UBA & ANOR v. KWARPO
(2020)LCN/15611(CA)
In the Court of Appeal
(JOS JUDICIAL DIVISION)
On Wednesday, October 14, 2020
CA/J/44M/2017
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1. MR. NELSON MKPARU UBA 2. MR. NELMACO GLOBAL RESOURCES LTD. APPELANT(S)
And
JOHN IBRAHIM KWARPO RESPONDENT(S)
RATIO:
EFFECT OF NOT AFFIXING THE SEAL ON A DOCUMENT AND THE REMEDIES
“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 that 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 affixing of the seal. It should be noted that the qualification to practice law as a Legal Practitioner is as provided under the Legal Practitioner 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 Court of law in a proceeding or otherwise.” TANI YUSUF HASSAN, J.C.A
EXCEPTION TO THE GENERAL RULE OF GROUND OF APPEAL
“For every general rule there is an exception, in order to accommodate certain unforeseen circumstances, where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of the decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi.” TANI YUSUF HASSAN, J.C.A
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the High Court of Plateau State, Jos, delivered on the 22nd of February, 2016 in Suit No. PLD/13/2015 by Hon. Justice D. D. Longji.
The respondent as plaintiff at the lower Court instituted an action by Writ of Summons and statement of claim dated 29th June, 2015 against the defendants (appellants) herein as follows:
i. A declaration that the defendants having consented to and or acquiesced to the foreclosure of 1st defendant’s reversionary interest in the property covered by C of O No. 00586 by First Bank Nig. Plc. are estopped and disallowed from challenging the auction sale that was conducted on the 9th December, 2014 which was in furtherance of the act of foreclosure.
ii. A declaration that the auction sale conducted on the 9th December, 2014, by a licensed auctioneer was in total compliance with the laid down procedure.
iii. A declaration upholding the status of plaintiff as the legitimate owner of the entire landed property covered by C of O No. 00586.
iv. An order of perpetual injunction restraining the defendants, their employees, agents, servants, privies, assigns, executors and or successors in title or any other person, howsoever described from trespassing into, collecting rent from tenants or interfering with the plaintiff’s proprietary interest in and management of the property covered by C of O No. 00586.
v. General damages in the sum of N5Million for undue interference with plaintiff’s rights on the property covered by C of O No. 00586.
Upon being served with the process, the 1st defendant/appellant filed a motion on notice challenging the competence of the process filed by the respondent and the jurisdiction of the lower Court to entertain the case on the basis that the respondent’s suit had no Nigerian Bar Association (NBA) seal affixed thereto as mandatorily required by law.
Learned counsel for the respondent in opposing the application filed a counter affidavit. The learned trial judge, after the argument of counsel on the application, delivered its ruling on the 9th of December, 2015, striking out the suit.
The respondent by a motion on notice dated 9th December, 2015 and filed on the 10th of December, 2015 prayed for an order of Court to set aside the order made on 9th December, 2015 striking out the suit and relist same.
Learned Counsel for the 2nd defendant/appellant in reply on point of law contended that the suit having been struck out for incompetence is dead and cannot be brought back.
The learned trial judge in a considered ruling delivered on the 22nd of February, 2016 overruled the objection and granted the application for relisting the suit. This Ruling of the trial judge gave rise to this appeal.
The Amended Notice of Appeal dated 25th day of March, 2019 was filed on the 10th of April, 2019 but deemed properly filed on the 11th of April, 2019. The Notice of Appeal contained three grounds with their particulars and reliefs sought.
The Appellant’s Amended brief dated 28th March, 2019 was filed on 10th April, 2019 and deemed properly filed on the 11th of April, 2019. The appellant’s reply brief dated 4th February, 2020 was filed on the 10th February, 2020 but deemed properly filed on the 26th of June, 2020 and redeemed on the 21st of September, 2020. The brief settled by P. M. Lere Esq. has three issues formulated for determination thus:
1. “Whether a suit struck out for want of jurisdiction as in the circumstances can be re-listed (Grounds 1, 2 and 3).
2. “Whether the trial judge had the jurisdiction to assume jurisdiction to relist the Suit PLD/J3/2015 having struck out same for want of jurisdiction.” (Ground 1).
3. “Whether the Learned Trial Judge has the jurisdiction to sit on appeal on his own ruling striking out Suit PLD/J3/2015 and relisting same (Grounds 1 and 3).
The respondent’s Amended brief filed on the 21st of May, 2019 was deemed properly filed on the 21st of September, 2020. The brief settled by Gideon Ngwen, Esq. has a sole issue identified for determination:
1. “Whether failure by the respondent’s counsel to affix Nigerian Bar Association (NBA) stamp on process filed before the Court below can be regularized and or remedied without having to file a fresh suit.” (Grounds 1, 2 and 3).
