Slb Consortium Limited V. Nigerian National Petroleum Corporation (2011)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This is an appeal against judgment of the Court of Appeal Holden at Lagos in appeal NO. CA/L/31/2005 delivered on the 20th day of May, 2008 in favour of the respondent who was the defendant at the court of trial.
Both counsel for the parties have filed their briefs of argument which were adopted and relied upon at the hearing of the appeal on the 1st day of February, 2011.
The learned Senior Counsel for the respondent, OLAWALE AKONI ESQ, SAN raised a preliminary objection which was argued in the respondent’s brief filed on 9th June, 2009. The substance of the objection is that the originating processes in this action were signed by a law firm instead of a qualified legal practitioner as required by the Rules of Practice of the Federal High Court and the decision of this Court in the case of Okafor vs Nweke (2007) 3 S.C (pt. II) 55 at 62 – 63.
In arguing the objection, learned Senior Counsel referred the court to the Originating Summons at page .3 of the record of appeal which document is signed by “Adewale Adesokan & Co” as the legal practitioner acting on behalf of the plaintiff; that order 26 Rule 4(3) of the Federal High Court Rules, 2000 provides that pleadings shall be signed by a legal practitioner or the party if he sues or defends in person. It is the submission of learned Senior Counsel that the use of the word “shall” in the above provision clearly means that the provision is mandatory, Relying on the decision of this Court in Okafor vs Nweke supra, learned Senior Counsel submitted that for processes filed in the courts of this country to be valid, they must be signed by legal practitioners whose names are on the Roll as haven qualified to practice as Barristers and Solicitors in Nigeria; that since the Originating Summons was not signed by a legal practitioner as required by law, the trial court lacked the jurisdiction to entertain the matter as constituted thereby rendering the proceedings null and void; that the same defect afflicts the pleadings signed by “Adewale Adesokan & Co” and urged the court to sustain the preliminary objection and strike out the appeal.
In the reply brief filed on the 30th day of June, 2009, learned Counsel for the appellant Adewale Adesokan Esq submitted that the decision of this Court in Okafor vs Nweke supra is not applicable to the Originating Summons and the Amended Statement of Claim filed at the Federal High Court in the action resulting in the instant appeal; that the respondent is deemed to have waived his right to raise the objection and that the objection is incompetent.
In arguing further, learned Counsel cited and relied on the case of Cole vs Martins (1968) All NLR 161 in submitting that where only one person constitutes the practice of law in a law firm, it is correct to describe that person in terms of the registered business name; that Rule 4 of the Registration of Titles (Appeal) Rules which was interpreted in the Cole vs Martins (supra) case is very similar to the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules, 2000 cited and relied upon by learned Senior Counsel for the respondent; that the decision in the said Cole vs Martins (supra) remained the law until the decision in Okafor vs Nweke supra which was decided on Friday, 9th March 2007; that the said decision in Okafor vs Nweke (supra) has no retrospective effect so as to affect the Originating Summons filed on 30th June, 2000 and the Amended Statement of Claim filed on July 29, 2003, which were legally competent when filed; that the fact that a law is changed does not adversely affect or invalidate any act done under the law prior to the change.
Secondly, it is the contention of learned Counsel that the non-compliance with the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules 2000 is an irregularity which may result in the setting aside of the proceedings if the objection is raised in limine and before any step is taken in the action by the respondent, relying on Order 3 Rules 1(1) and 2(1) of the said Federal High Court (Civil Procedure) Rules, 2000; that the respondent by filing various processes in response to the Originating Processes now complained of, and participating in the trials and appeals at the lower courts is deemed to have waived his right; that though respondent has coughed the objection as being based on jurisdiction, a party can waive procedural jurisdiction by submitting to the jurisdiction’ of the court as was done in the instant case by the respondent; relying on Saude vs Abdullahi (1989) 4 NWLR (pt. 387) 405; Mobil Producing (Nig) Unlimited vs LASEPA (2002) 18 NWLR (pt. 798) 1 at 36.
