Alh. Mohammed Mohammed V. Martins Electronics Company Ltd. (2009)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A,
This ruling is in respect of an application dated and filed on 7th November, 2006 wherein Alhaji Mohammed Mohammed, (hereinafter referred to as the Applicant) sought for the grant of the following orders; namely:
(i) leave to amend his existing notice of appeal dated and filed on 23rd June, 2005 with regards to the parties.
(ii) leave to amend the said exiting notice of appeal by adding three additional grounds of appeal numbered (3), (4) and (5) respectively to the existing grounds of appeal.
(iii) leave to argue the said additional grounds of appeal.
The application which was brought by way of motion on notice has a five paragraph affidavit in support, sworn to on 7th November, 2006 by one Elemeje Victoria (Mrs) with Exhibits E.V.1 – E.V.5 attached thereto.
On 22nd January, 2007 when the matter came up for hearing, K.B. Olawoyin Esq., the learned counsel who appeared for Martins Electronics Company Limited (hereinafter referred to as the Respondent) informed this Court of his opposition to the said application on the basis that the notice of appeal dated and filed on 23rd June, 2005 is incompetent on the ground that it was not signed by a legal practitioner within the meaning of the Legal Practitioners Act, 1967. Consequent thereto, O.A. Dada Esq., the learned counsel for the Applicant sought for an adjournment to enable him address the Court on the issue of competence or otherwise of the said notice of appeal.
Thereafter, a further affidavit of ten paragraphs sworn to on 14th March, 2007 by one Adamu Abubakar Esq., who described himself as “a Barrister and Solicitor of the Supreme Court of Nigeria duly registered and also a Notary Public” was filed in this matter with Exhibits A.B.1 and A.B.2 annexed thereto.
Again, a six paragraph affidavit, headed “Further and Better Counter-Affidavit” was sworn to on 26th March, 2007 by one Clementina Adeola Fakoya, one of the counsel in the chambers of Messrs O.E.B. Offiong and Company, the firm of legal practitioners representing the Respondent, was filed with Exhibits CAF1, 2, 3, and 4 attached thereto – all in a bid to counter the previous further affidavit filed by the Applicant herein. As to be expected, the Applicant responded with yet another affidavit, tagged, “Further and Better Affidavit”, sworn to on 14th May, 2007 by the same Adamu Abubakar Esq. It has Exhibits AB 1, 2, 3, and 4 attached thereto.
On 5th June, 2007, this Court ordered the parties herein to file and exchange written addresses in respect of the application and objection raised thereon. Pursuant thereto, Applicant’s written address is dated and filed on 7th June, 2007 while Respondent’s written address in reply thereto is dated 20th September, 2007 and deemed properly filed and served on 23rd January, 2009. The Applicant’s reply on points of law thereto is dated 12th February, 2008 and filed on 15th February, 2008.
On 23rd February, 2009 when this matter came up for hearing before us, O.A. Dada Esq., learned counsel for the applicant adopted and placed reliance on all the court processes filed in respect of the instant application, inclusive of all the affidavits in support and the written address. He pointed out that the Supreme Court’s decision in Okafor V. Nweke (2007) 3 FWLR (Pt.382) 4969; (2007) 10 NWLR (Pt.1043) 521 was decided without any reference being made to the earlier decision of the Supreme Court in Cole V. Mattins (1968) All NLR 161. We were urged to give preference to the latter as against the former – all in the interest of justice. We were also urged to grant the instant application as prayed.
O.E.B. Offiong Esq., the learned counsel for the Respondent also adopted the afore-described Respondent’s court processes and written address. He also laid specific emphasis on the case of Okafor V. Nweke (supra) with particular reference to the dictum of Oguntade, JSC therein. He further urged us to prefer and apply Okafor’s case as against Cole’s case. Finally, that the application should be dismissed and the notice of appeal struck out.
In the adopted written address of the Applicant, two issues were formulated therein for the resolution of this application. They are:
(a) WHETHER the notice of appeal dated and filed on 23rd June 2005, signed in the name of Adamu Abubakar & Co. is competent having regards to the provisions of Section 30 of the Court of Appeal Act, Cap. C.36 contained in the Laws of the Federation of Nigeria 2004, Order 1 Rules 2 of the Court of Appeal Rules 2002 as amended, Section 24 of the Legal Practitioner’s Act Cap. L.11 contained in the Laws of the Federation of Nigeria, 2004 and relevant decided authorities of the Supreme Court and the Court of Appeal.
