OMERU v. OMAME (2020)

OMERU v. OMAME

(2020)LCN/15354(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, August 28, 2020

CA/AS/465/2017

RATIO

APPEAL: THE PURPOSE OR ESSENCE OF AN APPEAL

It is settled law that the purpose or essence of an appeal is for the appellate Court to find out, whether on the state of pleadings, evidence and applicable law the lower Court had come to the right decision in relation to the reliefs canvassed in the matter an appellate’s Court intervention is sought. Hence, what an appellate Court is concerned with should at all times be the rightness or wrongness of the decision and not necessarily the reasons for the conclusion or decision. This is so because, once the decision is right, it would be upheld at the higher level irrespective of the fact that a wrong reason was given for that decision. See the cases of ODOM V. PDP (2015) LPELR-24351(SC) and MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042(SC) amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

DISCRETION OF COURT: WHETHER AN APPEAL AGAINST THE EXERCISE OF THE DISCRETIONARY POWER OF THE COURT BELOW IS A QUESTION OF MIXED LAW AND FACT

The law is settled that where it is the exercise of discretion by a Court that is the subject matter of an appeal, an appeal against the exercise of the discretion in question, cannot be as of right but with leave of the lower Court or of this Court where an issue of fact or facts and mixed law is/are involved. See in this regard the case of A. C. B. V. OBMIAMI BRICK AND STONE (NIG.) LTD. (No. 2) (1993) 5 NWLR (Pt. 294) 399. Also see the case of OKEKE V. OBINABO (2018) LPELR-44533 (CA) wherein this Court stated thus: –
“Having held that the decision of the Court below delivered on 14/11/2008, the subject matter of this appeal, was an interlocutory decision, do the Appellants require the leave of Court to appeal or an extension of time within which to appeal against the said judgment as vehemently contended by the Respondent in the preliminary objection in the light of the provisions of Sections 241(1)(b), 242(1) of the Constitution of Nigeria 1999 (as amended) and Section 24(2)(a) of the Court of Appeal Act 2004 (as amended)?
This, in my respectful view, is the kernel of the issues for determination under this preliminary objection….
It is in the light of the above extant position of the law that I have taken time to scrutinize the grounds of appeal in this appeal challenging the exercise of discretion of the Court below in refusing to grant their application challenging the service on them of the originating processes on the Respondent’s suit. In law, it is well settled that a challenge against the exercise of discretion by a Court involves issues of mixed law and facts. Thus, an appeal, if interlocutory, challenging the exercise of discretion of the Court below would require the prior leave of either the Court below or this Court first sought and obtained to be valid.
In Chief Abegunde Ogunmilua v. Mr Afolabi Ashaolu & Anor (2014) VOL 18 WRN 146 @ p. 164, this Court held inter alia thus:
“Where an appeal is against the exercise of the discretionary power of the Court below, it is a question of mixed law and fact which the grounds of appeal filed in this matter clearly shows. Thus, a party seeking to appeal against an exercise of discretion of the Court must seek and obtain leave of the Lower Court or the Court of Appeal before filing his notice of appeal. Failure to obtain the requisite leave renders the appeal incompetent and liable to be struck out….”
See also Central Bank of Nigeria V. Okojie (2002) 8 NWLR (pt. 768) 48. PER
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

JAMES OMERU APPELANT(S)

And

AMOH NAPOLEON OMAME RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling delivered on 31/7/2017, by the High Court of Delta State holden at the Effurun Judicial Division presided over by Hon. Justice E.I. Oristsejafor (hereafter to be simply referred to as the “lower Court” and “learned trial Judge” respectively).

The facts relevant to the instant appeal, are to the effect that the Respondent on record as Claimant in the instant case, got judgment against the Appellant as Defendant on 21/12/2011. The lower Court in its judgment granted the Respondent a declaratory relief; damages in the sum of N400,000.00 for trespass; perpetual injunction and also awarded costs in the sum of N6,000.00, against the Appellant on record. The Appellant being aggrieved with the judgment of the lower Court lodged an appeal against the same by a notice of appeal filed on 28/12/2011. On the same day, the Appellant filed a motion on notice praying for a stay of execution and/or enforcement of the judgment delivered by the lower Court. On 10/10/2013, the Respondent filed a praecipe for writ of execution of thejudgment of the lower Court. Suffice it to say that the Appellant’s motion for stay of execution of judgment having been struck out on 16/12/2013, the lower Court consequently caused a writ of attachment/fifa to issue against the Appellant’s goods/chattels and real property for the satisfaction of the judgment delivered in favour of the Respondent. Consequent to this, the Appellant filed on 15/5/2014, a motion on notice in which he prayed for: –
“An order to stay, set-aside and/or suspend the writ of execution of judgment in this suit delivered on the 21st day of December, 2011, by Honourable Justice E.I. Oritsejafor”.

The grounds of the motion are that: –
“(a) The Judgment Debtor/Applicant have satisfied the judgment sum of N400,000.00 (Four hundred thousand Naira) to the Judgment Creditor/Respondent.
b. The Judgment Creditor/Respondent has deliberately frustrated compliance for enforcement of part of the judgment.
c. The judgment of the Honourable Court is well over two years.
d. The Judgment Creditor/Respondent has failed to seek the leave of the Honourable Court before applying for writ of execution.
e. The application for the writ of execution is an abuse of the judicial process.”

Parties filed and exchanged affidavits and written addresses in respect of the motion referred to above. The lower Court entertained the Appellant’s motion on 12/11/2014 and reserved its ruling therein till 5/12/14. See pages 62-63 of the records of the records of appeal (hereafter to be simply referred to as “records”). However, it was on 21/3/2016, that the matter next came up having regard to the records. On the said date, the lower Court stated on page 64 of the records thus: –
“Court: Counsel are hereby ordered to file a further address on the following issues of law which agitated the mind of this Court in the course of writing the ruling in these proceedings: –
(i) Whether the judgment sought to be enforced in these proceedings that (sic) the judgment delivered in the substantive suit is a judgment for recovery of land in dispute or delivery up of possession of the land in dispute.
(ii) Whether the procedure adopted by the judgment creditor/respondent in these proceedings for enforcement of the said judgment that is, the “Warrant For Possession of Premises” is appropriate in the circumstances.”

Parties were given time, periods within which to file their respective written addresses and reply on point(s) of law. The Respondent also filed two separate motions in the matter before the lower Court. The Appellant filed a reply on points of law to the further additional written reply filed by the Respondent. Therein, under “1st Point of law” the Appellant stated thus: –
“1.1 In reply on point of law, it is submitted that there is no written reply to the Judgment Debtor/Applicant’s further additional written address dated and filed on the 29th day of March, 2016 by the Judgment Creditor/Respondent.
1.2 Sir, this is so, as the law provides that for any processes, (that is documents, letters, pleadings, applications, etc) prepared by a legal practitioner to be valid, it SHALL be affixed with by (sic) a stamp evidencing that such a person is qualified to practice law in Nigeria and must have paid his practicing fees as a legal practitioner and that failure to affixed (sic) the said stamp renders such a process invalid. Thus, the purported written reply address signed by S.Y. Ogbodu Esq does not bear his stamp as a legal practitioner, neither does it bear that of Dr. O.K. Edu, the principal in his law firm. It therefore shows that the (sic) both have not paid their practising fees, and as such not qualified to sign the said process, thus rendering same invalid, as provided for by Order 9, Rules 1 & 2 and Order 10 Rules 1, 2 & 3 of the Rules of Professional Conduct for Legal Practitioner, 2007. This position of law is well settled by the case of APC v Gen. Bello Sarkin Yaki, SC/722/ 2015, delivered on the 27th day of October, 2015 (unreported) where this principle of law was upheld.”

On 6/4/2016, when the matter next came up, it is recorded on page 86 of the records thus: –
“A.K. Esievo appear for the judgment debtor.
Dr. O.K. Edu appears for judgment creditor respondent applies for adjournment to enable him show evidence that he has paid his practing (sic) fee in view of the fact that the judgment debtor/applicant’s counsel raised the issue of the validity of the processes signed by the judgment creditor/respondent’s counsel.
Counsel for the judgment debtor/applicant is not opposed to the application for adjournment.
Court: This suit is adjourned to the 2/5/16 for counsel to adopt their further addresses.”

