REBOLD INDUSTRIES LIMITED V. MAGREOLA LADIPO (Practicing under the name and style of OLADIPO
(2019)LCN/12622(CA)
THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZO PARISH) v. CHIEF AMBASSADOR OLADELE AKADIRI & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/L/1242/2015
RATIO
APPEAL: WHERE THE GROUND OF APPEAL MUST ARISE
“The law is well settled to the effect that every ground of appeal must arise from and be predicated on a ratio decidendi in the judgment, being appealed against. Therefore a ground of appeal which arises out of the blues and in vacuo, is liable to be stuck down and out. The decided authorities are a basketful. Just see a few: Federal Republic of Nigeria v. Mohammed (2014) 19 WRN 1 @ 43 SC; Prince (Dr.) B. A. Onafowokan & Ors v. Wema Bank Plc & Ors (2011) 5 S. C.N.J. 266; Prof. Olufeagba & Ors v. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 S.C.N.J. 349 @ 373; Yadis Nig. Ltd v. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig Ltd v. OMPADEC (2007) 2 S.C.N.J. 218; Saraki v. Kotoye (1992) 11/12 S.C.N.J. 26 @ 42-43.” PER TOM SHAIBU YAKUBU, J.C.A.
DOCUMENT: WHERE A DOCUMENT IS NOT PROPERLY SIGNED
“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.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICE
TOM SHAIBU YAKUBU justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZO PARISH)Appellant(s)
AND
1. CHIEF AMBASSADOR OLADELE AKADIRI
2. SANDRA O. J. MBAGWU
(Trading under the name and style of Mbagwu & Co.)Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
The Lagos State High Court, holden at Lagos, in a ruling upon a preliminary objection, at the respondents’ instance, had on 30th October, 2015, struck out the name of the 2nd Defendant/Respondent and also the appellant’s statement of claim. Furthermore, the appellant’s suit was dismissed by the Court below.
The appellant had filed an action vide a writ of summons with an accompanying statement of claim and other processes on 9th June, 2015. The respondents, upon being served with the initiating processes, entered an appearance on 23rd June, 2015 with a Notice of Preliminary Objection, a statement of defence, a Counter Claim and other processes. The appellant, in responding to the Notice of Preliminary Objection, filed a counter affidavit and a written address. On 14th October, 2015, the learned trial judge, took oral addresses from counsel to both parties, who also adopted their respective written addresses, in respect of the respondents’ Notice of Preliminary Objection. In his decision, the learned trial judge, upheld the preliminary objection aforementioned and dismissed the appellant’s action. That was what gave rise to this appeal.
In order to activate the prosecution of the appeal, the appellant’s brief of argument, dated and filed on 3rd March, 2016 was by this Court, deemed filed on 28th June, 2016. On the other hand, the respondents’ brief of argument, which was filed on 21st April, 2017 was deemed by this Court, as properly filed on 5th December, 2017. At paragraph 2 of the respondents’ brief of argument, there is an indication of a Notice of Preliminary Objection, pursuant to Order 10, Rule 1 of the Court of Appeal, Rules, 2016. It says thus:
TAKE NOTICE that the Respondents herein named intend, at the hearing of this appeal, rely on the following preliminary objection whereof is hereby given to you. The Respondents will thereon pray for the following orders of this Honourable Court: –
a) An order of this Honourable Court dismissing this appeal in its entirety as incompetent as the Notice of Appeal upon which the appeal is based was filed against a non-existent decision of the lower Court.
b) An order of this Honourable Court striking out this appeal as incompetent as the Notice of Appeal upon which the appeal is based was not properly signed and filed.
c) An order of this Honourable Court striking out Ground 1 of the Notice of Appeal as incompetent as the appropriate leave of Court required for filing such ground of appeal was not obtained prior to the filing of the said Notice of Appeal.
