YENGE v. PRESIDENT FRN & ANOR (2022)

YENGE v. PRESIDENT FRN & ANOR

(2022)LCN/16642(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, April 27, 2022

CA/A/54/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

CHEF SAATSAHA THADDEUS YENGE APPELANT(S)

And

1. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA 2. NATIONAL ASSEMBLY OF THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE POSITION OF LAW ON SIGNING OF COURT PROCESSES

To begin with, the issue of signing of Court processes has for a while been subject of many decisions of this Court and the Supreme Court. There is no aspect of signing and filing processes in Court that had not been decided by the Court. In the recent case of Sky Power Express Airways Ltd v. United Bank for Africa Plc & Anor (2022) LPELR, the Supreme Court per Garba, JSC, defines signature to mean among others:
“1. A person’s name or mark written by that person or at the person’s direction. “the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer”. The word “sign” is also defined on the same page, to mean, inter alias. – “To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it. See also Onward Ent. Ltd. v. Olam Int. (2010) All FWLR (Pt. 531) 1503 at 1512.“PER ADAH, J.C.A.

THE POSITION OF LAW ON THE ISSUE OF CREATION OF THE COURTS

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja, delivered on 17th June, 2017, in Suit No, FHC/ABJ/CS/559/2014.

The appellant as claimant instituted this action at the trial Court and claimed against the Respondents as Defendants all the reliefs as per the Originating Summons, thus:
1.) A Declaration that the National Industrial Court Act 2006 enacted by the 2nd Defendant and assented to by the 1st Defendant is unconstitutional, illegal, null and void and of no effect whatsoever.
2.) A Declaration that the Constitution (Third Alteration) Act 2010 is unconstitutional, illegal, null and void and of no effect whatsoever.
3.) A Declaration that the 2nd Defendant does not have the powers under the Constitution of the Federal Republic of Nigeria 1999 or any other law in Nigeria to deem as constitutional an unconstitutional Act.
4.) An Order of Perpetual Injunction restraining the Defendants and their successors from violating and further violating the constitution of the Federal Republic of Nigeria 1999 or any subsequent constitution of the Federal Republic of Nigeria whilst discharging their functions.

The 1st Defendant now 1st Respondent filed a counter-affidavit and a Notice of Preliminary Objection on the 25th November, 2014. The Notice of Preliminary Objection challenging the jurisdiction of trial Court and urging the Court to dismiss the plaintiff’s suit.

The summary of the appellant’s case, as plaintiff is that sometimes in 2006, the 2nd Defendant enacted the National Industrial Court Act 2006 which establishes the National Industrial Court as a Court of superior Record without altering the provisions of the Section 6(5) of the Constitution and thereby violated Section 6(3) of the Constitution. It was in view of this facts that the suit leading to this appeal was brought by the Appellant to determine the validity and constitutionality of the National Industrial Court Act 2006 and the Third Alteration Act 2010 in line with the 2nd Respondent’s power to deem as duly established an unconstitutional enactment.

At the close of trial, the trial Court after considering the Preliminary Objection of the 1st Defendant together with the substantive suit, dismissed the Preliminary Objection of the 1st Defendant on the basis that the locus standi of the 1st Defendant is unfounded and has not disclosed any cause of action. The trial Court further went further to deliver judgment in the substantive suit and held that the action of the Appellant is misconceived in law and fails in its entirety.

Dissatisfied with this decision, the appellant appealed to this Court. The Notice of Appeal filed on the 26th October, 2018, is upon Seven Grounds.

In line with the extant rules and practice of this Court, parties filed and exchanged Brief of Arguments, which they adopted and relied as their arguments at the hearing of the appeal.

The Appellant’s Brief of Argument was dated and filed on 18th February, 2019. The Appellant’s Reply Brief of Argument was dated 21st December, 2020, but filed 21st October, 2021. The 2nd Respondent’s Brief of Argument was filed 13th November, 2019, but deemed properly filed and served on 20th October, 2020.

In the Appellant’s Brief of Argument, two issues were formulated for the determination of this appeal, they are:
1. Whether the lower Court was right by holding that the 1st Respondent’s Notice of Preliminary Objection signed by an unidentifiable legal practitioner was a mere irregularity and therefore competent in law.
2. Whether the lower Court was right by not granting the consequential reliefs sought in the Originating Summons regard being had to the questions submitted for determination by the Appellant.

