MR. AKINTUNDE AROMIRE & ORS v. MR. IBRAHIM TAIWO AJOMAGBERIN & ORS
(2011)LCN/4368(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of March, 2011
CA/L/825/2006
RATIO
JURISDICTION OF THE COURT OF APPEAL: WHAT CONFERS JURISDICTION ON THE COURT OF APPEAL TO HEAR APPEALS FROM THE DECISIONS OF THE LOWER COURTS OR TRIBUNALS
It must be emphasized at this point in time, that the jurisdictional competence of the Court of Appeal to hear appeals from the decisions of the lower courts or tribunals, either in their original or appellate jurisdiction, is traceable to both the constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal Act, 2004, as well as the Court of Appeal Rules, 2007. By virtue of the provision of section 240 of the 1999 constitution, the court has been imbibed with the jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from – The Federal High court, the High court of the Federal capital Territory, Abuja, High court of d state, sharia court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by on Act of the Notional Assembly. Section 241 of the constitution provides for various instances of appeals as of right to the Court of Appeal from the Federal High Court of State High Court. See also section 242 of the L999 constitution; section 24 of the Court of Appeal Act, 2004; Order 5 of the Court of Appeal Rules, 2007, respectively. PER I.M.M. SAULAWA, J.C.A
NOTICE OF APPEAL: WHETHER FOR AN APPEAL TO BE PROPERLY BROUGHT, COMMENCED, OR SET-IN MOTION, A VALIDLY COMPETENT NOTICE OF APPEAL MUST BE FILED
By virtue of the provision of order 5 Rule 2 of the Court of Appeal Rules, 2007, a party desiring to appeal to the Court of Appeal against the decision of a lower court has the onerous responsibility of, first and foremost, filing a notice of appeal. It is a well settled principle, that a notice of appeal is the live-wire that animates and sustains an appeal. Thus, a competent notice of appeal is a condition precedent to the court’s exercise of jurisdiction in any given appeal. See AMADI VS. OKOLI (1977) 7 SC 57; OKOTIE VS. OLUGHOR (19951 5 SC NJ 2171. In the case of TRUTEC INVESTMENT SERVICE LIMITED VS. MONI PULO LTD & ORS, Appeal No. CA/L/308M/03, judgment delivered on (18/2/2010), this court was recorded to have held, inter alia, that – Most undoubtedly, the issue of a notice of appeal is deeply rooted in the jurisdiction of the court, thus making it fundamental that for an appeal to be properly brought, commenced, or set-in motion, a validly competent notice of appeal must be filed. Per Saulawa, JCA. See also OLANREWAJU VS. BON LTD (1994) 8 NLR (pt. 364) 622; OLOWOKERE VS. AFRICAN NEWSPAPER (1993) 5 NWIR (pt. 295) 583: ERISI VS. IKIKA (1987) 4 NWLR (pt. 65) 503: JOSIAH CORNELIUS LTD VS. EZENWA (1996) 37 LRCN 518; TUKUR VS. GOV OF GONGOLA STATE (1988) 1 NWLR (pt. 58) 391, respectively. PER I.M.M. SAULAWA, J.C.A
STARE DECISIS: WHETHER ALL THE COURTS IN NIGERIA ARE BOUND BY THE DECISIONS OF THE SUPREME COURT
…by virtue of the provisions of the 1999 constitution and the well cherished doctrine of stare decisis, the Court of Appeal, and indeed all other courts in this country, are bound by the decisions of the Supreme Court. PER I.M.M. SAULAWA, J.C.A
SIGNING COURT PROCESSES: WHETHER ANY PERSON SIGNING, ENDORSING OR FRANKING A COURT PROCESS MUST CLEARLY STATE HIS NAME AND DESIGNATION TO SHOW THAT HE IS A LEGAL PRACTITIONER
…it’s an established principle, that any person signing, endorsing or franking a court process, be it a notice of appeal, motion et al, on behalf of a principal partner in chambers, is required to clearly state his name and designation to show that he is a legal practitioner. And the wisdom inherent in the above dictum is not farfetched! It was aptly held by this court, not too long ago, in PEAK MERCHANT BANK LTD vs. NDIC: Appeal No. CA/L/572/05, judgment delivered on 14/5/2010 thus – I am of the firm view that any person signing process on behalf of a principal partner in chambers must state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in chambers. Nobody is saying that d junior counsel in chambers cannot sign