MORUFU AJIBADE AJAYI v. MR. BASIRU OGUNTOWO & ANOR (2017)

MORUFU AJIBADE AJAYI v. MR. BASIRU OGUNTOWO & ANOR

(2017)LCN/9447(CA)

In The Court of Appeal of Nigeria

On Thursday, the 2nd day of February, 2017

CA/I/174/2008

RATIO

PROCEDURE: THE ATTITUDE OF THE COURT TOWARDS SIGNING OF COURT PROCESS IN A LAW FIRMS NAME
Now, it is a requirement in most High Courts (Civil Procedure) Rules in Nigeria, including that of the High Court of Oyo State, that an Originating Process shall be prepared by either the Claimant himself, or his Legal Practitioner. See Order 6 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, which stipulate that:
“Originating Process shall be prepared by a Claimant or his Legal Practitioner, and shall be clearly printed on A4 of good quality.
The word used here is shall which denotes mandatoriness. However, the problem(s) the Courts have been confronted with have always been whether a process purported to have been prepared and/or signed by a Legal Practitioner, was indeed prepared and/or signed by a Legal Practitioner known to Law in Nigeria. In resolving the issue, the Supreme Court has laid emphasis on Sections 2(1) and 24 of the Legal Practitioners Act, Cap.207, Laws of the Federation which stipulate that:
2(1) 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.
Section 24 of the Legal Practitioners Act (supra) on the other hand stipulates that:
24. 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.
“It has therefore been held that by a combined reading of Sections 2(1) and 24 of the Legal Practitioners Act (supra), a person is only entitled to practice law in Nigeria as a Barrister and Solicitor, otherwise known as a Legal Practitioner, if and only if, his name has been enrolled in the Register of Legal Practitioners in the Supreme Court of Nigeria. Such a person must necessarily be a natural person and must be registered on the roll under a given name. It is by that name that such a person can be identified or recognized as a Legal Practitioner. It therefore means that such Legal Practitioner must prepare and/or sign all Court processes under that name, and no other. However, Legal Practitioners in Nigeria, were in the habit of preparing and signing Court processes in their Firm names. That was the position until the Supreme Court in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) p.521, pronounced on the competence of Court processes signed in the name of a Firm of Legal Practitioners.
In the Okafor v. Nweke case (supra), in upholding the objection on the competence of the Motion on Notice, Notice of Cross-Appeal and Applicants? brief in respect of the application, all of which were signed in the name of J.H.C. Okolo, SAN & Co., the Supreme Court cited Sections 2(1) and 24 of the Legal Practitioners Act (supra) to hold that:
“The combined effect of the above provisions is that for a person to be qualified to practice as a Legal Practitioner he must have his name in the roll otherwise he cannot engage in any form of Legal Practice in Nigeria.
“The significance or impact of that decision is that, it determined that all Court processes prepared and/or signed by a Legal practitioner must be so prepared in the name of such Legal Practitioner. A firm of Legal Practitioners is not the name of a Legal Practitioner enrolled to practice as a barrister and solicitor in the Register of Legal Practitioners in the Supreme Court of Nigeria. Consequently, any Court process prepared and/or signed in the name of a Firm of Legal Practitioners is incompetent, null and void.
In the case of F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) p. 444, a full panel of the Supreme Court was invited to review and depart from the decision of Okafor v. Nweke (supra). The Supreme Court, after taking arguments of Counsel and numerous amici curiae invited to address the Court on the issue, declined the invitation to depart from Okafor v. Nweke (supra) and reiterated that the position in that case is good law. Specifically, Fabiyi, JSC who read the lead judgment said:
“The provisions of Sections 2(1) and 24 of the Act .. remain the law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law.
The decision in Okafor v. Nweke was based on a substantive law, an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke; It would
have been quite another matter if what is in issue is a none compliance with Court Rules. Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rule of Court which are subject to the law must take the side line.
The above cited authorities therefore represent the law on the issue in this Country. Those decisions have been followed and applied by this Court and indeed the Supreme Court in a legion of cases. For example, see N.D.I.C. v. Lagos State Government & Ors. (2009) LPELR – 4966 (CA); Unity Bank Plc v. Denclag Ltd. & Anor (2012) LPELR – 9729 (SC); Amidu Ishola & Ors v. Ibadan North-East Local Govt. & Anor (2013) LPELR – 20477 (CA); Hassan Garba v. Musa Lawan Birniwa & Anor (2013) LPELR – 21478 (CA) and Alhaji Tajudeen Babatunde Hamzat & Anor. v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR – 24302 (SC).
In the instant case, the Motion Ex-parte seeking for leave to apply for judicial review by way of certiorari dated and filed on the 4/10/2006, the statement made in support of the Application for leave also dated and filed on the 4/10/2006, the Motion on Notice dated and filed on the 26/10/2006 were all signed in the name of NIYI OGUNJIMI & CO., a Firm of Legal Practitioners representing the Applicants/Respondents. See pages 1, 20 – 21, 25, 26 and 45 of the Record of Appeal. It is clear that Niyi Ogunjimi & Co is a Law Firm and therefore not a person known under the Legal Practitioners Act, as a Legal practitioner. Learned Counsel for the Respondent was therefore clearly dishonest when he contended contrary to the records that he signed those processes as S. O. Ogunjimi. As stated by learned counsel for the Appellant the name of S. O. Ogunjimi does not feature in any of the Originating Processes. There is therefore no doubt, that the Originating Processes in this case prepared and signed by Niyi Ogunjimi & Co. are incompetent, null and void.
The issue is not one of mere procedural irregularity but rooted in due compliance with a statutory requirement. Let me repeat the position of the Supreme Court on the issue in the case of F.B.N. Plc v. Maiwada (supra) where Fabiyi, JSC said:
“The decision in Okafor v. Nweke was based on a substantive law, an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke. It would have been quite another matter if what is in issue is a none compliance with Court Rules. Let me say it bluntly that where the provisions of an Act like Legal Practitioners Act is at play, as herein, provisions of Rule of Court which are subject to the law must take the side line.
From the foregoing, since the matter touches on compliance or lack of it, of the provisions of a statute, it becomes an issue that affects the jurisdiction of the Court. That being so, it is my view that since the Originating Processes were signed in the name of a Law Firm, it means that conditions precedent to confer jurisdiction on the Court below had not been satisfied. That being so, it is my view, which I hold, that the entire proceedings of the Court below, based on those invalid processes and the judgment thereon were conducted without jurisdiction. Thus, 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. Halico (Nig.) Ltd (2006) 7 NWLR (pt.980) p.568. PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

