MR AMIDU ISHOLA & ORS. V. IBADAN NORTH EAST LOCAL GOVT. & ANOR. (2013)

MR AMIDU ISHOLA & ORS. V. IBADAN NORTH EAST LOCAL GOVT. & ANOR.

(2013)LCN/6086(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2013

CA/I/M.147/2006

RATIO

COURT PROCESSES: WHETHER COURT PROCESSES CAN BE FILED IN THE NAME OF A LAW FIRM

The court further held that a law firm is not a legal practitioner and therefore cannot practice as such by filing processes in Nigerian courts and only human beings actually called to the bar can practice or practice by signing documents. Consequent upon the foregoing, court processes signed in the name of a law firm are incompetent and liable to be struck out. The Apex Court, re-stated the same position in a host of cases, including the following: SLB Consortium Ltd v. N.N.P.C, (2011) 9 NWLR (Pt. 1252) 317, FBN Plc & Ors. v. Alhaji Salmanu Maiwada & Ors. (2012) LPELR 9713. Per. ADAMU JAURO J.C.A

JURISDICTION: THE DUE PROCESS FOR HEARING AND DETERMINING A CASE IN COURT

PRACTICE AND PROCEDURE: THE EFFECT OF NOT INITIATING A CLAIM BY DUE PROCESS OF LAW

In WAEC v. Akinkunmi (2008) 9 NWLR (Pt. 1091) 151 at 174, the Apex Court Per Mohammed, JSC stated thus: “The law is trite that where a claim is not initiated by due process of law, the claim is incompetent and where all the same the incompetent claim was heard by the Court, the proceedings before the court are a nullity. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.” In the instant case, the writ of summons and the statement of claim which should have been signed by a legal practitioner were signed by a law firm rendering them incompetent. The action having not been initiated by due process, the court is robbed of competence and jurisdiction to adjudicate. In the circumstance all proceedings which rested on the inchoate originating summons were deemed not to have taken place in law. The issue raised is not procedural as contended by the appellants. It is an issue of jurisdiction which is fundamental and pivotal to adjudication, it can be raised at any stage of the proceedings even at the Supreme Court. It can also be raised by the court suo motu, as was done in this case. See Ejiofodornu v. Okonkwo (1982) 11 SC 74, Ezomo v, Oykhire (1985) 1 NWLR (Pt. 2) 195, Galadima v. Tambai (2000) 11 NWLR (Pt. 677). Per. ADAMU JAURO J.C.A.

JUSTICES

M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

OBIETONBARA BARA DANI EL.KALIO Justice of The Court of Appeal of Nigeria

Between

1. MR AMIDU ISHOLA
2. MRS O.A. ALUKO
3. AKSAMED INVESTMENT LTD Appellant(s)

AND

(1) IBADAN NORTH EAST LOCAL GOVT.
(2) MR GBENGA ADEWUSI Respondent(s)