or file process on behalf of a principal partner, but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person, a clear example could be seen in the case of Edet v. Chief of Air Staff heavily relied upon by appellant’s counsel. As earlier noted, in that case, the officer who signed the letter indicated his name and designation. In Ogunsakin v. Ajidara, there is no indication that the case of Okalor v. Nweke was brought to the attention of the justices that heard he appeal Per Mshelia, JCA.Instructively, the fundamental principle, eloquently enunciated by the Supreme Court in Okafor Vs. Nweke, is to the effect that a court process must be duly signed by a legal practitioner known to law. And that where, as in the instant case, a person signs a process on behalf of a firm or principal partner in chambers, the name of the signatory thereto must be clearly stated. Afortiori, any failure to comply with the above requirement, as in the present case, renders the entire notice of appeal or process incompetent. Thus, by virtue of the provision of order 5 Rule 6 of the Court of Appeal Rules, 2007, such an incompetent process is liable to be struck out by the court. See Okafor Vs. Nweke (supra). PER I.M.M. SAULAWA, J.C.A
JUSTICES
IBRAHIM MUHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. MR. AKINTUNDE AROMIRE
2. ALHAJI RAFIU KADEJO DISU
3. ATHAJI CHIEF IMAM M.A. AKINLOLU
4. MR. LOOKMAN ANID
(For themselves and on behalf of The Adesina, Oluya and Meku Ruling Houses of the AROMIRE CHIEFTAINCY FAMILY) Appellant(s)
AND
1. MR. IBRAHIM TAIWO AJOMAGBERIN
2. OBA RILWAN BABATUNDE AKINOLU
(For and on behalf of the Oba-in-Council)
3. THE CHAIRMAN, LAGOS ISLAND LOCAL GOVERMENT
4. ATTORNEY- GENERAL & COMMISSIONER FOR JUSTICE, LAGOS STATE
5. MRS. SHAKIRA SHUTTI
6. MR. FATAI LAWAL
7. ALHAJI SIKIRU AJOMAGBERIN
8. EVANGELIST SARAH TAIRU
(For themselves and on behalf of all members of OSERE-ODOKUN/ASANI-EWUMI Ruling House of AROMIRE CHIEFTAINCY FAMILY) Respondent(s)
I.M.M. SAULAWA, J.C.A (Delivering the Lead Ruling ): Indeed, it’s a common knowledge, that the instant appeal was heard on 02/11/2010. The learned counsel adopted the respective briefs of argument thereof on the same day, thus resulting in reserving the appeal for delivery of judgment.
Most regrettably, however, in the course of writing the judgment, it was discovered that the notice of appeal, contained at pages 361-370 of the record of appeal, was signed by an unknown (unnamed) person for Kayode Sofola, SAN of Kayode Sofola’s chambers, 2 Tinubu Square, Lagos. By implication, therefore, the notice of appeal in question is apparently incompetent.
Thus, it became imperative for us to order that the learned counsel to the respective parties be served with a hearing notice, with a view to addressing the court on whether or not the notice of appeal is competent. Gladly, the learned counsel did appear in court on 08/02/2011 and accordingly addressed us on the vexed issue in question.
The submission of the Appellants’ learned Senior Counsel, Mr. Kayode Sofola, SAN, is to the effect that the notice of appeal is competent. According to the learned silk, the notice of appeal is competent because the Legal practitioner, Kayode Sofola, SAN who signed it comes within the controversial decision of Nweke vs. Okafor which did not take into consideration the earlier decisions of the Supreme Court in the case of Cole vs. Martins, to the effect that a process franked by a legal firm was held to be competent.
Mr. Sofola, SAN contended that the court may however elect to follow the Supreme Court’s decision in OKAFOR VS. NWEKE (2007) 10 NWLR (pt. 1043) 521, which says that a process must be franked by a legal practitioner. That, in the instant appeal, the process in question (the notice of appeal) complies with the decision in OKAFOR VS. NWEKE (supra) because it has been franked by Kayode Sofola, SAN. It was argued, that the decision in OKAFOR VS. NWEKE does not allow the court to go on a voyage of discovering who signed the process. And that there have been several steps taken by all the parties following the process.