MORUFU AJIBADE AJAYI Appellant(s)

AND

1. MR. BASIRU OGUNTOWO
2. PRESIDENT & MEMBERS OF IGBOORA GRADE ‘C’ CUSTOMARY COURT, IGBOORA. Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice, sitting at Eruwa in the Ibarapa Judicial Division, delivered by M. L. Abimbola, J (as he then was) on the 27th day of February, 2007.

The Appellant herein, had instituted an action against the 1st Respondent and one other, before the Grade ?C? Customary Court, Oja-Oba, Igboora in case No. 39/44/2006, claiming for trespass to certain parcel of land. The trial Customary Court, after taking evidence, gave judgment in favour of the Appellant on record. Being aggrieved by that decision, the 1st Respondent on record, filed an Exparte Application before the High Court of Oyo State, sitting at Eruwa seeking for:
Leave to apply for an order of certiorari to remove into this Honourable Court for the purpose of being quashed, the proceeding and judgment of the Igboora Grade ?C? customary Court, Igboora, Oyo State, delivered on the 6th July, 2006 in the following Civil Summons: 39/2006 and 44/2006.?

The application which was brought pursuant to Order 43 Rule 3(1) and

(2) of the Oyo State High Court (Civil Procedure) Rules, 1988 was dated and filed on the 4/10/06. It was supported by an affidavit of 23 paragraphs and a verifying affidavit of 4 paragraphs. Attached to the Affidavit were nine (9) exhibits including the record of proceedings of the trial Customary Court. A Counter-Affidavit was filed by the Appellant who was Respondent to the certiorari proceeding, to which the 1st Respondent as Plaintiff filed a Further Affidavit. By the said Motion seeking for judicial review by way of certiorari, the 1st Respondent sought the following reliefs:
(i) AN ORDER OF CERTIORARI removing into this Court for the purpose of being quashed, the proceedings and judgment dated 6th July, 2006, and in the Civil Summons on Cases No: 39/2006 dated 25th April, 2006 and No: 44/2006 dated 11th May, 2006 respectively, issued by the Grade ?C? Customary Court, Igboora.
(ii) AN ORDER OF CERTIORARI quashing the proceedings and judgment dated 6th July, 2006 in the Civil Summons on Cases No: 39/2006 dated 25th April, 2006 and No: 44/2006 dated 11th May, 2006 respectively of the Grade ?C? Customary Court,

