Mr. Samir Sulaiman V. Sword Sweet &. Confectionery (Nigeria) Limited & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
The appeal is against the Ruling on an application for a stay of proceedings pending appeal, delivered by Hon. Justice J. T. Tsoho sitting at the Federal High Court, Ibadan Judicial Division on 8th February, 2006.
The Ruling was in favour of the Respondents herein. Being dissatisfied with the said decision, the Appellant after obtaining the leave of Court on 21st February, 2006 lodged his appeal on the same date.
The Appellants Amended Brief of Argument dated 14th February, 2008 was filed on 18th February, 2008 and served on 27th February, 2008, The Respondents have raised an objection to the competence of this appeal by their Notice of Preliminary Objection originally dated and October, 2007 and filed on 26th October, 2007 but now dated and refilled on 7th April, 2008 following the amendment of the Appellant’s Brief of Argument. The argument on the objection is incorporated in the Respondents’ Brief of Argument,
The background facts are that the Appellant by an originating motion dated 21st October, 2003 instituted a suit claiming several reliefs against the Respondents. The Respondents filed a Memorandum of Conditional Appearance dated 10th November, 2003 and four Counter Affidavits in response to the Appellant’s Motion (pages 10, 11-20, 33 – 36 of the record). The Respondents also filed a Preliminary Objection dated 10th November, 2003 challenging the jurisdiction of the court. The Notice of Preliminary Objection was moved on 16th June, 2004 and in his Ruling on 6th June, 2005 the learned trial judge dismissed the grounds of objection raised by the Respondents.
The Respondents being dissatisfied with the decision of the lower court of 6th June, 2005 filed a Notice of Appeal dated 20th June, 2005 on the same date without leave being an interlocutory decision on grounds of law. The Respondents also filed a motion dated 5th July, 2005 for stay of further proceedings pending the hearing and determination of the appeal. The application was moved on the 21st day of November, 2006, which was opposed by the Appellant but the learned trial judge granted the stay of proceeding spending appeal on the 8th day of February, 2006.
The Appellant being dissatisfied with the decision of the Court granting a stay of proceedings pending the appeal sought leave to appeal by his motion dated 10th February, 2006 which was granted on 21st February, 2006.
In this appeal the Appellant’s Notice of Appeal is dated 21st February, 2006 signed by “S. A. Onadele & Co.” (pages 141 – 145 of the records). The Appellant’s Amended Brief of Argument is dated 14th February, 2008 and filed on 18th February, 2008. The Respondents filed a Notice of Preliminary Objection dated 7th April, 2008 in accordance with the rules of this Court challenging the competence of this appeal as well as all other processes filed by the Appellant as raised in the Preliminary Objection. The grounds for bringing the application are as follows:-
- The Notice of Appeal dated 21st February, 2006 was not issued by a Legal Practitioner known to law.
- The Appeal by reason of (1) above is incompetent and liable to be struck out
The Preliminary Objection was argued in the Respondents’ Amended Brief of Argument dated and filed on 7th April, 2008 deemed properly filed and served on 24th November, 2008 by order of Court and sequel to the Appellant’s reply brief to the preliminary objection, also filed a reply on points of law dated and filed on 16th December, 2008.
There are eight (8) grounds of appeal from which the Appellant distilled two issues for determination by this court, they are:
(1) Whether the Respondents have a valid and arguable pending appeal to sustain an application for stay of proceedings.(Grounds 1 and 2).
(2) Assuming the appeal was valid, did the trial Court exercise its discretionary power judicially and judiciously in granting stay of proceedings pending the said appeal? (Grounds 3 – 8).
In respect of their preliminary objection the Respondents in response to the Appellant’s Brief of Argument adopted the two issues raised by the Appellant but rephrased them as follows:
(1) Whether the Respondents have a competent and arguable appeal to warrant the grant of a stay of proceedings pending appeal.
(Grounds 1 and 2).
(ii) Whether the trial court exercised its discretion judicially and judiciously in granting a stay of proceedings pending the determination of the appeal. (Grounds 3 – 8).
Since the preliminary objection challenges the competence of the Notice of Appeal, resultantly the Appellant’s brief predicated on the Notice of Appeal, it is necessary to resolve the preliminary objection before going into the resolution of the appeal if need be.
