Al-masmoon Security Ltd V. Pipelines & Marketing Products Co. Ltd (2022)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellant and the respondent herein, entered into a contract on 1/10/2007 wherein the appellant was contracted to provide security for the respondent’s headquarters at NNPC Towers Abuja, Kaduna Depot, Zaria Depot and Zaria Pump stations respectively. The respondent however terminated the contract on 31/01/2014. The appellant was aggrieved and instituted an action before the High Court of the Federal Capital Territory (FCT) seeking the following reliefs:
“1. An order directing the defendant not to terminate the security agreement unless in accordance to the terms of agreement dated 1st day of October, 2007.
- A perpetual order restraining the defendant from acting on its letter of termination of the security contract for the plaintiff to provide security guards at the defendant’s Kaduna Depot and Zaria Pumping station.
- An order that the purported letter of termination of contract of security between the parties amounts to a breach of contract.
- The plaintiff claims the sum of Twenty Million Naira (N20,000,000.00) from the defendant for breach of contract.
- The cost of this suit.”
The respondent, upon receipt of the Writ of Summons, Statement of Claim and accompanying documents, filed a notice of preliminary objection challenging the competence of the suit for failure of the appellant to serve one month’s pre-action notice, contrary to Section 12(2) of the Nigerian National Petroleum Corporation (NNPC) Act Cap. N.23, Laws of the Federation of Nigeria (LFN) 2004. In a considered ruling delivered on 5/3/2014, the preliminary objection was overruled on the ground that the Pipelines and Products Marketing Co. Ltd. is not a wholly owned subsidiary of NNPC and therefore does not fall within the purview of Section 12(2) of the NNPC Act requiring pre-action notice. Consequently, the Court assumed jurisdiction.
The respondent, being dissatisfied with the ruling appealed to the Court below. Allowing the appeal, the Court held, inter alia:
Having regard to the fact that the appellant is a corporate subsidiary of NNPC, as can be discerned by the respondent’s Statement of Claim, the respondent’s witness statement on oath, the agreement between the parties and the respondent and the affidavit in support of the appellant’s notice of preliminary objection, the appellant is entitled to be served a pre-action notice as provided for by Section 12(2) of the NNPC Act. By the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action has not been complied with. The respondent’s action is therefore premature and it is liable to be struck out …Consequent, the respondent’s action with suit No, FCT/HC/CV/160/2014 is hereby struck out for lack of jurisdiction.”
It is the appellant who is now aggrieved. Its notice of appeal filed on 31/10/2015 can be found at page 160-163 of the record. It contains 4 grounds of appeal.
At the hearing of the appeal on 2nd November 2021, E.J. ESENE ESQ adopted and relied on the Appellant’s brief filed on 23/12/2015 and its Reply brief filed on 4/8/2016, both deemed filed on 2/11/2021, in urging the Court to allow the appeal. M.E. ORU ESQ. drew the Court’s attention to Notice of Preliminary Objection filed on 2/3/2016 and deemed filed on 8/2/2017, which is also incorporated in the Respondent’s brief filed on 29/2/2016 and deemed filed on 8/2/2017. He adopted and relied on the preliminary objection in urging the Court to strike out the appeal, or alternatively, to dismiss the appeal on the merits based on the arguments therein against the appeal.
The Preliminary objection challenges the hearing of the entire appeal. It must therefore be considered and resolved before delving into the merit of the appeal, should the need arise. The reason is not far-fetched. In the event that the objection has merit, the appeal will be terminated in limine.
The grounds of the objection are as follows:
- The Notice of Appeal filed on 31st August, 2015 was not signed by any of the solicitors named therein but signed for the solicitor by a person who neither indicated his name and designation nor known to be a legal practitioner contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. L11 LFN 2004.
- The Notice of Appeal as shown at pages 160-163 of the Record is not stamped and sealed with the stamp of the Legal Practitioner who signed it contrary to Rule 10(1) of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act Cap. L11 LFN 2004.
