MARTIN ONYEWUCHI IWUNZE & ORS v. REV. JUDE CHIHEREOEZE OKENWA & ANOR
(2015)LCN/7870(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of May, 2015
CA/OW/121/2011
RATIO
APPEAL: NOTICE OF APPEAL; WHETHER ANY DEFECT IN THE NOTICE OF APPEAL WILL ROB AN APPELLATE COURT THE JURISDICTION TO HEAR THE APPEAL
The settled position of the Law is that a Notice of Appeal is the foundation and substratum of every appeal as it is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal. Therefore any defect in the Notice of Appeal goes to the root of the appeal and robs this Court the jurisdiction to hear the appeal. See: (1) RALPH UWAZURUIKE & ORS. VS. ATTORNEY – GENERAL OF THE FEDERATION (2007) 8 N.W.L.R. (PT. 1035) 1 also reported in (2007) 5 S.C.M. 193 at 200 where OGBUAGU, J.S.C. puts it lucidly as follows:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is Statutory and so guided by the Rules of the Court. The failure of the appellant or appellants, to comply with Statutory provision or requirements prescribed by the relevant Law/Laws or Rules – (which are in the nature of a subsidiary legislation perforce must be obeyed) under which such appeals may be competent and properly before the Court, will certainly deprive the Appellate Court, jurisdiction to entertain and/or adjudicate on the appeal. 2. NONYE IWUNZE V. THE FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR (PART 1404) 580 at 596 D – E per RHODES – VIVOUR, JSC. who also said: “The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals. The Jurisdiction is Statutory and also controlled by the rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of appeal ceases to have jurisdiction to entertain an appeal in whatever form.” per. PETER OLABISI IGE, J.C.A
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION AND WHEN IT CAN BE RAISED
It is therefore a matter touching and concerning the jurisdiction of this Court to entertain the Appellants Appeal. In that wise issue of jurisdiction such as raised by 1st Respondent’s Learned Counsel here, can be raised in any manner with or without filing a formal application or Notice of Preliminary Objection challenging the Notice of Appeal initiating this appeal. It has even been adjudged that it can be raised viva voce. I call in aid the following cases viz:
1. N. D. I. C. VS. C. B. N. & ANOR. (2002) 7 NWLR (PART 766) 272 at 295 D – H per UWAIFO, JSC.
2. HON. AHMED SALAWU OGEMBE VS. NURUDEEN ABAYEMI & ORS. (2011) 12 (Pt. 2) SCM 363 at 375 C – E per GALADIMA JSC who said:
“Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity: Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument.
This position was reaffirmed by the apex court recently in the case of BARRISTER ORKER JEV. & ANOR. VS. SEKAVDZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 151 E where my Lord, OKORO J.S.C. pungently put it this way:
“Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this Court with or without Leave. See Nnonye V. Anyiechie (2015) ALL FWLR 253, 604.”
One can therefore confidently say that E. F. Njemanze Esq. is not at all on any strong wicket to contend that the Respondent did not file a formal application or that the objection is belated. There is no time bar or limit for a party to contend issue of jurisdiction. per. PETER OLABISI IGE, J.C.A
APPEAL: NOTICE OF APPEAL; WHETHER A NOTICE THAT IS DEFECTIVE CAN BE CURED BY AN AMENDMENT OF THE SAME
After all a Notice of appeal that is incompetent or afflicted by an incurable defect cannot be amended or window-dressed to lace it with any legality. See ODOEMENA NWAIGWE & ORS. VS. NZE EDWIN OKERE (2008) 13 NWLR (PART 1105) 445 at 474 C – F per ONNOGHEN, JSC who held:
“It is settled Law that you cannot amend a fundamentally defective document such as a Notice of Appeal so as to infuse live into it. In other words a fundamentality defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the Law is non-existent or dead. See AROHINAWHI V. OTERI (1984) 5 SC38; ATUYEYE VS. ASHAMU (1987) 1 SC 333 at 358; (1987) 1 NWLR (PT. 49) 267.” per. PETER OLABISI IGE, J.C.A
JUSTICES
IGNATIUS I. AGUBE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
1. MARTIN ONYEWUCHI IWUNZE
2. NZE B. C. IHEANACHO
3. REV. B. O. CHIEDO
4. MR. G. U. NNEJI
5. PRINCE E. C. OKENWA
6. MR. MAXWELL O. OPARA
7. MR. OGUERI DURU
8. MR. OLIVER DURU
9. CHIEF OKEYENWA DURU
10. ISAAC N. OHALE
11. LAZARUS OSIGWE
12. MR. NATHANIEL UNAKALAMBA (For themselves and representing Landowners of Oboroamikpu and Okwele Land of Irete Community Owerri West L.G.A.)