Igboora.
(iii) DECLARATION that the proceedings and judgment dated 6th July, 2006 on the Civil Summons No: 39/2006 and 44/2006 dated 25th April, 2006 and 11th May, 2006 respectively are in excess of the 1st Respondent?s jurisdiction, biased against the Applicants, breach of fair hearing, unlawful, unconstitutional, irregular, null and void.
(iv) INJUNCTION restraining the Respondents from further entertaining proceedings and/or enforcing the judgment thereon in the said Civil Summons.

The grounds upon which the reliefs were sought are as stated in the Statement in Support of the Application.

As stated earlier, the learned trial Judge of the Court below granted the application for certiorari and consequently quashed the proceedings and judgment of the Grade ?C? Customary Court, Igboora. It is against that judgment that the Appellant has filed this appeal. The Original Notice of Appeal which is at pages 78 ? 82 of the Record of Appeal was dated the 8/5/2007 and filed on the 10/5/2007. Same was twice amended, with the extant Notice of Appeal being the Further Amended Notice of Appeal dated the 4/11/2015 and

filed on the 5/11/2015. It consists of 12 Grounds of Appeal. The parties, in compliance with the Rules of this Court proceeded to file Briefs of Arguments.

The Appellant?s Brief of Arguments is the Appellant?s Amended Brief of Arguments dated the 4/11/2015 and filed on the 5/11/2015 but deemed filed and served on the 19/10/2016. The Appellant formulated four (4) issues therein for determination, as follows:
ISSUE 1
Whether the Learned Trial Judge was not in error and acted without jurisdiction, when he proceeded to question the judgment of the Igboora Grade ?C? Customary Court, when the Respondent?s Originating Process for certiorari was not in accordance with due process not having been signed by legal practitioner in accordance with Sections 2(1) and 24 of the Legal Practitioners Act, 2004.
[Ground 12].
ISSUE 2
Whether the Learned Trial Judge was right when he quashed the judgment of Igboora Grade ?C? Customary Court on the ground that the judgment was vitiated by bias and abuse of process of Court which are not part of the Grounds of the Application in the statement.

[Grounds

3, 4, 5 and 6].
ISSUE 3
Whether the Learned Trial Judge was right in refusing to follow the decisions of the Superior Courts in his ruling which refusal led to his holding that certiorari application was competent and quashed the judgment of the Customary Court thereby engendering miscarriage of justice. [Grounds 2 and 11].
ISSUE 4
Whether the Learned Trial Judge did not act in excess of jurisdiction, when he exceeded the issues presented before him and proceeded to restrain the Appellants perpetually after quashing the judgment of Igboora Grade ?C? Customary Court as if he was deciding an appeal and when relief for perpetual injunction was never sought. [Grounds 1, 7, 8, 9 and 10].

The 1st Respondent filed a Brief of Arguments. It is dated the 15/9/2016 and filed on the 20/9/2016. It was deemed filed on the 19/10/2016. Therein, four issues were also raised for determination as follows:
1. Whether a party to a suit who flagrantly violated the order of the Court either regular or irregular (sic) made, can challenge the jurisdiction of the Court that made the order. [Ground 12].
2. Whether the learned

trial Judge was right when he quashed the judgment of the Igboora Grade ?C? Customary Court on the Ground of bias or likelihood of bias.
[Grounds 3, 4, 5 and 6].
3. Whether the learned trial Judge was right in refusing to follow the decisions in RE: APPOLLOUS UDO (1987) 4 NWLR (pt.63) p.128; ALFRED ONYEMAIZU Vs. OJIAKO (2000) 6 NWLR (pt.659) 25 at 38 in interpreting ORDER 43 Rule 5(6) of the High Court (Civil Procedure) Rules, 1988 to the effect that this rule does not impose obligation on the 1st Respondent to personally depose to an affidavit of service before the certiorari application could be heard, and when parties are present in Court. [Ground 2].
4. Whether the learned trial Judge was right in granting an injunction, being one of the reliefs claimed by the 1st Respondent, to restrain the Appellant from enforcing the judgment of the Igboora Grade ?C? Customary Court in addition to the order of certiorari granted. [Grounds 1, 9 and 10].