- All the grounds of appeal are grounds of mixed law and facts and leave of Court was not sought and obtained before filing, thus rendering the grounds null and void.
On the first ground of objection, learned counsel for the respondent observed that the Notice of Appeal was not signed by any of the counsel stated at page 163 of the record. He noted further that there is a signature above the name Emmanuel Esene Esq. with the letters “PP” written beside the name, signifying that someone signed on behalf of Emmanuel Esene. He submitted that there is nothing to show that the person who signed for Emmanuel Esene Esq. is himself a legal practitioner as provided for in Sections 2(1) and 24 of the Legal Practitioners Act. He submitted that the letters “PP” stand for “per procurationem” meaning “by authority” or “representing” in Latin.
He submitted that all legal processes must be signed by identifiable legal practitioners whose names are on the roll of Legal Practitioners at the Supreme Court. He submitted further that being the foundation or substratum of an appeal, any defect in the Notice of Appeal will render the appeal incompetent and the Court would lack the requisite jurisdiction to entertain it. He referred to: Uwazurike Vs A.G. Federation (2007) ALL FWLR (Pt.367) 834 @ 846; Shellim Vs Gobang (2009) ALL FWLR (Pt.496) 1866 @ 1880- 1881; Tukur Vs Government of Gongola State (1988), NWLR (Pt. 68) 39; Okafor Vs Nweke (2007) ALL FWLR (Pt.368) 1016 @ 1025-1027; (2007) 1 NWLR (Pt.1043) 521.
On the importance of it being clear who signed a process and the identity of such person as a Legal Practitioner whose name is on the roll of Legal Practitioners in Nigeria, he referred to Ministry of Works & Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt.1351) 481; (2013) ALL FWLR (Pt.694) 23 @ 36 F-H; SLB Consortium vs NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 – 338, and a host of other authorities.
On the second ground of objection, learned counsel submitted that there was non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, in that the person who prepared the Notice of Appeal did not affix his stamp and seal thereto. He submitted that the provision is mandatory and therefore legal practitioners are not afforded any discretion in the matter. On the effect of the word “shall” when used in a statute, he referred to Okereke Vs Yar’adua (2008) 12 NWLR (Pt.1100) 95 @ 127 F – G; Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 @ 857 C – F. He argued further that where the law prescribes the procedure for doing a particular thing, the prescribed procedure must be complied with. He referred to: Dongtoe Vs CSC Plateau State (2001) ALL FWLR (Pt.50) 1637 @ 1663A; Amaechi vs INEC (2008) ALL FWLR (Pt.407) 1 @ 98 C – D. On the need for a legal practitioner to comply with the directives of the Nigerian Bar Association (NBA), he referred to: Chinwo Vs Owhonda (2006) 2 NWLR (Pt.1074) 341.
On the third ground of objection, learned counsel submitted that the grounds of appeal before this Court question the evaluation of facts established before the trial Court and are therefore grounds of mixed law and fact, for which prior leave of this Court or the Court below ought to have been sought or obtained, in accordance with Section 233(3) of the 1999 Constitution, as amended. He referred to: Opuiyo Vs Omoniwari (2007) ALL FWLR (Pt.378) 1093; Oluwole Vs LSDPC (1983) SC 1; Adejumo Vs The State (1983) 5 SC 24; Ogbechie Vs Onochie (1986) 1 NWLR (Pt.23) 484 @ 491. He submitted that having failed to obtain leave, the grounds of appeal are liable to be struck out. He cited several authorities, including Njemanze Vs Njemanze (2013) 203 MJSC (Pt. II) 30 @ 59 – 60; Oforkire Vs Maduike (2003) 5 NWLR (Pt.812) 166; Oluwole Vs LSPDC (supra). He urged the Court to uphold the objection and strike out the appeal.