13. UZOIGWE AKALONU (Home Branch Chairman Irete Community Development Union (ICDU)
14. E. O. IRECHUKWU (Secretary General Irete Community Development Union (ICDU)
15. RAMSON IWUALA (For themselves and as representing Irete Community Development Union (ICDU) Appellant(s)
AND
1. REV. JUDE CHIHEREOEZE OKENWA
2. THE HONOURABLE COMMISSIONER For Lands, Survey And Urban Planning, Imo State Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Lead Ruling): When this appeal came up on 12th day of March, 2015 for the hearing of Appellants’ Motion on Notice to compile and transmit record of appeal dated and filed on 24th day of November, 2014 E. F. NJEMANZE Esq. for the Appellants informed this Court he was just served with a Counter Affidavit against the Motion that morning by Learned Counsel to the 1st Respondent N. C. Uzochukwu Esq. challenging the competence of the Notice of Appeal initiating this appeal.
Uzochukwu Esq. for the 1st Respondent confirmed the service of Counter Affidavit against the hearing of the Appellant’s application to compile and transmit record.
He informed this Court that the gravamen of their objection is that the Notice of Appeal filed by the Appellant’s on 23rd day of December, 2010 was not signed by a Legal Practitioner as required by the Legal Practitioners Act and Supreme Court cases. He contended that the said Notice of Appeal is a nullity. He relied on the cases of:
1. SLB CONSORTIUM LIMITED VS. N.N.P.C. (2011) 9 NWLR (PART 1252) 317 at 337H to 338 A – B.
2. DR. TUNJI BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PART 1346) 1 at 19 G – H to 20 A -B.
N. C. Uzochukwu Esq. submitted that the appeal should be struck out.
In response to the submissions of his learned friend for the 1st Respondent, E. F. Njemanze Esq. submitted that the Notice of Appeal aforesaid was properly signed by a Legal Practitioner. He accused the 1st Respondent’s Learned Counsel of failing to file a formal application to challenge the validity of the said Notice of Appeal. He urged the Court to dismiss the objection of the 1st Respondent. Ruling was then reserved on the point of Law raised.
The Learned Counsel to the Appellants E. F. Njemanze Esq. however filed in the Registry of this Court on 13th day of March, 2015 a LIST OF AUTHORITIES wherein he stated as follows:-
“1. Proceedings of 5th July, 2012 amending the Notice of Appeal: 1st Respondent Counsel did not object to the application: Ruling not appealed against up to date.
2. Amended Notice of Appeal dated 10-7-2012 and filed 11-7-2012: The Typographical error in the original notice of appeal i.e. “Solicitor Appellant” now reads “Solicitor to Appellant’s”
3. Failure to raise objection on time: Barigha V. PDP (2013) ALL FWLR (PT. 696) 414 at 436. FAWEHINMI VS. NBA (No. 1) (1989) 2 NWLR (PT. 105) 495.
4. Unity Bank PLC. Vs. Denelah Ltd. (2013) ALL FWLR (Part 675) 206 at 239 – 241 – where amendment to the process was effected, the process is redeemed and valid Issue of “Solicitor Appellant” no longer reflected in the amended notice of appeal filed on 11-7-2012.