The case came up next on 17/10/2016. What transpired therein can be found on pages 87-88 of the records. It runs thus: –
“Parties absent. A.K. Esievo appears for judgment debtor/applicant.
Dr. O.K. Edu appears for the judgment creditor/respondent.
Counsel for the judgment creditor inform (sic) Court that he has evidence that the counsel who signed the processes has said (sic) his practising (sic) fee and has the seal which are shown to Court and to counsel for the judgment debtor. Counsel for judgment debtor informs the Court, that by the authorities including the decision in Wike v. Peterside (2016) AFWLR pt 842, 1573 at 1602, to regularise the processes, it is not enough to show the stamp and seal and evidence of payment of practising (sic) fee to the Court, the counsel must file an application to extend time to file the process with a deeming order. Counsel for the judgment creditor applies for counsel to formally address this Court on the issue of regularising a process filed with the stamp and seal of counsel.
Court: In view of the controversy generated by issue of processes filed by counsel for the judgment creditor/respondent not containing the stamp and seal required to be contained in an (sic) filed by counsel, I hereby order counsel to address this Court on the proper procedure to be adopted for regularising processes filed by counsel without the stamp and seal…”

Having given the parties the time, periods within which they were to file their respective written addresses, the suit was adjourned till 3/11/2016, “for counsel to adopt their written addresses on the issue of stamp and seal of counsel on filed processes.”

Prior to the adjourned date of the matter, on 21/10/2016 to be precise, the Respondent’s counsel filed a motion before the lower Court in which he sought (i) for leave to affix the NBA stamp and seal of S.Y. Ogbodu Esq. on the Respondent’s further additional address already filed on 1/4/2016; and (ii) an order deeming as having been properly filed the Respondent’s further additional written address already filed on 1/4/2016, the filing fees having been paid. See pages 89-92 of the records.

It is sufficient to say that the Appellant in his written address in respect of the issue raised by the lower Court on 17/10/2016, amongst others stated to the effect that the further additional written address of the Respondent having not been properly signed and/or filed was in grave contravention of the provision of an extant law. That this rendered the process in question voidable and irregular. That the process being voidable, and irregular can only be cured by an application to the lower Court for extension of time and a consequential deeming order. The dictum of Kekere-Ekun JSC; in the case of Nyesom v. Peterside (2016) All FWLR (Pt. 842) 1573, was relied on. Consequently, the lower Court was urged to hold that the non-affixation of seal and stamp by a legal practitioner on a process can only be cured by an application for extension of time, coupled with a deeming order, in line with the extant law and latest decision of the Supreme Court as adumbrated in the Nyesom’s case (supra). See pages 96-97 of the records.

The Respondent equally filed a motion on 24/10/2016, praying for “an order to set aside the Judgment Debtor/Applicant address or reply on point of law dated 5th of April, 2016 and filed on the same date.” See pages 98-100 of the records. On the same 24/10/216, the Respondent filed a written address on the issue raised by the lower Court on 17/10/2016. See pages 102-104 of the records. Therein, the Respondent amongst others submitted to the effect that there is no hard and fast rule in regularizing a process that has been filed without the seal of counsel affixed thereto. Reliance was placed on the dictum of Onnoghen, JSC; (as he then was) in the case of Yaki v Bagudu (2015) All FWLR (Pt. 810) 1026. That the Rules of Professional Conduct for Legal Practitioners (hereafter to be simply referred to as “Rules of Professional Conduct”) has not prescribed any monetary fine for omission by a counsel to affix his seal. That if the Rules had intended such a monetary fine, it would have expressly stated so. The dictum of Rhodes-Vivour, JSC; in the Yaki case (supra) was relied on regarding the objective of the said Rules. That the breach of Rules 10(1) of the Rules of Professional Conduct is not a substantive infraction; but a mere irregularity which can be corrected as directed by the Court.

On 1/11/2016, the Appellant filed a reply on points of law pursuant to the order of the lower Court made on 17/10/2016. Suffice it to say that all the Appellant did therein, was to maintain the position he had earlier taken in his written address on pages 96-97 of the records; and that he forcefully argued to the effect that the pronouncement of Kekere-Ekun, JSC; in the Nyesom case (supra) as re-produced in his said written address was not an obiter dictum as contended by the Respondent in his written address, but is in respect of a live issue; more so as the said pronouncement was contained in the lead judgment delivered in the said case by his lordship – Kekere-Ekun, JSC.

On pages 114-116 of the records, is the written address of the Respondent in support of his motion filed on 24/10/2016; while on pages 119-120 of the records, the Appellant not only filed a counter affidavit in opposition to the motion of the Respondent brought on 24/10/2016, but on 8/11/2016, filed a reply address in opposition to the said motion, on pages 121-123 of the records.

On pages 124-128 of the record is the written address filed on 30/11/2016 by the Respondent in respect of his motion filed on 21/10/2016. The Respondent sought therein indulgences that if granted, would enable his counsel to affix his NBA stamp and seal to the said Respondent’s further additional written address. The reply address of the Appellant to the said written address is on pages 130-134 of the records. Therein, the Appellant argued three issues. The stance of the Appellant in respect of the first of the issues, is to the effect that the Respondent had no written address before the lower Court. This is because the written address filed on 30/11/2016, was filed outside of the time provided by Order 39 Rules 1, 2 and 5 of the High Court of Delta State (Civil Procedure) Rules, 2009 (hereafter to be simply referred to as “the Rules of Procedure of the lower Court”), and that there was no application for extension of time to cure the defect. The second of the issues, is to the effect that even if it is assumed (without so conceding) that the written address of the Respondent is valid in law, the non-affixing of the seal of a legal practitioner to a process filed in Court, cannot be cured or regularised by mere application for leave to do so, but by an application for extension of time with a consequential deeming order. The third and last of the issues is to the effect that the application brought by the Respondent for leave to have his counsel affix his stamp and seal, is an abuse of Court and judicial process. This is because, the said application was brought after the lower Court had on 17/10/2016, ordered parties to address it on the procedure to be adopted to regularize a process of that nature and as the filing of the motion on notice in question, was done by the Respondent without waiting for the lower Court to first deliver its decision of the issue it raised in that regard.

The matter in which all the written addresses identified hereinbefore were filed eventually came up before the lower Court on 15/3/2017, and parties having adopted all the processes they filed in respect of all the applications before the lower Court, the said Court reserved its ruling thereon till 26/4/2017. However, the lower Court did not deliver its ruling on the said 26/4/2017. It was delivered on 11/5/2017. See pages 155-167 of the records. Dwelling on the issue of “stamp and seal of counsel on filed processes”, the lower Court in its ruling stated on pages 163-164 of the records thus: –
“From the clear and unambiguous pronouncements of erudite jurists of our own apex Court re-produced above, it is settled that a process of Court filed and signed by a legal practitioner on which is not affixed the NBA prescribed stamp and seal could be regularized by an application for extension of time to file the process with the necessary deeming order. Accordingly, in these proceedings, the said further additional written reply filed by the judgment creditor on 1st day of April, 2016 could be regularized by an application for an extension of time with the necessary deeming order if the application is made by the judgment creditor before this Court.
In relation to the judgment creditor’s application for leave to affix the NBA seal of S.Y. Ogbodu on the judgment creditor’s further additional written address filed on 1/4/2016, in view of the conclusion reached by this Court above that the procedure to regularize a process filed and signed by counsel on which the prescribed NBA stamp and seal are not affixed is by way of an application for extension of time to file the process with the necessary deeming order, the application for leave to affix the NBA seal of S.Y. Ogbodu on the judgment creditor’s said further additional written address without a prayer for an extension of time within which to file the said additional written address cannot be appropriate. Accordingly, the said application fails and is hereby struck out…”

Apparently, guided by the decision of the lower Court as it relates to affixing of NBA stamp and seal of counsel on processes filed in a matter, in its ruling of 11/5/2017, the Respondent on 15/5/2017, again filed a motion on notice seeking for (i) an order extending the time within which the Respondent’s counsel – S.Y. Ogbodu may affix his NBA stamp and seal on the Respondent’s further additional written address already filed on 1/4/2016, till the same date, the same having been filed without the NBA seal of counsel affixed; and (ii) an order deeming the Respondent’s further additional written address already filed on 1/4/2016 as properly signed, filed and served, the appropriate filing fees having been paid. See pages 137-142 of the records.

The Appellant opposed the motion in question by filing a counter affidavit on 19/5/2017. See pages 143-144 of the records. Therein, it was deposed amongst others thus: –
“Paragraph 4
That in answer to paragraphs 4, 7, 8 and 9 of the supporting affidavit, I state that S.Y. Ogbodu Esq. did not omit to affix his prescribed NBA stamp on the said process, but rather failed to affix same.
Paragraph 5
That in further answer to paragraph 9 thereof, I know as a fact that the payment of default fees is a sine qua non in an application of this nature.
Paragraph 6
That in answer to paragraph 10, I also know as a fact that NBA stamp in itself, is part of a Court process, if such a Court process is signed and filed by a legal practitioner.
Paragraph 7
That in answer to paragraph 11 thereof, I know as a fact that to regularise a Court process signed and filed by a legal practitioner, by affixing the prescribed NBA stamp, thereof, the Rules of Court must be adhered to.

