MR. BILIAMINU OLUFEMI v. MRS. BUNMI KASSIM
(2019)LCN/12781(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/IB/206/2012
RATIO
COURT AND PROCEDURE: OUTLINE TO FILE A COURT PROCESS
“The Supreme Court per Rhodes Vivour JSC outlined how processes filed in Court acre to be endorsed and held among others as follows:- All processes filed in Court are to be signed as follows:-
(a) First, the signature of Counsel which may be any contraption.
(b) Secondly, the name of Counsel clearly written.
(c) Thirdly, who Counsel represents.
(d) Fourthly, name and address of Legal Firm. See also the following cases:- OKPE VS. FAN MILK PLC (2017) 2 NWLR PART 1549 PAGES 282. SHELL PETROLEUM DEV. CO. NIG. LTD VS. SAM ROYAL HOTEL NIG LTD. (2016) ALL FWLR PART 831 PAGE 1584. F.B.N. PLC VS. MAIWADA (2013) 5 NWLR PART 1348 PAGE 444. NIGERIAN ARMY VS. SAMUEL (2013) 14 NWLR PART 1375 PAGE 465. MINISTRY OF W & T ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR PART 1351 PAGE 481.” PER JIMI OLUKAYODE BADA, J.C.A.
COURT AND PROCEDURE: WHERE THERE IS A DEFECT IN THE ORIGINATING SUMMONS
“In my view, where Court processes as in this case are endorsed in the name of a law firm rather than a Legal Practitioner recognized under the Act, such processes are incurably defective and liable to be struck out because where a process is signed by an inanimate entity such as law firm, it is impossible to identify the person who signed the process. The Originating Processes are the foundation upon which the suit rested. Any defect in the process affects all the proceedings upon which it is based and any order emanating from such proceedings is a nullity.
See the following cases:- TANIMU VS. RABIU (2017) ALL FWLR PART 900 PAGE 391 AT 409 PARAGRAPHS C-F.
KIDA VS. OGUNMOLA (2006) 13 NWLR PART 997 PAGE 337.” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
MR. BILIAMINU OLUFEMI Appellant(s)
AND
MRS. BUNMI KASSIM Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Judgment of Oyo State High Court Ibadan Division in Suit NO. 1/154/2002 BETWEEN: BUNMI KASSIM VS MR. BILIAMINU DELE OLUFEMI delivered on the 27th day of October, 2011.
Briefly the facts of the case are that Respondent who was the Plaintiff at the lower Court instituted an action against the appellant who was the Defendant.
By his further amended statement of claim, the Respondent claimed as follows:-
(a) The sum of (N50,000.00) Fifty thousand Naira only being damages committed by the Defendant on the Claimant’s land situate, lying and being at Podo Village on Ibadan- Ijebu Ode Road registered as No. 52 at page 52 in volume 316 at the Land Registry in the office at Ibadan when he unlawfully entered the said land i.e the land edged yellow on the plan No. SOF/OY/002D/2003 prepared by Surveyor Tunji Fajobi.
(b) (N200,000.00) Two hundred thousand Naira being special damages against the Defendant his Agent and/or servants on the Claimant?s aforesaid tract of land when the claimant?s 1000 blocks were destroyed by the Defendant.
PARTICULARS
(i) SPECIAL DAMAGES: Cost of construction of the structure on the land in dispute destroyed by the Defendant Agent or servant N60,000.00.
(ii) Cost of 1000 Blocks on the land in dispute destroyed by the Defendant – N40,000.00
(iii) An order of perpetual injunction restraining the defendant, Agents, servants and/or privies or anyone claiming through or under him from advertising for sale, selling or letting leasing or otherwise interfering with the Claimants property situate, lying and being at Podo Village on Ibadan ? Ijebu-Ode Road, Ibadan, Oyo State covered by an instrument purportedly registered as No. 52 at page 52 in volume 316 at the Lands Registry in the office at Ibadan i.e the land edged yellow in plan No. SOF/OY/002D/2003 prepared by Surveyor Tunji Fajobi.
The said Further Amended Statement of Claim is contained at pages 58 to 61 of the Record of Appeal.
The Defendant also filed his statement of Defence wherein he also counter-claimed against the Respondent see pages 67-70 of the Record of Appeal.
The Respondent as the Plaintiff at the lower Court opened her case by giving evidence as PW1 and in addition called six other witnesses. See pages 73-84 of the Record of Appeal.
The witnesses of the Respondent were cross-examined by Counsel for the Appellant.