In response, learned counsel for the appellant reiterated the well settled principle that only a person whose name appears on the roll of Legal Practitioners at the Supreme Court and who is eligible to practice law as a barrister and solicitor, can sign a Court process. He submitted that in the instant case, the “PP” appearing beside the name Emmanuel Esene, Esq. at page 163 of the record, means “principal partner” and not “per procurationem” in Latin, as asserted by learned counsel for the respondent. He submitted that the process was signed by Emmanuel Esene, Esq., who is the principal partner in the law firm of Emmanuel Esene & Co.
He urged the Court to compare the signature with the one appearing at particular pages of the record, which he argues, are the same. On the manner in which a process should be signed by a legal practitioner, he referred to: Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570. He submitted that the appellant’s counsel fully complied with the requirements. He referred to Nigerian Army Vs Samuel (2013) 14 NWLR (Pt.1375) 460; FBN Plc Vs Maiwada (2013) 5 NWLR (Pt.1348) 444; Okafor Vs Nweke (supra); SLB Consortium Vs NNPC (supra) and urged the Court to hold that the notice of appeal is competent.
On the failure to affix learned counsel’s stamp and seal to the notice of appeal, he submitted that the said notice of appeal, dated 27/7/2015 was filed on 31/8/2015 prior to the decision of this Court in SC.22/2015: Yaki & Anor Vs Bagudu, delivered on 13/11/2015, where it was held that the affixing of their stamp and seal on legal processes by Legal Practitioners is mandatory. He submitted that prior to the decision, compliance was not strictly enforced. On this issue, he urged the Court to lean in favour of substance and not technicalities.
On the competence of the grounds of appeal, he submitted that they are grounds of law alone and not grounds of mixed law and fact, as contended by the respondent’s counsel. He submitted that all the grounds of appeal are seeking the interpretation of Sections 12(2) and 22(1) of the NNPC Act and therefore do not require leave. On how to determine whether a ground of appeal is a ground of law alone or one of mixed law and facts, he referred to Ekunola Vs C.B.N. (2013) 15 NWLR (Pt.1377) 244; Jim-Jaja Vs C.O.P. Rivers State (2013) 6 NWLR (Pt. 1350) 225 B – C; NNPC Vs Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 and several other cases in urging the Court to dismiss the preliminary objection.
Resolution of the Preliminary Objection
Sections 2(1) and 24 of the Legal Practitioners Act provides as follows:
- (1) 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.
- In this Act, unless the context otherwise requires, “legal practitioner” means a person entitled to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceeding.”
These provisions have been interpreted in a plethora of decisions of this Court to the conclusive effect that only a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court, is competent to sign legal processes. See: Okafor Vs Nweke (2007) All FWLR (Pt.368) 1016; (2007) 1 NWLR (Pt.1043) 521; SLB Consortium Ltd. Vs NNPC (2011) 9 NWLR (Pt.1252) 317; (2011) 4 SC 86; FBN Plc vs Maiwada (2013) 5 NWLR (Pt.1348) 444; SPDC vs Sam Royal Hotel Nig. Ltd. (2016) 8 NWLR (Pt.1514) 318, to name just a few.
In SLB Consortium Ltd. Vs NNPC (supra), His Lordship, Rhodes-Vivour, JSC, held, inter alia:
“What then is so important about the way counsel chooses to sign processes? 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). 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 clearly written.
Thirdly, who counsel represents.
Fourthly, name and address of legal firm.
In this case, there is signature of counsel but no name of counsel. A signature without a name is incurably bad.” (Underlining mine)
The notice of appeal in the instant appeal can be found at pages 160 – 163 of the record. At the top of page 163 there is a contraption above the name Emmanuel Esene Esq. The letters “pp” are handwritten beside the name Emmanuel Esene Esq. Beneath Emmanuel Esene Esq., is another name, Peace Ojemen (Miss). The next line states Emmanuel Esene & Co., followed by “Counsel to the Appellant” and the address of Emmanuel Esene & Co. The bone of contention is “who signed the process?” The contraption above Emmanuel Esene & Co. is indecipherable. One must therefore move to the next line to determine the owner of the signature and to ascertain that it belongs to a legal practitioner whose name is on the roll as required by the Legal Practitioners Act.