WHETHER Adamu Abubakar Esq. was the legal practitioner that signed Exhibit E.V. 3 (the existing Notice of Appeal) having regards to the whole materials placed before the court.
In the same vein, the Respondent’s written address also identified two issues for consideration in this matter. Both are reproduced thus:
(1) Whether the Notice of Appeal dated the 23rd June, 2005 brought by Adamu Abubakar & Co, as Counsel to APPELLANTS is competent having regard to the provisions of S.24(1) & S.30 of the Court of Appeal Act and Order 1 Rules 2 & 18 and Order 3 Rule 2 of the Court of Appeal Rules, 2002 & S.24 of the Legal Practitioners Act.
(2) Whether if the answer to issue one is in the negative the Appellants/Applicants can amend a fundamentally defective notice of Appeal or add further grounds of Appeal to an incompetent notice of Appeal.
Having perused the materials placed before us by both parties herein, I consider the two issues identified by the Respondent herein and reproduced above, as being apt and covering the pith and substance of the issues for resolution in this matter. I accordingly adopt them for the said exercise.
In the Applicant’s written address a critical examination was made with regards to who qualifies to sign a notice of appeal as an appellant from the decision of a lower court to this Court. References were made to S.30 of the Court of Appeal Act, Order 1 Rule 2 of the Court of Appeal Rules, 2002 as amended for the meaning of an “appellant”, Order 1 Rule 1 of the same Court of Appeal Rules and S.24 of the Legal Practitioners Act for the meaning of the phrase “legal representative” and “legal practitioner”.
It was contended therein as established facts that:
(a) Adamu Abubakar Esq. is a person entitled to practice as a Barrister and Solicitor of the Supreme Court of Nigeria.
(b) Adamu Abubakar Esq. was retained by the Applicant to file the existing notice of appeal now being sought to be amended.
(c) Adamu Abubakar Esq. is the sole legal practitioner practicing under the legal firm name of Adamu Abubakar & Co.
(d) Adamu Abubakar Esq. signed the said existing notice of appeal.
(e) Adamu Abubakar Esq. has more than one signature which he uses interchangeably with the one on the existing notice of appeal therein.
It was then submitted that the said notice of appeal is competent and in strict conformity with requirements of the relevant laws, rules of court and judicial case law authorities. Referring to the Supreme Court decisions in The Registered Trustees of Apostolic Church, Lagos Area V. Rahman Akindele (1967) All NLR 118 and Augusta Cole V. Segius Olatunji Mattins & Anor. (1968) All NLR 161, it was pointed out that going by the Exhibits attached to the further affidavit of Adamu Abubakar Esq., as the sole legal practitioner in the firm name of Adamu Abubakar & Co., who signed the said existing notice of appeal in the firm’s name, and as such, no doubt or confusion can arise as to the name of the legal practitioner who issued and signed the said notice of appeal, which is competent and capable of being amended.
Our attention was drawn to two decisions of this court (Jos Division) namely: New Nigerian Bank Plc V. Denclag Ltd. (2004) All FWLR (Pt.228) 606 and Dominic Nwani V. J.B. Bakari & Anor. (2005) All FWLR (Pt.281) 1803, wherein the Court held that notice of appeals signed in both cases in the names of the firm of legal practitioners without the names of the signatories to be incompetent and invalid. Learned counsel for the Applicant then argued that in both cases, while reference was made to the case of The Registered Trustees of the Apostolic Church, Lagos Area (supra), the later case of Cole V. Mattins (supra) was not mentioned or considered, with the exception of His Lordship Ogbuagu JCA (as then was) who in his contribution to the lead judgment in Nwani’s case (supra) agreed with the lead judgment and also made reference to the case of Cole V. Mattins (supra) but without going further to apply it thereto and thereby according to him in his argument, if this had been done, he would have arrived at no other conclusion than a dissenting one with the declaration that the notice of appeal in that case as being competent.
Similar reference was made to the decision of this Court (Kaduna Division) in Thomas V. Maude (2007) All FWLR (Pt.361) 1749 where His Lordship Abubakar Jega Abdulkadir, JCA held that a notice of appeal signed in the name of a firm of legal practitioners to be fundamentally defective, null and void. Again, it was observed by the learned counsel for the Applicant that His Lordship did not consider the later decision of the Supreme Court in Cole V. Mattins and perhaps if this had been done, the outcome of that case would have been different.