In the 2nd Respondent’s Brief of Argument, a lone issue was formulated for the determination of this appeal, thus:
Whether in the entire circumstance of this case, the trial Court was not right to have held that the Appellant’s action is misconceived in law and thereby striking out same for want of merit?

I adopt the two issues formulated by the appellant for consideration in this appeal. The two issues also cover the issue generated by the 2nd Respondent in their Brief of Argument. I shall take the two issues together.
Issues One & Two:
These issues are – Whether the lower Court was right by holding that the 1st Respondent’s Notice of Preliminary Objection signed by an unidentifiable legal practitioner was a mere irregularity and therefore competent in law; and Whether the lower Court was right by not granting the consequential reliefs sought in the Originating Summons regard being had to the questions submitted for determination by the appellant.

Learned counsel for the appellant submitted that the lower Court was not correct, with respect, by not upholding the appellant’s Objection to the competence of the 1st Respondent’s Notice of Preliminary Objection same having been signed by an unidentifiable legal practitioner. Counsel further submitted that the lower Court having held that “that the legal practitioner who signed it is not specified” would not have relied on the said processes because it is not the duty of the Courts including the lower Court to speculate on who specifically signed the process in question. Speculation is not the adjudicatory function of Courts. Counsel relied on the cases of Abdulkareem v. Lagos State Government (2016) All FWLR (Pt. 850) 1101 AT 1145 Para F, Okeyezea v. Ugwuanyi & Ors (2015) 8 C.A.R 195 AT 209 Paras. A-c, Adisa v. Oyinwola (2000) FWLR (Pt. 8) 1349 AT A-C, Tanimu v. Rabiu (2017) All FWLR (Pt. 900) 391 AT 410 G.

Learned counsel for the appellant argued that National Industrial Court was already in existence as an inferior Court before the enactment of the 2006 Act, arrogating its status to that of a superior Court without complying with the relevant provisions of the constitution in doing so. The mere fact that the Act was enacted contrary to the constitutional provisions made the Act void ab nitio. It has no legal footing to stand and ought to have been nullified forthwith by the lower Court. This, the lower Court failed to do, hence the call for the intervention of this appellate Court vide Section 15 of the Court of Appeal Act. Counsel relied on the cases of N.U.E.F v. B.P.E (2010) All FWLR (Pt. 522) 201 AT 241 Paras. A-E; Macfoy v. UAC (1961) AC 150 AT 160, Geneva v. Afribank (Nig.) Plc (2013) All FWLR (Pt. 702) 1652 AT 1682 F-G SC, Inakoju v. Adeleke (2007) All FWLR (Pt. 353)3 AT 177 C-D, George v. FRN (2014) All FWLR (Pt. 718) 879 AT 896 C-D, Osakue v. Federal College of Education (Tech) Asaba (2010) All FWLR (Pt. 522) 1601 AT 1631 B-C, Imad v. Salami (1998) 7 NWLR (Pt. 557) 289 AT 297 A-C, Hope Democratic Party v. Obi (2012) All FWLR (Pt. 612) 1620 AT 1637 C-F, Ogboru v. President Court of Appeal (2007) All FWLR (Pt. 369) 1221 AT 1275 D.

Learned counsel for the appellant submitted that it is apparently clear from the preambles of the three enactments that the Third Alteration Act intended to alter a different Constitution and establishes NIC under a different Constitution from the 1999 Constitution under the First and Second Alteration Acts. The Third Alteration Act never altered the “Constitution of the Federal Republic of Nigeria 1999” as demonstrated under the First and Second Alteration Acts. Counsel relied on the cases of Braithwaite v. G.D.M (1998) 7 NWLR (Pt. 557) 307 AT 325 F, Atoshi v. A.G Taraba (2012) All FWLR (Pt. 652) AT 394 E-F, Ebebi v. Speaker Bayelsa State House of Assembly (2012) 5 NWLR (Pt. 1292) 1 AT 52 Para. D.