The letters “pp” when placed before a name on a document, are an abbreviation of the Latin term “per procurationem” or “per pro.” It is universally known to be used when signing a letter or document on someone else’s behalf. Black’s Law Dictionary, 8th Edition page 1177 defines “per procurationem”, “per pro” or “pp” to mean “By Proxy.” Osborne’s Concise Law Dictionary, 8th Edition at page 246 defines it to mean “as an agent”, “on behalf of another.”
“pp Emmanuel Esene Esq.” means the contraption or signature above that name belongs to an unidentified person who signed the document on Emmanuel Esene’s behalf. For the process to be competent, it must be shown that the person who appended his signature on behalf of Emmanuel Esene Esq. is himself a person who is entitled to practice as a legal practitioner in Nigeria and whose name is on the roll in compliance with Sections 2 (1) and 24 of the Legal Practitioners Act. There is no such indication on the process.
Learned counsel for the appellant has ingeniously argued that “pp” means Principal Partner. I say ingeniously because, if indeed that were the case, the words would have been written in full and would have appeared immediately beneath the name of the said principal partner. On the face of the process as it stands, the notice of appeal was signed by an unknown person on behalf of Emmanuel Esene Esq. It is incurably defective. In R.A. Oliyide & Sons Ltd. Vs Obafemi Awolowo University, Ile-Ife (2018) 8 NWLR (Pt.1622) 549; (2018) LPELR-43711 (SC) @ 30 – 31 D – F, this Court per Sanusi, JSC, held:
“It seems to me that the issue at hand relates to the non-signing of a process by a legal practitioner, which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court, which can be waived as a mere irregularity. I do not share that view of his. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named legal practitioner as opposed to an unknown proxy who is obviously not a legal practitioner known to law.”
A notice of appeal is an originating process. It is the foundation/substratum of any appeal. Any defect therein deprives the Court of jurisdiction and vitiates the appeal. See: Madukolu vs Nkemdilim (1962) 2 NSCC 374; Nigerian Army Vs Samuel & Ors. (2013) 14 NWLR (Pt.1375) 466; (2013) LPELR-20931 (SC) @ 17 – 18 F – C; Uwazurike & Ors. Vs A.G. Federation (2007) LPELR-3448 (SC) @ 14 D – F; Ikuepenikan Vs The State (2015) 9 NWLR (Pt.1465) 518; (2015) LPELR-24611 @ 48 A- D.
The first ground of objection is resolved in the appellant’s favour. Having held that there is nothing to show that the person who signed the notice of appeal per pro Emmanuel Esene Esq. is an identifiable legal practitioner and that the notice is accordingly incompetent, the issue of affixing the unknown legal practitioner’s stamp and seal to the process in compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, becomes otiose.
The final ground of objection is the competence or otherwise of the grounds of appeal. While the respondent contends that all the grounds of appeal raise questions of mixed law and fact, for which leave is required pursuant to Section 233 (3) of the 1999 Constitution, as amended, learned counsel for the appellant asserts, relying on Section 233 (2) of the Constitution, that the grounds are grounds of law alone for which no leave is required.
Section 233 (2) (a) and (3) of the 1999 Constitution, as amended, provides:
233 (2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following cases –
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
In the case of: Ogbechie Vs Onochie (1986) LPELR – 2278 (SC) @ 8 C – E, His Lordship, Eso, JSC, provided a guideline for determining whether a ground of appeal is one of law alone or of mixed law and fact, to wit:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”
In Chrome Air Services Ltd. & Ors. Vs Fidelity Bank (2017) LPELR-43470 (SC) @ 23 – 24, His Lordship, Nweze, JSC referred to an earlier decision of this Court in ACB Plc. Vs Obmiami Brick & Stone Nig. Ltd. (1993) LPELR – 206 (SC) @ 27 E – F, to wit:
“It is now generally accepted that where the ground of appeal is based on an allegation of error deduced from conclusion on undisputed facts, it is a ground of law. Where, on the other hand, the error of law is founded on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and fact. This is because in this latter case, it is a conclusion of law coupled with the exercise of discretion.”