In apparent reaction to this the Learned Counsel to 1st Respondent N. C. Uzochukwu also filed in the registry of this Court on 23rd day of March, 2015 list of the following authorities in further support of his objection viz:
1. S. L. B. CONSORTIUM LTD. VS. N.N.P.C. (2011) 9 NWLR (PART 1252) 317 at 337 – 338 F. A.
2. THE NIGERIAN ARMY VS. SGT. ASANU SAMUEL & ORS. (2013) 14 NWLR (PART 1375) 466 at 484 – 485 H – A.
3. ALAHAJI FATAYI AYODELE ALAWIYE VS. MRS. E. A. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570 at 617 – 618 H -C.
4. MELAYE V. TAJUDEEN (2012) 15 NWLR (PT. 1323) 315 at 339 C – E.
5. SUNDAY ADENEYE VS. ALHAJI BUKAR YARO (2013) 3 NWLR (PT. 1342) 625 at 633 – 634 H – C.
6. FIRST BANK OF NIGERIA PLC & OR. VS. ALHAJI SALMANU MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 509 C -D.
7. BRAITHWAITE VS. SKYE BANK PLC. (2013) 5 NWLR (PT. 1346) 1 at 22C.
8. PEAK MERCHANT BANK LTD. NDIC (2011) 12 NWLR (PT. 1261) 253 at 262 E – F and
9. MR. K. K. ADUSEI VS. MR. TOYIN ADEBAYO (2012) 3 NWLR (PT. 1288) 534 at 552 E – H.
The settled position of the Law is that a Notice of Appeal is the foundation and substratum of every appeal as it is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal. Therefore any defect in the Notice of Appeal goes to the root of the appeal and robs this Court the jurisdiction to hear the appeal.
See: (1) RALPH UWAZURUIKE & ORS. VS. ATTORNEY – GENERAL OF THE FEDERATION (2007) 8 N.W.L.R. (PT. 1035) 1 also reported in (2007) 5 S.C.M. 193 at 200 where OGBUAGU, J.S.C. puts it lucidly as follows:
“It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is Statutory and so guided by the Rules of the Court. The failure of the appellant or appellants, to comply with Statutory provision or requirements prescribed by the relevant Law/Laws or Rules – (which are in the nature of a subsidiary legislation perforce must be obeyed) under which such appeals may be competent and properly before the Court, will certainly deprive the Appellate Court, jurisdiction to entertain and/or adjudicate on the appeal.
2. NONYE IWUNZE V. THE FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR (PART 1404) 580 at 596 D – E per RHODES – VIVOUR, JSC. who also said:
“The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals. The Jurisdiction is Statutory and also controlled by the rules of Court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with Statutory Provisions or the relevant rules of Court.
The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of appeal ceases to have jurisdiction to entertain an appeal in whatever form.”
The issue in contention here is whether the Appellants Notice of Appeal was signed by a Legal Practitioner whose name is on the Roll of Legal Practitioners called and admitted to the Nigerian Bar as Statutorily and mandatorily provided for in Sections 2 (1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004.
It is therefore a matter touching and concerning the jurisdiction of this Court to entertain the Appellants Appeal. In that wise issue of jurisdiction such as raised by 1st Respondent’s Learned Counsel here, can be raised in any manner with or without filing a formal application or Notice of Preliminary Objection challenging the Notice of Appeal initiating this appeal. It has even been adjudged that it can be raised viva voce. I call in aid the following cases viz:
1. N. D. I. C. VS. C. B. N. & ANOR. (2002) 7 NWLR (PART 766) 272 at 295 D – H per UWAIFO, JSC.
2. HON. AHMED SALAWU OGEMBE VS. NURUDEEN ABAYEMI & ORS. (2011) 12 (Pt. 2) SCM 363 at 375 C – E per GALADIMA JSC who said:
“Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity: Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument.