The preliminary objection was brought pursuant to Order 10 Rule (1) of the Court of Appeal Rules, 2007, in which the competence of this appeal has been challenged, in that the Notice of Appeal dated 21st of February, 2006 filed on the same date against the Ruling of Hon. Justice J. T. Tsoho of the Federal High Court delivered on 8th of February, 2006 was signed by one “S. A. Onadele & Co.” for the Appellant’s Solicitors. The learned counsel for the Respondents O. O. Agbo Esq. in his submission referred to Sections 2(1) and 24 of the Legal Practitioner’s Act CAP 11, Laws of the Federation of Nigeria 2004. It was argued that S. A. Onadele & Co. is not a legal practitioner neither is it a barrister and solicitor whose name is on the roll of legal practitioners as provided under Sections 2(1) and 24 of the Legal Practitioners Act and cannot sign processes to be filed in Court.
It was submitted that it is only the appellant or a legal practitioner who is registered in the roll of legal practitioners and authorized to practice as an advocate in the Supreme Court of Nigeria that could sign and file a Notice of Appeal. Further, that where a firm of legal practitioners signs and files a Notice of Appeal as has been done in this case, it is fundamentally defective, incompetent, null and void. The following cases were cited in support, N.N.B. PLC Y. DENCLAG LTD. (2005) 4 NWLR [PART 916] 549 AT 573, OKAFOR & ORS. V. NWEKE & 2 ORS. (2007) 10 NWLR (PART 1043) 521 AT 533. It was submitted that there is no appeal before the Court, with the defect, that this court has no jurisdiction to entertain this appeal and referred to C.B.N. V. OKOJIE (2004) 10 NWLR [PART 882] 488 AT 512 and ADELEKAN vs. ECU LINE NV (2006) 12 NWLR (PART 993) 33 AT 56 -57. It was submitted that the defect is incurable and all other processes founded on it such as the brief of argument filed by the Appellant from which issues were raised are void as they cannot stand on their own. We were urged to strike out this appeal for being incompetent.
In response to the Respondents’ preliminary objection the learned counsel to the Appellant S. A. Onadele Esq. filed and relied on his reply brief dated 5th December, 2008 filed on 10th December, 2008. It was submitted that the Notice of preliminary objection as argued in the Respondents’ brief cannot take the place of affidavit evidence as evidence on record which must provide necessary foundation for the objection. It was contended that there is no evidence on record that “S. A. Onadele & Co.” who signed the Notice of Appeal is not a legal practitioner. The following cases were cited and relied upon WOHEREM v. EMEREUWO (2004) ALL FWLR (PART 221) 1571. ADDA & PETROLEUM DEVELOPMENTNIG. LTD. v. IBEH 2007 ALL FWLR (PART 380) 1558, A-G FEDERATION v. ANPP (2004) FWLR (PART 190) 1458, AWAYE MOTORS CO. LTD. V. ADEWUNMI (1993) 5 NWLR- (PART 292) 236 and IZUOGU V. EMUWA (1991) 4 NWLR (PART 183) 78. It was argued that the court cannot attribute the signature above “S. A. Onadele & Co.” to the firm or to S. A. Onadele who represents the firm and cannot say who goes by the appellation of S. A. Onadele & Co.
It was also argued that the procedure for the preliminary objection did not follow the procedure laid down in Order 19 rule 5(2) of the Rules of this Court, that requires the objection to be by motion on Notice supported by an affidavit which would place the facts before the court. Reliance was placed on the cases of S.C.O.A.(NIG.) PLC V. DANBATA (2003) FWLR (PART 179) 1277, C.C.B. (NIG.) PLC v. A-G ANAMBRA STATE (1992) 8 NWLR (PART 261) 528. AWOYINKEYE V. AWOYINKA (2005) ALL FWLR (PART 24011 AND NWABUEZE V. NWORAH (2005) ALL FWLR (PART 272) PAGE 297 AT PARAGRAPHS 314E.
We were urged to hold that the preliminary objection has not been properly brought and should be struck out.