In the brief of the respondent there is incorporated a Notice of Preliminary Objection. Counsel to both parties adopted their respective briefs, while the appellants counsel urged us to allow the appeal, the respondent’s counsel urged that the appeal be dismissed.
Where a preliminary objection is raised, it is incumbent that it must first be heard before the main appeal.
PRELIMINARY
The ground upon which the preliminary objection is predicated is that, all the three grounds of appeal which alleged that the Court below declined jurisdiction in entertaining the respondent’s suit before it did not emanate from nor were they distilled from the ruling being appealed against, thereby rendering the said grounds of appeal incompetent.
In arguing the ground of objection, learned counsel for the respondent contended that the interlocutory appeal before the Court which emanated from the ruling of the lower Court delivered on the 22nd of February, 2016, alleged in all the three grounds of appeal that the respondent’s suit was struck on decline of jurisdiction by the lower Court.
He submitted that the correct and more accurate account of what transpired before the Court below is that the process that commenced the suit against the appellants were adjudged to be irregular because counsel that filed the suit on behalf of the respondent did not affix his Nigerian Bar Association (NBA) stamp on them. That it was on that basis that the suit against the appellants was struck out.
Counsel argued that the Court below did not mention anywhere either in the ruling that struck out the suit delivered on the 7th of December, 2015 or in the ruling relisting the suit delivered on 22nd day of February, 2016, that it declined jurisdiction to entertain the respondent’s suit that was filed before it. That the suit was only struck out because the processes commencing it were irregular and needed to be regularized.
Learned counsel for the respondent submitted that the three grounds of Amended Notice of Appeal did not emanate from the ruling appealed against. That it is the law all grounds of appeal must arise from the ruling or judgment appealed against. That failure to meet up with that very important requirement rendered the grounds incompetent. The Court was referred to Adesina Vs. Adeniran (2006) 18 NWLR (Pt. 1011) 359 at 374 – 375 paras G – A; F. R. N. Vs. Nwosu (2016) 17 NWLR (Pt. 1541) 226 at 274 paras D – E, B.); Eyigebe Vs. Iyaji (2013) 11 NWLR (Pt. 1365) 407 at 417 – 418 paras H – A and Amobi Vs. Nzegwu (2014) 3 NWLR (Pt. 1392) 510 at 544 paras B – C.
Also referring to the case of Chukwu Vs. Kalio (2018) LPELR – 44867 Pp 11 – 14 (CA), counsel submitted that failure to affix Nigerian Bar Association (NBA) seal and stamp on a process filed has nothing to do with jurisdiction. He referred to Order 7 Rule 3 of the Court of Appeal Rules, 2016.
The Court is urged to uphold the objection and dismiss the appeal.
Learned counsel for the appellant in response to the preliminary objection submitted that the objection is misconceived and the authorities relied upon are inapplicable to this case. He referred to the Amended Notice of Appeal filed on the 10th of April, 2019, to submit that grounds 1 and 2 of the Amended Notice of Appeal are derived from the ratio of the ruling appealed against, while ground 3 flows from the new or fresh ground for which leave was sought and granted by this Court. The Court is urged to discountenance the objection, the respondent having not opposed to the application to raise new issues, cannot at this point raise an objection. He relied on Abe Vs. Akaajime (1989) 4 NWLR (Pt. 113) 95 cited with approval in the case of Adamu Vs. Ikharo (1988) 4 NWLR (Pt. 89) 474 among others. It is finally submitted that the new issues raised are competent and we are urged to so hold and dismiss the preliminary objection.
The argument of the learned counsel for the respondent is based on the general rule that a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. This is a well settled proposition of law in respect of which there can hardly be a departure. See Egbe Vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 and Saraki Vs. Kotoye (1992) 9 NWLR (Pt. 246)156.
In considering the objection, it will not be out of place to reproduce the grounds of appeal. The grounds without their particulars are:
GROUND ONE
The Learned Trial Judge erred in law when having earlier declined jurisdiction and struck out the suit of the Respondent for the irregularity of the suit relisted same as follows:
“At the time of the Ruling, the applicant has not regularized it and so it was struck out not dismissed. And now the applicant says he now regularized same by affixing stamp, should the Court say No? I think not. The submission of learned counsel for the 2nd respondent that by the Ruling, the suit was struck dead is not correct. It struck the suit to a fainting position, and it is now been resuscitated. If it was struck dead, it couldn’t be resurrected because it is appointed only once to die and appear for judgment. The ruling was not a judgment, the irregularity has now been regularized, and the Court can now take cognizance of the process, period. I hold that the objection in misconceived in law and it is hereby overruled. And the application is granted as prayed.”