Paragraph 8
That, I also know as a fact that parties in an application of this nature, cannot by their consent extend or abridge time fixed by the provisions of the Rules of Court.
Paragraph 9
That I know as a fact as well that the Applicant, in bringing this application of this nature, time of compliance for extension of time thereto is the date of filing of the said application and which is the 15th day of May, 2017.
Paragraph 11
That I know as a fact that the Applicant, in bringing this application, is in default of 397 days, as the application seeking to extend time to regularise the Court process was filed on 15th day of May, 2017, whilst the said further additional written address was filed on 1st day of April, 2016.”

The Respondent filed a “reply to counter affidavit”. See pages 145-147 of the records. Therein, it was deposed amongst others thus: –
“Paragraph 5
That the Judgment Creditor’s further additional written address dated 31/3/2016 was filed within time on 1/4/2016.
Paragraph 6
That this application is brought to regularise the judgment creditor’s further additional written address filed within time on 1/4/16 to deem same as properly filed on 1/4/16.
Paragraph 7
That the NBA seal itself is not a Court process.
Paragraph 8
That there is nowhere in the High Court of Delta State (Civil Procedure) Rules 2009 providing for the regularisation of a Court process by affixing the NBA stamp and seal.
Paragraph 9
That this application is praying for extension of time till 1/4/16 when the Judgment Creditor filed her further additional written address and deeming same as properly filed on 1/4/2016.
Paragraph 10
That there is no rule of Court providing for default fees to be paid on NBA stamp and seal which is not a Court process.
Paragraph 12
That S.Y. Ogbodu of counsel has already paid his practicing fees as a legal practitioner qualified to practice law in Nigeria since 4/3/2016 and duly applied for one set of the NBA stamp and seal on 4/3/2016 prior to the filing of the judgment creditor’s further additional written address on 1/4/2016.
Paragraph 13
That counsel for the judgment debtor also filed a reply on point of law dated 5/4/2016 with an expired NBA stamp and seal.
Paragraph 14
That this Honourable Court obliged the judgment debtor upon the presentation of proof of payment for the NBA stamp and seal prior to the date of his filing the said judgment debtor address or reply on point of law.
Paragraph 15
That the Access Bank deposit slips showing proof of payment for the NBA stamp and seal of Mr. S.Y. Ogbodu made on 4/3/2016 prior to the date of filing the Judgment Creditor’s further additional written address on 1/4/2016 is attached as an exhibit to the affidavit in support of this application.
Paragraph16
That Mr. S.Y. Ogbodu of counsel who paid his practicing fees as a legal practitioner qualified to practice law in Nigeria since 4/3/2016 and duly applied for one set of the NBA stamp and seal on 4/3/2016 had not of his received said NBA stamp and seal as at the time the judgment creditor’s further additional written address was filed on 1/4/2016.”

Aside from the affidavits filed by parties in respect of the motion brought by the Respondent on 15/5/2017, they also filed written addresses in respect of the motion in question. See pages 148-154; and 168-172, respectively of the records.

The Respondent’s motion on notice brought on 15/5/2017, was entertained on 3/7/2017. Parties having adopted the processes (including their written addresses) they filed in respect of the said motion, the lower Court thereafter reserved its ruling till 27/7/2017. However, the ruling of the lower Court was delivered on 31/7/2017. The said ruling is on pages 175-185 of the records. Therein, the lower Court stated thus: –
“….. The judgment creditor commenced the process of execution of the said judgment on the judgment debtor when the judgment debtor filed an application for stay of execution and/or to set aside execution. In the course of filing the written addresses of the judgment creditor in the said application, the judgment creditor filed a further additional written address on the 1st of April, 2016 pursuant to the order of this Court on which the stamp and seal of counsel for judgment creditor S.Y. Ogbodu were not affixed as required by the provisions of the rules for professional conduct for legal practitioners. Consequently, counsel for the judgment debtor raised an objection to the said further additional written address.
In the course of considering the said objection, this Court called upon counsel for the parties to address this Court on the proper procedure to be adopted for regularizing a Court process on which the stamp and seal of counsel were not affixed. Thereafter, after considering the submissions of counsel for the parties this Court ruled that such a process on which counsel’s stamp and seal were not affixed could be regularized by an application for extension of time with the necessary deeming order. Ruling of this Court delivered on the 11/5/2017 refers.
It is in pursuance of the said ruling of this Court that the judgment creditor filed his application for an order of extension of time within which to affix the stamp and seal of his counsel S.Y Ogbodu on the further additional written address of the judgment creditor on 15/5/2017…”

Having set out the three issues formulated by the judgment creditor (i.e. Respondent herein) for determination in his motion on notice, and after summarising the arguments in respect of each of the said issues, the lower Court proceeded on pages 178-179 of the records, thus: –

“In the address of the judgment debtor filed on 6/6/2017, counsel for the judgment debtor A.K. Esievo formulated two issues for determination in the application viz:
(i) Whether there exists a written address in respect of this application in view of the provisions of the rules of this Court.
(ii) Whether the application before the Court is competent in law.
In his submissions on the 1st issue he raised, the judgment debtor’s counsel contended that the judgment creditor’s written address was filed out of time without an application for extension of time to file the same. Counsel urged this Court to discountenance the said written address.
In relation to the 2nd issue he raised, the judgment debtor’s counsel submitted that the judgment creditor’s application for an extension of time to affix counsel’s NBA stamp and seal on the judgment creditor’s further additional written address was incompetent in that the judgment creditor failed to pay the statutory default fees or penalties provided in the rules of this Court to be paid by an applicant who fails to file his process within the time prescribed for the filing of processes of Court by the rules of this Court. Counsel for the judgment debtor urged this Court to refuse the application.
In his reply on points of law filed on the 12th of June, 2017, the judgment creditor’s counsel contended that the judgment creditor’s written address was filed within time on 30/5/2017. Having regard to the provisions of Order 39 Rule 5 and Order 44 Rules (sic) of the High Court of Delta State Civil Procedure Rules, 2009.
In relation to the contention of counsel for the judgment debtor that the creditor failed to pay the mandatory statutory default fees or penalties, the judgment creditor’s counsel contended that the stamp and seal of counsel S.Y. Ogbodu was paid for before the further written address was filed…..”

In resolving the issue as to whether or not the further additional written address of the judgment creditor (i.e. Respondent herein) in the proceedings before it was filed out of time, the lower Court stated that the provisions of Order 39 Rule 5 and Order 44 Rule 1 of its Rules of Procedure called for examination or consideration. Having re-produced the provisions of the said rules, the lower Court proceeded on pages 182-183 of the records, thus: –
“From the clear provisions of Order 39 Rule 5 of our Rules of Court reproduced above, an applicant on whom a counter affidavit is served by the respondent has a period of five days after service of the counter within which to file his written address in the application.
By the clear provisions of Order 44 Rule 1 (a)-(d) of the High Court of Delta State Civil Procedure Rules, 2009 reproduced above it is clear that where time limited is less than five days, public holidays, Saturdays and Sunday shall not be reckoned as part of the time. Furthermore, the limited time shall not include the day of the happening of the event but commences at the beginning of the day next following.
In effect, in these proceedings, the five days allowed the judgment creditor to file his written address do not include public holidays, Saturdays and Sundays. Furthermore, the five day period begins to run on the day after the judgment creditor is served with the counter affidavit of the judgment debtors (sic).”

Having stated that there was no dispute as to when the counter affidavit of the judgment debtor (i.e. Appellant) was served on the judgment creditor (which was 22/5/2017), and having noted that Saturday and Sunday and public holiday within the period of 5 days the judgment creditor had to file his written address were to be discounted, the lower Court found as a fact that the Respondent had until 30/5/2017, to file his written address in the proceedings before it, and that the said written address filed by the judgment creditor on 30/5/2017, was filed within time.

Dwelling on the second ground of objection of the Appellant to wit: failure to pay the statutory default fees and penalty provided for in Order 44 Rule 3 of the Rules of Procedure of the lower Court, and having embarked on the interpretation of the provisions of the said rule, the lower Court on pages 184-185 of the records stated thus: –
“By the clear provisions of Order 44 Rule 3 of our Rules of Court reproduced above, the statutory default fees relate to default in doing things prescribed by the High Court of Delta State Civil Procedure Rules, 2009 or Judge.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The requirement for the prescribed NBA stamp and seal to be affixed on Court processes was not provided by the High Court of Delta State Civil Procedure Rules, 2009 but by the Rules of Professional Conduct of Legal Practitioners. In effect, the payment of statutory default fees for time extended to affix the NBA stamp and seal on the judgment creditor’s further additional address does not arise.
For these reasons stated above, I hold that the grounds for opposing the judgment creditor’s application for extension of time lacks merit and are hereby over ruled. Accordingly, the application succeeds and I make the following orders:
(i) Time is extended till 1/4/201016 for the judgment creditor to affix the NBA stamp and seal of S.Y. Ogbodu on the judgment creditor’s further additional written address already filed on the 1/4/2016.
(ii) The said further additional written address filed on 1/4/2016 is hereby deemed properly filed and served on the judgment debtor.”