ADAMU, (Delivering the Leading Judgment): This is an appeal against the ruling of the Oyo State High Court of Justice, Ibadan Judicial Division delivered on 19th June, 2006 by Hon. Justice M.A, Adegbola in Suit No. I/282/2005.
A brief synopsis of the facts giving rise to this appeal is hereby made as follows: The appellants were allotted plots of land by the 1st respondent at Mammy market Iwo road, Ibadan for development of shops upon payment of the allocation fees. The appellants developed shops on the land allotted to them and were paying yearly rent to the respondents.
Under the terms of the allocation, the appellants are entitled to 3 or 6 months notice before their tenancy can be terminated. The respondents without serving personal notice on the appellants, issued a quit notice in the “Nigerian Tribune” newspaper of 18th January, 2005 that all allottees of plots of land at Mammy Market, Iwo Road Ibadan, must vacate the market within 30 days.
The appellants as plaintiffs by a writ of summons and statement of claim dated 1st April 2005 and signed in the name of “OLUWOLE ALUKO & Co., instituted an action in the Oyo State High Court Ibadan, to challenge the validity of the quit notice. The appellants served the respondents one month pre-action notice on 24th February, 2005, The respondents were on 11th May 2005, granted 21 days extension of time within which to file their statement of defence. On 7th June, 2005 the respondents filed an application to strike out the substantive suit on the ground that they were not given pre-action notice under the Local Government Law 2000, The appellants on 10th June, 2005 filed an application to strike out the respondents application dated 7th June 2005 on the grounds that the Local Government Law 2000 under which the application was brought has been repealed by Local Government Law 2001, that the respondents had waived their rights and that they were duly served pre-action notice.
On 19th June, 2006 the Oyo State High Court, Ibadan held that it would hear the application of the appellants and that of the respondents together. The court on page 61 of the record, stated thus:
“As the plaintiffs’ motion filed on 10/06/05 relates closely to that of the defendants filed on 07/06/05 I will take the two applications together.
For the avoidance of doubt I hereby call on counsel either to proceed with or take a date for arguments on the defendants’ motion of 07/06/05 and plaintiffs’ motion of 10/06/05 which shall be taken together.”
Peeved and piqued by the aforementioned ruling, the appellants on 21st June, 2006 challenged same, vide a notice of appeal anchored upon three grounds of appeal. On 13th February, 2007 the appellants were granted leave by this Court to file and argue an additional ground of appeal. The additional ground of appeal was deemed duly filed and served. In strict compliance with the Rules of Court, the appellants filed their brief of argument which is dated 2nd March, 2007 and filed the same day. The respondents were by an order of Court made on 24th June, 2010 given seven days extension of time within which to file their brief of argument, subject to payment of penalty fees for the filing, However, up to the 4th day of February, 2013 the date fixed for hearing the appeal, there was no valid respondents’ brief on ground. Mr Oluwole Aluko for the appellants adopted the appellants brief and urged the Court to allow the appeal, Mr. R.A. Ogunwole SAN, leading A.A. Adewola Mrs and A.I. Idowu-Faith Miss for the respondents, stated that they were ready to proceed even without the respondents’ brief.
At this stage, the court raised a jurisdictional issue as to the competence of the appeal considering the fact that the writ of summons and the statement of claim, commencing the action in the lower court were signed in the name of “OLUWOLE ALUKO & CO” a law firm. This issue was raised in view of the decision of the Apex Court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 and subsequent decisions along the same line, to the effect that court processes must be signed by a legal practitioner known to law and not in the name of a Law firm. Based on the foregoing, Learned Counsel for the appellants and Learned Senior Counsel for the respondents were asked to address the court on the new point raised.
Mr. Oluwole Aluko for the appellants stated that the point raised related to the application of the Rules of Court and that the Oyo State High Court Rules 2010 are not in pari materia with the Court of Appeal Rules 2011. The appellants submitted that by the aforementioned High Court Rules, a writ of summons is deemed issued once it is signed by the registrar of the High Court. The appellants contended that there is a distinction between statutory jurisdiction and procedural jurisdiction of the Court. It was argued that endorsement of documents deals with the procedural jurisdiction. The appellants posited that procedural jurisdiction can be waived under the principle of submitting to jurisdiction by filing processes after becoming aware of the irregularity. In support, reference was made to the following cases: Ogbuanyinya v. Okudo (1990) 4 NWLR (Pt. 145) 551 at 559 and 576, Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405.
The appellants submitted that in the absence of a cross appeal on the procedural issues and irregularity at the court below, this Court cannot make finding on the irregularity. In support, reference was made to the following cases: Okunola v, Oduola (1987) 4 NWLR (Pt.64) 141 at 153, Adeleye v, Awoleye (1990) 7 NWLR (Pt.162) 337 at 345, Ajuwon v, Adeoti (1990) 2 NWLR (Pt 132) 271. It was argued that by virtue of Order 20 Rule 5(1) of the Court of Appeal Rules 2011, all the decisions of the Supreme Court by virtue of Okafor v, Nweke (supra) are now obsolete. The appellants further submitted that the facts of this case are different from those in Okafor v, Nweke (supra) and that the notice of appeal in the instant case at page 63 to 65 of the record is in order.
Mr. R. A. Ogunwole SAN for the respondents in a short reply submitted that the issue raised is not that of procedural jurisdiction, In support, reference was made to the case of S.L.B, Consortium Ltd v. N.N.P,C. (2011) 9 NWLR (Pt. 1252) 317 at 331-332 and 336. Learned Senior Counsel promised sending a latest Supreme Court decision on the point which had not been reported as at date of hearing the appeal. To date of writing this judgment, the Learned Senior Counsel has not forwarded the said law report. In a short reply, Mr. Oluwole Aluko submitted that all the cases cited are not applicable to the instant case as they deal with the interpretation of the Court of Appeal and Supreme Court Rules.
By way of prologue and preamble, I wish to start with the position of the law as adumbrated in Okafor v, Nweke (2007) 10 NWLR (Pt. 1043) 521. The decision of the Apex Court in Okafor v. Nweke (supra) is to the effect that court processes signed in the name of a law firm are incompetent, as a law firm is not a legal practitioner. In the said case the Apex Court examined the provisions of Section 2(1) and Section 24 of the Legal Practitioners Act, Cap, 207. Laws of the Federation, 1990, The Apex Court held that by virtue of Section 24 of the Legal Practitioners Act, a legal practitioner is a person entitled in accordance with the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding.