It should be noted that the Appellant also filed an Appellant?s Reply Brief to the 1st Respondent?s Brief of Arguments. It was dated the 31/10/2016

and filed on the 3/11/2016 but deemed filed on the 11/1/2017. It should also be noted that the 2nd Respondent filed a document titled; ?2nd Respondent?s Brief of Argument.? We were in the said ?Brief? informed that the 2nd Respondent has nothing to urge against the appeal. The said ?2nd Respondent?s Brief of Arguments? was dated and filed on the 29/11/2006 but deemed filed and served on the 11/1/2017.

?I have carefully read the issues formulated for determination by the 1st Respondent. Of note is issue No.1 which is said to be distilled from Ground 12 of the Notice of Appeal. Certainly, a Respondent is at liberty to formulate issues in an appeal but such issues must originate from the Grounds of Appeal and should not be at variance with the issues formulated by the Appellant. It therefore means that in formulating his own issues, a Respondent must either adopt the issues formulated by the Appellant or recast them in a language he finds suitable for his arguments in the Appeal. This is in view of the principle of law that where an Appellant fails to frame an issue from a Ground of Appeal filed, that Ground of

Appeal is deemed abandoned by the Appellant and will be struck out. Consequently, a Respondent cannot formulate any issue from such abandoned Ground of Appeal. See Onowhosa v. Odiuzou (1999) 1 NWLR (pt.586) p.173 at 183; Eke v. Ogbonda (2006) 18 NWLR (pt.1012) p.506 at 514; That is why a Respondent cannot formulate issues outside those formulated by the Appellant. However, a Respondent may formulate more issues than those formulated by the Appellant where he has filed a Respondent?s Notice or a Cross-Appeal. In any case, any issue formulated by a Respondent must take root from the Notice of Appeal, or Respondent?s Notice or Cross-Appeal where he has filed one. See Dairo v. F.R.N (2012) 16 NWLR (pt.1325) p.129; Akinyemi v. Ojo (2011) 10 NWLR (pt.1254) p.188 and Adhekegba v. Minister of Defence (2013) 17 NWLR (pt.1382) P.126.
In the instant case, issue No.1 as couched by the 1st Respondent is clearly not rooted in Ground 12 of the Notice of Appeal. For clarity, that issue reads thus;
?Whether a party to a suit who flagrantly violated the order of the Court either regular or irregular (sic) made, can challenge the jurisdiction of the

Court that made the order.?
Ground No.12 of the Notice of Appeal on the other hand reads as follows:
?The Learned Trial Judge of the Court below erred in law and acted without jurisdiction when he entertained the certiorari application in Suit No. HER/MISC/5/2006 to quash the judgment of Igboora Grade ?C? Customary Court on the basis of processes that where a nullity not having been initiated in accordance with provisions of Sections 2 (1) and 24 of Legal Practitioners Act, 2004.?
The issue as couched by the Respondent enabled him to bring in arguments on an issue for which there is no Ground of Appeal or even a Respondent?s Notice. In that respect, the Respondent?s issue No.1 is hereby struck out together with the arguments thereon. See Laah v. Opaluwa (2004) 9 NWLR (pt.879) p. 558 and Tahir v. Kapital Ins. Co. Ltd (2006) 13 NWLR (pt.997) p. 430. I notice however that parts of the 1st Respondent?s arguments on their issue No.1, relate to arguments on issue No.1 formulated by the Appellant. I shall therefore, in the interest of justice take same into consideration in the determination of issue No.1

raised by the Appellant.

Now, in arguing issue one (1) Alhaji Lasun Sanusi, SAN who settled the Appellant?s Brief of Arguments, contended that, a look at the application for certiorari and the statement made in support thereof, leaves no one in doubt that those processes were signed by ?Niyi Ogunjinmi & Co?. That those processes which originated the certiorari application do not conform with due process as there is no Legal Practitioner registered as ?Niyi Ogunjinmi & Co.? Learned Senior Advocate then cited Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L.11, Laws of the Federation, 2004 in support.