GROUND TWO
The learned trial judge misdirected himself in law when he considered the effect of declining jurisdiction resulting in striking out a suit in the following manner “the submission by learned counsel for the 2nd respondent that by the ruling the suit was struck dead is not correct. It struck the suit to a fainting position, and it has been resuscitated. And thereby occasioned a miscarriage of justice.”
GROUND THREE
The learned trial judge erred in law when he assumed jurisdiction to sit on appeal against his own decision declining jurisdiction to entertain the suit and striking same out and thereby occasioned a miscarriage of justice.
The law is that, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against, and on the basis of which the decision should be set aside. In other words, it is the reason why the decision is considered wrong by the aggrieved party – Idika Vs. Erisi (1988) 2 NWLR (pt. 78) 503 at 758; Akpan Vs. Bob (2010) 17 NWLR (Pt. 1223) 421 at 464 and P. G. A. T. Ltd. Vs. N. D. I. C.(2019) 7 NWLR (Pt. 1672) 447.
A calm view of the three grounds of appeal reproduced above, the complaint of the appellants is on the exercise of discretion by the lower Court in the said Ruling of 22nd February, 2016, which should have been exercised in a similar manner by the Court in the Ruling of the 7th December, 2015.
The Supreme Court in the case of Agwu Vs. Julius Berger (Nig.) Plc. (2019) 11 NWLR (Pt. 1682) 165 at 182 para G – H held:
“For every general rule there is an exception, in order to accommodate certain unforeseen circumstances, where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of the decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision and constitute a challenge to its ratio decidendi.”
In Kalejaiye Vs. LPDC (2019) 8 NWLR (Pt. 1674) 365, the issue of change of quorum of the LPDC was not the ratio of the decision of LPDC, yet it was the only ground upon which the appeal was determined by the Supreme Court.
Also in A. P. C. Vs. Nduul (2018) 2 NWLR (Pt. 1602) 1 at 12, it was held by the Supreme Court that a ground of appeal which raises the issue of jurisdiction does not necessarily have to relate to or flow from the decision against which the appeal lies.
In Kalejaiye Vs. LPDC (2010) 19 NWLR (Pt. 1226) 147 at 164 para B, the Supreme Court, per Rhodes Vivour, JSC said:
“The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time.”
Jurisdiction is a threshold issue and it is so fundamental, that it cannot be ignored. The ground upon which the preliminary objection is anchored is resolved against the respondent. Accordingly, the preliminary objection is overruled.
In the main appeal, the appellant appeared to have abandoned the issues he formulated for the determination of his appeal, when in his reply brief indicated his adoption of the respondent’s sole issue and proffered argument therein. The appeal will therefore be determined on the sole issue distilled by the respondent.
ISSUE ONE
“Whether the failure by respondent’s counsel to affix Nigerian Bar Association (NBA) stamp on processes filed before the lower Court can be regularised and or remedied without having to file a fresh suit.”
In arguing this issue, learned counsel for the appellant submitted that jurisdiction of Court is fundamental and it is a threshold issue. That the trial Court having declined jurisdiction to entertain the process struck out, it cannot entertain an application to amend same, but to refuse same, the Court having become functus officio. He argued that the learned trial judge erred in law when he entertained the application to relist, which amount to sitting on appeal over its ruling.
Submitting further, that the status of struck out process is that, it has died, and can only be restored by refiling same. He referred to Boko Vs. Nungwa (2019) 1 NWLR (Pt. 1654) 395 at 440 para B where the Supreme Court held that, where the seal of a legal practitioner is absent on a process, the process is not competent though it is remediable being voidable. He submitted that where a process that could be remedied has been allowed to be struck out, the opportunity to remedy same process will require separate procedure to restore it to life. The Court was referred to Wayo Vs. Nduul (2019) 4 NWLR (Pt. 1661) 69 – 70 paras H – A; B; Yaki Vs. Bagudu (Pt. 2015) 18 NWLR (Pt. 1491) 288 and Rule 10(3) of the Rules of Professional Conduct, 2007.
We are urged to allow the appeal and refer the matter back to the trial Court for determination of the matter on merit. For his part, learned counsel for the respondent submitted that the requirement of fixing of Nigerian Bar Association (NBA) seal and stamp is provided for in Rule 10 of the Rules of Professional Conduct for Legal Practitioners.
