TAJUDEEN ADEWALE & ANOR v. JAIRUS U. ANGWA & ORS
(2013)LCN/6669(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of December, 2013
CA/K/324/03
JUSTICES:
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. TAJUDEEN ADEWALE
2. MISS ENE (JIDE & ENE) – Appellant(s)
AND
1. JAIRUS U. ANGWA
2. GODWIN ANGWA
3. MONDAY ANGWA
4. MRS. JANET OJO – Respondent(s)
RATIO
WHETHER OR NOT ONLY PERSONS CALLED TO THE NIGERIAN BAR AND ENROLLED AS A BARRISTER AND SOLICITOR OF THE SUPREME COURT OF NIGREIA CAN SIGN ANY LEGAL PROCESS ON BEHALF OF A LITIGANT IN NIGERIA
Our revered Supreme Court had emphatically, without any mince of words, stated severally that no human not called to the Nigerian Bar and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria is qualified in Law, as statutorily stipulated and mandated by the Legal Practitioners Act, to sign any legal process on behalf of a litigant in Nigeria. I must observe that the days of allusions to the decision in Cole v. Martins (1968) All NLR 161 had since capsized and gone with the wind. The Supreme Court, per Onnoghen, J. S.C., in the celebrated case of Nweke v. Okafor (2007) 10 NWLR (Pt. 1043) set the position of the law aright by proclaiming that a Firm of Legal Practitioners is not a Legal Practitioner recognized by the Legal Practitioners Act. It is only the real person enrolled to practice law that can sign Notice of Appeal. It further held that a Notice of Appeal signed by a Law Firm is incompetent since it is not the Law Firm that was registered as a legal practitioner. Such a fundamental defect cannot be remedied or cured by any form of amendment, because it is null ab initio.
In its effort to fully entrench the principle, the Supreme Court, again, per Onnoghen, J.S.C., in SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 252) page 317 expressed: “It has been argued that Cole v. Martins (supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it because in law, a business name is not accorded legal personality. It is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, Adewale Adesokan & Co is not a legal person. It can only function as such if it describes itself as: Adewale Adesokan (Trading under the name and style of Adewale Adesokan & Co).” PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT AN INCORPORATED PARTY CAN FILE AND ATTEND AN APPEAL BEFORE THE COURTS
Also, our foremost Law Lord in this aspect of the Law, Onnoghen, J.S.C., in the aforementioned case affirmed “It is settled law that whereas a party/litigant who is a natural person can file and argue an appeal before the courts, an incorporated party/litigant, being an artificial entity cannot file, attend and argue an appeal before the courts in person/personally but can do so only through legal practitioner(s) on its instructions. See also section 15(1) of the Supreme Court Act which provides as follows:- “subject to the provisions of any other enactment, in all proceedings before the Supreme Court the parties may appear in person or be represented by a legal practitioner entitled by or under enactment or rules of court to practice in that court.” See, also, New Nigerian Bank v. Declang Limited & Anor (2005) 4 NWLR (Pt. 916) page 573 at 582-583. PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The facts leading to this appeal indicate that the first to third Respondents in this appeal instituted an action before the Kaduna State High Court against the 4th Respondent, i.e., Mrs. Janet Ojo claiming the sum of ?4,000.00 (Four Thousand British Sterling) or its Naira equivalent being the sum advanced to Mrs. Janet Ojo to execute a project in Kaduna, Nigeria on behalf of the 2nd and 3rd Plaintiffs respectively which she failed, refused and/or neglected to execute and had refused to refund the money despite repeated demand; and 10% interest from the date of judgment.
The matter was heard in the Kaduna State High Court and judgment was entered in favour of the first set of Respondents against the said Mrs. Janet Ojo on 6/7/2005. Owing to the difficulty in levying execution of the said judgment in Kaduna, the Certificate of the said judgment obtained on the 5th July, 2001, was then registered before the Kano State High Court to enable them levy execution on some of by Mrs. Janet Ojo’s movable and immovable properties in Kano. On 17/7/02, the application for execution of a foreign judgment was heard and granted directing the execution of the Kaduna State High Court judgment as if it were the judgment of the Kano State High Court. After the registration, execution was levied, and some items were attached and sold. The record shows that on 16/4/2003, the 1st Appellant appeared before the Kano State High Court and informed the Court that his car was attached by the Court, and that the car was in the name of one Abubakar Kumo. The Court then struck out the application filed by the 1st Appellant, Mr. Adewale, and advised him to go and file the necessary application before the Kaduna State High Court. Then, on 28/5/2003, the Appellants filed a Motion on Notice dated the same 28/5/03 before the Kano State High Court praying firstly; for an order setting aside its ruling delivered on 16/4/2003 and secondly, an order re-listing suit No. K/M212/02 dated 24/4/2003 struck out on the 19th day of May, 2003.