Finally, Applicant’s learned counsel referred to the case of Bakari V. Yabo (2006) 17 NWLR (Pt.1007) 162 and urged us to follow it and Cole V. Mattins (supra) which according to him, the facts in the instant case are on all fours with the ones in both cases. We were urged to distance ourselves from Denclag (supra) Buhari (supra) and Maude (supra) as they were all decided contrary to the Supreme Court decision in Cole V. Mattins (supra).
On the second issue and in conclusion, the position of the Applicant is that Abubakar Adamu Esq., signed the notice of appeal – Exhibit E.V.3 and that having satisfied all the requirements of the law regarding amendment of the said existing notice of appeal, we were urged to grant the application, so that the applicant’s complaints against the lower court’s judgment contained in Exhibit E.V. 2 can be heard and determined on the merit.
It was the contention of the learned counsel for the Respondent on issue number one that it is undisputed that the notice of appeal in this case was brought on behalf of the Appellant by a legal firm that described itself as “Adamu Abubakar & Co., Appellant’s Counsel”. Put differently, that the appeal was not presented personally by the Applicant as it was done on his behalf by a person who claims to be his counsel.
Referring to S.8 of the Legal Practitioners Act, S.12 of the Court of Appeal Act and also Black’s Law Dictionary 7th Edition P. 352, it was argued that the expression “counsel” when used in connection with filing of court processes and representation, means a lawyer or legal practitioner within the con of the Legal Practitioners Act. Furthermore, that for such representation, the counsel must be qualified within the provisions in both S.24 of the Legal Practitioners Act and Order 1 Rule 2 of the Court of Appeal Rules, 2002. It was then summed up that in accordance with S.2 (1) of the Legal Practitioners Act, that a person who is qualified as a legal practitioner entitled to practice as either a Solicitor or Barrister and Solicitor, shall be entitled to so practice, “if and only if his name is on the roll” kept by the Chief Registrar of the Supreme Court for the enrolment of qualified persons.
In yet another submission, the point was made that the name “Adamu Abubakar & Co., “is not on the roll” referred to above. That it is of no moment that Adamu Abubakar Esq. who claimed the signature on the notice of appeal as his; because the answer to that contention is that it is the name and not signature that is required to be on the roll in order to entitle the named person to practice and represent parties in court. Thus, the process initiated by Adamu Abubakar & Co. is incompetent and fundamentally defective to the extent that there is no appeal before this Court. For this submission reliance was placed on the recent Supreme Court decision in Okafor V. Nweke (supra).
Respondent’s brief response on the second issue is to the effect that once the notice of appeal is incompetent, it follows that there is no appeal pending before the Court and therefore there is no legal process which is capable of being amended or to which additional grounds of appeal can be added thereto. The case of New Nigerian Bank Plc V. Denclag Ltd. & Anor. (supra) was referred to with extensive quotations therefrom. We were urged in conclusion to refuse the application for amendment and strike out the notice of appeal in question as being fundamentally defective and incompetent.
Applicant’s reply on points of law to the above submissions focused on two areas. Firstly, it was submitted in reply that there are two conflicting decisions of the Supreme Court on the point under consideration, namely; Cole V. Mattins (supra) and Okafor V. Nweke (supra). Secondly, on the issue of which is to be followed reference was made to the dictum of Ba’aba, JCA in Guaranty Trust Bank Plc V. Fadco Industries Ltd. (2005) All FWLR (Pt.287) 913/929 para. C and we were urged in the interest of justice coupled with the demand of justice and prevention of justice miscarriage to follow the earlier decision in Cole V. Mattins (supra), moreso, when the said case was not considered and overruled or departed from by the Supreme Court in the later case of Okafor V. Nweke (supra) which according to him and with due respect from him was reached per incuriam.