Learned counsel for the appellant further submitted that the appellant posited that the National Industrial Court Act 2006 and the Third Alteration Act 2010 are unconstitutional and should accordingly be declared null and void by the Lower Court. Counsel relied on Section 1 (1) and (3) of the Constitution of the Federal Republic of Nigeria; Adamawa State House of Assembly v. Tijjani (2012) All FWLR (Pt. 615) 330 AT 363 Paras. A-B, AG Abia State v. AG Federation (2002) All FWLR (Pt. 101) 1410, Hope Democratic Party v. Obi (2012) All FWLR (Pt. 625) 297 AT 308 Paras. E-F, AG Abia State v. AG Federation (2002) All FWLR (Pt. 101) 1419 (2002) 17 WRN 1 AT 180 lines 15-20, Elelu-Habeeb v. AG Federation (2012) 2 SCNJ 502 AT 557 line 30, Olufunsho v. Global Soap and Detergent Ind. Ltd. (2013) All FWLR (Pt. 709) 1092 AT 1124 F-G; Governor, Kwara State v. Ojibara (2007) All FWLR (Pt. 348) 864 AT 877 C-E. Counsel urged the Court to allow the appeal.

In response, learned counsel for the 2nd Respondent submitted that the trial Court, having resolved the Preliminary Objection of the 1st Respondent in the appellant’s favour, the appellant cannot be heard complaining about same. In other words, he is not an aggrieved party capable of attacking the decision on the objection being that same was resolved in his favor. We submit further, that to entertain this issue as couched will amount to an academic exercise to which this Honourable Court will not lend its precious time. Counsel relied on the case of Owners of the MV “Arabella” v. N.A.I.C. (2008) 11 NWLR 182 AT 209, Paras. F-G.

Learned counsel for the 2nd Respondent argued that the appellant is seeking for declaratory reliefs as set out in the statement of facts above. The position of the law is settled, that a claimant seeking declaratory reliefs must prove his case based on its strength, even if the Defendants refuse to defend the suit. Counsel relied on the cases of CBN v. Amao (2010) 16 NWLR (Part 1219) 271 AT 299-300, Paras. G-D, Bulet Int’l (Nig.) Ltd v. Olaniyi (2017) 17 NWLR (Part 1594) AT 299 Paras. A-C.

Learned counsel for the appellant submitted that the National Industrial Court Act, 2006 was passed by due process of law and does not become invalid or unconstitutional by its purport to make the established Court a Superior Court of Record. It is our submission that whereas there is need for constitutional amendment to include the industrial Court on the list of Superior Court of Record the establishment of the Court itself is within the powers to enact a law to establish a Court in Nigeria, although to make the Court a Superior Court of Record, required the amendment of the constitution counsel relied on Section 6 (4) of the Constitution of the FRN, NUEE v. BPE (2010) 7 NWLR (Pt. 1194) 538 AT 571-572 Paras. F-E, A.G Oyo State v. NLC (2003) 8 NWLR-(Pt.821) 1 AT 30 Para. H, A.G Lagos State v. A.G Federation (2013) 12 NWLR (Pt. 833)1 AT 244 Paras. A-D.

Learned counsel for the 2nd Respondent further submitted that it is the appellant’s contention that the preamble should have read differently, that is, to alter the Constitution of the Federal Republic of Nigeria, 1999, and having failed to so read, the Third Alteration Act, 2010 should be declared null and void. Counsel submitted that the appellant seems to be unaware of a rather fundamental principle of interpretation of statutes. The principle is to adopt the construction that brings out the purpose of the statute by the legislature. Counsel relied on the cases of Coca-Cola (Nig.) Ltd v. Akinsanya (2017) 17 NWLR (Pt. 193) 74 AT 123 Paras. C-F, Skye Bank Plc v. lwu (2017) 16 NWLR (Pt. 1590) 24 AT 88-89 Paras. E-D, Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 AT 393 Para. D, Ugwuanyi v. Nicon Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546 AT 615 Para. D, Macfoy v.UAC (1961) AC 150 AT 160, Inakoju v. Adeleke (2007) FWLR (Pt. 353) 3, George v. FRN (2014) All FWLR (Pt.718) 879; Ogboru v. President Court of Appeal (2007) All FWLR (Pt. 369) 1221. Counsel urged the Court to dismiss the suit with a heavy cost.