Being aggrieved with part of the decision of the lower Court in its ruling delivered on 31/7/2017, the Appellant initiated the instant appeal by lodging at the registry of the said Court on 9/8/2017, a notice of appeal bearing the same date. The Appellant subsequently filed an amended notice of appeal on 27/5/2019. The process contains 2 grounds of appeal. The grounds of appeal and their respective particulars are hereunder reproduced. They read: –
“GROUND 1:
The learned trial Justice (sic: Judge) erred in law when he held that Order 44, Rule 3 of the High Court of Delta State (Civil Procedure) Rules, 2009 does not apply to the Respondent’s counsel in an application for extension of time for extension of time to affix the NBA prescribed stamp in a Court process signed and filed by the said Respondent counsel by way of payment of default fees.
PARTICULARS OF ERROR:
(a) That premised upon the decision of the trial Court on 11th day of May, 2017 which is to the effect that the proper procedure to regularize a process signed and filed by a legal practitioner before Court without affixing his NBA prescribed stamp is by an application for extension of time with a consequential deeming order, the Respondent ought to have paid default fess in compliance with the provisions of Order 44, Rule 3 (1) & (2) of the High Court of Delta State (Civil Procedure) Rules, 2009 and the High Court of Delta State Practice Direction (No. 1) 2016, page 72, paragraph 3.
(b) That by the provisions of Order 44, Rule 3(1) & (2) of the High Court of Delta State (Civil Procedure) Rules, (supra), under which the Respondent brought an application for extension of time to affix the NBA prescribed stamp of his counsel, mandatorily provides for payment to Court an additional fees of N100.00 (One hundred naira) per day and also cost in the sum of N100.00 (One hundred naira) to the opposing party for each day of such default at the time of compliance.
(c) That the Respondent, having brought an application for extension of time under Order 44, Rules 1 and 3 of the High Court of Delta State (Civil Procedure) Rules (supra), cannot under the law choose to ignore the mandatory provision of Order 44, Rule 3(1) & (2) thereof which is a condition precedent for the Honourable Court to exercise its discretion to grant an application of that nature.
GROUND 2:
That learned trial Justice (sic: Judge) erred in law when he held on 31st day of July, 2017, extending time retrospectively to 1st day of April, 2016, for Respondent to affix his NBA prescribed stamp on his further additional written address, thereby exempting the Respondent from paying the default fees against the provision of the Law.
PARTICULARS OF ERRORS:
(a) By the provisions of Order 44, Rule 3, (1), (2) & (3) of the High Court of Delta State (Civil Procedure) Rules, 2009, which regulates procedures of Court in Delta State and under which the application was brought, the Respondent ought to have paid default fees as at the time he brought the application for extension of time to affix his NBA prescribed stamp on his Court processes.
(b) By the provision of the High Court of Delta State Practice Direction (No. 1) 2016, Page 72, Paragraph 3, which was interpreted Order 44, Rule 3(1) & (2) thereof, provided to the effect that time of compliance in an application for extension of time, is the time/day the said application was so filed.”

The reliefs sought by the Appellant as contained in the amended notice of appeal are: –
“(a) An order setting aside the decision/ruling of the lower Court which ordered that time is extended till 1st day of April, 2016 for the Respondent to affix his counsel NBA prescribed stamp on his further additional written address, without fulfilment of condition precedent, by way of payment of default fees.
(b) An order of this Honourable Court compelling the Respondent to comply with the conditions precedent set down by the express provision of Order 44, Rule 3 of the High Court of Delta State (Civil Procedure) Rules, (supra), before the further additional written address of the Respondent can be adjudged to be properly before the trial Court.”

The appeal was entertained on 1/6/2020. A.K. Esievo, leading learned counsel adopted and relied on the Appellant’s brief of argument dated 24/6/2019 and filed on 25/6/2019, as well as Appellant’s reply brief of argument dated 4/5/2020 and filed on the same date, in urging the Court to allow the appeal.

In the same vein, Professor O.K. Edu, learned counsel for the Respondent adopted and relied on the party’s brief of argument dated 11/3/2020 and filed on 17/3/2020 pursuant to the order of this Court made on 10/3/2020, in urging that the appeal be dismissed with punitive costs.

It is pertinent to state that before learned counsel for the Appellant proceeded to argue the appeal, the Court had cause to observe that ex-facie there was no serious issue involved in the instant appeal given its subject matter (which is, exercise of discretion by the lower Court in a matter before it) and further reminded leading learned counsel that the current disposition of the Courts, is to visit frivolous appeals, with heavy costs. Furthermore, the Court prior to the argument of the appeal, pointedly asked leading learned counsel for the Appellant, whether the notice of appeal upon which the appeal was founded was lodged as of right or with leave of Court; and he responded that “it was filed as of right”. He stated most emphatically that leave of Court to appeal is not a condition precedent.

Two issues were formulated for the determination of the appeal in the brief of argument of the Appellant. The issues are: –
“(1) Whether the learned trial Judge was right in law when he held that Order 44, Rule 3, of the High Court of Delta State (Civil Procedure) Rules, 2009 as it relates to payment of default fees does not apply to application for extension of time to affix the NBA prescribed stamp on a Court process, in view of the provisions of the Rules of Professional Conduct for Legal Practitioners? GROUND 1.
(2) Whether the learned trial Judge was right in law when he extended time retrospectively to 01/04/2016 for the Respondent to affix his NBA prescribed stamp on his Court process, whereas by the express provision of Order 44, Rule 3 of the High Court of Delta State (Civil Procedure) Rules, 2009, coupled with the provision of Delta State Practice Direction No. 1, 2016, is to the effect that time of compliance in doing an act in default, is the time of filing the application and not when the substantive process was filed? GROUND 2.”

A lone issue was formulated for the determination of the appeal in the brief of argument of the Respondent. The issue is: –
“Whether Order 44 Rule 3 of the High Court of Delta State (Civil Procedure) Rules 2009 provide for payment of default fees in respect of an omission by counsel in affixing Nigerian Bar Association (N.B.A.) stamp and seal on a Court process” The position of the Appellant in his brief of argument in respect of the 2 issues he formulated for the determination of the appeal, is that the lower Court was wrong in the manner it resolved the Respondent’s motion for the affixation of the NBA stamp and seal of his counsel on the further additional written address that was filed on 1/4/2016. This is because, the Appellant is of the view that the lower Court wrongly interpreted the provisions of Order 44 Rule 3 and thereby was wrong not to have ordered the payment of default fees and costs as provided in the Rules of Procedure of the said Court. In arguing the issues, the Appellant gave his own version of what he considered to be the appropriate or correct interpretation the lower Court should have accorded the provisions of its Rules of Procedure applicable to the indulgence sought by the Respondent. The Appellant restated many canons of interpretation and cited many decided cases in aid of his submissions.

The stance of the Respondent is that the lower Court was right in the orders it made in respect of his motion on notice, it entertained. That NBA stamp and seal are not and cannot be Court processes. The Respondent also submitted to the effect that it is not the intendment of the Rules of Professional Conduct for monetary or default fees to be paid. The Respondent equally relied on many canons of interpretation and cited many decided cases in support of his position. The Respondent also dwelled on the issue of the omission to affix stamp and seal and submitted to the effect that there is no hard and fast rule in regularizing such process of Court. In concluding, the Respondent urged the Court not to let technical rules of procedure defeat the justice of the instant case.

The Appellant in his reply brief of argument responded to some of the submissions by the Respondent as contained in his brief of argument. It is however worthy to note that a reply brief of argument in which an appellant openly engages in the reiteration of the submissions in his appellant’s brief, is of no use and should be discountenanced by the Court. This is because the word “reiterate” or “reiteration” (which simply means the act of repeating over and again (or an instance thereof), eloquently connotes the re-argument of matters already argued by the Appellant in his brief of argument. The reply brief of the Appellant would however not be discountenanced totally as he devoted a portion of it to what he considered to be the inappropriateness of the lone issue formulated by the Respondent for the determination of the appeal. It is the position of the Appellant in the main that the issue of omission to affix stamp was not a ratio decidendi in the decision of the lower Court. That it is also not an issue that has arisen from the grounds of appeal. That the Respondent having not lodged a cross-appeal or respondent’s notice cannot raise the issue in question without the leave of this Court, as it is nothing but a new issue.

