UNITY BANK PLC V. RANA TAHIR FURNITURE CO. LTD (2013)

UNITY BANK PLC V. RANA TAHIR FURNITURE CO. LTD

(2013)LCN/6122(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of April, 2013

CA/K/209/2006

RATIO

A COURT PROCESS CAN ONLY BE SIGNED BY A LEGAL PRACTITIONER

It is a well established principle of the law that a Court process can only be signed by a legal practitioner. Thus in Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521 at 524, the Supreme Court held that:

“By virtue of section 24 of the Legal practitioners Act, Cap. 207 laws of the federation of Nigeria, 1990, a legal practitioner is a person entitled in accordance with the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding. A law firm is not a legal practitioner and therefore cannot practice as such by filing processes in Nigerian courts. Only human beings actually called to the Bar can practice or practice by signing documents”PER ABDU ABOKI, J.C.A

THE NAME OF THE LEGAL PRACTITIONER SIGNING A PROCESS MUST BE INDICATED

Thus in Okafor v. Nweke (supra) at 525, the Supreme Court held that:

“Legal practitioners have formed the habit of signing court processes in their partnership of firm’s name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out”.PER ABDU ABOKI, J.C.A

WHO SHOULD SIGN A COURT PROCESS

In SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt. 1252) 317 at 336 – 337 the Supreme Court in the course of interpreting Order 26 rule 4 (3) of the Federal High Court Rules, 2000 which is impari materia with Order 25, rule 4(1) of the Kano State High Court Civil Procedure rules 1988, held per Fabiyi JSC at pages 336 – 337:

“There is no gain saying the fact that vide order 26 Rule 4(3) of the Federal High Court Rules, 2000 processes shall be signed by a legal practitioner or by a party if he sues or defends in person.

In reality, “Adewale Adesokan & Co” which signed the originating summons is not a legal practitioner known to the applicable legal practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990.PER ABDU ABOKI, J.C.A

JURISDICTION: A COURT IS COMPETENT WHEN MATTERS ARE BROUGHT BEFORE IT UNDER DUE PROCESS

It is also desirable to state it here that this Court in the case of Madukolu v. Nkemdilim (1962) 2 NSCC 374 at 379-380 (1962) 2 SC NLR 341 maintained that a Court is competent when, inter alia, the case comes up before the Court initiated by due process of law, and upon fulfillment of nay condition precedent to the exercise of jurisdiction.PER ABDU ABOKI, J.C.A

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC – Appellant(s)

AND

RANA TAHIR FURNITURE CO. LTD – Respondent(s)

ABDU ABOKI, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Kano State delivered on 23rd day of March, 2005 by S. Yusuf J.

The brief synopsis of the facts that gave rise to this appeal were that the respondent who was a customer of the defendant (hereinafter called the appellant) was granted a loan facility by the latter.

Consequently the respondent created a Mortgage Debenture over its property covered by Kano State Certificate of Occupancy No. LKN/1WD/81/18 as a security for the repayment of the said loan facility.

When the time for the repayment of the aforesaid facility became due, the parties to the said transaction as evidenced in Exhibit A agreed that upon the payment of N71, 397,984.42 by the Respondent to the Appellant, the former would be discharged from any liability arising from the said transaction.

After the conclusion of the trial, the lower Court gave judgment in favour of the Respondent and it specifically ordered that:

“1. That it is hereby declared that the payment made by the Plaintiff to the Defendant was in total satisfaction of her indebtedness and it was in due compliance with the agreement reached between the parties and confirmed by the Defendant as full and final payment of the total indebtedness and therefore the Plaintiff is no longer indebted to the Defendant in any sum what so ever.

2. That it is hereby declared that the continuous detention/withholding the Plaintiff Title Document to which certificate of occupancy No. LKN/ND/81/18 after full and liquidation of her indebtedness to the Defendant on agreement between the parties over same and calculated attempt to cause in due embarrassment ridicule, great inconveniences to it and her entire business venture.

3. That it is hereby declared that Mr. Haini Jaffar’s Account with the Defendants being a personal account should not be the basis for withholding the certificate of occupancy issued in the name of the plaintiff and the continuous withholding of the certificate is illegal, unconstitutional and against the banking practice in Nigeria and amount to a complete denial of the Plaintiff right to use the said certificate for the personal need or any purpose at all.