The Record further shows that on 24/6/03, an order was made by the Kano State High Court relisting the Appellant’s Motion dated 28/5/2003 which was adjourned to 9/7/03 for hearing. On 9/7/03, the said Motion was heard and the Court adjourned it to 16/7/03 for ruling. However, it was further adjourned on 16/7/03 to 22/7/03 for ruling. The Court apparently did not sit on 22/7/03 because there was nothing on the record indicating same. The record depicts that the ruling was delivered on 24/7/03, and the Motion dated 28/5/03 was dismissed.
Consequent upon that, the Appellants filed a Notice of Appeal on 10/8/03 which they pivoted on two grounds of appeal. The Appellants formulated three issues out of the two grounds of appeal. I must say I could not sight any Amended Notice of Appeal that contains three grounds meaning that the Appellant proliferated their issues. This approach has been roundly condemned by the apex Court and this Court. I have myself examined the issues formulated and I am of the view that issue No. 2 does not relate to any of the Appellants’ grounds of appeal, therefore, it ought to be struck out. The issues formulated by the Appellants in their Brief are:
“1. Whether the registering court i.e. Kano High Court that ordered execution against non-judgment debtors (Appellants) cannot order the release of the goods back to the Appellants save only the same application is made before the court that gave the original judgment i.e. Kaduna High Court vide Section 109 of the Sheriff and Civil Process Act CAP 1990.
2. Whether the interest of justice was in anyway served by the dismissal order made on 24/7/2003.
3. Whether a dismissal order is a consequential order that should have been made in the circumstances of this case instead of an order striking-out the motion.”
The Respondents for their part filed a Preliminary Objection which was hinged on the following grounds:
“(i) That no leave was granted the Appellants to file Additional Grounds of Appeal and no additional Grounds of Appeal was filed as required by the law before the Appellants went ahead to file their Brief of Argument based on the purported additional Grounds of Appeal.
(ii) That the purported original Notice and Grounds of Appeal undated but filed on 20/08/03 is neither signed by the Appellants themselves or their legal practitioner as required by the law.
(iii) That the decisions sought to be appealed against stemmed from exercise of discretion of the lower Court and thus leave is required to appeal against same and there is no such leave either from the lower Court or the Court of Appeal before this appeal was purportedly filed.
(iv) That the Notice and Grounds of Appeal relied on in the Appellants’ Brief of Arguments is not contained in the record of appeal forwarded before this Honourable Court.”
Nevertheless, the Respondent raised only one issue for determination in the appeal in the event their Preliminary Objection was not sustained thus:
“Whether the Kano State High Court has jurisdiction to entertain the application brought before it by the Appellants?”
The grave issues raised by the Respondents in their Preliminary Objection were not responded to, by the Appellants. They did not file any Reply Brief thereto, particularly in respect of the competency of the Notice of Appeal.
In the Appellants’ Brief, it was contended that the relevant sections of the Sheriffs and Civil Process Act, applicable to execution of judgment of a State in another State are sections 104 to 110. He cited the cases of Dalgo v. Jenhill (2001) 39 WRN page 89 at 99-100, Electrical and Mechanical Construction Co. Ltd v. Total Nigeria Ltd (1972) All NLR (Pt. 2) page 293; Adwork Ltd v. Nigeria Airways Ltd (2000) 2 NWLR (Pt. 645) page 415 at 431; Dalgo v. Jenhill (supra); Adwork Ltd v. Nigeria Airways Ltd; Nigerite Ltd v. Dalami (Nig) Ltd (1992) 7 NWLR (Pt. 253) page 288 at 299; and Nigeria General Insurance Co. Ltd v. Ishola Bello (1994) 1 NWLR (Pt. 319) page 207; He particularly relied on sections 105 and 108 and submitted that the Kano High Court in the circumstances of the case, has jurisdiction to entertain their application requesting their goods wrongly attached to be released to them. It was argued that the Kano High Court having registered the judgment and issued the processes of execution leading to the goods of the Appellants being attached, could equally entertain the Appellants’ application because by the said sections, the Court’s power was not circumscribed. They argued that there was no basis for them to have been referred to the Kaduna High Court to present similar application since their application was an off shoot of the execution of writs taken out in the registering Court i.e. Kano High Court. It was further argued that the trial Court’s failure to examine the Judgment Certificate to ascertain the real parties and advert it’s mind to the fact that the Writ was issued by the Kano High Court as reason for the ruling could not have been the ground to circumvent the provisions of the Sheriffs and Civil Process Act. He analysed the provisions of section 109 of the Act and stressed that both the Kano State High Court and Kaduna State High Court have the jurisdiction to entertain the application and release the goods to the Appellants who were neither parties to the action nor the Judgment Debtors.