The learned silk accordingly urged on the court to resolve the dispute in favour of the Appellants.
On the part thereof, the Respondents’ learned counsel, Olusegun Fabunmi Esq. has submitted that it’s unfortunate the discovery was made at this stage when parties were awaiting the delivery of the judgment. He was of the view that the notice of appeal was incompetent, because it was signed by a proxy and not by the learned SAN himself. It was contended that the proxy that signed the notice of appeal is an unknown person. He cited and relied on the case of ONWARD V5. OLAM (2010) ALL FWLR (pt. 531) 1503. a decision of this court following the Supreme Court’s decision in OKAFOR v. NWEKE. According to the learned counsel, that’s the situation in which the parties found themselves in the instant case. He thus urged the court to strike out the notice of appeal in question.
Replying on points of law, the learned silk urged that the requirement for the signature in civil appeal is not contained in the Rules of the Court of Appeal.
Secondly, the learned Senior Counsel placed a reliance on OGUNSHAKIN VS. AJIDARA (2008) 5 NLWR (pt. 1082) para. 1 pages 24 – 25 and DALHATU VS. DIKKO (2005) All FLWR 483, 493 – 494 and urged the court.
I have accorded an ample regard upon the circumstances surrounding the learned counsel’s respective addresses, the authorities referred to therein vis-a-vis the record of appeal. It must be emphasized at this point in time, that the jurisdictional competence of the Court of Appeal to hear appeals from the decisions of the lower courts or tribunals, either in their original or appellate jurisdiction, is traceable to both the constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal Act, 2004, as well as the Court of Appeal Rules, 2007.
By virtue of the provision of section 240 of the 1999 constitution, the court has been imbibed with the jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from –
The Federal High court, the High court of the Federal capital Territory, Abuja, High court of d state, sharia court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by on Act of the Notional Assembly.
Section 241 of the constitution provides for various instances of appeals as of right to the Court of Appeal from the Federal High Court of State High Court. See also section 242 of the L999 constitution; section 24 of the Court of Appeal Act, 2004; Order 5 of the Court of Appeal Rules, 2007, respectively.
By virtue of the provision of order 5 Rule 2 of the Court of Appeal Rules, 2007, a party desiring to appeal to the Court of Appeal against the decision of a lower court has the onerous responsibility of, first and foremost, filing a notice of appeal. It is a well settled principle, that a notice of appeal is the live-wire that animates and sustains an appeal. Thus, a competent notice of appeal is a condition precedent to the court’s exercise of jurisdiction in any given appeal. See AMADI VS. OKOLI (1977) 7 SC 57; OKOTIE VS. OLUGHOR (19951 5 SC NJ 2171.
In the case of TRUTEC INVESTMENT SERVICE LIMITED VS. MONI PULO LTD & ORS, Appeal No. CA/L/308M/03, judgment delivered on (18/2/2010), this court was recorded to have held, inter alia, that –
Most undoubtedly, the issue of a notice of appeal is deeply rooted in the jurisdiction of the court, thus making it fundamental that for an appeal to be properly brought, commenced, or set-in motion, a validly competent notice of appeal must be filed. Per Saulawa, JCA. See also OLANREWAJU VS. BON LTD (1994) 8 NLR (pt. 364) 622; OLOWOKERE VS. AFRICAN NEWSPAPER (1993) 5 NWIR (pt. 295) 583: ERISI VS. IKIKA (1987) 4 NWLR (pt. 65) 503: JOSIAH CORNELIUS LTD VS. EZENWA (1996) 37 LRCN 518; TUKUR VS. GOV OF GONGOLA STATE (1988) 1 NWLR (pt. 58) 391, respectively.
In the instant case, the notice of appeal is contained at pages 351 – 370 of the Record of appeal. Most particularly, at page 370 of the Record, it is indisputably clear that the notice of appeal was signed by an unnamed (unknown person) for KAYODE SOFOLA, SAN, KAYODE SOFOLA’S CHAMBERS, 2 Tinubu Square, Lagos. It is not at all in dispute, that the person that signed (for) Kayode Sofola, SAN failed to write his name at the foot of the signature thereof. For failing to clearly write his name, the identity of the person that signed the notice of appeal has remained unknown. By implication thereof, the competence of the said notice of appeal has been rendered questionable.