It was further submitted that the signature over the words “S. A. Onadele & Co.” validated the appeal, therefore that the Notice of Appeal was not signed by “S. A. Onadele & Co.” but by the person who signed to validate it and that legal practitioners can validly sign process in firm’s name, the following cases were cited and relied upon. REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. AKINDELE (1967) NSCC 117 and ALLI V. IKUSEBIALA (1985) 1 NWLR (PART 4) 630 amongst others.
The learned counsel to the Appellant cited and reviewed a plethora of decisions in the past in which the courts, including the Apex court had taken divergent positions on this matter as has arisen here, but all these decisions were before Nweke’s case. (pages 5 – 6 of the Appellant’s Reply Brief). It was also argued that Nweke’s case is not on all fours with the present case in that there was a counter affidavit evidence challenging the connection of the signature to the firm of solicitors, and that there is no such affidavit evidence here. We were also urged to distinguish Nweke’s case, UNITY BANK PLC V. ABIONA (2009) FWLR PART 452 PAGE 1082. CA was also cited.
Further, that order 19 Rule 5(1) of the Court of Appeal Rules 2007 requires that an objection be raised timeously and before the objector takes a step in the proceedings, for instance that the Respondents had filed their Respondents’ Brief on 26th October, 2007 to contest the Appeal on the merit and a motion on notice filed the same day seeking extension of time to file the brief with a deeming order to deem the brief as properly filed. It was argued that the Respondents could no longer raise objection even where their objection was raised at the same time as they filed their motion, the following cases were cited and relied upon. SARAKI V. KOTOYE-(1990) 4 (PART 143) 144 and C.C.B. (NIG.) LTD. V. A-G ANAMBRA STATE (1992) 8 NWLR (PART 261) S28. It was submitted by the learned counsel to the Appellant that any mistake committed by a litigant or his counsel in the commencement or in the course of presentation of his case, unless some injustice will thereby be caused to the opponent, should be treated as an irregularity which is curable. The following cases amongst others were cited and relied upon. NOFIA SURAKATU V. NIGERIAN HOUSING DEVELOPMENT LTD. (1981) 4 SC 28, EKPEWIB V. THE STATE (1982) SC 1 AT 2, ODUA INVESTMENT CO. LTD. V. TALABi (1997) 10 NWLR (PART 523) PAGE 1, SALEH V. MONGUNO (2006) ALL FWLR PART (332) 1411 and ABUBAKAR V. YAR’ADUA (2008) ALL FWLR (PART 404) PAGE 1409.
We were urged to do substantial justice by discountenancing the objection or by forgiving the procedural error and allowing counsel to print his name under his signature, more so as the Respondents did not allege suffering any miscarriage of justice.
In his reply on points of law to the reply to the preliminary objection, dated and filed on 16th December, 2008, Mr. Agbo submitted that a notice of preliminary objection when not based on issues of fact does not require an affidavit and cited the case of NIKA FISHING LTD. V. LAVINIA CORP. (2001) 16 NWLR (PART 740) 556 C.A. Further, that the issue of jurisdiction can be raised at any stage of the proceedings and orally. The cases of RIVERS STATE GOVERNMENT SPECIALIST CONSULT (2005) 7 NWLR (PART 923) 145 AT 171, D-E and ELEBANJO V. DAWODU (2006) 15 NWLR (PART 1001) 115, D-E.
It was submitted that the issue of jurisdiction cannot be circumscribed by the rules of court which is a subsidiary legislation and that it does not lie in the mouth of this court to say that Nweke’s case was wrongly decided but has to apply the decision until and unless overruled by the Supreme Court, the learned counsel relied on the case of C.B.N. V. UKPANG (2006) 13 NWLR (PART 998) 555 AT 570 – 572.
It was argued that the Appellant’s reply brief was filed on 10th December, 2008, 16 days after the Respondents’ Brief was served on 24th November, 2008 and that the provision of Order 17 Rule 10 of the Rules of this Court which is mandatory has not been complied with. We were urged to discountenance the Appellant’s reply brief filed on 10th December, 2008 and uphold the preliminary objection dated 10th April, 2008 and filed the same day, strike out the appeal for being incurably incompetent.