On issue No. 2, it was contended that rulings of 16/4/03 and 24/7/03 were not in the interest of justice, that the Appellants’ case ought to have been given due consideration especially as presented by the 1st Appellant. He argued that no law precluded a party from presenting his own case in person in a Court of law. He submitted that both the 1st Appellant and their Counsel were not heard on the Appellants’ substantive application of Interpleader Summons dated 24/4/03. He further submitted that a substantive issue should not be determined at the preliminary stage, that the Court was not empowered to determine the Interpleader Summons which had not been heard on the merits. He cited the cases of Constitution of the Federal Republic of Nigeria (1999); Iweka v. S.C.O.A. (Nig). Ltd (2000) 2 NWLR (Pt. 664) page 329; Onwuegbu v. Ibrahim (1997) 3 NWLR (Pt. 491) page 110; Willougby v. I.M.B. Ltd. (1987) 1 NWLR (Pt. 48) page 105 at 121; and Nigeria Ports Authority v. Construzioni Generator (1974) 12 S.C. Page 81.
With regard to issue No. 3, it was contended that the order of dismissal made by the trial Court was inappropriately made, that an order striking out the same ought to have been made because there is no way the Appellant can proceed to the Kaduna High Court to present the same application as ordered by the trial Court with order dismissing the applications. He cited the cases of Obayagbona v. Obazee (1970) 5 SC page 24; Agu v. Odofin (1992) 3 SCNJ page 176; and Badejo v. Minister of Education (1996) 9-10 SCNJ page 51 and submitted that the order of dismissal had really impeded the Appellants’ chances of approaching the Kaduna State High Court. He then urged this Court to allow the appeal.
I have taken into consideration the submissions of learned Counsel for the Respondent which I do not find necessary at this juncture to detail the summation. However I hereby adopt and incorporate the same herein.
I have given an anxious consideration to the grounds of the Preliminary Objection raised by the Respondents and I deem it expedient to tackle outright the issues raised therein due to their fundamental nature, particularly the aspect that attacked the very foundation of this appeal i.e. the competency of the Notice of Appeal filed by the Appellants since they are capable of disposing of the appeal at the outset without the substantive issues being considered. The fact is, if the foundation of a Notice of Appeal is shaky and unsupported by law, no miracle or ingenuity can revive it. It would therefore, be foolhardy and a complete exercise in futility to review all the arguments of respective Counsel for the parties in respect of the substantive issues for consideration in this appeal. It is obvious from the grounds of the preliminary objection raised by the Respondents that the very foundation of this appeal may eventually be uprooted. This definitely explains the reason why the Appellants’ Counsel deemed it unnecessary to file a Reply to the Preliminary Objection. It is totally indefensible in law. The ground of the preliminary objection I find quite disturbing is the second ground, which alleged that the purported Original Notice and Grounds of Appeal filed on 20/8/03 was neither signed by the Appellants themselves nor their Legal Practitioner as required by the law.
It is the argument of learned Counsel for the Respondents that one Abdulhameed Kassim & Co. signed the Notice of Appeal, and that by virtue of Order 3 of the Court of Appeal Rules, 2002 (as amended), a valid Notice of Appeal ought to have been signed by the Appellants themselves or Counsel on their behalf. He referred to section 32 of the Court of Appeal Act, 1975, sections 2(1) and 24 of the Legal Practitioners Act and Order 1 Rule 1 of the Court of Appeal Rules, 2002 and then contended that Abdulhameed Kassim & Co. is not a legal practitioner as defined in law, therefore, it cannot validly sign a valid Notice of Appeal. He stated that where a Notice of Appeal which is an Originating Process in an appeal procedure, is fundamentally defective, it is liable to be struck out. Learned Counsel then made reference to the cases of Danbam v. Lele (2000) FWLR (Pt. 24) page 1461 at 1484, New Nigerian Bank Plc v. Denclag Ltd (2004) All FWLR (Pt. 228) page 606 at 626-627 and 633-634, Mobil Oil Nigeria Plc v. Ahmadu Rabiu (2003) FWLR Part 149 page 1545 at 1555 paragraphs A-F, First Bank of Nigeria Plc v. Alhaji Salmanu Maiwada (2003) FWLR (Pt. 151) page 2001 at 2011 paragraphs D – E, 2015 paragraphs A-F; and Chrisdon Industrial Co. Ltd v. African International Bank Ltd (2002) FWLR (Pt. 128) page 1355 at 1374 paragraphs D-H and 1374 paragraphs A-B, and submitted that this Court lacks the jurisdiction to entertain an incompetent appeal, and, even the Appellants’ Brief that was equally authored by the same Abdulhameed Kassim & Co. He then urged this Court to dismiss the appeal.