I appreciate Mr. Sofa, SAN’s frantic effort in citing and heavily relying upon the cases of OKAFOR VS. NWEKE (supra); OGUNSHAKIN VS. AJIDARA (supra): and DALHATU VS. DIKKO (supra), respectively. Regrettably, however, I am unable to appreciate, let alone uphold, the learned senior counsel’s contention that those authorities are of any assistance to the Appellants’ case.
I am of the considered view, that there is nothing controversial about the Supreme Court’s decision in Okafor vs. Nweke. Contrary to the highly misplaced insinuation inherent in the learned senior counsel’s submission, the Supreme Court’s later decision in Okafor vs. Nweke has not in any way deviated from, or overruled, it’s earlier decision in Cole vs. Martins.
The facts and circumstances surrounding the case of Cole vs. Martins were that on November 11, 1954 Mr. A. Pratt, an Assistant Registrar of Titles, Lagos, refused an application by the Appellant to register a property at Ayilara and Ibidun Streets, Surulere under Title No. 2769. The Applicant (Mr. Augusta Cole) appealed against that decision to the Lagos High Court. On August 25, 1965, the Hon. Justice Sowemimo, J (of blessed memory as he then was) after argument on merits, dismissed the appeal on the following grounds:
This is an appeal against the decision of the learned Registrar of Titles given on the 11th of November, 1964. The appeal notice and grounds were purported to be signed by a firm of solicitors known as Lardner and Company.
Under the Legal Practitioners Act of 1962 Lardner and Company is not a legal practitioner and therefore there had been no compliance with Order 3 rule 2 of the High Court of Lagos (Appeal Rules) and under Order 3 rule 12 of the High Court of Lagos (Appeals Rules) the appeal shall stand dismissed, I award E3.3s. costs to the respondent.
On a further appeal to the Supreme Court, while allowing the appeal, it was held, inter alia, that:
In our view having regard to the con of rule 4 of the Registration of titles (Appeals) Rules, the purpose of which on this issue, it seems to us, is to ensure that the name of the legal practitioner giving notice of appeal and representing the appellant is clearly known, then it is a sufficient compliance with the requirement for a legal practitioner to sign and give his name, if a legal partitioned practicing alone gives the name under which he is registered as a business name, as this can only refer and apply to the legal practitioner name. No possible doubt or confusion can therefore arise in these circumstances, We have noted moreover that it is the practice in England for solicitors in a partnership, which is carried on in the name of a firm, to sign in the firm’s name (see Cordery on Solicitors 5th Edition page 411) and special provision in regard, for instance, to endorsement of writs to the same effect can be found in order 6, rule 5 of the Rules of the Supreme Court in England (See the Supreme Court Practice 7967 volume I page 41).
Per Lewis, JSC at page 165.
Instructively, the Supreme Court in Cole vs. Martins deprecated the trial Judge’s failure to invite the counsel to address him on the fundamental issue of competence’ of the notice of appeal. According to the Supreme Court: We have frequently stated in the past, and we must reiterate again now that it is most desirable that if a court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it. It is in our view only alter so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect, if there is one, could be cured if the court, in its discretion, gave a leave to amend. Per Lewis, JSC at page 163.
Interestingly, the facts and circumstances surrounding the case of Cole vs. Martins are exactly the same as those in THE REGISTERED TRUSTEES OF APOSTOLIC CHURH LAGOS AREA VS. RAHMAN AKINDELE (1967) NWLR 253. Just like COLE VS. MARTINS, the proceedings in Akindele’s case originated in a hearing before the Registrar of Title of an application by the Appellants for registration as owners of some land, for which the Respondent vehemently objected. On appeal to the High Court, Lagos corum Sowemimo, (of blessed memory, as he then was), the objection was upheld.
The notice and grounds of appeal were filed by J. A. Cole & company, and described as legal practitioners representing the appellants. In signing the notice of appeal, counsel used his own name, that is the very name in which he registered as a legal practitioner. However, after hearing the appeal on the merits, the learned appeal judge alluded in the Judgment thereof that order 3 Rule 2 of the High Court of Lagos (Appeals) Rule had not been complied with, because the firm of J.A. Cole & Co. was not a legal practitioner under the Legal practitioners Act of 1962. This point was, however, taken by the learned appeal judge suo motu, as he never invited the counsel to address him there on. On a further appeal to the apex court, it was held, inter alia, that:
(i) Every court has the right to decline to adjudicate in proceedings that have not been instituted in the proper manner, the Supreme Court however deplores any decision by court which is predicated on a ground on which the parties has not been accorded the opportunity of being heard.