AND TAKE NOTICE that the grounds of the said objection are as follows:
i) The Notice of Appeal filed by the Appellant and dated 19th November, 2015 was filed, as per paragraph 2 thereof, against part of the decision of the Lagos State High Court, Coram A.O. Williams J., allowing reliefs 2 and 3 of the Respondent’s claim, when the lower Court did not consider nor in any way determine any of the Respondents’ counter-claims before it in the said decision of the Court. The said Notice of Appeal is found at pages 146-148 of the Record of Appeal.
ii) The Notice of Appeal signed and filed in this appeal is a legal process within the intendment of Rule 10(2) of the Rules of Professional Conduct, 2007.
iii) The said Notice of Appeal purportedly signed and filed by a lawyer in his capacity as a legal practitioner do not have on it a seal and stamp approved by the Nigerian Bar Association.
iv) The appeal herein was initiated by an irregular process which is not properly before the Court.
v) Ground 1 of the Appellant’s Notice of Appeal raises a new ground/point which was never raised in the Court below and no leave was obtained to file and argue the said ground.
Arguments on the preliminary objection, as canvassed at paragraphs 2.1.1 – 2.1.6 are that:
The appeal is incompetent in so far as it relates to the ruling of the High Court of Lagos State Coram A.O. Williams J., in that it purports to appeal against a decision of the said High Court wherein it allowed reliefs 2 and 3 of the Respondent’s claim. The objection is premised on the fact that an appeal must relate to the decision appealed against. The decision of the lower Court as is clearly shown on the record upheld the preliminary objection of the Respondents as prayed. There was nothing in that decision which considered or determined the Respondents’ counter-claim in the suit in any manner whatsoever. The effect of this is that there is no valid appeal before this Honourable Court as there is, no order of the lower Court granting the Respondents’ claim as Counter Claimants. Indeed, the Respondents counter-claim was not at any point heard or referred to in the aforesaid ruling of the lower Court. Respondents learned counsel also argued that paragraph 2 of the Notice of Appeal is a very crucial part of the process because it discloses and determines the part of the decision of the lower Court appealed against by the Appellant. Thus, where the Notice of Appeal as per the said paragraph 2 shows the appeal to be against a decision which was never made by the lower Court, the effect of it is that there is no valid complaint before the Court of Appeal as the said Court cannot exercise jurisdiction in vacuo. Olowokere .v. African Newspapers Ltd (1993) 5 NWLR (part 295) 583 at 599H to 600A and Iwunze v. F.R.N (2014) 6 NWLR (part 1404) 580 at 596E-F.
Regarding the second ground of objection herein, it was submitted that Rule 10 (1) (2) and (3) of the Rules of Professional Conduct, 2007 provides as follows;
“Rule 10:
(1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental apartment or Ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If, without complying with the requirements of this rule a lawyer signs or files any legal document 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.”
There is no doubt that the Notice of Appeal signed and filed in this appeal by the Appellant is a legal process within the intendment of Rule 10 (2) of the Rules of Professional Conduct, 2007. The said process is purported to have been signed and filed by one Emeka Onohwakpor Esq., a legal practitioner. Furthermore, the said Court process purportedly signed and filed by a lawyer in his capacity as a legal practitioner does not have on it a seal and stamp approved by the Nigerian Bar Association.
We refer to the said Notice of Appeal as found at pages 146-148 of the Record of Appeal. Consequently, the said process is to be deemed by this Honourable Court as not properly signed and filed. Accordingly, the Court cannot take cognizance of same. Senator Bello Sarakin Yaki (Rtd) & Anor. V. Senator Atiku Abubakar Bagudu & Ors (2015) 10-11 SC (Part 1) 46 delivered by a full Court on 13th November, 2015. It is well settled that a suit commenced by an irregular process is not competent and is liable to be struck out. This is more so where a condition precedent to the filing of the suit, such as the aforesaid precondition prescribed by Rule 10 (2) of the Rules of Professional Conduct, 2007, has not been complied with. In the circumstance; that the prerequisite to the exercise of jurisdiction to entertain the appeal herein by this Court has not been fulfilled. Madukolu.v. Nkemdilim (1962) all NLR 581 at 589 to 590.