The Appellant as defendant called two witnesses and they gave evidence and were cross-examined by the Respondent’s Counsel. See pages 113-117 of the Record of Appeal.
The Appellant did not give evidence.
Counsel for the Respondent filed written address while no address was filed on behalf of the appellant. See pages 127-132 of the Record of Appeal.
The Counsel for the Respondent adopted his written address and Judgment was delivered on 27th day of October, 2011. See pages 137 to 155 of the Record of appeal.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
This Court granted leave to the appellant to amend his notice of appeal on 7/11/2017 and Amended Notice of appeal was filed on 13/11/2017.
The learned Counsel for the Appellant formulated (7) seven issues for the determination of tis appeal. The said issues are hereby reproduced as follows:-
(i) Whether the Respondent established any title under native law and custom.
(ii) Whether the witnesses called by the Respondent were not controverted by the Appellant.
(iii) Whether the Respondent established her title under English law.
(iv) Whether the Appellant was liable in trespass.
(v) Whether the Respondent was entitled to an order of injunction.
(vi) Whether the Counter Claim of the Appellant was considered as a separate claim by the trial Judge.
(vii) Whether the Jurisdiction of the Court was properly invoked by the Respondent in view of the fact that the Originating Processes at the lower Court were signed by Yemi Ajayi & Co., a non-cognizable Legal Personality.
On the other hand, the learned Counsel for the Respondent formulated a sole issue for the determination of this appeal. The said issue is reproduced as follows:-
‘Whether the appeal of the Appellant is incompetent.’
At the hearing of this appeal on 16/1/2019, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Oyo State High Court delivered on 27/10/2011. The Notice of Appeal was filed on 26/1/2012 while the record of appeal was transmitted out of time and this Court granted leave to the Appellant to transmit same on 7/11/2017. The Amended Notice of Appeal was filed on 13/11/17 and the Amended Appellant?s brief of argument was filed on 14/11/2017.
The learned Counsel for the Appellant adopted and relied on the Amended Appellant?s brief of argument as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent in his own case also referred to the Respondent?s brief of argument filed on 16/3/2018 which was deemed as properly filed on 18/10/2018.
The learned Counsel for the Respondent in the open Court on 16/1/2019 admitted that the Originating Process in this case is not competent.
The learned Counsel for the Appellant formulated seven issues for the determination of the appeal while the learned Counsel for Respondent formulated only one issue. But common to both parties is one issue on the competence of the Originating Process in this appeal.
I am of the firm view that the consideration of the single issue common to both parties in this appeal is enough to dispose off the appeal. And where an Appellate Court is of the view that the consideration of an issue is enough to dispose off an appeal, it is under no obligation to consider all other issues formulated by Counsel for the parties.
See the following cases:- ONOCHIE VS. ODOGWU (2006) 2 SCNJ PAGE 1. OKOTIE-EBOH VS. MANAGER (2004) 18 NWLR PART 905 PAGE 242.
The said issue common to both parties in this appeal which is to be relied upon in the determination of this appeal is:-
‘Whether the jurisdiction of the Court was properly invoked by the Respondent in view of the fact that the Originating Process at the lower Court were signed by Yemi Ajayi & Co., a non-cognizable legal personality.’
The learned Counsel for the Appellant submitted that the Original Writ of Summons and Statement of Claim filed by the Respondent at the lower Court were signed by Yemi Ajayi & Co., a non-cognizable legal personality. (See pages 1-6 of the record of Appeal).
Also when the Respondent amended the Writ of Summons and Statement of Claim at the lower Court, Yemi Ajayi & Co., a non-cognizable legal personality signed the process. (See pages 9-14 and 22-26 of the record of appeal).
The extant Originating Process of the Respondent which is the Further Amended Writ of Summons and the further Amended Statement of Claim contained on pages 57 to 61 of the Record of Appeal were signed by Yemi Ajayi & Co., a non-cognizable personality.
The learned Counsel for the Appellant submitted that Yemi Ajayi & Co. is not a person admitted to practice law under the Legal Practitioners Act. He relied on the following cases:- OKAFOR VS. NWEKE (2007) ALL FWLR PART 368 PAGE 1016. FIRST BANK OF NIGERIA PLC & ANOR VS. ALHAJI SALMANU MAIWADA (2013) ALL FWLR PART 661 PAGE 1433.
The learned Counsel for the Appellant urged this Court to hold that the jurisdiction of the lower Court was not properly invoked by the Respondent as her Originating Processes were signed by Yemi Ajayi & Co., a non-cognizable legal personality.