On the competence of the preliminary objection, learned Counsel submitted that for the objection to be competent, it has to be based on the grounds of appeal before this court, which is not the case in the instant matter and urged the court to dismiss the objection.
In the reply brief of the respondent deemed filed on 1/2/2011, in relation to the reply brief of the appellant, learned Senior Counsel for the respondent submitted that the law that was interpreted in Okafor vs Nweke (supra) was the Legal Practitioners Act Cap 207, 1990 sections 2 and 24 thereof which has been in existence since 1962; that the court merely interpreted the provisions of the Legal Practitioners Act, not that it made any new law in Okafor vs Nweke.
On the decision in Cole vs Martins (supra) learned Senior Counsel submitted that sections 2 and 19 of the Legal Practitioners Act 1962, which are similar to the present sections 2 and 24 of the Legal Practitioners Act, 1990, were not considered in the said decision and as such the decision was reached per incuriam; that the learned Counsel for the appellant has not demonstrated that Mr. Adewale Adesokan is the only counsel in the law firm of “Adewale Adesokan & Co” for the decision in Cole vs Martins (supra) to apply.
It is the further submission of learned Counsel that the complaint of the respondent affects the foundation of the action since it affects the competence of the commencement of the proceedings, and not procedural in nature, relying on Okolo vs Union Bank of Nigeria (2004) 3 NWLR (pt. 859) 87 at 108; Madukolu vs Nkemdilim (1962) 2 NSCC 374 at 379 – 380.
On the competence of the objection, learned Senior Counsel submitted that an issue of jurisdiction can be raised at any stage of the proceeding or even on appeal for the first time; that the objection is grounded on Order 2 Rule 9(1) of the Supreme Court Rules 1999 and once more urged the court to uphold the objection.
In the case of Okolo vs Union Bank of Nigeria supra at page 108, this Court has the following to say on the importance of jurisdiction in adjudication:-
“Jurisdiction is the pillar upon which the entire case before a court stands. Filing an action in a court of law presupposes that the court has jurisdiction. But once the Defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. In effect, there is no case before the court for adjudication and therefore parties cannot be heard on the merits of the case.”
What then are the conditions precedent to the exercise of a court’s jurisdiction Or when is court of law said to be competent to hear and determine a case In Madukolu vs Nkemdilim (1962) 2 NSCC 374 at 379 – 380, this Court stated that a “a court is competent when:
- It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and
- The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
- The case coming up before the court was initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
The complain of the respondent in the preliminary objection is that the originating processes in this action were not signed by a person known to law contrary to the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules, 2000, sections 2 and 24 of the Legal Practitioners Act supra and the decision of this Court in Okafor vs Nweke (supra) by which the respondent is understood as contending that the case, as instituted “was not initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
In order 26 Rule 4(3) supra, it is provided thus:
“Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.”
The above provision is very clear and unambiguous. Looking at the Originating Summons and the Amended Statement of claim complained of, it is very clear that both were signed by “Adewale Adesokan & Co” and that the said “Adewale Adesokan & Co” is not a party to the action. Is “Adewale Adesokan & Co” a legal practitioner so as to come under the provisions of the above order
To answer that question, we have to go to the Legal Practitioners Act, Section 24 of which defines a Legal Practitioner thus:
“Legal Practitioner means a person entitled in accordance with the provisions of this Act to practice as a barrister and solicitor either generally orfor the purposes of any particular office or proceedings.”
So a legal practitioner contemplated by Order 26 Rule 4(3) supra is the one defined above. Is “Adewale Adesokan & Co” a legal practitioner within the con of Order 26 Rule 4(3) supra Learned Counsel “for the appellant contends that it is, being a law firm of a sole proprietor while the objection is to the contrary. This takes us to the decision of this Court in Cole vs Martins supra, which learned Counsel says is his authority for the above proposition. It is clear from the facts of this case that there is no evidence on record that Mr. Adewale Adesokan, who is legal practitioner whose name is on the roll, is the only legal practitioner practicing law under that trade name. Section 2(1) of the Legal Practitioners Act clearly states that “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.”