Appellant, in his Reply Brief of Argument submitted that the appellant’s issue no. 1 is distilled from ground 1 of the Notice of Appeal whereas issue no. 2 is distilled from grounds 2, 3, 4, 5, 6 and 7 of the same Notice of Appeal filed by the appellant. This notwithstanding, the 2nd Respondent’s sole issue as formulated does not flow from the grounds of appeal filed by the appellant. The 2nd Respondent’s argument are predicated on an incompetent issue and therefore, bad and this Court cannot embark on surgical operation to sustain the 2nd Respondent’s Brief of Argument. The most appropriate thing to do he said, is to discountenance the entire Brief of Argument. Counsel relied on the cases of Oduneye v. F. R. N (2015) All FWLR (Pt. 776) 399 AT 433 F-G, Luna v. COP Rivers Police Command (2018) All FWLR (Pt. 967) 449 AT 466 G-H.

Learned counsel for the appellant submitted that the argument in paragraphs 4.1 , 4.2, 4.3, 4.4 and 4.5 of the 2nd Respondent’s Brief of Argument is incompetent not having been rooted or traceable to the narrow issue formulated by the 2nd Respondent. That the arguments on declaratory reliefs are new in this appeal and have no trace in the record of Appeal. Counsel relied on the cases of Anyafulu v. Agazie (2007) All FWLR (Pt. 143 AT 153; CATCO Corporation Organised v. A.R.C. (2010) All FWLR (Pt. 517) 677 AT 689-690 H-B; NBC v. Ubani (2014) All FWLR (Pt. 718) 803 AT 835 A-B; Att. Gen. Lagos State v. Eko Hotels Ltd (2006) All FWLR (Pt. 342) 1398 AT 1449-1450 C. Counsel further submitted that the part of the sole issue formulated by the 2nd Respondent’s counsel touching on the “striking out the appellant’s action” does not flow from any of the grounds of appeal filed by the Appellant. That it in fact it does not even agree with the cold content of the entire record of this appeal as Appellant’s suit was not struck out but was dismissed. Counsel relied on the case of Gwede v. INEC (2015) All FWLR (767) 615 AT 644 F-G.
Learned counsel for the appellant argued that the arguments and submissions in paragraphs 4.1, 4.6, 5.2-5.31, 5.34-5.45, 5.47-5.48, 5.51-5.54, 6.10-6.16 and 6.19-6.31 of the Appellant’s Brief of Arguments and therefore admitted in law. Counsel relied on the case of Sakati v. Bako (2015) All FWLR (Pt. 800) 1182 AT 1209 D. Counsel urged the Court to allow the appeal.

To begin with, the issue of signing of Court processes has for a while been subject of many decisions of this Court and the Supreme Court. There is no aspect of signing and filing processes in Court that had not been decided by the Court. In the recent case of Sky Power Express Airways Ltd v. United Bank for Africa Plc & Anor (2022) LPELR, the Supreme Court per Garba, JSC, defines signature to mean among others:
“1. A person’s name or mark written by that person or at the person’s direction. “the signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of this signer”. The word “sign” is also defined on the same page, to mean, inter alias. – “To identify (a record) by means of a signature, mark, or other symbols with the intent to authenticate it as an act or agreement of the person identifying it. See also Onward Ent. Ltd. v. Olam Int. (2010) All FWLR (Pt. 531) 1503 at 1512.”
Signature is very important on all the processes filed in Court. It is of essence to know that a signature authenticates and confers credit for the process. If a process is not signed properly, it is deficient of credibility and cannot stamp any authority or legitimacy on the process.
See also the case of Emeka v. Chuba-lkpeazu & Ors (2017) LPELR – 41920 (SC), where the Supreme Court held: “This Court had laid down the ground rules on what should be to qualify for an appropriate signing of a legal practitioner on a legal especially as it relates to an originating process such as a Notice of Appeal or such like. In the case of SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 337 – 338, the Supreme Court per Rhodes-Vivour, JSC, stated thus: – “All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represents. Fourthly, name and address of legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e., the Legal Practitioners Act)”. In the lead judgment, Onnoghen, JSC, (as he then was) at pages 331 – 332 (paras. H – A) held that: “…A Process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simple writes his own name over and above the name of his/or form in which he carries out his practice”. At 332 (Para E) it was further held thus: ‘It has been argued that non-compliance with the provision of Order 25 Rules 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v. Nkemdilim (supra)… the provision of the Rules of Court involved herein are by the wordings mandatory not discretionary”. The Court had in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 where the process in contention was signed above the name of J.H.C. Okolo, SAN & Co., stated as follows on what should be thus: – “J.H.C. OKOLO SAN & CO., is not a legal practitioner and therefore, cannot practice as such by say, filing processes in the Courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. OKOLO SAN & Co, actually belongs to J.H.C. OKOLO, SAN, who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. OKOLO & Co., or was appended on its behalf since it was signed on top of that name. Since both counsel agreed that J.H.C. OKOLO, SAN & CO., is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO, SAN & CO., cannot legally sign and/or file any process in the Courts…”
Then, in the case of Daniel v. INEC & Ors (2015) LPELR – 24566 (SC), the acceptable manner of signing legal processes by legal processes by legal practitioners were explained as follows: “In SLB Consortium Ltd v. NNPC(2011) 9 NWLR (Pt. 1252) p. 317. I explained how processes filed in Court are to be signed. I said (a) First, the signature of counsel, which may be any contraption; (b) Secondly, the name of counsel of counsel clearly written; (c) Thirdly, who counsel represents. (d) Fourthly, name and address of legal firm.”
In the instant case, the Preliminary Objection filed was not properly signed and the trial Court overlooked the error and acted on it. The law is now clear that where a process is not properly authenticated and signed, the Court has no business acting on it. The trial Court was wrong to have treated the failure of the objectors to properly sign the Preliminary Objection as an irregularity. This issue no doubt is resolved in favour of the appellant. The good thing in this appeal is that the trial Court took the case on merit and came to far-reaching conclusions. This gives the opportunity for us to look into the merit of this case.