(ii) That since in signing the notice of appeal, Mr. Cole used his own name, i.e. the name in which he registered as a Legal practitioner that was a sufficient compliance with order 3 Rule 2 (supra).
(iii) That, the addition of the words “for J.A. Cole & Co” would not invalidate the signature if a signature in a business name was not permitted.
On the other hand, the facts and circumstances surrounding the case of Okafor vs. Nweke (supra) are that on 19/12/2005, a motion was filed by the applicants seeking, inter alia, an extension of time within which to apply for leave to cross-appeal. The motion was however signed by “J.H.C. OKOLO SAN & CO”.
The 1st – 3rd Respondents filed a counter affidavit in opposition to the motion. In their brief of argument, they argued that the motion, the notice of appeal and the applicants’ brief were incompetent, on the ground that they were signed by “J.H.C. Okolo SAN & Co”, which was not a registered legal practitioner. Not unexpectedly, the Supreme Court upheld the Respondents’ objection, and accordingly struck out the application along with all other processes, on the ground that they were incompetent. It was held, inter alia, by the Supreme Court that –
It is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to JHC OKOLO SAN & CO. Or was appended on its behalf since it was signed on top of that name since both counsel agree that JHC OKOLO SAN & CO. is not a legal practitioner recognized by the law, it follows that the said JHC 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 unknown and called JHC OKOLO SAN & CO. are incompetent in law particularly as the said firm JHC OKOLO SAN & CO. is not a registered legal practitioner. Per Onnoghgn, JSC at page 531, paragraphs G – H.
As alluded to above, it is rather obvious, that the recent decision of the Supreme Court in Okafor vs. Nweke is not in any way in conflict with its previous decisions in Cole vs. Martins and Registered Trustees vs. Akindele. It was aptly observed by the Supreme Court in Okafor vs. Nweke that –
It is not justification or an acceptable excuse that because the practice has been followed for a long time for this court not to respond appropriately to Mr. Egonus objection, the practice is either right and acceptable or wrong and unacceptable. . .
The argument that it is an undue adherence to technicality to annul the process improperly signed and filed by JHC OKOLO & CO. SAN fails to overlook (sic) the good sense in ensuring that our laws are strictly enforced and observed, it would have been quite another matter if what is in issue is a mere compliance with court rules. Per Oguntade, JSC at 533 – 534 paragraphs H, E – F, respectively.
Unfortunately for the learned silk, the other cases, OGUNSHAKIN VS. AJIDARA & DATHATU VS. DIKKO. relied upon by him are decisions of this court.
Undoubtedly, by virtue of the provisions of the 1999 constitution and the well cherished doctrine of stare decisis, the Court of Appeal, and indeed all other courts in this country, are bound by the decisions of the Supreme Court.
In particular, the case of Dalhatu Vs. Dikko has to do with an election appeal – against the decision of the Governorship And Legislative Houses Election petition Tribunal, holden at Kaduna. The 1st Respondent was declared and returned by 8th Respondent as member for Batagarawa/Charanchi/Rimi Federal Constituency of Kastina State, on the platform of the All Nigerian Peoples Party (ANPP). Dissatisfied with that result, the Appellant filed a petition in the lower tribunal. In reaction thereto, the 1st Respondent filed a notice of preliminary objection, contending that the petition was incompetent, on the grounds of (i) non-disclosure of scores; (ii) amalgamation of electoral officers as juristic persons; (iii) non disclosure of cause of action. The lower tribunal thus upheld the preliminary objection and struck out the petition. On an appeal to the Court of Appeal, it was held that –
“All the grounds of appeal are therefore unsustainable and the appeal fails and is accordingly dismissed with N5,000.00 costs each of the 1st and 2nd – 8th Respondent.” Per Alagoa, JCA at 502 paragraphs A – B.