I have hereinbefore disclosed that, the Court at the hearing of the appeal questioned the competence of the said appeal. This, the Court did as it was clear to it, that the appeal is not against any decision that has been reached by the lower Court in the motion on notice brought by the Appellant on 15/5/2014, seeking for the stay, setting aside and/or suspension of the writ of execution of the judgment of the lower Court delivered on 21/12/2011. Indeed, in my considered view, it is clear as crystal from the very detailed narration undertaken hereinbefore, that the lower Court has not given its ruling in the said motion brought by the Appellant, and that the instant appeal is in respect of the decision of the lower Court in a ruling delivered on 31/7/2017, in a motion on notice brought by the Respondent in the proceedings commenced by way of motion by the Appellant wherein he seeks for the setting aside of step(s) taken by the Respondent to execute judgment delivered in his favour. In other words, the instant appeal is against the interlocutory decision of the lower Court in respect of the regularisation granted the Respondent by the said Court to enable him – Respondent, use his further additional written address in support of his position in the motion on notice of 15/5/2014, brought by the Appellant.

I am of the considered view that it is undeniable, that the lower Court is by its Rules of Procedure endowed with enormous discretionary powers when it comes to the actualisation of justice in the enforcement or application of its said Rules. This much is clear from the reading of the totality of the Rules of Procedure of the lower Court, particularly, the provisions of Order 1, Order 5, Order 44 (around which the instant appeal revolves), and Order 49 (which deals with costs). These Orders and relevant rules thereunder, read thus: –
“ORDER 1
APPLICATION AND INTERPRETATION
1. APPLICATION
(1) These Rules shall apply to all proceedings commenced after the coming into effect of these Rules. All part-heard matters may continue to be heard under these Rules where they can conveniently be applied.
(2) Objectives of the Rule
Application and interpretation of these Rules shall be within the set objectives for making these Rules namely: To enable the Court with the assistance of the parties to deal with cases fairly and justly to achieve substantial justice. Dealing with cases include:
(a) Speedy trials
(b) Ensuring that litigants are on equal footing
(c) Reducing the overall cost of litigation
(d) Dealing with cases in ways that are proportionate to the complexity of the issues and the resources of the parties.
(e) Using the Court’s competence effectively.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“ORDER 5
1. EFFECT OF NON-COMPLIANCE
(1) Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.
(2) The Court may on the ground that there has been such a failure as mentioned in Sub-rule (1) and, on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or Order therein, or it may exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.”
“ORDER 44
Computation of time.
2. No enlargement of time by consent of parties
(1) The parties may not by consent enlarge or abridge any of the times fixed by the provisions of these Rules for taking any step, filing any document, or giving any notice.
3: Court may extend time
(1) The Judge may, as often as he deems fit, either before or after the expiration of the time appointed by these Rules or by any judgment, or order of the Court extend or adjourn the time for doing any act or taking any proceedings.
Provided that any party who defaults in performing an act within the time authorized by the Judge or under these Rules, shall pay to the Court an additional fee of N100.00 (one hundred Naira) and also cost in the sum of N100.00 (one hundred Naira) to the opposing party or each of the opposing parties for each day of such default at the time of compliance.”
“ORDER 49: COSTS
3. Cost between parties
In every suit, the costs of the whole suit, and of each particular proceeding therein, and the costs of every proceeding in Court, shall be in the discretion of the Court as regards the person by whom they are to be paid.
4. Power of Court
The Court shall not order the successful party in a suit to pay to the unsuccessful party the costs of the whole suit, although the Court may order the successful party, notwithstanding his success in the suit to pay the costs of any particular proceeding therein.
6. Court may determine amount of costs
When the Court adjudges or orders any costs to be paid, the amount of such costs shall be, if practicable, summarily determined by the Court at the time of making the judgment or order, and named therein.
7. in fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been put in establishing his claim, defence or counter-claim, but the Court may take into account all the circumstances of the case.”

Having regard to the grounds of appeal, the respective particulars of the said grounds of appeal, and the submissions of the Appellant in his briefs of argument, the grouse of the Appellant is against the perceived infraction or non-compliance by the lower Court with the provisions of Order 44 of its Rules as they relate to default fees due to the Court and costs due to the Appellant for the non-affixation of the NBA stamp and seal of learned counsel for the Respondent on the further additional written address of the Respondent at the time or point of the filing of the same on 1/4/2016.

I have hereinbefore, referred to the motion brought by the Respondent in respect of the affixation of his counsel’s NBA stamp and seal. In the supporting affidavit of the said motion, it was deposed to the effect that the Respondent’s counsel omitted to attach his stamp and seal and/or evidence of payment for the same to the further additional written address filed on 1/4/2016. In his counter affidavit, the Appellant deposed to many things he claimed to know as facts. The inference deducible from the counter affidavit of the Appellant is that, the non-affixing of the NBA stamp and seal in question by counsel for the Respondent was not an act of innocent omission or attributable to negligence, but a deliberate act as he did not have the items and that the non-affixation of the said NBA stamp and seal was calculated to achieve some untoward purpose.

It cannot be disputed that it is the exercise of the discretionary powers of the lower Court under its Rules of Procedure in a motion taken out in the motion brought by the Appellant that the instant appeal is all about. The instant appeal is undoubtedly an interlocutory appeal, challenging the correctness of the decision of lower Court reached on 31/7/2017, in not ordering payment of default fees and costs in favour of the Appellant in the exercise by the lower Court of its discretionary powers in relation to extending time to do the needful, as sought by the Respondent.

In the instant appeal, leading learned counsel for the Appellant as it has been noted hereinbefore, stated that there was no condition precedent to be satisfied or fulfilled to lodge the same; i.e. an appeal which in effect challenges the exercise of discretion by the lower Court in respect of the Respondent’s application. I am of the considered view that leading learned counsel has clearly misapprehended the position of the law in respect of an appeal, which is essentially against the exercise of discretion by the lower Court in maintaining this stance. The Appellant in my considered view cannot veil or cover the fact that his appeal is against the exercise of discretion by the lower Court, by playing down or suppressing the facts in respect of which parties were not in agreement in the affidavits they filed in the motion for affixing the NBA stamp and seal of the Respondent’s counsel to the further additional written address of the Respondent. The fact as to whether or not, the learned counsel to the Respondent in not affixing his NBA stamp and seal to the further additional written address he filed, acted deliberately as he did not have or possess at all, the said NBA stamp and seal at the point of filing the process in question, and that this was not due to negligence or inadvertence on his part, called for resolution having regard to the affidavit evidence before the lower Court. Though, the lower Court did not avert its mind to the fact that the circumstances that led to the non-affixation of the NBA stamp and seal of the learned counsel for the Respondent were glaringly put in issue by the Appellant and never made a finding on the issue, in the exercise of its discretion to regularise the omission in question, this situation does not derogate from the position of the law that the instant appeal being an interlocutory appeal against the decision of the lower Court in its ruling delivered on 31/5/2017, is one that raised issues of mixed law and fact. In other words, the grounds of appeal and particulars filed by the Appellant though cunningly concealing that the circumstances that resulted in the non-affixation of the NBA stamp and seal of the Respondent’s counsel called for resolution before the lower Court could have properly exercised its discretion in respect of the reliefs or orders sought, this has not in the least changed the nature of the appeal before this Court and which being one challenging the exercise of discretion by the lower Court, the Appellant could not have properly initiated without first procuring the leave of the lower Court or that of this Court.

As the Appellant never satisfied this condition precedent, as deducible from what the Appellant’s leading learned counsel told the Court when asked whether the appeal was one that required leave of Court in order to initiate the same, I hereby find the said appeal incompetent and liable to be struck out.
Despite the conclusion above, and in the event I am wrong that the instant appeal is incompetent, I consider it expedient to dwell on the merit of the appeal.

The Appellant, it would appear, totally lost sight of the position of the law in respect of an appeal against the exercise of discretion by a Court from which an appeal emanates. The settled position of the law in this regard, is that it is not in all cases that an appellate Court will interfere with the exercise of discretion by a trial Judge or lower Court simply because it did not favour one of the parties before it. That an appellate Court will not interfere in the absence of proof that the discretion was wrongly exercised in favour of the winning party. It is also settled that an appellate Court should be wary of setting aside the exercise of discretion by the lower Court as the appellate Court is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the Judge or lower Court except where the appellate Court or tribunal reaches a clear conclusion that there has been a wrongful exercise of discretion, that no weight or no sufficient weight was given relevant consideration, or that the exercise was done mala fide, arbitrarily, illegally, or either considering extraneous matter or, based on speculated fact(s). See the case of IKENTA BEST (NIG) LTD V. ATTORNEY-GENERAL, RIVERS STATE (2008) LPELR-1476(SC).

