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MR. MICHAEL ADEREMI ADENIHUN & ANOR v. ALHAJI TIAMIYU ADETUNJI LAWAL & ORS (2019)

MR. MICHAEL ADEREMI ADENIHUN & ANOR v. ALHAJI TIAMIYU ADETUNJI LAWAL & ORS

(2019)LCN/12938(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/IB/180/2008

JUSTICES:

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

1. MR. MICHAEL ADEREMI ADENIHUN
2. MRS. ADENIKE IBILOLA ADENIHUN – Appellant(s)

AND

1. ALHAJI TIAMIYU ADETUNJI LAWAL
2. UNION BANK OF NIGERIA PLC
3. AKINLOLU ILESANMI – Respondent(s)

RATIO

WHETHER OR NOT A COURT PROCESS SIGNED IN THE NAME OF A LAW FIRM IS A NULLITY

Since the decisions of the Supreme Court in Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521; SLB Consortium Ltd. Vs. NNPC 2011 4 SC (pt. 1) 86 at 526 and many similar decision, the law against a firm of Solicitors issuing in the firms name a legal process particularly an originating summons like Writ of Summons, Originating Motions, petitions, Notice of Appeal has become so well know and hackneyed. There has been a consensus of judicial opinion from the apex to the base to the effect that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.
In a similar case before this Court Fatai Agbebiyi & Anor. vs. Balogun 2016 LPELR 40226 (CA) I said concerning a Writ of Summons signed by a firm of solicitors thus:
The various High Court Civil Procedure Rules provide copiously for mode of commencing civil actions by writ of summons. Upon the requisite endorsements such writ of summon shall be signed by the intending Claimant or his Legal Practitioner.
In practice, most suits are signed off by a Legal Practitioner and who a Legal Practitioner is, is aptly defined in Section 24 of the Legal Practitioners Act 1975 as a person entitled in accordance with the provisions of this act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
In this case, the Writ of Summons was initiated or signed by Peluola, Lalude & Co., a firm of solicitors which is not a person entitled to practice as a barrister and solicitor and whose name is not on the roll of Barristers and solicitors in the Supreme Court of Nigeria.
The cases of Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521 at 534 and Peak Merchant Bank vs. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 and Ogundele vs. Agiri & Anor. (2009) 12 S.C. (pt. 1) 135 at 165 have been cited in support and the consensus of judicial opinion from the apex to the base seem to be that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.
The reason, in my view, why the entire proceedings become a nullity is that it was not begun at all. If it was not begun, there is nothing being a nullity, it does not exist. As it does not exist, every superstructure founded or erected thereupon rests on nothing and therefore is vitiated. The superstructures include the proceedings and the judgment of the lower Court the subject of this appeal. They all rest on nothing and are therefore vitiated by being set aside. PER OKORONKWO, J.C.A.

NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): The appeal herein arose from the judgment of the Oyo State High Court, given on 24th November, 2006 wherein that Court per A.A. Aderemi (Judge), in an action challenging the public auction sale of the plaintiff property at SW8/1302 Adekunle Street Challenge Ibadan by 2nd defendant/respondent to the appellants upon a mortgage held as follows at page 181-182 of the record.
In the case AGYU VS. MALAMI supra the Court of Appeal held that where an overdraft is granted by a bank the cause of action should not be deemed to arise until there has been a demand made or were given.”

And in consequence set aside the sale. The action was commenced by a writ of summons issued 27th day of May, 1997 consequent upon an application thereof signed by A.O. LATINWO & CO. SOLICITORS.

Beside the writ issued as indicated, the statement of claim of 23rd July 1997 was also issued, filed and signed as A.O. LATINWO & CO.

Being aggrieved by judgment, the appellants by Notice of Appeal dated 8th February, 2007 lodged this appeal on two original grounds of appeal.

1

Further grounds of appeal were filed with leave of Court.
In the brief of argument filed for the appellants the following six issues were filed viz.
1. Whether the jurisdiction of the lower Court was validly invoked by the Writ of Summons dated 27/05/1997 issued by A.O. Latinwo Co. Solicitors.
2. Whether the 2nd and 3rd respondent could be said not to have offered evidence in answer to the 1st respondents case.
3. Whether the issue that the power of sale had not arisen was joined by the parties on their pleadings and if so whether the trial Court was correct to hold that the power of sale had not arisen at the time 2nd respondent sold 1st respondents property to the appellants.
4. Whether the sale to the appellants could be voided having regard to clause 8 of the Tripartite Deed of Mortgage (Exhibit G) executed by the 1st respondent in favour of the 2nd respondent.
5. Whether the Court can ignore the evidence led on behalf of the appellants in granting the 1st respondents claims
6. Whether the appellants are not entitled to succeed in their counterclaim having regard to the evidence before the Court.