Regarding Ground 1 of the Appellant’s Notice of Appeal, it is important to note that in response to the Respondents’ Notice of Preliminary Objection before the lower Court dated 3rd June, 2015, the Appellant filed a Written Address dated 31st July, 2015. when the said objection came up for hearing before the lower Court on 14th October, 2015 the Appellant was represented in Court on that date by a Counsel, who did not demur to the Respondents moving their aforesaid objection but made her own argument in opposition, without a whimper of protest that the objection was one which should have been taken after the filing of case management forms, and without in any way raising or arguing any point relating to Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2012. Naturally therefore, no such issue or point was considered or decided by the lower Court in the ruling appealed against herein. The Appellant has now, as an afterthought and without seeking or obtaining leave of Court, sought to raise and argue the said point on the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2012 as a fresh issue before this Honourable Court. We humbly submit therefore, that the absence of leave of Court renders the said ground 1 of the Appellant’s Notice of Appeal and the issue raised thereon incompetent and same should accordingly be struck out. Jov v. Dom (1999) 9 NWLR (Part 620) 538 at 547B-E.
For the reasons stated above, it was urged that we uphold the preliminary objection herein and dismiss or strike out the appeal as being incompetent and/or strike out Ground 1 of ‘the Appellant’s Notice of Appeal herein as incompetent, along with the first Issue for determination raised thereon by the Appellant in its Appellant’s Brief of Argument herein.
The appellant did not respond by way of an Appellant’s Reply brief to the notice of preliminary objection by the Respondents. Be that as it may, I have carefully considered the reasons proffered by the respondents’ learned counsel in respect of the preliminary objection. Firstly, I have perused the Ruling rendered by the learned trial judge on 30th October, 2015, at pages 140-145 of the record of appeal. The said decision was squarely on the determination of the defendants’ preliminary objection dated 23/6/2015 and argued by learned counsel to the respective parties who adopted their written addresses on 14th October, 2015 at pages 136-137 of the record of appeal. There is nothing in the ruling on the preliminary objection aforesaid, which touched on the defendants’ Counter Claim. Indeed, at the end of the delivery of the ruling on the preliminary objection by his Lordship on 30th October, 2015 as shown at pages 138 – 139 of the record of appeal, Mr. Okonkwo, of learned counsel to the defendants, prayed the Court to the effect that the defendants’ Counter Claim, be taken. The Court responded by saying that the whole suit had “been screened to ADR”. Hence, at page 139 of the record of appeal, his Lordship ordered that:
“The case file is remitted to the ADR Track Admin for further direction on the Counter Claim.”
Therefore, undoubtedly, there was no determination by the learned trial judge, in respect of the defendants’ Counter Claim, in his ruling of 30th October, 2015. Hence, it is not difficult for me to agree with the respondents’ contention to the effect that the appellant’s Notice of Appeal wherein, it is indicated at Paragraph 2 thereof, to wit:
“Part of the Decision complained of: part of the decision allowing reliefs 2 and 3 of the Respondent’s claim, is very misleading, because there was no decision by the learned trial judge in respect of reliefs 2 and 3 of the Respondents’ claim.
However, since paragraph 2 of the Notice of Appeal, was only an introduction to the appeal and not a ground of the notice of appeal, I am not persuaded by the respondents’ contention to the effect that there is no valid complaint before this Court for its consideration. It is the grounds of appeal which bring out the complaints against a decision of the trial Court, for the consideration of this Court, so to my mind, it is the validity of grounds of appeal, generated from a decision of the Court, that is of importance. A ground of appeal is the raison d’etaire why the decision or judgment being complained against is in the view of the appellant, considered to be wrong and for which he approached the appellate Court to set it aside. Hence, it is the ground of appeal which frontally attacks the judgment of the Court against the appellant. South Atlantic Petroleum Ltd v. The Minister of Petroleum Resources & Ors (2018) 1 S.C.N.J. 407 @ 431; Ehinlanwo v. Oke (2008) 6-7 S.C. (Pt 11) 123; Metal Construction (W. A.) Ltd v. D. A. Migliore & Ors (1990) 1 NWLR (pt. 126) 299 @ 311.