In the instant appeal, I do not understand the grouse of the Appellant to be that, the lower Court was wrong in granting the indulgence the Respondent’s counsel, sought in respect of affixing his NBA stamp and seal to the Respondent’s further additional written address filed on 1/4/2016. In other words, the grouse of the Appellant as I understand it, is not that the lower Court was wrong in exercising its discretion in granting the orders sought by the Respondent in his motion because there was no reason at all or inadequate reasons placed before the said Court to warrant the granting of the orders sought by the Respondent. This much would appear to be clear as crystal having regard to the reliefs sought by the Appellant in the instant appeal. The reliefs which have been re-produced hereinbefore, are to the effect that the lower Court granted the orders for the regularisation for the affixation of the NBA stamp and seal of the Respondent’s counsel without the said counsel fulfilling a condition precedent, to wit: of payment of default fees. Hence, the Appellant having first sought for an order setting aside the decision/ruling of the lower Court which ordered that time is extended till 1st day of April, 2016 for the Respondent to affix his counsel NBA prescribed stamp on his further additional written address, thereafter also sought for the order of this Court compelling the Respondent to comply with the conditions precedent, set down by the express provision of Order 44, Rule 3 of the Rules of Procedure of the lower Court before the further additional written address of the Respondent can be adjudged to be proper before the said Court.

It is clear from the portion of the ruling of the lower Court that has been re-produced hereinbefore, that the lower Court granted the Respondent the orders he sought in the motion to regularise the non-affixation of his counsel’s NBA stamp and seal after the said Court had specifically found that the payment of statutory default fees relate to default in doing things prescribed by its Rules of Procedure and that the requirement for the affixing of NBA stamp and seal on a process or processes filed or intended to be filed at the lower Court is not provided for by the Rules of Procedure of the said Court but by the Rules of Professional Conduct. That the payment of statutory default fees for time extended to affix the NBA stamp and seal on the Respondent’s further additional address did not arise.

I am of the considered view that, there is no way this Court can come to a conclusion regarding the correctness or otherwise of the position of the lower Court as disclosed in the ruling appealed against without a consideration of the purpose or objective of the provisions of the Rules of Professional Conduct that stipulate for the affixing of NBA stamp and seal of a legal practitioner to any document prepared by such a legal practitioner.

It is not in doubt that position of the law in respect of the non-affixation of counsel’s NBA stamp and seal to a process filed by him; the status of a process on which the seal in question has not been affixed; and remedial action to be taken in order to cure the non-affixation of the stamp and seal, first became topical in the case of YAKI V. BAGUDU (2015) LPELR-25721(SC) an election matter which by law is not a purely civil matter but a proceeding that is sui generis. In the case under reference judgment therein was delivered on 27/10/2015. The reasons for the judgment were delivered 13/11/2015. The Supreme Court, dwelling on the non-affixing the NBA stamp and seal of counsel, in the reasons for the judgment stated per Ngwuta, JSC; thus:-
“In his cross-appeal, the 2nd respondent raised this single issue for resolution:
“Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent”
The issue calls for application of Rule 10(1) (2) and (3) of the Rules of Professional Conduct, 2007 effective from 1st April, 2015.
The 2nd respondent placed reliance on said rule hereunder reproduced:
“Rule 10:
(1) ….
(2) …..
(3) If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in Sub-rule 2 of this rule, and in any of the capacities mentioned in Sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.”
The documents in question here purportedly signed and filed by a lawyer in his capacity as legal practitioner did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The process so signed and filed is a legal process within the intendment of Rule 10(2) of the Rules.
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that “… the document so signed or filed shall be deemed not to have been properly signed or filed.” It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) SC 521 cited by the learned silk for 2nd respondent/cross appellant. The document, in terms of the rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd respondent assumed.
It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court.
In such cases, the filing of the process can be regularised by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and it’s (sic) signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. …That the legal document is deemed not properly signed and filed is enough sanction for the breach of the rule….”

Onnoghen, JSC; (as he then was) in his “contributory reasons for judgment” stated thus:

“The issue formulated by learned senior counsel for the 2nd respondent/cross appellant, A.J. OWONIKOKO, SAN in the brief of argument filed on 7/10/15 is as follows: –
‘Whether the Court of Appeal was right to hold that failure of a legal document to have affixed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent (Grounds 1 and 2).”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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…..
The next question has to do with the legal effect of non compliance as stated in Sub-rule (3) of Rule 10, inter alia “… the document so signed or filed shall be deemed not to have been properly signed or filed.” It must be borne in mind that the provision of the Rules of Professional Conduct, 2007 are no substitute for substantive laws being a subsidiary legislation/enactment.
What Sub-rule (3) supra is saying is that such non-compliance renders the document so signed or filed voidable that is why it is said the document is “deemed not to have been properly signed or filed.” In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. That is what My Lord, NGWUTA, JSC meant by saying that the situation is like filing a document out of time which can be subsequently remedied.
…..
However, the consequence of the said non compliance renders the document so filed voidable, not void which is subject to regularization upon application, even orally in the open Court at any stage in the proceedings involved, even on appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It should be noted that the qualification to practice law as a legal practitioner is as provided under the Legal Practitioners Act which includes being called to Bar and enrolled at the Supreme Court of Nigeria as a legal practitioner. It is that qualification that entitles a legal practitioner to sign/frank any legal document either for filing in a Court of law in a proceeding or otherwise, see Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 etc. The above requirements constitute the substantive law on the issue.
It follows, therefore that the provisions of Rules of Professional Conduct, 2007 is directed at the Legal Practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being in the Roll at the Supreme Court of Nigeria. It therefore saves time needed for a search at the Supreme Court to determine the authenticity of the claim of the legal practitioner for being so qualified. The provisions of the rules, I must repeat, is not a substitute for the substantive law on the matter that is why non-compliance thereto renders the document involved/concerned voidable, not void or a nullity. In the circumstance it is only fair to the client, the legal profession and in the interest of justice that the legal practitioner involved be given opportunity to prove his call to Bar and enrolment at the Supreme Court of Nigeria by affixing his seal to the document involved at any stage in the proceeding including appeal or whenever an objection to the authenticity of the document is raised under the provisions of the said Rules of Professional Conduct, 2007. In the instant case, there was no application to regularize the documents objected to. The learned counsel for appellant/1st cross respondent to this cross appeal treated the provisions of the rules with disdain and/or contempt.
It is for the above reasons that the cross appeal of the 2nd respondent was allowed.”

In his own “contributory reasons for judgment”, Rhodes-Vivour, JSC; stated thus: –
“On the 27th day of October, 2015 we heard this appeal and my learned brother Onnoghen JSC delivered judgment on the same day. The appeal was adjourned to the 13th day of November, 2015 to enable this Court give reasons for the judgment. I read in draft, reasons for the judgment given by my learned brother, Ngwuta, JSC. I agree with the reasons given by His lordship. I would, though say a thing or two on the issue raised in the 2nd respondent’s cross-appeal. The issue is
Whether the Court of Appeal was right to hold that failure of a legal document to have affirmed to it a stamp/seal as mandated by Rule 10(1) of the Rules of Professional Conduct did not carry with it the consequence of rendering such legal document incompetent.
Rule 10(1), (2) and (3) of the Rules of Professional Conduct, 2007 state that:
“(1) ….
(2) …
(3) …
These provisions are designed to check and stop the alarming influx into the profession of fake lawyers masquerading as genuine legal practitioners.
In SC.663/2015 Mega Progressive Peoples Party v. INEC & 3 Ors. decided by this Court on the 12th of October, 2015, on the issue of affixing seal, stamp to legal documents etc, this Court said that:
“Failure to affix the Nigerian Bar Association stamp cannot invalidate processes filed in Court.
The clear interpretation of the above is that processes without the Nigerian Bar Association stamp etc are valid.