The grant or refusal of the application in this matter is inextricably linked with the outcome of the objection mounted against its competence by the Respondent herein. In this regard, I will have to consider and determine the sustainability or otherwise of the said objection. In our con and purpose, what is an appeal and who is competent to invoke the jurisdiction of the Court of Appeal? Sections 243, 244(2) and 245(2) of the 1999 Constitution of the Federal Republic of Nigeria provide that such invocation of the Court’s jurisdiction in civil proceedings is as of right, “at the instance of a party thereto”, or with the leave of either the court below or the Court of Appeal, “at the instance of any other person having an interest in the matter.” It is to be noted that the key words are, “party I thereto” and “person having an interest in the matter”. These are simple straight forward, ordinary expressions that do not require having recourse to external aids of construction, other than to give them their ordinary, literal and plain meanings. This simply means that either or both disputants and persons having an interest therein, that is the disputes are entitled to invoke the jurisdiction of the Court of Appeal. Pursuant thereto, the provisions in the Court of Appeal Act, spelt out in black and white, the description or identification of who is an appellant.
The main issue for consideration in this ruling is the narrow issue, though highly volatile and resonating, of the appropriateness or otherwise of court processes being filed and signed in the name of a firm of legal practitioner( s) per see Put differently, the issue is whether or not, it is permissible or appropriate and correct for a legal practitioner to authenticate or append his signature to a court process in the name of a partnership or firm of Solicitors, without going further to indicate thereon, the name of the particular legal practitioner who is a member of the partnership or counsel in the legal firm handling the matter and whose name or on whose behalf the process in question is being filed.
In order to activate the processes in an appeal before the Court of Appeal, a valid and competent notice of appeal is essentially required. For one the ball in an appeal process is set rolling by the notice of appeal. For two, it is a requirement of the law. Hence, the procedure for setting it in motion and more are amply and variously provided for in the laws establishing such appellate courts and their requisite procedural rules of court.
A notice of appeal is the fulcrum, foundation, substratum and alpha of any appeal. It is so foundational that where it is lacking or structurally deficient, the entire appeal becomes grounded and remains on the runway like an aircraft without wings and speed to take to air for flight to its destination. Where it manages to gather little speed or momentum, the flight must be aborted or the entire journey will end in a fiasco. It will crumble like a pack of cards. Like a house built on quicksand, if built, it will surely sink. This is moreso, because the appellate court will be derobed or drained of its jurisdiction. See generally, Agu V. Odofin (1992) 3 SCNJ 161/172 – 173; Ibeto V. Aminu (2007) 5 NWLR (Pt.1028) 446; Danmusa V. Inuwa (2007) 17 NWLR (Pt.1063) 391 and Clev Josh Ltd. V. Tokimi (2008) 13 NWLR (Pt.1104) 422.
In this con, an appeal is a formal request made to a higher court for a review of the decision reached by a lower court in a matter determined by it. The Court of Appeal Rules in spelling out the modus operandi for this, has it that an “appeal” means the filing of notice of appeal. Indeed Order 3 Rule 2(1) of the Court of Appeal Rules, 2002 (which was then the prevailing rules of court) provides:
2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.
An appeal shall be brought by notice of appeal to be filed in the registry of the court below. Thus, without a notice of appeal, an appeal or even an avowed intention to appeal cannot be brought to life or actualized and would forever remain a wishful thinking.
By virtue of both S.30 of the Court of Appeal Act, 2004 and Order 1 Rule 12 of the Court of Appeal Rules, 2002 (being the then prevailing and applicable rules of this court) an “appeal” includes an application for leave to appeal. Both statutory and procedural provisions then describe or define who is an “appellant” in the following terms:
“appellant” means any person who desires to appeal or appeals from a decision of the court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf; (Emphasis added).
So who is a legal practitioner? Basically, S.2(1) of the Legal Practitioners Act, 1975 as amended confers entitlement or eligibility on a person to practice as a legal practitioner, that is, “as a barrister and solicitor if, and only if, his name is on the roll. (Emphasis added.) So what is in a name. Obviously, a lot. He who steals my name steals my all. Black’s Law Dictionary 8th Edition (2004) at page 1048 states that, “name” is a noun which means:
A word or phrase identifying a person or thing and distinguishing that person or thing from others.
It further defines a “signature” at page 1415 as, “a person’s name or mark written by that person or at the person’s discretion.”
It is noteworthy that the meaning or definition assigned to the expression “legal practitioner” under S.24, the interpretation section of the Legal Practitioners Act, is:
a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceedings.