With respect to the second ground of the preliminary objection, which borders on the alleged breach of Rule 10 (1),(2)& (3) of the Rules of Professional Conduct, 2007, the decision of the Supreme Court in Senator Bello Sarakin Yaki (Rtd) & Anor v. Senator Atiku Abubakar Bagudu & Ors (2015) 10- 11 S. C. (pt. 1) 46; (2015) LPELR- 25721 (SC) was unequivocally succinct, to the effect that where a legal document does not have the approved stamp of the Nigerian Bar Association, on it, such a document is not void and invalid, but voidable, such that it can be regularized, by the erring legal practitioner being called upon by the Court, to affix the said stamp on the legal document in question. His Lordship, Ngwuta, JSC., in the lead judgment, resolved such an issue, at pages 6-7 of the LPELR, thus:
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 regularized 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 its signing and filing regularized 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.
In the instant case, indisputably, the appellant’s learned counsel, Emeka Onohwakpor, Esq., who prepared and filed the Notice of Appeal on 19th Nov, 2015, did not affix the seal and stamp of the Nigerian Bar Association, on it as required under Rule 10 (1) (2) & (3) of the Professional Conduct, 2007. However, there is evidence of the payment for the above mentioned stamp to the Nigerian Bar Association by the aforesaid Emeka Otekevwe Onohwakpor, on 04/11/15, as shown on page 150 of the record of appeal. Nevertheless, the stamp and seal of the Nigerian Bar Association, was not fixed by Emeka Otekevwe Onohwakpor, on the appellants notice of appeal. In the circumstances, can it be said that the appellants counsel above named is not a legal practitioner, enrolled to practice law in Nigeria? I do not think so. The aim and purpose of the Legal Practitioners Rules of Professional Conduct, 2007 was primarily to ensure that pseudo and quack lawyers do not pose as legal practitioners and deceive unsuspecting members of the public who can be swindled by such make belief lawyers adorned in wig and gowns who are really charlatans. The steps taken by the appellants learned counsel as shown on page 150 of the record of appeal, to my mind, is evidence of the fact that he is qualified and enrolled as a legal respondents learned counsel has not demonstrated that Emeka Otekevwe Onohwakpor, the appellants learned counsel, is a quack lawyer. In the circumstances, I am unable to agree with the formers contention to the effect that because the stamp and seal of the Nigeria Bar Association, which as I have demonstrated above was paid for by appellants counsel, that the Appellants Notice of Appeal is an irregular and improper process, which this Court cannot take cognizance of. The Notice of Appeal in question is competent and not invalid. I so hold.
The third ground upon which the preliminary objection was anchored and ventilated upon by respondents’ learned counsel is to the effect that Ground 1 of the Notice of Appeal, is a fresh issue, because it was not raised and canvassed at the Court below, hence no decision was rendered on it by the learned trial judge. Therefore, according to learned counsel, since the appellant did not obtain the leave of the Court to raise such a fresh issue, the said ground 1, is incompetent and liable to be struck out. Ground 1 of the Notice of Appeal, is a complaint with respect to the noncompliance by the learned trial judge with Order 25 of the Lagos State High Court (Civil Procedure) Rules, 2012 to the effect that the respondents’ preliminary objection ought to have been considered and determined during the Case Management Conference. Unarguably, the appellant did not raise this issue at the Court below, so it was not ventilated upon by the parties and a fortiori, the learned trial judge did not give any decision on it. I am in agreement with the submission of the respondents’ learned counsel that Ground 1 is a fresh issue and it did not arise from the decision of the Court below, rendered on 30th October, 2015.