The whole gamut of the claim of the appellant centered around the creation of the National Industrial Court of Nigeria by the National Assembly under the provision of Section 6 of the 1999 Constitution as amended.

The issue of creation of Courts under the Constitution and the law is expressly provided for by the Constitution and there is nothing clumsy about following the express provisions of the Constitution. Section 6(1), (3) & (4) of the 1999 Constitution provides as follows:
6. (1) The judicial powers of the Federation shall be vested in the Courts to which this section relates, being Courts established for the Federation.
(3) The Courts to which this section relates, established by this Constitution for the Federation and for the State, specified in Subsection (5)(a) to (i) of this Section shall be the only superior Courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court of record.
(4) Nothing in the foregoing provisions of this Section shall be construed as precluding –
(a) the National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;
(b) the National Assembly or any House of Assembly, which does not require it, from abolishing any Court which it has power to establish or which it has brought into being.
The Constitution from this provision never intended that the Courts specified in subsection 5(a) to (i) be the only Courts for the Federation and States. It makes room for the National Assembly and the State Houses of Assembly to create Courts as may be desired for the Federation and the States. The creation of the National Industrial Court by the National Assembly is therefore, not contrary to the provision of the Constitution. The issue of it being a superior Court of record is Constitutional and that was the essence of the alteration of the Constitution as in the Third Alteration which the appellant wants Court to strike down. The power to amend the Constitution and to make laws has been given to the National Assembly by the Constitution itself. The Constitutional provision in that respect are sacrosanct and must be complied with. When the National Assembly exercised that constitutional right to make laws the power of the Court to review becomes active only if the law is unconstitutional. In the instant case, the Act setting up the National Industrial Court went through the normal process of legislation and nothing adverse has been urged to nullify the process. The Act itself does not clash with the Constitution. The fact that it was created before the Constitution was altered to enlist it as a superior Court does not in any form down-grade the potency or validity of the Act.
Furthermore, Section 315(1) of the Constitution allows any existing law to be modified as necessary to bring the law into conformity with the provisions of the Constitution. The lower Court cannot be faulted in its decision that the action of the appellant was misconceived. There is in this appeal no merit. The main issue is resolved against the appellant. The appeal therefore, is hereby dismissed.

The Judgment of the trial Court delivered in Suit No: FHC/ABJ/CS/559/2014, delivered on 17th June, 2017, is hereby affirmed.

Parties to bear their respective costs.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA just delivered and I agree with the finding and conclusion reached therein that this Appeal lacks merit and it is dismissed by me as well.

The decision of the trial Court in Suit No. FHC/ABJ/CS/559/2014 delivered on 17th June, 2017 is hereby affirmed.
No award as to cost.

BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother, Stephen Jonah Adah, JCA. I agree entirely with the reasonings expressed therein and the conclusion reached thereby. I adopt those reasonings as mine; by which I too formed the considered view that the appeal in its main is devoid of merit, liable to be and is accordingly dismissed by me too.

I abide by the order on cost made in the lead judgment.