It could then be seen from all the above that the emphasis is more on the ‘name’ and or “person” of the legal practitioner. Indeed and in furtherance thereto; for instance, in the event of a complaint being lodged against a legal practitioner and in the event of an adverse finding by the Disciplinary Committee against such a legal practitioner, it is the name of such a legal practitioner that will be ordered to be struck off the roll or the suspension of that legal practitioner from engaging in practice as a legal practitioner for a stated period or merely admonishing the affected legal practitioner. In all these, there is no way or manner that a firm of legal practitioner either sole or partnership can be visited with the sanctions to be meted out by the Disciplinary Committee. See Order 16 of the Legal Practitioners, (Disciplinary Committee) Rules, 1965.
In my consideration of this matter, I have had recourse to invoke and construe the applicable and relevant laws appertaining thereto. I have also given due considerations to the binding nature of decided authorities of this court and the apex court – Supreme Court. Thus, I intend to undertake a chronological/sequential review of cases of similar nature as the instant case. I must admit that my coverage is by no means exhaustive, but limited to the ones which I came across in the course of my research thereon. They are:
(1) In Amalgamated Press of Nigeria V. Molade (Unreported) LD/57A/65 delivered on 25th August, 1965, a notice of appeal was held to be defective and invalid if it is signed in the name of a firm of Solicitors or Legal Practitioners.
(2) In the case of The Registered Trustees of Apostolic Church, Lagos Area V. Rahman Akindele (1967) NMLR 263/265, delivered on 14th April, 1967, the applicable rules required that the notice of appeal shall be in a prescribed form and shall be signed by the appellant or by the legal practitioner representing him. The notice of appeal was signed thus: “J.A. Cole for J.A. Cole & Co.” The Supreme Court held that “J.A. Cole & Co.” was duly registered and J.A. Cole who signed for it was a duly registered legal practitioner and the sole legal practitioner, who has no partner and was duly entitled to practice law as such under the Legal Practitioners Act, 1962. Additionally, it was pointed out that there was no suggestion that there was any professional objection in J.A. Cole signing documents for J.A. Cole & Co., as it is frequently done by solicitors in England as the Law list shows. That he actually used his own name in signing the notice of appeal, being the same with the one with which he was registered as a legal practitioner. Hence the inclusion or addition of “for J.A. Cole & Co.” was held not to have invalidated the notice of appeal.
It is to be noted that Order 4 of the Registration of Title (Appeals) Rule which was applied and or construed in Akindele’s case (supra) read as follows:-
- A notice of appeal which must be in the form prescribed in appendix 1 to these Rules, shall be signed by the appellant or by the legal practitioner representing him …
It was then held that on any interpretation of the rules, there was sufficient compliance therewith and the addition of the words, “for J.A. Cole & Co.” was not accepted as an invalidating factor vis-a.-vis the signature in addition to or atop of the name of his legal firm.
It is to be further noted that the wider issue of the use of a business name, including a name under which two or more legal practitioners carry on practice in partnership, regarding the signature on documents which are required to be signed by a litigant or by the legal practitioner representing him was said by the Supreme Court not to have arisen in Akindele’s case (supra) and the apex court preferred to reserve it for a case in which it does arise.
Augusta Cole V. Segius Olatunji Mattins & Anor. (1968) ALL NLR 161 delivered by the Supreme Court in 1968. The notice of appeal was signed in the name of “Lardner & Co.” The Supreme Court held that it amounts to sufficient compliance with the requirement for a legal practitioner practicing alone to sign and give his name. If a legal practitioner practising alone gives the name under which he is registered as a business name, as this can only refer and apply to the named legal practitioner. No possible doubt or confusion can therefore arise in these circumstances. In Cole V. Mattins it was also not disputed that just as Mr. J.A. Cole was practicing on his own under the registered business name of J.A. Cole & Co., so was Mr. H.A. Lardner also practicing alone under the business registered name of “Lardner & Co.”, Since the effect of registering a business name under the Registration of Business Name Act, 1961 is that where only one person constitutes that business, it is correct to describe that person as in the terms of the registered business name. The Supreme Court held that Lardner & Co. referred solely to H.A. Lardner and thus the notice of appeal signed by Lardner and Co. is valid.
It is also to be noted that even the Respondent in Cole V. Mattins did not oppose the appeal. They agreed with the contention that the judgment of Sowemimo J. (as he then was) could not be supported. The appeal was accordingly allowed.