2

For the 2nd and 3rd respondents who also filed a brief, three (3) issues were filed as follows:
1. Whether view of the Supreme Court decision in Okafor vs. Nweke (2007) 3 S.C. (pt. 11) 355 at 358; FBN vs. Maiwada (2013) All FWLR (pt. 661) 1433 at 1466, whether the jurisdiction of the lower Court was properly invoked when the Writ of Summons dated 27/5/1997 was issued by A.O. Latinwo & Co. Solicitors
2. Whether the evidence elicited from the 3rd and 4th defendants witnesses was not enough answer to 2nd and 3rd respondents case.
3. Whether the sale to the appellants could be voided having regard to clause 8 of the Tripartite Deed of Mortgage (Exhibit G) executed by the 1st respondent in favour of the 2nd respondents.

For the 1st respondent, in his brief of argument filed 13/1/11, the five issues filed for determination are as follows:
1. Whether, the 2nd and 3rd respondents could be said to have offered any evidence at all in answer to the 1st respondents case.
2. Whether the issue that the Power of Sale had not arisen was joined by the parties in their pleadings and 

3

if so, whether the trial Court was not correct to have held that the Power of Sale had not arisen at the time the 2nd respondent sold the 1st respondents property.
3. Whether the sale to the appellants could not be voided having regard to Clause 8 of the Tripartite Deed of Mortgaged (Exhibit G) executed by the 1st respondent in favour of the 2nd respondent.
4. Whether the Court below can ignore the evidence led on behalf of the appellants in granting the 1st respondents claims.
5. Whether the appellant are entitled to succeed in their Counter Claim having to the evidence before the Court.

Resolutions
The substantive issue arising from the issues is whether the trial Court was within the law in the decision that the Power of Sale of the 2nd respondent Mortgagee has not arisen. However there is a threshold issue that must first be dealt with. It was better formulated in brief of the 2nd and 3rd respondent thus:
Whether in view of the Supreme Court decision in Okafor vs. Nweke (2007) 3 S.C. (pt. 11) 355 at 358; FBN vs. Maiwada (2013) All FWLR (pt. 661) 1433 at 1466, whether the jurisdiction of the lower Court

4

was properly invoked when the Writ of Summons dated 27/5/1997 was issued by A.O. Latinwo & Co. Solicitors.
Citing SLB Consotium Ltd. Vs. NNPC (2011) 9 NWLR (pt. 1252) 317 and Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521.
It was submitted by learned counsel for 2nd and 3rd respondents that the Writ of Summons in this case was signed and issued by A.O. Latinwo & Co., a firm of Legal Practitioners instead of a Legal practitioner in his name duly registered in the roll of Legal Practitioners in the Supreme Court as required by Sections 2(1) and 24 of the Legal Practitioners Act Cap. L. 11 Laws of the Federation of Nigeria 2004.
A similar issue was raised by the appellants at paragraph 4.04 of their brief thus:
A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner. A process filed in the name of a firm simplicter is a nullity.
– Okafor vs. Nweke 2007 3 SC (pt. II) 55 at 358.
– SLB Consortium Ltd. Vs. NNPC 2011 4 SC (pt. 1) 86 pt. 526
– Braithwaite vs. Skye Bank Plc. 2012 SC (pt. 1) 1 pt. 664 FWLR @ 39.

Since the decisions of the Supreme Court in

5

Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521; SLB Consortium Ltd. Vs. NNPC 2011 4 SC (pt. 1) 86 at 526 and many similar decision, the law against a firm of Solicitors issuing in the firms name a legal process particularly an originating summons like Writ of Summons, Originating Motions, petitions, Notice of Appeal has become so well know and hackneyed. There has been a consensus of judicial opinion from the apex to the base to the effect that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.
In a similar case before this Court Fatai Agbebiyi & Anor. vs. Balogun 2016 LPELR 40226 (CA) I said concerning a Writ of Summons signed by a firm of solicitors thus:
The various High Court Civil Procedure Rules provide copiously for mode of commencing civil actions by writ of summons. Upon the requisite endorsements such writ of summon shall be signed by the intending Claimant or his Legal Practitioner.
In practice, most suits are signed off by a Legal Practitioner and who a Legal Practitioner is, is aptly defined in Section 24 of the Legal Practitioners Act 1975 as a person entitled in accordance