Learned Senior Counsel went on to submit that, for a Court to possess jurisdiction in a case, the case must have been initiated in accordance with due process, in the sense that, it must confirm with the conditions precedent. The cases of Madukolu v. Nkemdilim (1962) All N.L.R. (reprint) (pt.2) p.581 at 589 – 590; Okafor v. Nweke (2007) 10 NWLR (pt.1043) p.521; Min. of W & T – Adamawa State v. Yakubu (2013) 6 NWLR (pt.1351) p.481 at 495 – 496 and Nwachukwu v. Ekpiken (2015) All FWLR (pt.788) p.958 at 969

paragraphs C – E were cited in support. The case ofState v. Jammal (1996) 9 NWLR (pt.473) p.384 at 396 paragrahs H – B was further cited to submit that, since one cannot place something on nothing and expect it to stand, the Originating Process having been signed by Niyi Ogunjimi & Co. is a nullity. That it follows that the order for leave and the quashing of the judgment of the Customary Court are also nullity having been done without jurisdiction. We were accordingly urged to set aside the proceedings of the Court below as having been made without jurisdiction.

The response of the 1st Respondent is in paragraphs 4.05 – 4.08 of the 1st Respondent?s Brief of Arguments settled by S.O. Ogunjimi, Esq. Therein, learned counsel contended that the Originating Process that led to the certiorari proceeding in the Court below, was signed by counsel in his registered name of S. O. Ogunjimi. He then referred to the case of Dankwambo v. Abubarkar (2016) 2 NWLR (pt.1495) p.157 at 184 paragraph C and The Regd Trustees of Apostolic Church, Lagos Area v. Rahman Akindele (1967) N.M.L.R p.263 at 264 – 265, to submit that, in signing the processes as S. O.

Ogunjimi, counsel had complied with the law. That, the case of Okafor v. Nweke (supra), heavily relied on by the Appellant is not on all fours with the facts in this case. That the processes involved in Okafor v. Nweke (supra) was an application for leave to file a Cross-Appeal unlike in the instant case where the process is an application for judicial review by way of certiorari. The cases of Ogundele v. Agiri (2009) 18 NWLR (pt.1173) p.219 at 247 and Unity Bank v. Abdulhakeem Abiola (2009) All FWLR (pt.452) p.1082 at 1100 were cited in urging us to consider the merits of the case so as not to sacrifice justice on the altar of technicalities. We were accordingly urged to resolve this issue against the Appellant.

Replying on points of law, learned counsel for the Appellant submitted that, the contention of the 1st Respondent that the Originating Processes were signed by ?S. O. Ogunjimi? is clearly misleading, as it is obvious from the documents at pages 1, 13, 20, 25, 26 and 45 of the Record of Appeal that the Processes were signed contrary to the misleading assertion of the 1st Respondent. The cases of Britania (Nig) Ltd v. Seplat Pet. Dev.

Co. Ltd & 4 Ors (2016) All FWLR (pt.826) p. 398 at 443 paragraph C; Texaco Panama Inc. v. Shell Pet. Dev. Co. Ltd (2002) FWLR (pt.96) P.57 and Sommer v. FHC (1992) 1 NWLR (pt.219) p. 548 were then cited to submit that parties and the Court are bound by the Record of Appeal. It was then contended that, ?S. O. Ogunjimi? does not appear anywhere on any of the pages of the Originating Processes, and therefore the contention of the 1st Respondent?s Counsel is not only fallacious but also mischievous and highly misleading. Learned Counsel then submitted that the cases of DanKwambo v. Abubakar (supra) and Reg?d Trustees of Apostolic Church, Lagos Area v. Rahman Akindele (Supra) both cited and relied on by learned counsel for the 1st Respondent are quite inapplicable to the facts of this case.

It was further submitted by learned counsel for the Appellant that, the issue of Originating Process is so fundamental and goes to the root of jurisdiction of the Court. That it is therefore erroneous to regard the issue as that of mere technicality. The case of S.P.D.C. N Ltd v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (pt.1514) p.318 at 333 –

335 paragraphs F – A was then cited in urging us to resolve this issue in favour of the Appellant.