My learned brother Alagoa, JCA, has alluded, at page 494, to an observation he made in an earlier appeal No. CA/ILEP/NA/21/2003; Alhaji Abudullahi Jibia Vs usman Bugaje & 7 ors (unreported) wherein he stated thus:
I think the important point to be considered is whether the document bears any signature or mark on it and whether such signature or mark is with the authority of the person whom the signature or mark represents. Sometimes, there is only a mark on the column where a signature in the conventional sense should be. It is still a signature provided that mark is with the authority of the person who it represents. By implication, a signature head not always be legible and sometimes, indeed of ten times what appears a signature is a representation that no one else should be able to imitate except the person who signs it. In some Law chambers, particularly the very busy ones, it is not unusual for junior counsel to sign documents on behalf of their principal especially the more routine ones like motions, statement of claim, statement of defence etc. The signing of such documents by junior counsel is invariably with the authority, express or implied, of the principal counsel in chambers. It wilt be absurd, even ridiculous to hold such documents incompetent because the principal counsel has not come forward to say that the documents were signed on his authority.
On the other hand, the case of OGUNSHAKIN v. AJIDARA, equally relied upon by the learned senior counsel, has to do with an election petition. In that case, the Appellants filed an election petition in the Governorship and Legislative House Tribunal, holden at Ekiti, Ekiti State. They challenged the election of the 1st Respondent as a member of the Ekiti State House of Assembly, representing Ekiti East 1 constituency. The 1st Respondent, however, filed a notice of preliminary objection praying the lower court to strike out the petition, on the that (i) the service of the petition was bad and ineffectual; and (ii) the petition on its face was incompetent. At the conclusion of the hearing of the preliminary objection, the lower tribunal struck out the petition, on the ground that neither the petitioners, nor their solicitor had signed the petition.
Dissatisfied with the lower tribunal’s decision, the petitioners appealed to the florin Division of this court’ fn determining the appear, the provisions of paragraphs 4(5) and 49(1) of the First schedule to the Electoral Act, 200G, and paragraph 6(3) of the Election Tribunal and court practice Direction , 2ooT were considered by the court. The panel, consisting of Ms Muntaka-comassie, JCA (as he then was), J.H. sankey and I.I. Agube , JJCA, came to the conclusion, that the appeal had merits, and accordingly allowed same. Most especially, His Lordship, comassie, JCA(as he then was) has held, inter alia, in the lead judgment thus:
Hence, they have no hesitation in holding that the issue of signing or improper signing of the petition having not been raised in the motion papers or in the affidavit in support is not competent before the lower tribunal, hence, (sic) it has no jurisdiction to pronounce on it.
We have taken a very careful look at the foot of the petition. On the face of it, it is not difficult to see that the petition was signed for Adebayo Adenipekun, SAN counsel for the petitioners with the word “for” immediately before his name. There is no contrary submission to this view. It should be noted that throughout the argument of this application, it was not urged on us that the petition was personally signed by Adebayo Adenipekun (sic), SAN solicitor for the petitioners,
For the purpose of this application the only evidence before the court is the affidavit in support of the preliminary objection, and there is nowhere in the paragraphs of the said affidavit in support where it was alleged that the petition was not signed by Adeboyo Adenipekun, SAN or that he did not authorize the person, who signed to sign on his behalf…
I therefore hold that this finding of the lower tribunal is glaringly perverse and I accordingly set it aside.
With possible deference to the learned senior counsel, the above two authorities (Dalhatu v. Dikko and Ogunshakin Vs. Ajidara) are undoubtedly not on all fours with the instant case. What’s more, in view of the authoritative decision of the supreme court in okafor vs. Nweke (supra) , for the notice of appeal’ or any process for that matter, to be deemed valid or competent, it must be signed and the name of the signatory thereto duty written at the foot thereof.
The crux of the issue in the instant case is the failure to disclose the name of the person who signed the notice of appeal “for” Kayode Sofola, SAN. There is no gainsaying the fact, that both the name and signature of the person signing the notice of appeal, or any process for that matter, are most fundamental, thus indispensable.
As a verb, the term ‘sign’ denotes to identify a document, record, et al, by means of a signature, mark, or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. See BLACK’S LAW DICTIONARY, 8th Edition, 2004 Edition at 1415. Similarly, the word ‘signature’, as a noun, denotes –
“The act of putting one’s name at the end of an instrument to attest its validity: the name thus written.”