No doubt the Appellant’s Notice of Appeal dated 21st of February, 2006 and filed on the same date was signed by “S. A. Onadele & Co.” on behalf of the Appellant’s Solicitors. In the first ground of the Notice of Preliminary Objection, it was contended that the Notice of Appeal, as filed was not signed by a legal Practitioner known to law, thereby rendering the appeal incompetent and liable to be struck out.
Section 2(1) of the Legal Practitioners Act Cap 11, Laws of the Federation of Nigeria 2004 provides that:
“Subject to the provision of the Act, a person is entitled to practice as a barrister and solicitor if, and only if his name is on the roll”
Also Section 24 of the same Act provides:
“A legal practitioner means a person entitled in accordance with the provisions of this act to practice as a barrister or as a solicitor, either generally or for the purpose of any particular office or proceedings.”
It is therefore clear on the face of the Notice of Appeal that S. A. Onadele & Co. is not a legal practitioner as provided and defined under Section 2(1) and 24 of the Legal Practitioner’s Act, neither could it be the name of a barrister and solicitor whose name is on the roll of legal practitioners and recognized by law to practice as an advocate in the Supreme Court of Nigeria. S. A. Onadele & Co. as appears on the Notice of Appeal signifies only the name of a firm and not an individual as envisaged by Sections 2(1) and 24 above. A law firm is obviously not a legal practitioner as rightly argued by the learned counsel to the Respondents, and does not fall under any of the above definitions of persons recognized by law to practice law in Nigeria. As a result S. A. Onadele & Co. cannot validly sign processes to be filed in court as a legal practitioner.
It is trite law that only an appellant or legal practitioner who is registered in the role of legal practitioners, authorized to practice as an advocate in the Supreme Court of Nigeria that could sign and file a Notice of Appeal. A firm of legal practitioners can not undertake such an act and where they do so, the Notice of Appeal becomes fundamentally defective. In agreement with the learned counsel to the Respondents, such Notice is incompetent and is null and void. See NNB PLC VS. DENCLAG LTD (2005) 4 NWLR (PART. 916) 549 AT 573, and OKAFOR & 2 ORS VS. NWEKE & 2 ORS (2007) 10 NWLR (PART.1043) 521, also cited by the learned counsel to the Respondents/Applicants.
A “Legal Practitioner” has clearly been defined in Sections 2(1) and 24 of the Legal Practitioners Act, 1990, LFN, from the definition it is also clear that S. A. Onadele& Co., is not competent to issue the Notice of Appeal, the said firm that signed and issued it is not a registered legal practitioner competent to issue a Notice of Appeal. Having not been issued by a competent legal practitioner, the Notice of Appeal, signed, issued and filed by the firm is incompetent, invalid, null and void, since it was issued by a person not authorized by law to issue it. The Notice is incurable as it cannot be amended. The learned appellant’s counsel had argued that in the alternative that the Notice could be amended by writing the name of counsel above the name of the firm to regularize or validate the Notice. Where the Notice of appeal is fundamentally defective ab initio no type of amendment can validate it. The result of the incompetent Notice of Appeal is as if it does not exist, one cannot amend what is not there. With a defective Notice the Appeal is incompetent and cannot be validated by any form of amendment. See ODOFIN VS. AGU (1992) 3 NWLR (PART 229) 350; NBN VS. NET (1986) 3 NWLR (PART 31) 667; ATUYEYE VS. ASHAMU (1987) 1 NWLR (PART 49.) 267; and NWAEZE VS. EZE (1999) 3 NWLR (PART 595) 410.
The defect in the Notice of Appeal filed on 21st February, 2006 is incurable and makes it liable to be struck out. The present case could be distinguished from a seemingly similar situation in the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH, LAGOS AREA VS. RAHMAN AKINDELE (1967) 1 ALL NLR 110, (1967) NLT 110 where learned counsel signed the Notice of Appeal as J. A. Cole for “J. A. Cole and Co”, objection was raised as to inclusion of the business name “J. A. Cole & Co” the Supreme Court held that by the inclusion of counsel’s name with which he was registered as a legal practitioner the Notice was valid. The Supreme Court held:
“In signing the Notice of Appeal Mr. Cole used his own name, that is to say, the name in which he is registered as a legal Practitioner. We hold that on any interpretation of the rules that it was sufficient compliance with them and we do not accept the submission that the addition of the words “for J. A. Cole and Co.” would invalidate the signature, if a signature in a business name was not permitted.”