He urged that the appeal be allowed and strike out the case of the Respondent at the lower Court.
The learned Counsel for the Respondent in his response, despite his admission in the open Court that his Originating Processes are incompetent, he argued in the Respondent’s brief that the appeal should be dismissed because the Appellant’s Statement of Defence at the lower Court is also incompetent having been signed by S. Ajibola Muraina & Co., a non-Legal Practitioner.
On the alternative, he argued that if the Court find the appeal to be meritorious, the Respondent’s claim should be struck out.
In this appeal under consideration, the Originating Processes relied upon by Counsel for the Respondent who was the Plaintiff at the lower Court and the Statement of Defence and Counter Claim relied upon by Counsel for the Appellant who was the Defendant at the lower Court are both incompetent having been signed by non-cognizable legal personality.
The learned Counsel for the Respondent has openly admitted that his Originating Processes at the lower Court were incompetent.
Since above issue is what is on the ground in this appeal, I will quickly look at the position of the law on the incompetent Originating Processes.
The Respondent who was the Plaintiff at the lower Court commenced the action which is the subject of this appeal by the extant Originating Process which is the Further Amended Writ of Summons and the Further Amended Statement of Claim contained on pages 57 to 61 of the record of appeal signed by Yemi Ajayi & Co., a non-cognizable legal personality. This is contrary to the combined provisions of Sections 2(1) and 24 of the Legal Practitioners Act L11 Laws of the Federation of Nigeria 2004.
Section 2(1) of the Legal Practitioners Act provides thus:-
‘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 also provides thus:-
‘In this Act unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say, ‘Legal Practitioner’ means a person entitled in accordance with the provisions of this Act to practice as a ‘Barrister’ or as a Barrister and Solicitor’ either generally or for the purposes of any particular office or proceedings.’
A perusal of the above provisions would show that the Respondent failed to initiate the suit by due process of law and also failed to fulfill a condition precedent to invoke the jurisdiction of the lower Court.
The above position was aptly admitted by the Respondent’s Counsel in the open Court when he admitted that the Respondent’s Originating Processes were incompetent.
The Further Amended Writ of Summons and the Further Amended Statement of Claim were signed by ‘Yemi Ajayi & Co.’ which is different from Yemi Ajayi who by provisions of Sections 2(1) and 24 of the Legal Practitioners Act is a person registered in the Supreme Court whose name is on the roll land recognized as a qualified Legal Practitioner ‘Yemi Ajayi & Co.’ is an entity tantamount to business name with no legal personality of its own.
In my view, where Court processes as in this case are endorsed in the name of a law firm rather than a Legal Practitioner recognized under the Act, such processes are incurably defective and liable to be struck out because where a process is signed by an inanimate entity such as law firm, it is impossible to identify the person who signed the process.
The Originating Processes are the foundation upon which the suit rested. Any defect in the process affects all the proceedings upon which it is based and any order emanating from such proceedings is a nullity.
See the following cases:- TANIMU VS. RABIU (2017) ALL FWLR PART 900 PAGE 391 AT 409 PARAGRAPHS C-F.
KIDA VS. OGUNMOLA (2006) 13 NWLR PART 997 PAGE 337.
In OKAFOR VS. NWEKE (2007) 10 NWLR PART 1043 PAGE 521 AT 531-532 PARAGRAPHS H-A. The Supreme Court per Onoghen JSC (now CJN) held among others as follow:-
‘Since both Counsel agree that J.H.C. Okolo SAN & Co., is not a Legal Practitioner recognized by the law, it follows that the said J.H.C Okolo SAN & Co., cannot legally sign and/or file any process in the Courts and as such the motion on Notice filed on the 19th December 2005, Notice of Cross-Appeal and Applicant’s Brief of Argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo & Co., are incompetent in law, particularly as the said firm of J.H.C. Okolo SAN & Co. is not a registered Legal Practitioner. Also in SLB CONSORTIUM LTD VS. N.N.P.C. (2011) 9 NWLR PART 1252 PAGE 317 AT 337-338 PARAGRAPHS H-A.
The Supreme Court per Rhodes Vivour JSC outlined how processes filed in Court acre to be endorsed and held among others as follows:-
All processes filed in Court are to be signed as follows:-
(a) First, the signature of Counsel which may be any contraption.
(b) Secondly, the name of Counsel clearly written.
(c) Thirdly, who Counsel represents.
(d) Fourthly, name and address of Legal Firm.