The law is well settled to the effect that every ground of appeal must arise from and be predicated on a ratio decidendi in the judgment, being appealed against. Therefore a ground of appeal which arises out of the blues and in vacuo, is liable to be stuck down and out. The decided authorities are a basketful. Just see a few: Federal Republic of Nigeria v. Mohammed (2014) 19 WRN 1 @ 43 SC; Prince (Dr.) B. A. Onafowokan & Ors v. Wema Bank Plc & Ors (2011) 5 S. C.N.J. 266; Prof. Olufeagba & Ors v. Prof. Shuaibu Oba Abdul – Raheem & Ors (2009) 12 S.C.N.J. 349 @ 373; Yadis Nig. Ltd v. Great Nigeria Insurance Co Ltd (2007) 5 S.C.N.J. 86; Dalek Nig Ltd v. OMPADEC (2007) 2 S.C.N.J. 218; Saraki v. Kotoye (1992) 11/12 S.C.N.J. 26 @ 42-43.
Furthermore, since Ground 1 is a fresh issue and the appellant did not seek and obtain the leave of the Court before raising it, the same is incompetent and must be struck out. An issue is said to be a fresh issue when it was not raised and ventilated upon by the parties at the trial Court and being raised at the appellate Courts for the first time, the leave of the appellate Court must be sought and obtained before such an issue can be raised and if otherwise, the ground of appeal which contains such an issue, unless it is a jurisdictional issue, is liable to be struck out. Ogunsola v. NICON (1996) 1 NWLR (pt. 423) 126; Elugbe v. Omokhafe (2004) 18 NWLR (pt. 905) 319; Mark v. Eke (2004) 16 WRN 57 @ 84; Roba Investment Ltd v. Arewa Metal Containers (2010) LPELR – 4900 (CA); Wahab Alamu Sapo & Anor v. Alhaja Bintu Sunmonu
17
(2010) 5 S.C.N.J. 1; Nidocco Ltd v. Gbajabiamila (2013) 14 NWLR (1374) 350 @ 374. In sum, for all I have said in respect of Ground 1, I am satisfied that it is incompetent. Consequently, it is struck out. So also, since issue 1 formulated by the appellant’s learned counsel for the determination of the appeal, was birthed by the infirm Ground 1, the said issue 1 is equally diseased and infested, for it is settled law that every issue formulated for the determination of an appeal must flow from a competent ground of appeal hence, no issue can stand on its own. The appellate Court cannot entertain and consider an issue which is not predicated on a competent ground of appeal because such an issue cannot be said to have been validly and properly laid before the Court. Federal Republic of Nigeria v. Mohammed (2014) WRN 1 @ 45; Ralph Bello Oseni v. Chief Lasisi Bajulu (Deceased) (2009) 12 S.C.N.J. 74; Ebba v. Ogodo (1984) 4 S.C. 84 @ 12. In effect, issue 1 is incompetent and it is accordingly, struck out. In sum, the Respondents’ preliminary objection succeeds, in part only.
Now to the appeal on its merits. In my consideration and determination of the appeal, I shall be guided by issue 2 as nominated by learned Appellant’s counsel. The same issue was adopted by the Respondents’ learned counsel. I have reframed it thus:
Whether the trial Court was right for dismissing the suit when it was not heard on its merits.
Appellant’s Arguments:
The learned Appellant’s counsel submitted that the order for the dismissal of the appellant’s suit made at the lower Court below, was made without jurisdiction, and that a Court that has no jurisdiction to hear and determine a cause has no jurisdiction to make a positive order like an order for dismissal. It is further submitted that the proper order to make if a Court finds that a suit fails to disclose a reasonable cause of action is an order striking out the suit. It is trite law that an order of dismissal can only be made by a Court after hearing parties on the merit or after giving them an opportunity to be heard, because an order for dismissal made without hearing parties on the merit is an infraction of the party’s fundamental right to a fair hearing. Learned appellants counsel relied on this Courts decision in Obu v. Shell Petroleum Dev. Co. Ltd. (2013) ALL FWLR (Part 709) 986 at 998 paras E-G where the Court held:
“It is the law that where a Court holds that the Plaintiff had no reasonable cause of action the proper order to make in the circumstance is one of striking out the action. See the case of Nigeria Airways Ltd v. F.A. Lapite (1990) 7 NWLR (Pt 163)392, (1990) 11-12 SC 60.