The above is a statutory provision which, even though in existence when Cole vs Martins supra was decided, under the Legal Practitioners Act, 1962, it was neither cited nor referred to by this Court in that, decision.
However, prior to the decision in Cole vs Martins (supra) this Court had decided the case of the Registered Trustees of Apostolic Church Lagos Area vs Rahman Akinde (1967) NMLR 263 in which, following the success of an objection to the application of the appellants for registration as owners of some land, the firm of solicitors of J.A. Cole & Co filed a notice of appeal at the High Court, Lagos against the ruling. In signing the notice of appeal, learned Counsel used his name in which he was called to Bar and enrolled at the Supreme Court i.e. J.A. COLE. After the hearing of the appeal, the trial judge drew attention to the fact that Order 3 Rule 2 of the High Court of Lagos (Appeals) Rules had not been complied with because the firm of J.A. Cole & Co is not a legal practitioner under the Legal Practitioners Act, 1962 and consequently dismissed the appeal upon appeal to the Supreme Court; the court allowed the appeal, holding at page 265 inter alia as follows:
“The notice filed in this case was given in the prescribed form. It stated the name and address of the legal practitioner representing the appellants as “Messrs JA. Cole and Co. 14/16 Abibu Oki Street, Lagos”, and was signed-
“J.A. Cole
For J.A. Cole & Co.”
Mr. J.A. Cole is admittedly a duly registered legal practitioner, and entitled to practice as such under the Legal Practitioners Act, 1962. He has no partner in his practice …. In signing the notice of appeal, Mr. Cole used his own name, that is to say, the name in which he registered as a legal practitioner. We hold that on any interpretation of the rules that was a sufficient compliance with them, and we do not accept the submission that the addition of the words “for A.J Cole & Co” would invalidate the signature if a signature in a business name was not permitted.” Emphasis supplied by me.
The above decision clearly states that a process prepared and filed in a court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice. In the instant case, it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co, because Mr. Adewale Adesokan is a legal practitioner registered to practice law in the Roll at the Supreme Court; not Adewale Adesokan & Co.
It has been argued that Cole vs 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 recognised 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).
I leave it at that. In any event, see the decision of this Court in Okafor vs Nweke (supra) at 62 – 63.
It has been argued that non compliance with the provisions of Order 26 Rule 4(3) supra is a mere irregularity which had been waived as the same involves the procedural jurisdiction of the court. I hold the view that the submission is misconceived on the authority of Madukolu vs Nkemdilim supra. That apart, the provisions of the Legal Practitioners Act, 1990 are statutory and therefore matters of substantive law which cannot be waived. The provision of the Rules of Court involved herein is, by the wordings mandatory not discretionary.
The argument that the objection ought to have been taken before the trial court and that it is rather too late in the day to raise same in this Court particularly as the respondents had taken steps in the proceedings after becoming aware of the defect or irregularities is erroneous because the issue involved in the objection is not a matter of irregularity in procedure but of substantive law – an issue of jurisdiction of the courts to hear and determine the matter as constituted and it is settled law, which has been conceded by both counsel in this proceedings – that an issue of jurisdiction is fundamental to adjudication and can be raised at any stage in the proceedings, even for the first time in the Supreme Court.
In the circumstance I find merit in the preliminary objection which is accordingly upheld by me. I hold that the originating processes in this case haven been found to be fundamentally defective are hereby struck out for being incompetent and incapable of initiating the proceedings thereby robbing the courts of the jurisdiction to hear and determine the action as initiated.
In the final analysis, the appeal arising from the proceedings initiated and conducted without jurisdiction is hereby struck out for want of jurisdiction.
I however, order that parties bear their costs.
Preliminary objection sustained. Appeal struck out.
SC.180/2008