4. That it is hereby ORDERED that the Defendant bank either by itself, agent servant and privies or what so ever name known of called SHOULD RELEASE IMMEDIATELY the Plaintiff title document to which certificate of occupancy No. LKN/1ND/81/18 impounded or illegally seized and kept in the Defendant custody.

5. That the Plaintiff is entitled to general damage which is assessed at N1.5Million”.

Aggrieved by the said decision, the Appellant appealed to this Court vide a Notice of Appeal containing 15 grounds of appeal and at the hearing of this appeal the parties duly adopted and relied on the arguments and submissions contained in their respective briefs of argument.

The Appellant’s brief of argument dated 20/10/2011 and filed on 21/11/2011 was settled by Nassir Abdu Dangiri.

The respondent’s brief of argument dated 8/3/2013 and filed on 15/3/2013 was settled by Agboeze Casmir Esq.

The Appellant in its brief of argument formulated the following issues for determination to wit:

“i. Whether the learned trial judge (As he then was) has/had jurisdiction to entertain plaintiff (respondents suit in view of the fact that the originating processes was/is filled by the firm of KEHINDE OLAITAN & CO instead of a qualified legal practitioner as required by section 2(1) and 24 of the Legal Practitioners Act Cap 207 Law of the Federal 1990 (Now Cap L 11 Laws of the Federation 2004) and order 25, Rule 4(1) of the Kano State High Court (Civil Procedure) Rules 1988. (1).

ii. Whether the learned trial judge (As he then was) was right in entertaining and granting reliefs No. 4 and 5 of 19(d) or 21(d) and 21(e) of the fees plaintiff/respondent’s claim when filing has not been paid in respect of those heads of claim, (2), (3).

iii. Whether the learned trial judge (As he then was) was right in holding that Exhibits A, C, D and E (the respondent) can alter or vary the content of the Deed of Mortgage Debenture executed by the respondent in favour of the appellant in securing the loan granted to the respondent. (5) (6) (7) (8) (9) (11) & (12).

iv. Whether from the pleadings and evidence lead by the parties the plaintiff/respondent was/is entitled to the reliefs granted to it by the trial court”. (4) (13) (14) (15).

The respondent as per his brief of argument formulated the following issues to wit:

“i. Whether the filing of the suit in the name of the firm of KEHINDE OLAITAN & CO. oust the jurisdiction of the trial Court pursuant to the Legal Practitioners Ad and the Kano State High Court (Civil Procedure) Rules 1988.

ii. Whether the failure of a party to pay adequate filing fee can be raised on appeal stage.

iii. Whether issues Nos. (iii) and (iv) in the appellant’s brief has any credence to be considered by this honourable Court”.

Except for the mode of couching, the parties to this appeal have in their respective briefs raised identical issues for determination. In light of the foregoing therefore, I shall adopt the 1st issue formulated by the respondent in the consideration of this appeal.

On the said issue, learned counsel to the appellant contended in its brief of argument that the lower Court erred in law when it entertained the respondent’s claim.

Counsel further contended that the originating processes used in initiating the said action were not signed by a Legal Practitioner as required by the law.

Counsel referred the Court to the provision of sections 2(1), 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation 1990 (now Cap L 11 Laws of the Federation 2004), Order 25 Rule 4(1) of the Kano State (Civil Procedure) Rules, 1988, pages 2-11 of the printed record and the cases of Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521, SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) 317 at 330 – 333, 333 – 334, 336 – 337, 337 – 338 and

Okafor v. Nweke (supra) at 530 533, 533 – 534 and 535 – 536.

In conclusion, learned counsel to the appellant urged the Court to resolve this issue in favour of the appellant.

Learned counsel to the respondent on the other hand submitted that the filing of the suit in the name of “Kehinde Olaitan & Co” did not rob of the lower Court with the jurisdiction to entertain the aforesaid suit.

Counsel further submitted that the filing of the suit in the name of “Kehinde Olaitan & Co” was not irregular and improper.

Learned counsel to the respondent referred the Court to the cases of

Unity Bank Plc v. Oluwafemi (2007) All FWRL (pt. 382) 1923 at 1928,

Olatilu v. Akomolafe (2011) FWLR (pt. 525) 292 at 295,

Azeez Akeredolu & ors v. Lasisi Akinremi (1985) 11 S.C 74 at 93 to 94 and to section 74 (1) (M) of the Evidence Act.