“The Court will invoke its power under Section 15 of the Court of Appeal Act to set the lower Court and substitute it with an order of striking out because it disclosed no reasonable cause of action and it is not justiciable. The suit No. FHC/P/CS/113/2001 is accordingly struck out.”
It was further contended on behalf of the Appellant that the circumstance where a suit can be dismissed without hearing parties, such as a suit being statute barred or a suit caught by the doctrine of estoppel did not apply in this case, merely coming to a conclusion that a suit discloses no reasonable cause of action does not entitle the Court to dismiss the action without hearing parties on the merit. Reliance was placed on Adekoya v. Sadipe (2012) ALL FWLR (Part 638) 815 at 914 where the Court held that a trial Court is imbued with the discretionary power to, at any stage of the proceeding before it, strike out or dismiss the suit on the ground that it discloses no reasonable cause of action. This is with a view to compelling parties to strictly comply with the rules of pleading and practice of the Court relating thereto. However the exercise of such a discretionary, power, is what is known as summary process, must be done with extreme caution and circumspection, because like every discretionary power, it must be seen to have been exercised not only judicially but also judiciously, and the exercise must not in any way be allowed to inhibit the parties’ right to fair hearing. In the instant case, the trial Court wrongly exercised its discretion to dismiss Plaintiff’s claim for not disclosing a reasonable cause of action. Appellants counsel also placed reliance on: Ayanboye v. Balogun (1990) 5 NWLR (Pt 151) 392; Jambo v. Gov, Rivers State (2007). All FWLR (Pt 39) 312.
It was further submitted on behalf of the appellant that the decision of the learned trial judge to dismiss the Appellant’s case at the lower Court was wrong.
The appellant relied on the decision of this Court in Maduafokwu v. Abia State Govt & Govs (2010) ALL FWLR 563 at 586 para E:
It is trite that a Court ought not to dismiss a matter, which it, has not heard on the merit. Where a Court lacked jurisdiction to adjudicate on a matter, it equally lacked jurisdiction to dismiss the matter. Where the merit of the case has not been enquired into, the proper order a Court should make when it comes to the conclusion that it has no jurisdiction to entertain, it is to strike it out.
Learned appellants counsel, also relied on Buraimoh Oloriode & Ors v. Simon Oyebi & Ors (198) 15 NSCC 286 where the Supreme Court per OBASEKI JSC held:
I think the proper order when the Court has no jurisdiction to adjudicate upon a matter for whatever reason, like the parties before the Court having no locus standing, is to strike out the action.
Respondents’ Arguments:
The submissions of the Respondents’ learned counsel are that the Appellant, both in its Notice of Appeal and Brief of Argument did concede that the suit should be properly terminated by the lower Court upon the finding that same discloses no cause of action, albeit by an order striking out the same. The fact that the lower Court dismissed the suit rather than strike out same does not derogate from the fact that the Court was right to have terminated the suit for not disclosing a cause of action. Since the Appellant’s pleadings failed to disclose a cause of action, the lower Court was right to terminate the Appellant’s suit as presently constituted and there is nothing in law that can enable the Appellant to revive that very same suit on the same facts: In other words, the termination of SUIT NO: LD/ADR/150/15 herein for disclosing no cause of action properly brings that particular suit to a final end as same cannot be revived in law on the same facts and under the same conditions and circumstances. Thus, whichever term by which the said suit is terminated, whether by dismissal or striking out, would achieve the same purpose and would not in any way affect the Claimant’s right to institute a subsequent suit with appropriate facts and under different and appropriate circumstances. The respondents insisted that the Appellant’s complaint and argument herein as to the terminology used by the lower Court to terminate the said suit is purely an argument on mere semantics and should be discountenanced by this Court.