A convenient starting point is from the ingredients of jurisdiction of Court to hear and determine a case. A court is said to have jurisdiction and therefore competent to determine a suit when:
(a) It is properly constituted as regards the number and qualification of its members of the bench, and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case coming up before the court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. ”
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Rossek v. ACB Ltd.(1993) 8 NWLR (Pt. 312) 382, Apadi v’ Banuso (2008) 13 NWLR (Pt. 1103) 204.
A writ of summons and the statement of claim are fundamental to any suit as they are the first processes filed in the Court by a claimant to invoke the jurisdiction of the Court. It is not in dispute that the originating processes namely, the writ of summons and the statement of claim dated 1st April, 2005 were signed in the name of “OLUWOLE ALUKO & CO.” a law firm. The originating processes were filed in contravention of Section 2 and 24 of the Legal Practitioners Act and the decision of the Supreme Court in Okafor v. Nweke (supra). The cumulative effect of the foregoing, is that the action instituted in the lower court was not initiated by due process and upon fulfillment of condition precedent to the exercise of jurisdiction.
In WAEC v. Akinkunmi (2008) 9 NWLR (Pt. 1091) 151 at 174, the Apex Court Per Mohammed, JSC stated thus:
“The law is trite that where a claim is not initiated by due process of law, the claim is incompetent and where all the same the incompetent claim was heard by the Court, the proceedings before the court are a nullity. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.”
In the instant case, the writ of summons and the statement of claim which should have been signed by a legal practitioner were signed by a law firm rendering them incompetent. The action having not been initiated by due process, the court is robbed of competence and jurisdiction to adjudicate. In the circumstance all proceedings which rested on the inchoate originating summons were deemed not to have taken place in law. The issue raised is not procedural as contended by the appellants. It is an issue of jurisdiction which is fundamental and pivotal to adjudication, it can be raised at any stage of the proceedings even at the Supreme Court. It can also be raised by the court suo motu, as was done in this case. See Ejiofodornu v. Okonkwo (1982) 11 SC 74, Ezomo v, Oykhire (1985) 1 NWLR (Pt. 2) 195, Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1. The contention of the appellants that there must be a cross appeal before such an issue can be considered is of no moment. The case of SLB Consortium v. NNPC is on all forth identical with this case. See also FBN Plc. v Maiwada (supra), Abbas v. Tera (2013) 2 NWLR (Pt. 1338) 284. In effect there is no case before the court for adjudication therefore parties cannot be heard on the merits of the case.
In conclusion, the appeal arising from proceedings initiated and conducted without jurisdiction has no legs to stand on and is hereby struck out for want of jurisdiction. Appeal struck out and there will be no order as to costs.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother A. Jauro, JCA.
The learned counsel for the Appellant has urged us in a very weird submission, to over-role the Apex Court by the invocation of Order 20 Rule 5(1) of the Rules of this court of 2011. It is the curious argument of the learned Counsel that by the provisions of the said Order 20 Rule 5(1), all the decisions of the Supreme Court by virtue of Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) p.521 have become obsolete.
Order 20 Rule 5(1) Provides thus:-
“An application to strike out or set aside for non-compliance with these Rules or any other irregularity arising from the Rules of Practice and Procedure in this court, any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”‘
Principally, the preliminary objection raised in this appeal has nothing to do with “non-compliance with these rules nor any other irregularity arising from the Rules of Practice and Procedure in the court.”