6

with the provisions of this act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
In this case, the Writ of Summons was initiated or signed by Peluola, Lalude & Co., a firm of solicitors which is not a person entitled to practice as a barrister and solicitor and whose name is not on the roll of Barristers and solicitors in the Supreme Court of Nigeria.
The cases of Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521 at 534 and Peak Merchant Bank vs. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 and Ogundele vs. Agiri & Anor. (2009) 12 S.C. (pt. 1) 135 at 165 have been cited in support and the consensus of judicial opinion from the apex to the base seem to be that such defect or omission rendered the entire proceedings a nullity ab initio, the defect being irreparable.
The reason, in my view, why the entire proceedings become a nullity is that it was not begun at all. If it was not begun, there is nothing being a nullity, it does not exist. As it does not exist, every superstructure founded or erected thereupon rests on nothing and

7

therefore is vitiated. The superstructures include the proceedings and the judgment of the lower Court the subject of this appeal. They all rest on nothing and are therefore vitiated by being set aside.
This being the case in this appeal, everything founded on the void Writ of Summons issued and signed as A.O. Latinwo & Co. is a nullity including proceedings leading up to judgment appealed against.
In consequence therefore, the judgment of the Oyo State per. A. Aderemi (Judge) delivered on 24th November, 2006 is founded on a nullity and cannot stand. It is accordingly set aside for lack of jurisdiction. Appeal is allowed.

HARUNA SIMON TSAMMANI, J.C.A.: The Writ of Summons in this case was signed by A. O. Latinwo & Co, a Law Firm. It has since been settled by the Supreme Court in a long line of cases that any Court process signed in the name of a Law Firm is a nullity, and that any proceeding and/or judgment founded on such null process is also a nullity. This is the position in the case subject of this appeal. See Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521 and SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 252) 317.

8

I therefore agree with my learned brother, Okoronkwo, JCA that this appeal succeeds. It is accordingly allowed. Judgment of the Court below delivered on the 24/11/2006 is hereby set aside; and the Writ of Summons struck out.

ABUBAKAR MAHMUD TALBA, J.C.A.: I was obliged a copy of the judgment of my learned brother NONYEREM OKORONKWO, JCA just delivered which I read before now. I agree with him that everything founded on the void Writ of Summons issued and signed by A.O. Latinwo & Co is a nullity including the proceedings leading up to judgment appealed against.
The Law is settled in a plethora of authorities by the Apex Court and this Court as well, that a Writ of Summons signed and issued by a firm of legal practitioners instead of a legal practitioner in his name duly registered in the roll of legal practitioners in the Supreme Court as required by Sections 2 (1) and 24 of the Legal Practitioners Act Cap L 11 Laws of the Federation of Nigeria 2004, is defective. And such a defect would render the entire proceedings a nullity ab initio. See Okafor v. Nweke (2007) 3 SC CDt. 11) 55 at 358; 

9

SLB Consortium Ltd v NNPC (2011) 4 SC (pt. 1) 86 and Fatai Agbebiyi & Anor v. Balogun 2016 LPELR 40226 (CA).
A counsel by the nature of his professional training and expertise is expected to be relied upon by his client in all matters in the judicial process. He is the link between the Court and the litigant. The law therefore expects so much from counsel in performance of his professional duties. So much care is required and so much care should be taken in the preparation of Court process. A Court process is a sacred and most important document which must be thoroughly done. A counsel must therefore strictly comply with the law in the preparation of a Court process. In practice most suits are signed by a legal practitioner who is aptly defined in Section 24 of the Legal Practitioners Act 1975 as a person entitled in accordance with the provisions of the act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.
Where there is a departure from the normal practice, the entire proceedings would be rendered a nullity.
In consequence thereof the judgment of the Oyo State High

10

Court delivered on 24 November, 2006 is founded on a nullity and it is accordingly set aside.
Appeal is allowed.

 

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Appearances:

M.O. Akintunde with him, Ikotun Winifred For Appellant(s)

T. O. Famakinwa for the 1st Respondent.

Mojeed Olalekan for the 2nd Respondent For Respondent(s)

 

Appearances

M.O. Akintunde with him, Ikotun Winifred For Appellant

 

AND

T. O. Famakinwa for the 1st Respondent.

Mojeed Olalekan for the 2nd Respondent For Respondent