Resolution:
The learned trial judge in determining the defendants’ preliminary objection against the hearing of the appellant’s suit, in his ruling delivered on 30th October, 2015, at page 145 of the record of appeal, came to the conclusion, which is the subject of this issue thus:
I have carefully considered the averments in the statement of claim and I find that no question has been raised for determination by the Court as to the civil rights and obligations of the claimant who asserts that it is holding over the premises but has not shown what steps the defendants took to eject it. Inviting agents to see a property surely does not equate to ejectment neither does the vague allegation that the 2nd defendant entered the property “and started creating a scene.”
Like the Court in Thomas v. Olufosoye {1986} 1 NWLR Pt. 18, 669, I have searched in vain to discover any such question raised in the statement of claim. There is merit in this application and it ought to be granted as prayed.
Accordingly, the name of the 2nd defendant is struck out and this statement of claim is struck out in its entirety. This suit is hereby dismissed.
Unarguably, the appellant’s suit had not been heard on its merits, by the learned trial judge. Nevertheless his Lordship, dismissed the appellant’s suit. Generally, an order of dismissal of an action by Court, puts an end to the claim, whereas an action that was struck out, keeps the claim alive. A Court may dismiss a suit for many reasons. A suit may be dismissed for want of prosecution where a plaintiff fails to diligently take steps in prosecuting the suit to its logical conclusion. In such a situation, the suitor is barred from prosecuting any later suit on the same claim. His remedy for such a dismissal, lies in appealing to a higher Court. And a suit may be dismissed, without prejudice, in which case, the plaintiff is not barred from refiling the suit on the same claim. The distinction between a dismissal and the striking out of an action by a Court, was stated clearly and simply by the learned Law Lord, Oputa, JSC., in Ogbechie v. Onochie (1988) 2 S.C.N.J. 170 @ 194, to the conclusive effect, that: an order of dismissal puts an end to the claim, whereas an order of non – suit or of striking out, keeps the suit alive.
Thereafter, in Okpala & Anor v. Ibeme & Ors (1989) LPELR – 2512 (SC) @ 21, the revered jurist, Nnaemeka-Agu, JSC., stated that:
“An order of dismissal after fully hearing the parties, concludes the matter against the plaintiff forever, subject to appeal. It concludes the rights of the parties for all purposes. See Bozson v. Altrinchan U.D.C. (1903) 1 K. B. 547; Shubrook v. Tufnell (1882) 2 Q.B.D. 621 (CA).”
My Lords, applying the principles enunciated by the Supreme Court above, it is very clear to me, that in the circumstances of the instant case, where the appellant’s claim was not heard fully and determined on its merits, the learned trial judge was in error when he dismissed the claim, instead of striking it out. Therefore, I resolve the issue discussed herein, in appellant’s favour. The appeal is accordingly allowed. The order of the Lagos State High Court, per O. A. Williams, J., rendered on 30th October, 2015, in re Suit NO: LD/ADR/150/2015, which dismissed the appellant’s suit, is hereby set aside.
In its stead, it is ordered that the plaintiff/appellant’s suit is struck out.
Each side shall bear own costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft the leading judgment of my learned brother, Tom Shaibu Yakubu, JCA, which has just been delivered.
The manner of resolution of the issues thrust up for resolution in both the Respondents’ preliminary objection and the merits of the appeal are in accord with my views. In avowal of my concurrence I wish to add a few words on the disceptation in ground two of the preliminary objection.