Well chronicled in the lead Judgment of my learned brother, are the circumstances that lead to this appeal. Equally well set out is the fundamental defect cited by this court in the process of reading the file in preparation for the hearing of the appeal. The attention of both learned counsel for the parties was drawn to the fundamental defect afflicting the appeal which divests this court of the jurisdictional competence to proceed with the appeal. The defect touches at the root of the entire process having to do with the originating process; the writ of summons which initiated the entire proceedings was not signed by a legal practitioner as required by law. It was indicated as signed by “Oluwole Aluko & Co.,” a law firm and not a legal practitioner. The core of the decision in Okafor v. Nweke supra, S.L.B. Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) P.317 and several other similar cases touch at the core of the initiating process and not a mere technicality.
The Apex court per Fabiyi JSC explained the rationale behind Nweke and others in these terms:-
“I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing court processes.” (Emphasis mine)
In an earlier decision of this Court, Appeal No, CA/I/208/10 delivered on the 11th December, 2012, my learned brother UWA, JCA opined and I fully concur, that the requirements put in place by Sections 2(1) and 24 of the Legal practitioner’s Act Cap 207 LFN 1990 were for the good and protection of the legal practitioners. The requirements seek “…to safe guard their practice as barristers and solicitors, otherwise touts, anybody and everybody could sign legal processes” (See page 4 of the contributory Judgment; lead Judgment prepared by my humble self).
Thus, it was the learned Silk for the Respondent, Chief R. A. Ogunwole SAN, who made the valid submission that the defect is not one of procedural jurisdiction citing S.L.B. Consortium Ltd supra in aid of this argument,
The lead judgment has set out the features of a competent process before a Court as made out by the Apex Court in Madukolu vs. Nkemdilim I need not rePeat same.
The only remedy to these fundamental defects in initiating processes is the diligence of the legal practitioners, (See per Oputa JSC in Udota v. State (1988) 1 NWLR Pt.84 P533.
Time is an expensive commodity that is why just a little of it is required to run a last check on a process and ensure that all that is necessary has been done before the process is sealed, signed and delivered; that is what due process means. So much time and resources would be saved. We must therefore refrain from assuming jurisdiction over the Apex Court which decision is infact not reviewable by this Court, Prudence and diligence demands that we confine ourselves to our legal space.
The defective writ of summons which initiated the entire proceedings leading up to this point is accordingly hereby struck out and it naturally crumbles with the appeal which has no foundation and cannot stand.
I adopt all the consequential orders made in the lead judgment.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother Adamu Jauro JCA. I agree with his reasoning and conclusions reached.
Jurisdiction is very crucial and fundamental to adjudication. Eso J.S.C. put it this way in the case of A.G. of Lagos State vs. Dosumu (1989) 3 NWLR Part 111 at Page 609.
“The substratum of a court is no doubt jurisdiction. Without it the ‘labourers’ therein, that is both litigants and counsel on the one hand and the Judge on the other hand, labour in vain.”
The parties in this case before the court below and the trial Judge in that court alas, all laboured in vain having embarked on the litigation journey with an incompetent Writ of Summons and Statement of Claim signed by Oluwole Aluko & Co. I will also strike out the appeal and with no order as to costs.

Appearances

Mr, Oluwole AlukoFor Appellant

AND

Mr R.A. Ogunwole, SAN with A.A. Adewola Mrs and A,T. M Idowu-Faith MissFor Respondent