This position was reaffirmed by the apex court recently in the case of BARRISTER ORKER JEV. & ANOR. VS. SEKAVDZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 151 E where my Lord, OKORO J.S.C. pungently put it this way:
“Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, I must say can be raised for the first time in this Court with or without Leave. See Nnonye V. Anyiechie (2015) ALL FWLR 253, 604.”
One can therefore confidently say that E. F. Njemanze Esq. is not at all on any strong wicket to contend that the Respondent did not file a formal application or that the objection is belated. There is no time bar or limit for a party to contend issue of jurisdiction.
On the submission of the Appellants Learned Counsel that when the Original Notice of Appeal was amended by the order of this Court the 1st Respondent did not object, the 1st Respondent cannot on that account be stopped from raising the point that the Notice of Appeal as filed on 23rd day of December, 2010 pages 327 – 332 of the record is incompetent on the allegation that the personality that signed the Notice of Appeal is unknown to Law. After all a Notice of appeal that is incompetent or afflicted by an incurable defect cannot be amended or window-dressed to lace it with any legality. See ODOEMENA NWAIGWE & ORS. VS. NZE EDWIN OKERE (2008) 13 NWLR (PART 1105) 445 at 474 C – F per ONNOGHEN, JSC who held:
“It is settled Law that you cannot amend a fundamentally defective document such as a Notice of Appeal so as to infuse live into it. In other words a fundamentality defective notice of appeal cannot be cured by an amendment of same. You can only validly amend a valid notice of appeal not a fundamentally defective one which in the eyes of the Law is non-existent or dead. See AROHINAWHI V. OTERI (1984) 5 SC38; ATUYEYE VS. ASHAMU (1987) 1 SC 333 at 358; (1987) 1 NWLR (PT. 49) 267.”
Now in the Original Notice of Appeal filed a cursory look at page 332 of the record shows the personality that signed it as follows:
“SGD.
SOLICITOR APPELLANTS.
EZEOHIRI FRED NJEMANZE, Esq.
M/S NJEMANZE & NJEMANZE,
76 NJEMANZE STREET, OWERRI.”
The Amended Notice of Appeal filed on 11th day of July, 2012 dated 10th July, 2012 the signature on it reveals:
“SGD.
SOLICITOR TO APPELLANT EZEOHIRI FRED NJEMANZE, Esq.
M/S NJEMANZE & NJEMANZE,
76 NJEMANZE STREET,
OWERRI.”
Can it be said that the Notice of Appeal herein whether in the original form or in its state of amendment is in tandem or in line with Sections 2(1) and 24 of the Legal Practitioners Act, 2004 LFN 2004?
In the case of SLB CONSORTIUM LTD. VS. N.N. P.C. (2011) 5 S.C.M. 187 at 197 – 198 ONNOGHEN J.S.C. who delivered the leading judgment and who incidentally delivered the leading judgment in OKAFOR VS. NWEKE (2007) 5 SCM 180 took time to explain the rational for their decision in Okafor Vs. Nwaeke Supra when he said:
“The complain of the respondent in the preliminary objection is that the originating processes in this action were not signed by a person known to law contrary to the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules, 2000, Section 2 and 24 of the Legal Practitioners Act supra and the decision of this Court in Okafor Vs. Nweke (supra) by which the respondent is understood as contending that the case, as instituted “was not initiated by due process of law, “and fulfillment of any condition precedent to the exercise of jurisdiction.”
In Order 26 Rule 4 (3) supra, it is provided thus:
“Pleadings shall be signed by a legal practitioner or by the party if he sued or defends in person.”
The above provision is very clear and unambiguous. Looking at the Originating Summons and the Amended Statement of Claim complained of, it is very clear that both were signed by “Adewale Adesokan & Co. and that the said “Adewale Adesokan & Co.” a Legal Practitioner so as to come under the provisions of the above order?