Is there a conflict with the decision in this appeal?
In this appeal this Court says that legal processes without stamp or seal are voidable. That is to say such documents are deemed not to have been properly signed and not that they are invalid. Such documents are redeemed and made valid by a simple directive by the Judge or the relevant authority at the time of filing the voidable document for erring counsel to affix stamp and seal as provided for in Rule 10 of the Legal Practitioners Act.
The 2nd respondent cross-appeal was allowed because an objection to the validity of the process, it being without stamp, etc was made, and it was not rectified. It becomes abundantly clear that there is no conflict between SC.665/2015 and this appeal. This Court has remained consistent.”
The Supreme Court had cause to again dwell on the issue of the non-affixing of NBA stamp and seal on a Court process in the case of NYESOM V. PETERSIDE (2016) LPELR-40036(SC); another election matter that is sui generis. The appeal was entertained on 27/1/2016 and Kekere-Ekun, JSC; after hearing submissions from learned counsel pronounced judgment allowing the appeal and adjourned till 12/2/2016, the delivery of the reasons for the judgment. In the reasons for judgment, the Supreme Court per Kekere-Ekun, JSC; stated thus: –
“With regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this Court in: Gen. Bello Sarkin Yaki v. Senator Abubakar Atiku Bagudu in SC.722/2015 delivered on 13/11/2015 when this Court held that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. It is noteworthy that the issue was raised for the first time at the hearing of the appeal. Whereupon, learned senior counsel, Chief Akin Olujinmi, SAN made an oral application to affix his stamp and seal on the petition. Paragraph 53 (2) of the First Schedule provides that an application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect.
I am of the view that the issue was raised too late in the day and cannot, at this stage vitiate the petition. That would amount to enthroning technicality at the expense of substantial justice. See: Abubakar Vs. Yar’Adua (2008) 1 SC (Pt. II) 77 @ 122 lines 25 – 30,
These issues are accordingly resolved against the appellant.”
I am very aware that the instant appeal is not against the ruling of the lower Court delivered on 11/5/2017 and in which the said Court clearly gave the impression that the Nyesom case (supra) had overruled the decision in the Yaki case particularly the position of Onnoghen, JSC; (as he then was) in the said Yaki case, and thereby came to the conclusion that:
“…… it is settled that a process of Court filed and signed by a legal practitioner on which is not affixed the NBA prescribed stamp and seal could be regularised by an application for an extension of time to file the process with the necessary deeming order. Accordingly, in these proceedings, the said further additional written reply filed by the judgment creditor on the 1st day of April, 2016 could be address regularized by an application for an extension of time with necessary deeming order if the application is made by the judgment creditor before this Court”
I am however of the firm view that the case of WAYO V. NDUUL (2019) 4 NWLR (Pt. 1661) 60, and in which judgment was delivered on 9/6/2017, clearly shows that the position of Onnoghen, JSC; (as he then was) as quoted hereinbefore, was never jettisoned by the decision of the Supreme Court in the Nyesom case. This is aside, from the fact that by the use of the word “could” by the lower Court in its ruling delivered on 11/5/2017, the said Court cannot be said to have laid down the principle that it was only by filing a formal application for extension of time and a deeming order that a process not bearing the NBA stamp and seal of a party’s counsel at the time of its filing is regularisable. In the same vein, I simply do not understand Kekere-Ekun, JSC to have expressly stated in the Nyesom case that non-affixation of NBA stamp and seal is regularisable “only” by the filing of a formal application and the seeking of a deeming order, when it is appreciated that the word his lordship used in the said case was “can” and not “must” or the word “shall”. I cannot but say that the word “can” and “could” are synonymous in meaning depending on the context in which they are used and that it cannot be said that the use of the word “can” by the Supreme Court in both the Yaki case and Nyesom case, was due to a lack of comprehension by the said Court of simple English words. It is as if his lordship Onnoghen, JSC; as he then was, had seen into the future that some smart aleck or wise guy could always interpret the word “can” out of context that he went on in his contributory reasons for judgment to express or explain what he considered his lordship Ngwuta, to mean when he stated thus: –
“In such cases, the filing of the process can be regularised by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and it’s signing and filing regularised by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law. Since this was not done, the Court cannot take cognizance of a document not properly filed and the filing not regularized …”

The issue formulated for the determination of the appeal by the Respondent has been re-produced hereinbefore. It is as to whether or not the Rules of Procedure of the lower Court provide for the payment of default fees in respect of an omission by counsel in affixing the NBA stamp and seal on a Court process. It is in arguing the issue as formulated by him that the Respondent dwelled on whether the Rules of Professional Conduct intended to impose sanction for non-compliance on the issue of stamp and seal and submitted that the lower Court was right in its holding in the ruling appealed that NBA stamp and seal is not and cannot be a Court process that comes under the purview of the Rules of Procedure of the said Court and further argued that there is no hard and fast rule regarding the regularisation of such a process and relied on the pronouncement of Onnoghen, JSC; (as he then was) in the Yaki case.

I am aware that the stance of the Appellant in his reply brief on the issue of omission to affix stamp and seal is that it was not a ratio decidendi in the ruling appealed against and that the Respondent cannot properly raise the issue as he has not appeal against any part of the ruling of the lower Court delivered on 31/5/2017, and/or did not file a respondent’s notice for him (Respondent) to have properly raised the issue to form part of his singular issue for determination. All I can say in respect of the position of the Appellant as captured above, is that he would appear to have lost sight of the fact that the lower Court undisguisedly incorporated its ruling of 11/5/2017, into its ruling now appealed against and was clearly influenced by the position it had taken on 11/5/2017, in coming to its decision granting the orders sought by the Respondent. This much in my considered view, is clear from what the lower Court stated on pages 176-184 of the records which reads thus: –
“In the course of considering the said objection, this Court called upon counsel for the parties to address this Court on the proper procedure to be adopted for regularizing a Court process on which the stamp and seal of counsel were not affixed.

Thereafter, after considering the submissions of counsel for the parties this Court ruled that such a process on which counsel’s stamp and seal were not affixed could be regularized by an application for extension of time with the necessary deeming order. Ruling of this Court delivered on the 11/5/2017 refers.
It is in pursuance of the said ruling of this Court that the judgment creditor filed his application for an order of extension of time within which to affix the stamp and seal of his counsel S.Y Ogbodu on the further additional written address of the judgment creditor on 15/5/2017. …..
By the clear provisions of Order 44 Rule 3 of our Rules of Court reproduced above, the statutory default fees relate to default in doing things prescribed by the High Court of Delta State Civil Procedure Rules, 2009 or Judge.
The requirement for the prescribed NBA stamp and seal to be affixed on Court processes was not provided by the High Court of Delta State Civil Procedure Rules, 2009 but by the Rules of Professional Conduct of Legal Practitioners. In effect, the payment of statutory default fees for time extended to affix the NBA stamp and seal on the judgment creditor’s further additional address does not arise.
For these reasons stated above, I hold that the grounds for opposing the judgment creditor’s application for extension of time lacks merit and are hereby over ruled. Accordingly, the application succeeds and I make the following orders:
(iii) Time within is extended till 1/4/201016, for the judgment creditor to affix the NBA stamp and seal of S.Y. Ogbodu on the judgment creditor’s further additional written address already filed on the 1/4/2016.
(iv) The said further additional written address filed on 1/4/2016 is hereby deemed properly filed and served on the judgment debtor.”

It would therefore appear that, whether or not the Appellant has rightly conceived that the two issues which he nominated for the determination of the instant appeal have not brought to the fore, the proper manner or procedure to be adopted in the affixing of the NBA stamp and seal of a counsel who did not affix the same at the time of filing a Court process, that very issue or question is one which this Court can properly consider in coming to its decision in the instant appeal, particularly against the backdrop of what the purpose of affixing counsel’s NBA stamp and seal is designed to serve. This is more so as Appellant’s issue 1 in my considered view is sufficiently elastic or broad to accommodate the said question which the lower Court introduced into its decision on appeal. In any event, all that I have said hereinbefore, regarding the position of the lower Court in respect of how a counsel could have the non-affixation of his NBA stamp and seal on a process filed by him is actually not to overrule or set aside the decision of the said Court in its ruling of 11/5/2017, but only to show that the lower Court had a poor understanding of the decisions of the Supreme Court in the cases of Yaki and Nyesom (both supra) but that it corrected itself as it were, given the outcome of the Respondent’s motion on notice that it entertained. This is more so as both Onnoghen, JSC (as he then was) and Rhodes-Vivour, JSC; in their contributory reasons for judgment as re-produced hereinbefore, clearly brought out the purpose the provisions of the Rules of Professional Conduct relating to affixation of counsel’s NBA stamp and seal, is to serve.
This Court like the lower Court has in its 2016 Rules provisions relating to payment of fees for lateness in filing of a process or processes stipulated to be filed within specified time periods, in appeals before it. The rule of this Court in question, however does not provide for the payment of fees in any sum to the adversary of the party that has defaulted in the filing of any process in an appeal within the specified periods. This is unlike the Rules of Procedure of the lower Court in which there is such provision. The attitude of this Court in respect of the affixation of NBA stamp and seal to any process filed by a legal practitioner within time, is that such NBA stamp and seal, are always allowed to be affixed on/to the process or processes in question upon the issue being raised and once the defaulting party or its counsel produces his current NBA stamp. It has never been the attitude of this Court to require that a formal application be brought to regularise the lapse in or of the non-affixation of counsel’s NBA stamp and seal to a process that was filed within time periods provided for by the Rules of this Court and a fortiori this Court has never ordered that penalty meant for late filing of a process or processes be paid in respect of affixing counsel’s NBA stamp and seal to a process filed within the time provided for its filing under its Rules, notwithstanding, that the Rules of Professional Conduct has declared such a process as having not been properly filed.