In conclusion learned counsel to the respondent urged the Court to dismiss this appeal with cost.

In the instant appeal, the originating processes specifically the writ of summons as well as the statement of claim was filed in the name of the law firm of “KEHINDE OLAITAN & CO”.

Since the said law firm is not a legal practitioner as provided by sections 2(1) and 24 of the Legal Practitioners Act, 2004, it lacks the power to file or sign any Court process and any Court process that is filed or signed under the name “KEHINDE OLAITAN & CO” shall and must be struck out.

Thus in Okafor v. Nweke (supra) at 525, the Supreme Court held that:

“There is no gain saying the fact that vide order 26 Rule 4(3) of the Federal High Court Rules, 2000 processes shall be signed by a legal practitioner or by a party if he sues or defends in person.

This is so, since it is not a person entitled to practice as a barrister and solicitor with its name on the roll. Refer to the case of Okafor & ors v. Nweke & ors (supra). The case of Cole v. Martins (1968) 7 ALL NLR 161 seriously relied upon by the appellant was, with due respect, decided per incuriam of the applicable provisions, of sections 2 and 19 of the legal practitioner Act, 1962 which are similar to section 2(a) of the Legal Practitioners Act, 1975 and the Legal practitioners Act 1990 which provide as follows:

Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.

Even then, in the earlier case of Registered Trustees, The Apostolic Church v. R. Akindele (1967) NMLR 263, it was firmly held and established that a firm of solicitors is not competent to sign a process. It is not in doubt that the signature of “Adewale Adesokan & Co” on the originating summons of the appellant robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as a Barrister and Solicitor in this Court. See also

Nwani v. Bakari (2005) All FWLR (pt 281) 1803 at 1825 (2007) 1 NWLR (pt. 1015) 333, First Bank of Nigeria Plc & Anor v. Maiwada (2003) All FWLR (pt.151) 2001 at 2014.

In the prevailing circumstance all the proceedings which rested on the inchoate originating summons are deemed not to have taken place in law. One cannot put something on nothing and expect it to stand. This is as stated decades ago in UAC v. Mac Foy (1962) AC 152 at 160.

It has been established that the originating summons signed by a law firm of “Adewale Adesokan & Co” was not initiated by due process. As same is incompetent, this appeal rest on nothing. This appeal must be and it is hereby struck out as the preliminary objection is sustained”.

In the instant appeal, the writ of summons was issue in the name of Kehinde Olaitan & Co. Furthermore, the statement of claim that was filed before the lower Court was signed in the name of Kehinde Olaitan & Co. The statement of claim was signed in the manner below:

KEHINDE OLAITAN & CO

PLAINTIFF’S SOLICITORS

59, IBRAHIM TAIWO ROAD

KANO.

In light of the foregoing the statement claim being manifestly defective ought to be set aside and it is accordingly set aside and struck out.

The decision of the lower Court is equally set aside having been stripped of jurisdiction to hear and determine the suit due to the defect on the originating process filed before it. There is merit in this appeal and it is hereby allowed.

ITA G. MBABA, J.C.A: I had the privilege of reading a draft of the lead judgment, just delivered by my learned brother, ABDU ABOKI, JCA and I agree completely, with his reasoning and conclusions.

It is settled in this appeal, that both the Writ of Summons and the Statement of Claim of the Plaintiff (Respondent herein) were allegedly prepared and signed by a legal firm KEINDE OLAITAN AND CO, without the disclosure of any legal practitioner known to law, as the settler of the processes. Of course, all the judicial and adjudicatory effort invested in the conduct and hearing of the Suit was a complete waste of judicial time, and an exercise in futility, as the KEHINDE OLAITAN AND CO was a legal fraud and unknown to law, as legal practitioner, capable of signing legal process in Court to originate adjudication.

The law is well developed and settled as to who a legal practitioner is in Nigeria, who can sign legal process (es) on behalf of a litigant in Court. See our recent decision on this issue in the case of AGROVET SINCHO PHAM LTD AND ANOR. V. ESTATE OF ENGR DAHIRU DAWAKI AND 11 ORS: CA/K/205/2003 delivered on 8/2/2013, pages 9 – 10, where it was held:-

It must, however, be stated that Appellants were wrong to argue, in their Reply Brief, that because, their firm, Maitama Tula & Co., is registered with the Corporate Affairs Commission it has become qualified to sign the document! Even if the law firm were a limited liability Company, thereby enjoying legal personality, under the law, it would still be unqualified to sign the document, not being a person called to the BAR, as a legal practitioner in Nigeria.