By all odds, the learned counsel for the Appellant did not affix the NBA Stamp to the Notice of Appeal. However, the Access Bank Teller in proof of payment for the NBA Stamp was attached to the Notice of Appeal (see page 150 of the Records), showing that the learned counsel had done the needful in respect of getting the NBA Stamp but that the same had not been issued to him. In those circumstances, I do not agree with the Respondent that the Notice of Appeal is irregular and did not properly initiate or activate the appeal.
In IN RE: ALHAJI SAFURAT OLUFUNKE YAKUBU (2018) LPELR (43678) 1 at 11-15.1, inter alia, stated thus:
“What then is the effect, if any, of the Applicants counsel having attached the bank teller to show that he had paid for the stamp and seal but that the Nigerian Bar Association had not issued it? Dealing with a similar situation, this Court per Ogakwu, JCA in TODAY’S CARS LTD vs. LASACO ASSURANCE PLC (2016) LPELR (41260) 1 at 5-7 stated as follows: ‘Doubtless, there is no Nigerian Bar Association Stamp and Seal on the Appellant’s Brief. The Appellant has however submitted that its counsel has done all on its part to obtain the Seal and that the failure by the Nigerian Bar Association to issue the Seal should not be visited on the Appellant. The Appellant’s Brief was filed on 27th April 2016. Attached to the Appellant’s Brief is an Access Bank deposit slip showing that the Appellant’s counsel…paid for the Nigerian Bar Association Stamp in February 2016, a clear two months before the Appellant’s Brief was filed.
Now, in these circumstances will it be in consonance with the dictates of justice for the Appellants brief to be said to infringe the provisions of Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, given the fact that the Appellants counsel has done all that is required of him in order to comply with the stipulation of the Rule.
I think not. It is my considered view that having paid for the Stamp and seal, all that remained was the domestic affair of the Nigerian Bar Association Secretariat and where like in this situation the Nigerian Bar Association is tardy, such tardiness cannot be visited on the Appellant as all required to be done on the part of the Appellant’s counsel has been done. See OGBUANYINYA vs. OKUDO (NO. 2) (1990) 4 NWLR (PT 146) 551 at 560B, 561H – 562A and 571E and ALAWODE vs. SEMOH (1959) 4 FSC 27 at 29.
It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession, but more importantly, to ensure that legal practitioners fulfil their financial obligations in that regard to the Nigerian Bar Association. The Access Bank deposit slip attached to the Appellant’s brief shows that the Appellant’s counsel has discharged his financial obligations to the Nigerian Bar Association.
To hearken to the 1st Respondent’s argument and hold in the diacritical circumstances of this matter that the Appellant’s brief was not properly filed will be turning justice on its head, and in fact inculcate in justice.’
I still maintain the views I expressed in TODAY’S CARS LTD vs. LASACO ASSURANCE PLC (supra) and in the light of the Supreme Court decision in YAKI vs. BAGUDU (supra), I hold that this application is not incompetent.”
This remains the legal position as I understand it. On the strength of the Access Bank Teller at page 150 of the Records, evidencing payment for the NBA Stamp, I agree with the conclusion in the leading judgment that the Notice of Appeal is proper, competent and activates the jurisdiction of this Court to entertain the appeal.
In a coda, it is on account of the foregoing and the more elaborate reasoning and conclusion in the leading judgment that I join in allowing the appeal on the same terms set out in the leading judgment.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have been privileged to read in draft, the leading judgment of my learned brother, TOM SHAIBU YAKUBU, JCA which has just been delivered wherein he upheld the appeal.
I agree with the conclusion reached by the said judgment that the appeal has merit and ought to be allowed.
I agree with the consequential order made in the said judgment that the appropriate order the lower Court ought to make is one striking out the Appellant’s suit which has not been fully heard on its merit. The suit is accordingly struck out and not dismissed as was wrongly held by the lower Court.
Appearances:
Emeka O. Onohwakpor, Esq.For Appellant(s)
O. J. Fagbemi, Esq. with him, Jeremy Odor, Esq.For Respondent(s)