To answer that question we have to go to the Legal Practitioners Act, Section 24 of which define a Legal Practitioner thus:
“Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally or for the purposes of any particular office or proceedings.”
So a Legal Practitioner contemplated by Order 26 Rule 4(3) supra is the one defined above. Is “Adewale Adesokan & Co” a Legal Practitioner within the con of Order 26 Rule 4 (3) supra? Learned Counsel for the appellant contends that it is, being a law firm of a sole proprietor while the objection is to the contrary. This takes us to the decision of this Court in Cole Vs. Martins supra, which Learned Counsel says is his authority for the above proposition.
It is clear from the fact of this case that there is no evidence on record that Mr. Adewale Adesokan, who is legal practitioner whose name is on the roll, is the only legal practitioner practicing law under that trade name. Section 2 (1) of the Legal Practitioners at clearly states that “subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
The above is a statutory provision which, even though in existence when Cole Vs. Martins supra was decided, under the Legal Practitioners Act, 1962, it was neither cited nor referred to by this Court in that decision. However, prior to the decision in Cole Vs. Martins (supra) this Court had decided the case of the Registered Trustees of Apostolic Church Lagos Area Vs. Rahman Akinde (1967) NMLR 263 in which following the success of an objection to the application of the appellants for registration of owners of some land, the firm of solicitors of J.A. Cole & Co. filed a Notice of Appeal at the High Court, Lagos against the ruling. In signing the Notice of Appeal, Learned Counsel used his name in which he was called to Bar and enrolled at the Supreme Court i.e. J. A. Cole. After the hearing of the appeal, the trial Judge drew attention to the fact that Order 3 Rule 2 of the High Court of Lagos (Appeals) Rules had not been complied with because the firm of J.A. Cole & Co. is not a Legal Practitioner under the Legal Practitioners Act, 1962 and consequently dismissed the Appeal upon appeal to the Supreme Court, the Court allowed the appeal, holding at page 165 inter alia as follows:-
“The notice filed in this case was given in the prescribed form. It stated the name and address of the Legal Practitioner representing the appellants as “Messrs J.A. Cole and Co. 14/16/Abibu Oki Street, Lagos,” and was signed.
“J. A. Cole
For J.A. Cole & Co.”
Mr. J. A. Cole is admittedly a duly registered Legal Practitioner, and entitled to practice as such under the Legal Practitioners Act, 1962. He has no partner in his practice … in signing the Notice of Appeal. Mr. Cole used his own name, that is to say, the name in which he registered as a Legal Practitioner. We hold that on any interpretation of the rules that was a sufficient compliance with them, and we do not accept the submission that the addition of the words “for J. A. Cole & Co” permitted.” Emphasis supplied by me. The above decision clearly states that a process prepared and filed in a court of law by a Legal Practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name on top of Adewale Adesokan & Co. because Mr. Adewale Adesokan is a Legal Practitioner registered to practice law in the roll at the Supreme Court; not Adewale Adesokan & Co.
It had been argued that Cole Vs. Martins supra is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioner Act. I doubt it because in law, a business name is not accorded legal personality. It is not recognized as a legal person capable of taking or defending actions in the law courts, in the instant case, Adewale Adesokan & Co. is not a legal person it can only function as such if it describes itself as: Adewale Adesokan (Trading under the name and style of Adewale Adesokan & Co.). I leave it at that. In any event, see the decision of this court in Okafor Vs. Nweke (supra) at 62 – 63.”
(Underlined mine).”