In the present case as earlier stated, “S. A. Onadele & Co,” is not a registered legal practitioner, but simply a registered legal firm or a business name. It is not a human being or a person that exists in law, only persons known to law can initiate an action in court, a non juristic person cannot sue or be sued in Court and in the same way cannot appeal on behalf of another. See OGBODU V. ISHOKARE (1964) NWLR 234.
It was argued by the learned Appellant/Respondent’s counsel that the preliminary objection as argued in the Respondents’ brief cannot take the place of affidavit evidence or evidence on record which must provide necessary foundation for the objection and that there is no evidence on record that “S. A. Onadele & Co,” who signed the Notice of Appeal is not a legal practitioner. The line of cases cited in support of this argument are inapplicable. It is trite that the court is entitled to and free to look into its record for materials and evidence in taking a decision.
The Notice of Appeal filed on 21st February, 2006 forms part of the records of court and record of the appeal under consideration, the Notice is at pages 141-145 of the printed records. I am of the view that this information is not external or outside the records of appeal. What can be clearly seen at page 145 of the printed records is a signature above “S. A. Onadele & Co.” and not a name as argued by the learned counsel to the Appellant/Respondent. In my mind, a signature cannot replace a name, the two are quite distinct. A mere look at the signature cannot identify the counsel who signed it. In any case there could be more than one legal practitioner in the firm of S. A. Onadele & Co., in that case could this court attribute the signature to any particular legal practitioner in the firm of S. A. Onadele & Co. For instance, the Amended Appellant’s Brief filed on 18th February, 2008 was signed by O. A. Onadele Esq. above the name of the firm “S. A. Onadele & Co.” while the Appellants reply brief filed on 10th December, 2008 was signed by S. A. Onadele Esq. above the same firm of “S. A. Onadele & Co. The possibility of other legal practitioners that are identifiable by name in the firm of S. A. Onadele & Co. is not ruled out. Therefore the signature above the firm of S. A. Onadele& Co. as appears on the Notice of Appeal of 21st February, 2006 cannot be pinned down to be the signature of a particular legal practitioner in the firm. Further, the signature cannot be the same as “name” and therefore cannot appear as such in the roll of registered legal practitioners as envisaged by Sections 2(1) and 24 of the Legal Practitioners Act. “S. A. Onadele & Co.” is not a legal person or a person in any way one interprets the above Sections that could sign and file a Notice of Appeal or any process on behalf of the firm or a litigant whatever the case may be. “S. A. Onadele & Co.” could not be registered and cannot be in the roll of Legal practitioners, to practice as an advocate in the Supreme Court of Nigeria. S. A. Onadele as it appears, is faceless as far as the Notice of Appeal is concerned, it is non existant. In fact the argument of learned counsel to the Appellant supports the argument of the learned Respondents’ objection that “S. A. Onadele & Co.” who purportedly “signed” the Notice of Appeal cannot be established through evidence to be a registered legal practitioner. The learned Appellant’s counsel has not pretended or argued that “S. A. Onadele & Co.” is a registered legal practitioner in the roll of practitioners, learned counsel’s argument supports the objection in that he also agreed that the signature cannot be attributed to “S. A. Onadele& Co.” the firm or S. A. Onadele who represents the firm.
There is certainly no need for the objection to have required affidavit evidence to place the facts before this court, since all that was required was clearly before us, the Notice of Appeal, Notice of Preliminary Objection incorporated in the filed briefs, adequately responded to by the Appellant, and the contents of the case file are not in dispute. I am of the firm view that the preliminary objection has been properly brought and argued. We were urged to hold that the signature above the name of the firm has validated the Notice, this argument is also not tenable in that in the same way, the signature cannot specifically be identified as a legal practitioner as defined in Sections 2(1) and 24 above, this argument does not hold water.
It was argued that Respondents/Applicants did not follow the procedure laid down in Order 19 Rule 5(2) of the Rules of this Court. It is also trite that issues bordering on jurisdiction of the court could be raised at any stage of the proceedings even at judgment stage, and same could be done orally, see the case of RIVERS STATE GOVERNMENT (supra) cited by the learned counsel to the Respondents where it was held that:
“The question of jurisdiction being radically fundamental, can be raised at any stage of the proceedings and even for the first time at the Supreme Court.”