It must also be added that the error of omitting to state the name of a legal practitioner, duly registered to practice law as barrister and solicitor in Nigeria, on a process of court meant to originate a matter can be fatal, on enquiry as to whether the person who signed the process is known to law as duly registered legal practitioner. There can be no argument that a Law Firm cannot claim to qualify as a legal practitioner, registered with the Supreme Court, to practice law in Nigeria. It is the individual lawyer(s) in the law firm that can enjoy such privilege and recognition of signing legal processes for a party. See the unreported decision of this court in BELLO V. ADAMU (APPEAL No. CA/K/235/09, delivered on 8th June, 2011; OKAFOR V. NWEKE (2007) 10 NWLR (Pt. 1043) 521 at 530; or (2007) 3 SCNJ 185; NEW NIGERIAN BANK V. DEDANG LTD. (2005) 4 NWLR (Pt. 916) 573.

If the learned trial judge had properly appraised the law and facts of the situation in this case, the proper order it would have made, in the circumstances, would have been to strike out the Suit. This Court can make that order, under Section 15 of the Court of Appeal Act, 2004.

With this and other reasons in the lead judgment, I too allow the appeal and abide by the consequential orders therein.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Abdu Aboki, JCA. His Lordship considered and resolved the issues in contention in this appeal. I agree with the reasoning contained therein.

The first issue for determination raised by the Appellant in this appeal was whether the learned trial Judge had jurisdiction to entertain the Respondent’s suit in view of the fact that the originating processes were filed by the law firm of Kehinde Olaitan & Co, not a qualified legal practitioner under the provisions of sections 2(1) and 24 of the Legal Practitioners Act Cap 207, Laws of the Federation2004. It is not in dispute in this matter that the writ of summons (see pages 2 to 4 of the records) and the statement of claim (see pages 5 to 11, of the records) were issued and signed by the law firm of Kehinde Olaitan & Co. Looking at the present state of our legal jurisprudence, the incompetence of a court process so issued and signed in the name of a law firm, rather than in the name of an individual legal practitioner, in not open to debate in and by this Court. There are clear decisions of the Supreme Court on the issue in the cases of Okafor V. Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade V. Adewunmi (2010) 8 NWLR (pt 1195) 63, SLB Consortium Ltd V. NNPC (2011) 9 NWLR (Pt 1252) 317 and the unreported decision of the full panel of seven Justices of the Supreme Court in First Bank of Nigeria Plc V. Maiwada & Ors delivered on 25th of May, 2012. In all these decisions, the Supreme Court was categorical in holding that court processes signed in the name of a firm were incompetent, without any exceptions or qualifications. This Court is bound those decisions.

The net effect of the incompetence of the court processes used to ignite and initiate this present suit before the lower Court is that the matter was not commenced by due process of law and thus the lower Court lacked jurisdiction to entertain the suit under the principles enunciated by the Supreme Court in Madukolu V. Nkemdilim (1962) 2 SCNLR 341 and re-affirmed in several other cases. It is trite that where a court has no jurisdiction to hear and determine a matter, the determination made by the court on the merits of the matter amounts to nullity and must be set aside. The appropriate thing for the court to have done in such a circumstance was to have declined hearing the matter and strike out the case – NEPA V. Adegbenro & 15 Ors (2002) 18 NWLR (Pt 798) 79, Arjay Ltd V. Airline Management Support Ltd (2003) 7 NWLR (Pt 820) 577, Chief Lakanmi V. Adene (2003) 10 NWLR (Pt 828) 353, Tyonzughul V. Attorney General, Benue State (2005) 5 NWLR (Pt 918) 226, Abubakar Tatai Ali Polytechnic V. Maina (2005) 10 NWLR (Pt 934) 497. The judgment entered by the lower Court in this matter must thus be set aside, no matter how well it was done.

It is for these reasons, and the fuller reasons contained in the lead judgment, that I too allow this appeal and set aside the judgment of the High Court of Kano State in Suit No K/876/03 delivered by Honorable Justice S. Yusuf on the 23rd of March, 2005. The said suit No K/876/03 is hereby struck out.

Appearances

N. A. DangiriFor Appellant

AND

Respondent absent and unrepresentedFor Respondent