The issue of the way and manner to sign legal or court process and who is competent to sign legal or court processes has since the decision in Okafor V. Nweke generated a lot of heat and controversies as to whether the case will not breed technical justice or injustice on litigants and other stakeholders in administration of justice. In the interest of justice and in order to re-examine the vexed issue, the Hon. Chief Justice of Nigeria, Hon. Justice Musdapher (CJN Rtd) empanelled the full Court of Supreme Court to consider the matter in the case of FIRST BANK OF NIGERIA PLC & ANOR. VS. ALHAJI SALMANU MAIWADA & ORS. (2013) 5 NWLR (PART 1348) 444. Many amicus curiae were invited to address the Supreme Court. The case originated from Plateau State High Court of Justice. After the various arguments in favour of the position taken in OKAFOR V. NWEKE supra and against it, My Lord Fabiyi JSC who delivered the leading judgment had this to say from page 482F to 483 A – G thus:-
“While one should appreciate the stand point of each senior counsel/counsel and the effort and dexterity with which each of them marshaled his points, it should be noted that this salient issue shall be determined based on the determination of the applicable law. This is a matter of great concern to legal practitioners which cannot be determined by casting of votes.
The decision in Okafor vs Nweke was basically determined based on the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Laws of the Federation of Nigeria 2004. It is apt to reproduce here below the stated sections of the law for ease of reference and undiluted appreciation.
Section 2(1) of the law provides as follows:-
Subject to the provisions to this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.
Section 24 of the Legal Practitioner’s Act provides thus:-
In this Act, unless the contest otherwise requires, the following expressions have the meanings hereby assigned to them respectively that is to say legal practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
In interpreting the law, the court was invited to embark upon purposive interpretation. It was contended that a negative interpretation of the law should be avoided as such is against the canon of interpretation of laws.
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 vs. Barde (1996) 9 NWLR (Pt. 474) 513; United Agro Ventures Vs F.C.M.B. (1998) 4 NWLR (Pt.547) 546; I.B.W.A. VS Imano (Nig) Ltd & Anr. (1988) 2 NSCC 245, (1988) 3 NWLR (Pt.85) 633.
Generally, where the words of a statute are clear and unambiguous, the court should give same its ordinary literal Interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. Literal construction has been defined as the interpretation of a document or statute according to the word alone. A literal construction adheres closely to the words employed without making differences for extrinsic circumstances. See; Black Law Dictionary Sixth Edition, page 993.
In my considered opinion, the words employed in drafting Sections 2(1) and 24 of the Act are simple and straightforward. 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.”
The decision of the apex court in Okafor V. Nweke has thus been cast in Iron. See further the following cases which also show that Okafor V. Nweke remains sacrosanct.
See:
1. ALHAJI FATAI AYODELE ALAWIYE VS. MRS. ELEZABETH ADETOKUNBO OGUNSANYA (2013) 5 NWLR (PART 1348) 570 at 611 B – H per CHUKWUMA-ENEH JSC.
2. DR. TUNJI BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PART 1346) 1 at 16 B – F per MUHAMMAD, JSC.
3. MIN. OF WORKS & TRANSPORT ADAMAWA & ORS. VS. ALH, ISIYAKU YAKUBU ENT. LTD. (2013) 3 SCM 62 at 72 – 73 per COMMASSIE, JSC
AND
4. AARON OKARIKA & ORS. VS. ISIAH SAMUEL (2013) 7 NWLR (PART 1352) 19 at 34 G – H 37 per I. T. MUHAMMAD, JSC.
The authorities are all speaking with one voice that an initiating process, whether Writ of Summons, Originating Summons or a Notice of Appeal and other Court processes not signed by a Legal Practitioner whose name is on the Roll will be a nullity. Such process cannot confer jurisdiction on the Court and no validity will be accorded such process unless signed by a Legal Practitioner in accordance with Section 2(1) and 24 of the Legal Practitioner Act, Cap L11, Laws of the Federation of Nigeria, 2004.
And just on 30th January, 2015 the Supreme Court not only reiterated its avowed position to ensure that Legal Practitioners called to the Nigerian Bar do the right thing in the signing of Court processes and execution of Legal documents, the apex Court strongly reaffirms it that Firm names of Legal Practitioners are not members of the Legal Profession and cannot sign any such process or document.