See also the case of MANAGEMENT ENTERPRISES LTD. V. OTUSANYA (1987) 2 NWLR (PART S5) 179.
I agree with the learned counsel to the Respondents/Applicants that issues of jurisdiction cannot be circumscribed by the rules of Court.
The learned counsel to the Appellant had urged us to regard the firm in which the Notice of Appeal was signed and filed as an irregularity which in the interest of justice we should over look or allow an amendment. The Notice as earlier stated in this judgment is incurably defective, therefore incompetent and cannot be cured by an amendment. A Notice that is incompetent is null and void, non- existent and cannot be amended. The same Notice cannot be termed as irregular as it touches on the competence of the Court to entertain the appeal. The entire appeal is incompetent and robs this court of jurisdiction to entertain same. The issue of jurisdiction of the Court is serious and fundamental that it cannot be wished away, or overlooked conceded and/or condoned by this court and/or any other Court. It cannot be termed or treated as an irregularity. In C.B.N. V. OKOJIE (supra) it was held that:
“If no proper Notice of Appeal has been filed then there is no appeal for this court to entertain.”
Also see the cases of KANO PLASTICS LTD. VS. CENTURY MERCHANT BANK (1998) 3 NWLR (PART 543) 567, OYEBODE AJAYI (1993) 1 NWLR (PART 269) 313 and OLANREWAJU V. B.O.N. LTD. (1993) 8 NWLR (PART 364) 622.
The resultant effect in this case is that there is no appeal before the Court and all other processes founded on the incompetent Notice, that is, the Appellant’s Amended Brief of Argument filed on 18th February, 2008 and the reply Brief filed on 10th December, 2008 from which the issues in the substantive appeal were raised are void as they cannot stand on their own without a competent Notice. The Notice of Appeal is the base on which the above briefs ought to stand on.
For now, this court is bound by the decision in Nweke VS. Okafor (supra) whether right or wrong, I am certainly not in a position to say so, but, to apply the said decision, until and unless the Supreme Court overrules itself. For now the decision in Nweke’s case remains the law. Fortunately, the learned Appellants counsel also agrees with me at page 9 of his Reply Brief where he submitted thus:
“…for now Nweke’s case will unfortunately have to be taken to represent the law until the apex court has again had the opportunity to revisit it.”
The learned Applicants counsel cited a whole lot of legal authorities from this court that were divided as to whether or not to uphold the validity of processes where there is a signature above the name of the firm, where the person who signed was not named. Fortunately too, the learned Appellants’ counsel confirms and also agrees with me by his submissions the more reason why this court is bound and must follow the decision is Nweke’s case, when he submitted at page 10 of his Reply Brief thus:
“Admittedly, all the Court of Appeal decisions which fell outside the principle in Nweke’s case were decided before it.”
Obviously, the learned Appellants’ Counsel agrees that Nweke’s case is the seal, until the Supreme Court holds otherwise. The learned counsel to the Respondents had argued that the Appellant’s Reply Brief be discountenanced as it did not comply with Order 17 Rule 10 of the Rules of this Court having been filed 16 days after the Respondents’ Brief was served on 24th November, 2008. The learned Appellant’s counsel did submit that 8th and 9th, two days preceding the filing of the reply brief on 10th December, 2008 were public holidays and this was not disputed by the learned counsel to the Respondents.
In any case with or without a reply brief, it would not affect the outcome of this appeal. If all was well with the Notice of Appeal, it could be regularized. The preliminary objection succeeds and is hereby sustained.
The preliminary objection having been upheld, there is no need to go into the arguments proffered in support of the substantive appeal and the response by the Respondents in their Respondents’ Brief of Argument, which would be a waste of judicial time.
In the final analysis, this court cannot waive the defective Notice of Appeal filed in this appeal on 21st December, 2006. The Notice of Appeal, the purported Appeal and all the processes filed and predicated on the incompetent Notice are hereby struck out for being incompetent The Respondents/Applicants are entitled to costs of N30,000.00. (Thirty thousand Naira only).
Other Citations: (2009)LCN/3414(CA)