Now, it is a requirement in most High Courts (Civil Procedure) Rules in Nigeria, including that of the High Court of Oyo State, that an Originating Process shall be prepared by either the Claimant himself, or his Legal Practitioner. See Order 6 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, which stipulate that:
?Originating Process shall be prepared by a Claimant or his Legal Practitioner, and shall be clearly printed on A4 of good quality.?
The word used here is ?shall? which denotes mandatoriness. However, the problem(s) the Courts have been confronted with have always been whether a process purported to have been prepared and/or signed by a Legal Practitioner, was indeed prepared and/or signed by a Legal Practitioner known to Law in Nigeria. In resolving the issue, the Supreme Court has laid emphasis on Sections 2(1) and 24 of the Legal Practitioners Act, Cap.207, Laws of the Federation which stipulate that:
2(1) 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.?
Section 24 of the Legal Practitioners Act (supra) on the other hand stipulates that:
?24. ?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.?
?It has therefore been held that by a combined reading of Sections 2(1) and 24 of the Legal Practitioners Act (supra), a person is only entitled to practice law in Nigeria as a Barrister and Solicitor, otherwise known as a Legal Practitioner, if and only if, his name has been enrolled in the Register of Legal Practitioners in the Supreme Court of Nigeria. Such a person must necessarily be a natural person and must be registered on the roll under a given name. It is by that name that such a person can be identified or recognized as a Legal Practitioner. It therefore means that such Legal Practitioner must prepare and/or sign all Court processes under that name, and no other. However, Legal Practitioners in Nigeria, were in the habit

of preparing and signing Court processes in their Firm names. That was the position until the Supreme Court in the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) p.521, pronounced on the competence of Court processes signed in the name of a Firm of Legal Practitioners.
In the Okafor v. Nweke case (supra), in upholding the objection on the competence of the Motion on Notice, Notice of Cross-Appeal and Applicants? brief in respect of the application, all of which were signed in the name of J.H.C. Okolo, SAN & Co., the Supreme Court cited Sections 2(1) and 24 of the Legal Practitioners Act (supra) to hold that:
?The combined effect of the above provisions is that for a person to be qualified to practice as a Legal Practitioner he must have his name in the roll otherwise he cannot engage in any form of Legal Practice in Nigeria.?
?The significance or impact of that decision is that, it determined that all Court processes prepared and/or signed by a Legal practitioner must be so prepared in the name of such Legal Practitioner. A firm of Legal Practitioners is not the name of a Legal Practitioner enrolled to practice as a

barrister and solicitor in the Register of Legal Practitioners in the Supreme Court of Nigeria. Consequently, any Court process prepared and/or signed in the name of a Firm of Legal Practitioners is incompetent, null and void.
In the case of F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) p. 444, a full panel of the Supreme Court was invited to review and depart from the decision of Okafor v. Nweke (supra). The Supreme Court, after taking arguments of Counsel and numerous amici curiae invited to address the Court on the issue, declined the invitation to depart from Okafor v. Nweke (supra) and reiterated that the position in that case is good law. Specifically, Fabiyi, JSC who read the lead judgment said:
?The provisions of Sections 2(1) and 24 of the Act ?.. remain the law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law.
The decision in Okafor v. Nweke was based on a substantive law, an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke; ?It would

have been quite another matter if what is in issue is a none compliance with Court Rules.? Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rule of Court which are subject to the law must take the side line.?
The above cited authorities therefore represent the law on the issue in this Country. Those decisions have been followed and applied by this Court and indeed the Supreme Court in a legion of cases. For example, see N.D.I.C. v. Lagos State Government & Ors. (2009) LPELR ? 4966 (CA); Unity Bank Plc v. Denclag Ltd. & Anor (2012) LPELR ? 9729 (SC); Amidu Ishola & Ors v. Ibadan North-East Local Govt. & Anor (2013) LPELR ? 20477 (CA); Hassan Garba v. Musa Lawan Birniwa & Anor (2013) LPELR ? 21478 (CA) and Alhaji Tajudeen Babatunde Hamzat & Anor. v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR – 24302 (SC).
In the instant case, the Motion Ex-parte seeking for leave to apply for judicial review by way of certiorari dated and filed on the 4/10/2006, the statement made in support of the Application for leave also