It is in the case of ALHAJI TAJUDEEN BABATUNDE HAMZAT & ANOR. VS. ALHAJI SALIU IREYEMI SANNI & ORS. (2015) LPELR – 24302 (SC) 1 AT 17 – 18 where GALADIMA, JSC firmly said:
“The Respondent have no grouse with the Writ of Summons dated 18/12/2001 which initiated the action. It was regularly signed by the learned Counsel for the Appellants thus;
“MUYIWA OBANEWA Esq. of OLUMUYIWA OBANEWA & CO. LEGAL PRACTITIONERS”
The Respondents are challenging the competence of the two Statements of Claim of the appellants on which evidence of their witnesses at the trial Court was based. It is beyond argument that the Law firm of “OLAMUYIWA OBANEWA & CO.” is not Legal Practitioner recognized under the Law. It cannot sign any process meant for filing in the Court. The two Statements of Claim being legal documents ought to have been signed by the named Legal Practitioner on-behalf of Appellants. This Court was faced with similar situation in OKAFOR V. NWEKE 2007 10 NWLR Supra 521. In that case, the offending processes, the Motion on Notice, Notice of Cross Appeal, and a Brief of Argument all signed by JHC OKOLO, SAN & CO. were all held to be incompetent, same having not been issued by a Legal Practitioner known to Law, and were consequently struck out. In holding the processes incompetent this Court held at page 532 thus:
“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 correct the current embarrassing trend in 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 are those not so trained always learn from our example. We therefore owed the Legal Profession 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 Law, not to be twisted and turned to serve whatever purpose legitimate or otherwise which can only best result in embarrassing the profession of encouraged.”
In SLB Consortium LTD. Vs. NNPC (Supra) this Court citing the case of Okafor Vs. Nweke (Supra) struck out the Plaintiffs Originating Summons and the Statement of Claim, both having been signed by “ADEWALE ADESOKAN & CO. … who was held not to be a Legal Practitioner known to Law. It was further held that by that error the suit at the trial Court “was not initiated by due process of Law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
In view of our clear position in Okafor V. Nweke Supra and other similar cases I hold that the Appellant’s Statements of Claim on which evidence was led, were a nullity, same having been signed in the name of a Law firm which is not by the provisions of Section 2(1) and 24 of the Legal Practitioners Act Cap. 207 Laws of the Federation 1990, a person entitled to practice as a Barrister and Solicitor consequently the Statements of Claim are hereby struck out.”
Can it be said in this Appeal that the signature on the Notice of Appeal founding the appeal herein is by a firm of Solicitor?
The signature on the Notice of Appeal being impugned here which is on page 332 of the record of appeal appears thus”
“Sgd.
SOLICITOR APPELLANT
EZEOHIRI FRED NJEMANZE ESQ.
M/S NJEMANZE & NJEMANZE
76 NJEMANZE STREET OWERRI.”
This was amended with the Leave of this Court without objection on 5th July, 2012. The Amended Notice of Appeal which is now dated 10th day of July, 2012 and filed on 11th day of July, 2012 with the Leave of this Court now reads:
“Sgd.
SOLICITOR TO THE APPELLANT
EZEOHIRI FRED NJEMANZE ESQ.
M/S NJEMANZE & NJEMANZE,
76 NJEMANZE STREET, OWERRI.”
I am of the solemn view that whether in the Original form or its Amended status one can infer and see that the signatory to or on the Notice of Appeal or Amended Notice of Appeal in this appeal is EZEOHIRI FRED NJEMANZE Esq. who is Solicitor to the Appellant in this Appeal. To me the Notice of Appeal is saved in that the signature on the Notice of Appeal being impugned is NOT directly on the Business name – M/S NJEMANZE & NJEMANZE.
There is no doubt that the Appellants’ Learned Counsel is a bit tardy in the manner that his signature was executed or carried out and the arrangement of names.
Notwithstanding, it is clear that the Signatory to the Notice of Appeal tells us that he is the Appellant’s Solicitor EZEOHIRI FRED NJEMANZE NOT M/S NJEMANZE & NJEMANZE.
