having held as above, it is my view that, it would not serve any useful purpose to proceed to determine on the other issues proposed for determination by the Appellants? in this appeal. This appeal therefore is resolved on issue one alone.
On the whole therefore, on issue one alone, this appeal has merit and is accordingly allowed. Consequently, the Ruling of the Oyo State High Court delivered on the 6th day of February, 2013 assuming jurisdiction to entertain the contempt proceedings against the Appellants’ is hereby set aside.
JIMI OLUKAYODE BADA, J.C.A.: I read in draft the Judgment just delivered by my learned brother Haruna Simon Tsammani JCA, just delivered. It represents my view and stance in this appeal.
I too allow the appeal and I abide by the consequential order that the Ruling of the Oyo State High Court delivered on the 6th day of February, 2013 assuming jurisdiction to entertain the contempt proceeding against the Appellants be set aside.
FOLASHADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother Haruna Simon Tsammani JCA and I agree with the reasoning and conclusions therein.
This appeal again brings to fore the issue of the competence of an originating process. The law is settled that for a Court to be competent to assume jurisdiction over a matter, it must have been initiated by due process of law. Where an action is not initiated by due process of law, a Court would lack jurisdiction to entertain same and any proceeding conducted thereon is a nullity.
Section 2(1) of the Legal Practitioners Act provides that 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 kept in the Supreme Court Registry. It has been settled by the highest Court of the land that a law firm does not qualify as a legal practitioner within the contemplation of Section 2(1) and 24 of the Legal Practitioners Act. It is further settled that only persons who are qualified to practice as legal practitioners and whose names have been entered in the roll at the Supreme Court are qualified to sign Court processes.
In BRAITHWAITE VS. SKYE BANK PLC. (2012) LPELR 15532, the Supreme Court held as follows:
”In my considered opinion, the words employed in drafting Section 2(1) of the Legal Practitioners Act, Laws of the Federation of Nigeria and Section 24 of the Legal Practitioners Act, Laws of the Federation are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign Court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this Court” per Mohammed JSC at pg. 10 – 11 Paras D – C.
See also NNALIMUO & ORS. VS. ELODUMO & ORS 2018 LPELR – 43898 and OLIYIDE & SONS LTD VS. O.A.U ILE-IFE (2018) LPELR 43711.
The Respondent herein vide an ex-parte application filed at the trial Court sought the leave of Court to apply for an order of certiorari to remove the judgment and proceeding of the Grade ‘C’ Customary Court into the lower Court for the purpose of quashing it. The said application for leave at page 19 – 20 of the Record of Appeal was signed by the law firm of Niyi Ogunjimi & Co.
The Motion on Notice at Page 25 of the Record is also signed by Niyi Ogunjimi & Co. Niyi Ogunjimi & Co., is a firm of legal practitioners which is inanimate. The law firm of Niyi Ogunjimi & Co., is also not a name verifiable on the roll of legal practitioners at the registry of the Supreme Court.
The said applications form the pedestal upon which the certiorari proceeding was conducted. The resultant effect is that the foundation upon which the lower Court conducted the proceeding which led to the quashing of the judgment of the Grade ‘C’ Customary Court was incurably bad and a nullity in law.
In NZOM & ANOR. VS. JINADU (1987) LPELR-2143 E – A, the Supreme Court per Karibi-Whyte JSC held as follows:
”It is now settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. Hence if the writ of summons against a non-juristic person is void, it admits of no additions or accretion of other persons. As Denning L.J expressed it commenting on nullity succinctly in U.A.C LTD VS. MCFOY (196) 3 ALL ER. AT P.1172.
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad…. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
I agree with my learned brother that the contempt proceeding initiated to challenge the Appellants on the execution of a quashed judgment is also a nullity in law. The said contempt proceeding and the ruling emanating therefrom must collapse like a pack of cards as the pedestal on which they stand is incurably bad.
It is for this reason and the more robust reasons of my learned brother in the lead judgment that I also allow this appeal and set aside the judgment delivered by the lower Court in SUIT NO.HER/MISC.J.2006 delivered on 22nd February, 2007 by M.L. Abimbola J.
Appearances:
Alhaji Lasun Sanusi SAN with Chinedu Ugwu, Esq and Vanessa N. Ahile, EsqFor Appellant(s)
Respondent is absent.For Respondent(s)