See also the following cases:-
OKPE VS. FAN MILK PLC (2017) 2 NWLR PART 1549 PAGES 282.
SHELL PETROLEUM DEV. CO. NIG. LTD VS. SAM ROYAL HOTEL NIG LTD. (2016) ALL FWLR PART 831 PAGE 1584. F.B.N. PLC VS. MAIWADA (2013) 5 NWLR PART 1348 PAGE 444. NIGERIAN ARMY VS. SAMUEL (2013) 14 NWLR PART 1375 PAGE 465. MINISTRY OF W & T ADAMAWA STATE VS. YAKUBU (2013) 6 NWLR PART 1351 PAGE 481.
Notwithstanding the submissions in the Respondent’s brief of argument, I am of the view that by the open admission in Court by Counsel for the Respondent that his Originating Processes in this appeal are incompetent therefore this appeal has been conceded.
Consequent upon the foregoing, I am of the view that the Further Amended Writ of Summons and the Further Amended Statement of Claim signed by ‘Yemi Ajayi & Co.’ which are the Originating Processes in this case are fundamentally defective and it has robbed the lower Court of the jurisdiction to entertain the suit and this has rendered the Judgment delivered in the suit on 27th day of October, 2011 null and void ab initio and liable to be set aside. See the case of:- ALAWIYE VS. OGUNSANYA (2013) 5 NWLR PART 1348 PAGE 570 AT 617 PARAGRAPH G.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
In the result, I am of the view that there is merit in this appeal and it is allowed. The Judgment of the lower Court in Suit No. 1/154/02 BETWEEN: MRS. BUNMI KASSIM VS. MR. BILIAMINU DELE OLUFEMI delivered on the 27th day of October 2011 is hereby set aside.
In its place, this suit with number 1/154/02 is hereby struck out for being incompetent.
There shall be no order as to costs.
Appeal allowed.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
The issue of a Court Process being signed by a Law Firm has become a recurring decimal in our Courts. The issue has however been settled by the Supreme Court and dutifully followed by this Court in a legion of cases. It is to the effect that a Court Process filed or signed in the name of a Law firm is null and void ab initio. It is a defect which goes to the root of the process or claim and therefore cannot be amended. See Okafor v. Nweke (2007) All FWLR (pt. 368) 1016 and FBN Plc v. Maiwada (2013) All FWLR (pt.661) 1433. Consequently, any proceeding conducted on such a null process including any order or judgment consequent thereon will be void. The only remedy is to set same aside.
I therefore agree with my learned brother that this appeal has merit. It is accordingly allowed. Suit No: 1/154/2002 is hereby struck out.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the lead Judgment just delivered by my learned brother Jinni Olukayode Bada JCA. He has very carefully and meticulously delved in great detail into the issue common to both parties in this appeal thus;
“Whether the jurisdiction of the Court was properly invoked by the Respondent in view of the fact that the Originating process at the lower Court were signed by Yemi Ajayi & Co., a non-cognizable legal personality.”
I am in total agreement with his reasoning and conclusion having resolved the issue therein in favour of the Appellant that there is merit in this appeal and it is allowed.
Going by the provisions of Section 2 (1) and 24 of the Legal Practitioners Act L 11 laws of the Federation of Nigeria 2004, the apex Court and this Court had in a plethora of cases settled the issue that where Court processes are endorsed in the name of a law firm rather than a legal practitioner recognized under the Act, such processes are incurably defective and liable to be struck out. The originating processes being the foundation upon which the suit rest, any defect in the process affects and the proceedings. The proceeding would be rendered void ab initio. See Okafor v. Nweke (2007) All FWLR (pt 368) 1016, SLB Construction Ltd v. NNPC (2011) 9 NWLR (pt 1252) 317, Melaye & Anor v. Tajudeen & Ors. (2012) 15 NWLR (pt. 1323) 315 and Adeneye v. Yaro (2013) 3 NWLR (pt. 1340) 625.
This manner of legal practice demonstrated by counsel makes litigation very unattractive, it frustrates justice and makes nonsense of our judicial system. At all times, it is the litigant who would suffer the consequences.
The Judgment of the lower Court in suit: No: I/154/02 BETWEEN MRS BUNMI KASSIM V. MR. BILIAMINU DELE OLUFEMI delivered on the 27th day of October, 2011 is hereby set aside.
I abide by the consequential order in the lead Judgment. Appeal allowed.
Appearances:
Mr. A. A. OyesolaFor Appellant(s)
Mr. Ranti AjeletiFor Respondent(s)