I have gone through the decisions of the apex Court and in my humble view the Notice of Appeal filed by the Appellant in its Original and Amended Form escapes the weight and hammer of the decisions cited by the parties and this Court in this Ruling just by the whiskers.
Learned Counsel is strongly admonished to be more cautious in signing of Legal processes.
In the result the objection of the Learned Counsel to the 1st Respondent concerning the validity of the Notice of Appeal herein on account of the manner in which it was signed has no merit and the objection is hereby dismissed.
There will be no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the erudite and comprehensive if not educative expose of my learned brother, P.O. Ige, JCA, on the vexed issue of the signing of Originating Processes like the Notice of Appeal as in this case by animate persons who are lawyers whose names appear on the Roll of Legal Practitioners as provided by Section 2(1) and 24 of the Legal Practitioners Act. There are now an avalanche of authorities from the Supreme Court on this aspect of our procedural Law since the honest nest was stirred in the celebrated case of Okafor and Nweke (2007) 5 SCM 180 per Onnoghen, JSC and the subsequent stance of his Learned Colleagues of the apex Court.
I agree with my Lord and learned brother and the authorities of FBN Plc. & Anor v. Maiwada & Ors. (2013) 5 NWLR (Pt.1348) 444 per Fabiyi, JSC; Ayodele Alawuye v. E.A. Ogunsanya (2013) NWLR (Pt.1348) 520 at 611 B-H per Chukwuma-Eneh, JSC; Dr. Tunji Braithwaite v. Skye Bank Plc. (2013) 5 NWLR (Pt.1346) 1 at 16 B-F, per Muhammad JSC; Ministry of Works & Transport Adamawa State & Ors. v. Alhaji Isiyaka Yakubu Ent. Ltd. (2013) 3 SCM 62 at 72-73 per Muntaka-Coomassie, JSC and Aaron Okarika & Ors. v. Isiaha Samuel (2013) 7 NWLR (Pt.1352) 19 at 34 paras G-H; and 37 per I.I. Muhammad, JSC; that the decision of the apex Court in Okafor v. Nweke is now iron cast and their Lordships of the apex Court have spoken in one voice that originating or initiating processes not signed by a legal practitioner in his Registered name on the Roll of Legal Practitioners will be a nullity. Accordingly, such a process and the intended proceedings have been aborted before conception thus robbing whatever hierarchy of Court ordinarily seized with the process, of the jurisdiction to entertain such proceedings.
In the instant case since the Original Notice of Appeal was signed by Ezeohiri Fred Njemanze Esq of M/s Njemanze & Njemanze, 76 Njemanze Street Owerri and the only snag here is the arrangement of the Solicitors name below his title, the Notice of Appeal has not breached the provision of Sections 2(i) or 24 nor the Rules of Court. I agree that the signature of Eeohiri Fred Njemanze appears as that of the Solicitor to the Appellant and not M/S Njemanze & Njemanze which is the Firm Name as was in JHC Okolo SAN & Co., in Nweke’s case.
Although I subscribe to the warning to the Learned Counsel to the Appellant to be more careful in the cause of execution of processes, Counsel on the other side should not stress the decisions of the apex Court to a ridiculous and ludicrous point since lawyers are also human beings subject to volatility of the mind and prone to honest mistakes.
It is for the foregoing reasons and the more elaborate ones advanced in the Lead Ruling that I shall also dismiss the objection of the Learned Counsel to the 1st Respondent for want of merit and abide by the order as to Costs as made by my learned brother in the Lead Ruling.
FREDERICK O. OHO, J.C.A.: I have had the opportunity of reading in draft, the ruling just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in agreement that the objection raised against the hearing of the Appeal is without merit and it is accordingly dismissed.
No orders as to cost.
Appearances
E. F. NJemanze Esq.For Appellant
AND
N. C. Uzochukwu Esq.For Respondent