Counsel argued that his application to relist and to seek leave to amend all the processes that were struck out is to enable him affix his NBA seal on them. He relied on Ogboru Vs. Uduaghan (2013) 13 NWLR (Pt. 1370) 37 at 58 – 59, where the Supreme Court held that where a process is struck out, the party who filed the process is at liberty to either apply to file a fresh one or have the one that was struck out relisted. Also referred are Iyoho Vs. Effiong & Anor. (2007) LPELR – 1580 (SC); Benbok Vs. First Atlantic Bank Plc. (2007) LPELR – 9003 (CA) and Durosimi Vs. Adeniyi & Anor. (2017) LPELR – 42731 (CA). Counsel conceded to the fact that the suit can be relitigated, it means it can also be relisted. He referred to Ground 2 paragraph (d) and ground 3 paragraph (d) of the particulars of the appellants’ Amended Notice and Grounds of Appeal.
On whether failure to affix approved seal and stamp of NBA on legal document can be remedied or regularised, it is submitted that the response is positive in line with the well settled legal position on the matter in Nyesom Vs. Peterside & Ors. (2016) LPELR – 40036 (SC) P 35 paras B – D; Oseni & Ors. Vs. Oyetoro & Ors. (2018) LPELR – 4432 (CA) Pp 14 – 15 paras F – A; DG, DCIN & Anor. Vs. Dinwabor & Ors. (2016) LPELR – 41316 (CA) P. 16 paras A – E and Suru Vs. Goma LPELR – 44650 (CA) Pp 29 – 30 para C which sufficed on the issue formulated for determination for this purpose. He said the above cases cited agree on the fact that failure to affix NBA seal and stamp on a Court process can be remedied or cured.
It is finally submitted that the appellants having not challenged the procedure adopted by the respondent in correcting and remedying the irregularity that led to the striking out of the respondent’s suit in this appeal, are taken to have acquiesced to the procedure.
We are urged to resolve in favour of the respondent and dismiss the appeal.
By virtue of Rule 10(3) of the Rules of Professional Conduct, 2007 which became effective from 1st April, 2015, a lawyer acting in his capacity as a Legal Practitioner, legal officer or adviser of any governmental department 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. The Rule is produced thus:
Rule 10(1) “A lawyer acting in his capacity as a legal practitioner, 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 similar documents.
(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 (1) the document so signed and filed shall be deemed not to have been properly signed or filed.” In Yaki Vs. Bagudu (2015) 18 NWLR (Pt. 1491) 288, Onnoghen JSC (as he then was) explained the import of Rule 10(3) at pages 319 – 320 paras H – E t
It follows therefore from the Rules and the above decision of Yaki Vs. Bagudu (supra), the requirement for the affixing of the seal of the Nigerian Bar Association is mandatory, although it can be regularised. See Ardo Vs. INEC (2017) 13 NWLR (Pt. 1583) 450 at 459; Wayo Vs. Nduul (2019) 4 NWLR (Pt. 1661) 60 at 62.
In the instant case, learned counsel for the appellant made heavy weather that the lower Court having struck out the appellant’s suit in declining jurisdiction for failure to affix the NBA seal cannot grant the application for relist having become functus officio, did not think twice and he seemed sure that he was standing on a solid foundation when he urged the Court to discountenance the submission of the respondent on this issue in total disregard to the reason given by the Supreme Court in its decision in Sarkin Yaki Vs. Bagudu (supra) which authority he also referred to in his submission in the brief of his argument. More so, when the lower Court did not state to have struck out the suit on decline of jurisdiction as contemplated and heavily canvassed by the appellant’s counsel. Contrary to the position the appellant’s counsel took at the lower Court, failure to affix the Nigerian Bar Association stamp cannot invalidate process filed in Court of law, see M. P. P. P. Vs. INEC (2015) 18 NWLR (Pt. 1419) 251.
In the final analysis, failure to affix the approved seal and stamp of the NBA on the processes filed by the respondent does not render the processes invalid. It is an irregularity that can be cured by an application.
In the circumstance, I find no merit in this appeal and it is dismissed. N100,000.00 costs for the respondent is awarded against the appellants.
Learned counsel for the appellant in urging the Court to allow the appeal also urged that the case be remitted to the lower Court for determination on merit. It does not lie in the mouth of the appellant’s counsel to so urge. Judgment would have long been given on the merit, thereby giving room to any aggrieved party to appeal if so wished. I reiterate that counsel owe a duty to the Court and the litigants, to help reduce the period of delay in determining cases in our Courts by avoiding unnecessary interlocutory appeals as in this case.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in advance the copy of the lead judgment just delivered by my learned brother TANI YUSUF HASSAN JCA.
I agree with the reasoning and conclusion reached thereat that the appeal lacks merit and should be dismissed.
I also dismiss the appeal and abide by the order on cost against the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. I am in agreement with him that the appeal lacks merit; accordingly, I also dismiss it with costs as ordered in the lead judgment.
Appearances:
P. M. Lere For Appellant(s)
Gideon Ngwen with him, D. D. Dakur and J. A. Lakai For Respondent(s)