See BLACKS, LAW DICTIONARY, 6th Edition at 1381; ONWARD ENT. LTD. v. OLAM INT”S LTD (2010) ALL FWLR (Pt.531) 1503 at 1512 paras. E-F.
It must be reiterated, for the avoidance of doubt, that the issue goes beyond the mere compliance with the rules of this court. The court has an onerous duty to ensure that our laws are strictly adhered to and religiously enforced. See Okafor Vs. Nweke (supra) per Oguntade, JSC, at 534 paragraph F.
Thus, the contention of the learned silk, to the effect that the requirement for the signing of a notice of appeal is only provided for criminals appeals under the Court of Appeal Rules, is highly preposterous, to say the least.
Indeed, it’s an established principle, that any person signing, endorsing or franking a court process, be it a notice of appeal, motion et al, on behalf of a principal partner in chambers, is required to clearly state his name and designation to show that he is a legal practitioner. And the wisdom inherent in the above dictum is not farfetched! It was aptly held by this court, not too long ago, in PEAK MERCHANT BANK LTD vs. NDIC: Appeal No. CA/L/572/05, judgment delivered on 14/5/2010 thus –
I am of the firm view that any person signing process on behalf of a principal partner in chambers must state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a clerk, messenger or secretary would sign processes filed in court on behalf of principal partners in chambers. Nobody is saying that d junior counsel in chambers cannot sign or file process on behalf of a principal partner, but his identity must be stated. It is not enough to just sign the process without indicating the name and designation of such person, a clear example could be seen in the case of Edet v. Chief of Air Staff heavily relied upon by appellant’s counsel. As earlier noted, in that case, the officer who signed the letter indicated his name and designation. In Ogunsakin v. Ajidara, there is no indication that the case of Okalor v. Nweke was brought to the attention of the justices that heard he appeal Per Mshelia, JCA.
Instructively, the fundamental principle, eloquently enunciated by the Supreme Court in Okafor Vs. Nweke, is to the effect that a court process must be duly signed by a legal practitioner known to law. And that where, as in the instant case, a person signs a process on behalf of a firm or principal partner in chambers, the name of the signatory thereto must be clearly stated. Afortiori, any failure to comply with the above requirement, as in the present case, renders the entire notice of appeal or process incompetent. Thus, by virtue of the provision of order 5 Rule 6 of the Court of Appeal Rules, 2007, such an incompetent process is liable to be struck out by the court. See Okafor Vs. Nweke (supra).
It’s needless to reiterate, that I have accorded an ample regard upon the issue of substantial justice which ought to be balanced on the hallowed scale of justice.
In arriving at the above conclusion, I have had at the back of my mind the need to seriously curtail the current nauseating trend in the legal practice, whereby franking or authentication of court processes has been treated with utmost levity by legal practitioners. In Okafor Vs Nweke the apex court seriously deprecated the unfortunate embrassing trend in legal practice thus:
The current embrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from legal practitioners.
Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged.
It is rather unfortunate that the offending processes originated from the hallowed chambers of a learned senior advocate of Nigeria who did not even see them as improper and unacceptable but went on and on to argue that the documents, which in law are supposed to speak for themselves, actually told a lie to their authentication.
Per Onnoghen, JSC at 522 paras. B – F.
I must say am not only moved, but also bound by the above aptly authoritative and eloquent exhortation by Onnoghen, JSC.
In the instant case, the learned silk, with due respect, is the architect of the predicament thereof. The fact that the learned senior counsel has not been seriously disposed to vigilance in filing the processes in question, is not in doubt. And it’s trite, that the condition upon which the Almighty God has graciously given liberty to man is eternal VIGILANCE. Thus, the well cherished equitable doctrine – vigilantibus et non dormientibus jura subveniunt: The laws aid the vigilant, not the indolent. I think, William Shakespeare must have got it utterly correct, when he lyrically philosophized, inter alia, that –
The enemy increaseth everyday, We, at the height, are ready to decline.
There is a tide in the affairs of men.
Which taken at the flood,
Leads on to fortune;
omitted, all the voyage of their life is bound in shallows, And in miseries. See JULIUS CAESER, ACT IV, SCENE 3. In the, circumstances, the inevitable conclusion that ought to be reached in this ruling, is that the notice of appeal is liable to be struck out, for being devoid of competence. As authoritatively held by the Supreme Court in Okafor vs. Nweke (supra), by striking out the process, the appellants would be left –
With the opportunity to present a proper application for consideration by this court. The effect of the ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of ‘anything goes’ (or if I may add, ‘business as usual,).