See also: The State Vs Omoyele (2017) 1 NWLR (Pt.1547) 341; Global West Vessel Specialist Nig. Ltd. vs NNLG Ltd. & Anor. (2017) 1 – 2 SC (Pt. II) 39; (2017) LPELR-41987 (SC) @ 27 – 28 F – D; Fasuyi & Ors. Vs PDP & Ors. (2017) LPELR-43462 (SC) 32 B – D.
It is also trite that the mere labeling of a ground of appeal as a ground of law does not make it so. The Court must examine the grounds along with their particulars in order to make a proper determination of the issue. See: Nwadike & Ors. Vs Ibekwe & Ors. (1987) 12 SC 14; Brittania-U Nig. Ltd. vs Seplat Petroleum Devt. Co. Ltd. & Ors (2016) LPELR – 40007 (SC) @ 52 – 54 E – A; Briggs Vs C.L.O.R.S.N. & Ors. (2005) 4 SC 89; (2005) LPELR-805 (SC) @ 10 C- F.
The four grounds of appeal contained in the Notice of Appeal filed on 31/8/2015 are as follows:
Ground One
The lower Court erred in law when it held that the Respondent is a corporate subsidiary of the Nigerian National Petroleum Corporation which falls under Section 22 (1) of the NNPC Act 2004
Particulars of Error
The respondent failed to prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation.
Ground Two
The lower Court erred in law when they held that Section 12 (2) of the Nigerian National Petroleum Corporation Act applies to the Respondent and as such they are entitled to be issued a pre-action notice before instituting the suit against the respondent and failure to do so has made the appellant’s suit premature and liable to be struck out.
Particulars of Error
The respondent is a private limited liability company incorporated under Part A of the Companies and Allied Matters Act and not a statutory body as well as not a wholly owned subsidiary of the Nigerian National Petroleum Corporation as claimed by the respondent, without proving same by way of evidence.
Ground Three
The lower Court erred in law when he held that the appellant’s action with Suit No. FCT/HC/CV/160/2014 was struck out for lack of jurisdiction.
Particulars of Error
It is trite that one cannot put something on nothing and expect it to stand. The respondent did not adduce any material evidence to show or prove that he is a wholly owned subsidiary of the Nigerian National Petroleum Corporation for Section 12 (2) of the Nigerian National Petroleum Corporation Act to be applicable.
Ground Four
The lower Court erred in law when he held that the Nigerian National Petroleum Corporation is itself a corporation it (sic: its) subsidiary corporation is a subsidiary corporation and the use of the word wholly owned subsidiary in Section 22 (1) of the Nigerian National Petroleum Corporation Act is a misnomer and a mere tautology.
Particulars of Error
That in accordance to (sic) Section 22 (1) of the Nigerian National Petroleum Corporation Act, before the respondent can be a subsidiary of the NNPC it must be wholly owned. (Underlining Mine)
A careful perusal of the grounds of appeal and their particulars shows clearly that they raise issues of mixed law and facts, as the alleged error of law complained of is founded on disputed facts calling into question the correctness of the facts determined. The facts are in contention to the extent that the appellant is inviting the Court to determine whether the respondent established by evidence that it is a wholly owned subsidiary of NNPC to bring it within the purview of Section 22 (1) of the NNPC Act. Having failed to obtain the requisite leave of this Court or the Court below before filing the appeal, the notice of appeal filed in breach of Section 233 (3) of the 1999 Constitution, as amended, is incompetent, null and void. It is accordingly hereby struck out.
In light of my several findings above, I find merit in the preliminary objection raised by the respondent. It is hereby sustained. The appeal is hereby struck out for incompetence.
Costs of N1 million are awarded against the appellant in favour of the respondent.
SC.755/2015