As I stated earlier, the Appellant did not offer any defence to this glaring anomaly. Both the initiating process in this appeal, i.e. the Appellants’ Notice of Appeal and the Appellants’ Brief of Argument filed on their behalf in this appeal were all signed by one Abdulhameed Kassim & Co., a Law Firm manned by the Appellants’ Counsel. Our revered Supreme Court had emphatically, without any mince of words, stated severally that no human not called to the Nigerian Bar and enrolled as a Barrister and Solicitor of the Supreme Court of Nigeria is qualified in Law, as statutorily stipulated and mandated by the Legal Practitioners Act, to sign any legal process on behalf of a litigant in Nigeria. I must observe that the days of allusions to the decision in Cole v. Martins (1968) All NLR 161 had since capsized and gone with the wind. The Supreme Court, per Onnoghen, J. S.C., in the celebrated case of Nweke v. Okafor (2007) 10 NWLR (Pt. 1043) set the position of the law aright by proclaiming that a Firm of Legal Practitioners is not a Legal Practitioner recognized by the Legal Practitioners Act. It is only the real person enrolled to practice law that can sign Notice of Appeal. It further held that a Notice of Appeal signed by a Law Firm is incompetent since it is not the Law Firm that was registered as a legal practitioner. Such a fundamental defect cannot be remedied or cured by any form of amendment, because it is null ab initio.
In its effort to fully entrench the principle, the Supreme Court, again, per Onnoghen, J.S.C., in SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 252) page 317 expressed: “It has been argued that Cole v. Martins (supra) is an authority to the effect that a business name under which a lawyer practices would satisfy the requirements of the Legal Practitioners Act. I doubt it because in law, a business name is not accorded legal personality. It is not recognized as a legal person capable of taking or defending actions in the law Courts. In the instant case, Adewale Adesokan & Co is not a legal person. It can only function as such if it describes itself as: Adewale Adesokan (Trading under the name and style of Adewale Adesokan & Co).”
Furthermore, in Contract Resource Nigeria Ltd. & Anor v. United Bank for Africa Plc. (2011) LPELR-SC.292/2003, the apex Court stated that in Civil Appeals the Notice of Appeal and Briefs of Argument shall be prepared and signed by Counsel. The only exception is where the party is a natural person, and insists on handling his appeal himself. Right of audience is open to Counsel and/or the party in the appeal. In the case of a Corporation, the Notice of Appeal and Brief of Argument shall be prepared and signed by Counsel and the right of audience before this court is restricted to Counsel. This is so as a Corporation being an unnatural person, needs someone learned in the Law to handle its appeal, and that person can only be a Legal Practitioner. The Notice of Appeal and the Appellants’ brief of argument are incompetent having been signed by a layman. Also, our foremost Law Lord in this aspect of the Law, Onnoghen, J.S.C., in the aforementioned case affirmed “It is settled law that whereas a party/litigant who is a natural person can file and argue an appeal before the courts, an incorporated party/litigant, being an artificial entity cannot file, attend and argue an appeal before the courts in person/personally but can do so only through legal practitioner(s) on its instructions. See also section 15(1) of the Supreme Court Act which provides as follows:- “subject to the provisions of any other enactment, in all proceedings before the Supreme Court the parties may appear in person or be represented by a legal practitioner entitled by or under enactment or rules of court to practice in that court.” See, also, New Nigerian Bank v. Declang Limited & Anor (2005) 4 NWLR (Pt. 916) page 573 at 582-583.
I think I have clearly demonstrated that the blunder committed by the nonexistent person/Legal Practitioner i.e. Abdulhameed Kassim & Co. signing both the Appellants’ Notice of Appeal and Appellants’ Brief of Argument in the instant matter cannot be remedied and it renders both processes null and void. Needless over stretching this incontrovertible point. In the circumstance, the only option available to this Court is to strike out the Notice of Appeal for being incompetent. The moment it is struck out every other process filed in its regard would fall with it. Consequently, the Preliminary Objection raised by the Respondents is hereby sustained and the Appellants’ Notice of Appeal is hereby struck out.
DALHATU ADAMU, J.C.A.: I agree.
ABDU ABOKI, J.C.A.: The judgment prepared by my learned brother T. N. Orji-Abadua, JCA, was made available to me earlier than now. Having perused same, I agree with the conclusion that the Notice of appeal is incompetent and deserve to be struck out.
Appearances
No counsel for the Appellant For Appellant
AND
Opoola Abdulrashid Esq. For Respondent