Per Onnoghen, JSC at S32 _ 533 paragraphs H – A.
Hence, in view of the foregoing far-reaching postulations, I have no further hesitation whatsoever in holding that the notice of appeal, contained at pages 350 – 371 of the Record of appeal, is incompetent.
Consequently, having declared that the notice of appeal is incompetent, it is accordingly hereby struck out by me, in accordance with order 5 Rule 5 0f the Court of Appeal Rules, 2007.
There shall be no order as to costs.
ADAMU JAURO, J.C.A.: I have had a preview of the lead ruling just delivered by my learned brother, I. M. M. SAULAWA JCA. I am in complete agreement with the reasoning and conclusion contained therein, which I also adopt as mine.
The notice of appeal dated 23rd May, 2006 on pages 361 – 370 of the record, was signed by an unknown person for Kayode Sofora SAN. As the name of the signatory to the notice of appear has not been disclosed, it cannot be ascertained whether the signatory is a legal practitioner or not, as the roll of practitioners contains names not signatures. See Section 2(1) and 24 of the Legal Practitioners Act Cap. 207 LFN 1990.
For the reasons adumbrated in the lead ruling, I also hold that the Notice of Appeal was neither signed by the appellant nor legal practitioner known to law, hence incompetent. see Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521, Ogundele v. Agiri (2009) 18 NWLR (Pt.1173) 219, Oketade v. Adewunmi & 4 Ors (2010) 2-3 SC (Pt.1) 140. Onward Enterp. Ltd v. Olam Int’l Ltd (2010) All FWLR (Pt. 531) 1503. The decision in Okafor v. Nweke (supra) marks a new beginning and a slight departure in the law in relation to signing court processes in the name of a law firm. Hence the cases of Cole v. Martins (1968) All NLR 161 and Reg. Trustees v. Akindele (1967)5 NSCC 117, no longer represent the law and court processes can no longer be signed in the name of a law firm.
The Notice of Appeal dated 23rd May, 2006 is hereby struck out for being incompetent pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007. No order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read before now the lead Ruling of my brother, Hon. Justice I.M.M. Saulawa JCA and I must say unequivocally that I concur with the reasoning and conclusions.
The Practice Directions of the Court of Law provide a source of Civil Procedural Law. They provide directions as to matters of practice and procedure for the assistance and guidance of litigants in the conduct of their proceedings and in the administration of civil justice generally, and they are of enormous value to the courts, to Practitioners and to all who are involved in the civil judicial process. The authority for such Practice Directions lies in the inherent jurisdiction which empowers the courts to regulate and control their own process.
A signature properly appended provides guidance to the court and the adverse party in any cause or matter.
At a glance a Judge and indeed the adverse part must be able to discern who signs a document and his status. It should give no room for speculation or conjecture who the signatory is.
If the Apex court in the land has pronounced on an issue, that pronouncement stands, particularly if it has to do with courts’ process which encapsulates the substance of the cause or matter or appeal for that matter!
Therefore, 4 court process is fundamental and must not be compromised at the altar of undue technicality.
The case of OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521 which says that a process must be franked by a legal practitioner known to law presupposes that such legal practitioner’s names must be one that is on the Roll of the Supreme Court of Nigeria, whose signature must reflect his person. But where another has to sign on his behalf, it stands to reason that his names and signature should be indicated in order to put all records in the process straight.
The learned silk should appreciate the Apex Court’s state of mind in pronouncing on this issue in OKAFOR V, NWEKE, (Supra) when, it frowned on the “current embarrassing trend in Legal Practice where authentication and franking of legal documents, particularly process for filing in the courts have not been receiving the serious attention they deserve from legal practitioners…..”
The Notice of Appeal in this matter as it is, is fraught with a flaw that cannot be cured, same is incompetent ab initio and must be struck out pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2007 and same is hereby struck out.
No order as to costs.
Appearances
Kayode Sofora, SAN with K. Sofora Esq. and Y. Aremu Esq.For Appellant
AND
O. Fabunmi Esq. with C. Okafor Esq.
S.A. Quadri Esq.
A.A. Mumuni Esq.For Respondent