dated and filed on the 4/10/2006, the Motion on Notice dated and filed on the 26/10/2006 were all signed in the name of ?NIYI OGUNJIMI & CO.,? a Firm of Legal Practitioners representing the Applicants/Respondents. See pages 1, 20 ? 21, 25, 26 and 45 of the Record of Appeal. It is clear that Niyi Ogunjimi & Co is a Law Firm and therefore not a person known under the Legal Practitioners Act, as a Legal practitioner. Learned Counsel for the Respondent was therefore clearly dishonest when he contended contrary to the records that he signed those processes as ?S. O. Ogunjimi.? As stated by learned counsel for the Appellant the name of S. O. Ogunjimi does not feature in any of the Originating Processes. There is therefore no doubt, that the Originating Processes in this case prepared and signed by Niyi Ogunjimi & Co. are incompetent, null and void.
The issue is not one of mere procedural irregularity but rooted in due compliance with a statutory requirement. Let me repeat the position of the Supreme Court on the issue in the case of F.B.N. Plc v. Maiwada (supra) where Fabiyi, JSC said:
?The decision in Okafor

v. Nweke was based on a substantive law, an Act of the National Assembly i.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke. ?It would have been quite another matter if what is in issue is a none compliance with Court Rules.? Let me say it bluntly that where the provisions of an Act like Legal Practitioners Act is at play, as herein, provisions of Rule of Court which are subject to the law must take the side line.?
From the foregoing, since the matter touches on compliance or lack of it, of the provisions of a statute, it becomes an issue that affects the jurisdiction of the Court. That being so, it is my view that since the Originating Processes were signed in the name of a Law Firm, it means that conditions precedent to confer jurisdiction on the Court below had not been satisfied. That being so, it is my view, which I hold, that the entire proceedings of the Court below, based on those invalid processes and the judgment thereon were conducted without jurisdiction. Thus, 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. Halico (Nig.) Ltd (2006) 7 NWLR (pt.980) p.568.?

On the whole, it is my view, which I hold, that this appeal has merit and is allowed. Accordingly, all the Originating Processes in this case, which initiated the certiorari proceedings are hereby declared as incompetent, null and void. They are accordingly struck out. In the same vein, the entire proceedings of the Court below in Suit No. HER/MISC/5/2006 and the judgment delivered thereon on the 22nd day of February, 2007 are hereby set aside as have been conducted and done without jurisdiction.

?Having thus held, I see no necessity in proceeding to the

determination of the remaining issues in this appeal. To do that may lead me to pronounce on issues which may arise at the trial, should the 1st Respondent decide to file a proper and competent application in the Court below. What I am left to say is that, on issue one (1) alone, this appeal is hereby allowed. The judgment of the Court below delivered on the 22nd day of February, 2007 is hereby set aside.
The parties are to bear their costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. I agree with his reasoning and conclusions. Again the vexed question of signing of Court processes by a non legal practitioner ? a law firm. The action giving rise to the judgment was instituted in 2006 before OKAFOR v. NWEKE (2007) 10 NWLR (PT. 1043) 521. All legal practitioners have by now learnt that this is a closed matter. Any such error will surely result in the striking out of the offending process. There is no saving grace. Learned counsel for the 1st Respondent, S.O. Ogunjimi Esq., being apparently fully aware of the position by putting up the

argument that the originating processes were signed by counsel in his registered name of S.O. Ogunjimi. Why did he leave out ?& Co It is not a good practice for counsel to attempt to misrepresent matters in this way. My learned brother has dealt exhaustively with the relevant points. There is nothing more to add. I also allow the appeal. I abide by the consequential orders in the lead judgment.

NONYEREM OKORONKWO, J.C.A.: I have read the lead judgment of my learned brother Haruna Simon Tsammani JCA. in draft and I agree with his Lordship that the appeal has merit and that the judgment of the High Court be set aside in that the originating summons by which the proceedings were begun were incompetent and so null and void. Everything founded upon the incompetent process is also tainted by such irregularity and is also void.

Appearances

Y. O. Anikulapo, EsqFor Appellant

AND

S.O. Ogunjimi, Esq. with him, Akeem A. Okelola, Esq. for the 1st Respondent.

Adegboyega Salawu, Esq. (Prin. State Counsel, Oyo State Mins. Of Justice) for the 2nd RespondentFor Respondent