This no doubt, is in compliance with the position of the Supreme Court as enunciated by Onnoghen, JSC (as he then was) in the Yaki case. In the same vein, the practice in this Court in respect of any process requiring the affixation of the NBA stamp and seal of counsel when an expired NBA stamp and seal of counsel is affixed to such a process is that such a process is struck out with the attendant result that it is in such a situation that a defaulting counsel must necessarily bring a formal application for extension of time within which to file the process that was struck out and with counsel of course affixing his current NBA stamp and seal to the same. The affixation of NBA stamp and seal of counsel to a process or processes filed in an action without counsel’s NBA stamp and seal being affixed at the point of filing, therefore has to be appreciated from two perspectives. The first is, whether it is on a process that has been filed within time (but which by the provision of Rule 10(3) of the Rules of Professional Conduct shall be deemed not to have been properly signed or filed), that is in issue. The second is, where the process in question and a fortiori the NBA stamp and seal affixed thereon was filed outside the time provided by the rule of Court for the filing of the process in question. I am of the considered view that, what is obvious in the first situation is that a process filed within time (but which Order 10(3) of the Rules of Professional Conduct deems as having not been properly filed) attaches to the act or omission of the counsel filing the said process, to have done the needful at the time of filing the process and it is that act or omission that has to be rectified. The rectification cannot extend to regularising the filing of the process itself inasmuch as it is not that the process is to be filed afresh. This cannot but be so, as it would simply be an incongruity to seek for an extension of time within which to file a process which in the first place has been filed within time without a corresponding order for its re-filing having not affixed the required NBA stamp and seal.
In the instant application the Respondent did not seek for an order suggestive of the fact that he was seeking for the regularisation of the lateness in the filing of his further additional written address. What he sought for, was for an order extending the time till 1/4/2016 (the very date on which he filed the process within time) when his counsel may affix his NBA stamp and seal; and a deeming order. I am therefore of the considered view that, against the backdrop of the fact that what was being sought to be perfected or remedied was not the lateness in the filing of the Respondent’s further additional written address (which is the process of the lower Court that a time frame was stipulated for its filing under the Rules of Procedure of the lower Court) but an act that his counsel ought to have done at the time or at the point of filing the process in question; and under a totally different set of Rules, it becomes inconceivable that the Civil Procedure Rules of the lower Court can be made applicable to the failure of learned counsel for the Respondent to have affixed his NBA stamp and seal on the further additional written address to the extent that failure to have done this at the time or point of filing the process in question, can attract the payment of default fees as in the case of a process or processes not filed within the time periods as provided for under the Rules of Procedure of the lower Court. The purpose of the Order 10(3) of the Rules of Professional Conduct, is to make a counsel discharge his financial obligation to the NBA to which he belongs by paying his practising fee and using the Court to compel compliance in cases relating to Court processes in matters before the Courts. It is not to create an additional avenue to the Courts to make more or additional money outside the filing fee and default fees payable in respect of a process or processes filed out of time pursuant to the rules of Court. And definitely, it cannot be imagined that the Rules of Professional Conduct in question is/are designed to make money by way of costs available to the adversary of the party whose counsel has defaulted in affixing his NBA stamp and seal at the point of filing the process in question. The provisions of the Rules of Professional Conduct in question, are designed to make money available into the coffers of the NBA, not pocket of individual lawyers. The lower Court in my considered view and despite the view that I have expressed that it was wrong in portraying that the bringing of a formal application was the only means by which a counsel can have his NBA stamp and seal affixed on a process filed within time, was correct in the position it held to the effect that the affixation of NBA stamp and seal on such a process was not a situation provided for under its Civil Procedure Rules.

The position the Appellant has held on to albeit wrongly in my considered view, was clearly fuelled by the desire to have awarded to him, costs of N100.00 per day of default of the filing of a process which the Rules of Procedure of the lower Court has given a time frame for its filing. I cannot but say that the instant appeal is a clear indication that, no matter the best intentions of the maker of the Civil Procedure Rules of the lower Court in providing monetary compensation for the other side in an application to regularise the late filing of a process, this is a recipe against the expeditious dispensation of justice. I am of the opinion that the Attorney-General of Delta State should bring to the attention of the Chief Judge of Delta State how the entitlement of N100.00 per day under Order 44 Rule 3 if not restricted to the coffers of Government only, can militate against expeditious disposal of matter before the lower Court despite the provisions of Order 1 of the said Rules as most parties would invariably not take steps to wake up their adversary when in default of any step to be taken under the said Rules, but will just remain satisfied that the longer it takes, the more money that will accrue to them. I am of the strong view that the traditional position of awarding costs upon the success of an application where the same is not opposed, should be sufficient in assuaging whatever an adverse party has suffered when the indulgence of the Court is sought to regularise the lateness in filing a process under its rules.

In the final analysis, and flowing from all that has been said hereinbefore is that, the instant appeal would have been dismissed, if it had been found to be properly initiated. However, as I had earlier found that it was not, and therefore, incompetent, the appeal is hereby struck out.

Costs in the sum of N200,000.00 to be payable by leading learned counsel for the Appellant, is awarded to the Respondent. This is because, leading learned counsel for the Appellant was clearly tactless in bringing the appeal and proceeding to argue the same after the Court had taken time to steer him aright pro to the hearing of the appeal but alas or regrettably, to no avail.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft before now, the lead judgment just delivered by my learned brother Ayobode Olujimi Lokulo-Sodipe, JCA and I agree that the appeal be dismissed.

The Appeal against the exercise of the discretion of the Court in extending time for the filing of the Respondent’s further additional written Address is incompetent, as it was not brought by leave, being an appeal against the exercise of the discretionary power of a Court.
See in this regard Saraki Vs. Kotoye.

Indeed, the affixing of the NBA prescribed stamp of counsel is not a condition precedent to the filing of an application for extension of time to file any process and the exercise of the Court’s power or discretion under the Rules of the High Court Civil Procedure relevant, i.e Order 44 Rule 3.
Accordingly, there was no basis and merit for the objection that a condition precedent relating to non-payment of default fees was not complied with.

The NBA practicing stamp was not a process of the Court to be filed and within a time.
Indeed, the objection strenuously taken to the exercise of the Court’s discretion even without the leave to appeal first sought and obtained, was a subtle but erroneous way of thinking that the affixation of the lawyers NBA seal requirement was an immutable requirement, that if not complied with, vitiated and made void the process(es) filed. That is not the law; the apex Court has declared that the non fixture of the legal practitioner’s seal and stamp simply makes the document voidable. It is an irregularity that may be cured by leave to so file or affix.
Indeed it could be allowed to be affixed, even in the Court and the proceedings may proceed; it could be allowed to be affixed upon an adjournment granted to so do, as was done in this case on application to the lower Court.
The purport and intendment of the lawyer’s seal and stamp which is to prevent impersonation of lawyers and quackery must not be made a red-herring Defence to a suit or Appeal, where the non-compliance is remedied and the Court is satisfied of the fact of the professional status of the practitioner as a counsel on the role of legal practitioners. After all, the Courts are entitled to take judicial notice of all legal practitioners enrolled to practice at the Supreme Court of Nigeria.
See Nyesom V. Peterside (2016) LPELR 40035 (SC). See also Yaki vs. Bagudu (2015) LPELR 25721 (SC).
If the stamp and seal is embosed there on a document or to be so embossed by the order or leave of Court, I fail to understand what prejudice that a party or his counsel will suffer.
Whatever is putrid and unconscionable, the Courts, as the guardian of the public conscience and morality will prevent. One of such is the stance erected by the Appellant’s counsel herein in this Appeal.
My Lord, Lokulo-Sodipe, JCA has adequately educated learned counsel and parties on the law and sufficiently called learned counsel’s attention to law, equity and conscience that I need not say more, other than to wonder whether even if any penalty was payable on default or late embossment of a lawyer’s stamp (which is not so), and whether that genre of Revenue would not have been for the Government as against the unconvingly ingenous craft of the Appellant’s counsel seeking for same for his client.

If it can’t even go to the NBA, as the Court cannot be a revenue collecting Agent of any professional body (Non-governmental), I wonder how it will be for anybody else.
By the Rule 10 (3) of the Rules of Professional Conduct 2007, “the document not signed and affixed with the lawyer’s stamp and seal shall be deemed not to have been properly signed or stamped”.
That is all. No penalty is provided in fines or fees.
What that means is that the Court is entitled to disregard it; and the party on whose behalf it was filed is entitled to seek for time or permission to file the appropriate document or process, for to refuse leave will be to unjustly foreclose him from justice and this will also amount to the Court being circumscribed in the exercise of the inherent power and jurisdiction to do justice, as the circumstances may determine.
Appeal is struck out for its incompetence and I abide the consequential order made relating to costs, therein.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO – SODIPE, JCA in this appeal. I agree with the reasoning and conclusion of my learned brother.
The appeal is unmeritorious and it is hereby struck out.
I abide by all other consequential orders in the lead judgment.

Appearances:

A.K. Esievo with G. Anukum For Appellant(s)

Professor O.K. Edu For Respondent(s)