(4) First Bank of Nigeria Plc. V. Maiwada (2002) FWLR (Pt.125) 2001. (Court of Appeal, Jos Division, delivered on 27th March, 2002.) The legal firm of David M. Mando & Co. signed the notice of appeal without any particular or specific legal practitioner appending his signature thereon as a duly recognised, registered and enrolled person on the roll on behalf of the legal firm. The conclusion reached by the Court of Appeal was that David M. Mando & Co., a supposedly firm of legal practitioners is a distinct entity from David M. Mando Esq., who is duly registered as a legal practitioner free to pursue the profession of legal practice. But the latter was not the person who signed the notice of appeal in question. It was signed by the former who cannot sign a document on behalf of any client. That task can only be done by a duly registered legal practitioner who can equally sign on behalf of a client or the firm. It was held that the defect was substantial as it affects the jurisdiction or competence of the Court to entertain and determine the appeal. The notice of appeal is void, patently invalid and any appeal based on it is equally irredeemably incompetent as it goes to the root of the appeal. On that score, the appeal was struck out.
(5) New Nigeria Bank Plc V. Denclag Ltd. (2005) 4 NWLR (Pt.916) 549 (Court of Appeal- Jos Division, delivered on 13th April, 2004). It was held that the firm of Ibrahim Hamman & Co. not being a legal practitioner but simply a registered legal firm or a business name, is not a person recognized in law as being capable of initiating an action in court. Thus, the notice of appeal therein, having been issued, signed and filed by a firm that is not authorized to do the same, is definitely incompetent and incurably defective. The notice of appeal is thereby a nullity and the appeal incompetent.
(6) Dominic Nwani V. Bakari & Anor. (2005) All FWLR (Pt. 281) 1803 (Court of Appeal, Jos Division, delivered on 9th December, 2004). It was held that the notice of appeal which bears “Tayo legede & Co.” without the name of the signatory is incompetent and cannot therefore sustain the appeal. The notice of appeal was accordingly struck out and the appeal accordingly collapsed as a result thereof. It is to be noted that the lead judgment delivered by Mukhtar, JCA (as he then was) did not refer to, consider or apply Cole V. Mattins (supra) Even then as I intend to demonstrate anon, Nwanis case could not be rightly said to have been reached per incuriam.
(7) Buhari V. Yabo (2006) 17 NWLR (Pt.1007) 162 (Court of Appeal, Abuja Division, delivered on 23rd May, 2006). It was held that the fact that a notice of appeal is signed by a law firm will not invalidate such a notice to the extent of rendering it a nullity. This is because, where a legal practitioner gives the name under which he is registered as a business name, it can only refer and apply to the legal practitioner who so holds himself out as practicing under that business name. The notice of appeal was adjudged valid.
(8) Miss Esther Thomas V. Mr. David Maude (2007) All FWLR (Pt.361) 1749. (Court of Appeal, Kaduna Division delivered on 19th July, 2006) The notice of appeal was dated and filed on 14th February, 2005. It was signed by I.D. Jefia & Associates – a firm of legal practitioners. It was held that such a firm of legal practitioner is not authorized to so act. The notice of appeal was held to be fundamentally defective, null and void. It was accordingly struck out.
(9) Unity Bank Plc V. Oluwafemi (2007) ALL FWLR (Pt.382) 1923. (Court of Appeal, Benin Division delivered on 13th December, 2006) In this case, the law firm of Oluwole Aluko & Co. issued and signed the notice of appeal as appellant. The Respondent raised preliminary objection against this and contended that since the said legal firm is not a registered legal practitioner, within the con of the relevant provisions of Sections 2(1) and 24 of the Legal Practitioners Act and having not been issued by a registered legal practitioner, that the said notice of appeal is incompetent invalid, null and void. This Court (Benin Division) gave considerations to the arguments for and against there respective standpoints of the parties therein. It examined the Supreme Court decision in Cole V. Mattins (supra). It then concluded thus:
“It can thus be seen that the Supreme Court in allowing the appeal and setting aside the judgment of the Lagos High Court considered the issue a mere technicality. Since this case was decided, the Supreme Court has consistently harped on the need to discard technicalities where resort to them would be at the expense of doing substantial justice. This is very clearly the case here. There is no doubt that Oluwole Aluko has been appearing for the appellant in this matter. This is born out by the court’s records which are taken judicial notice of under section 74(1)(m) of the Evidence Act.”
The Court of Appeal then followed Cole V. Mattins (supra) and judicially approved the practice of legal practitioners placing and signing court processes in the names of their legal firms court processes. It discountenanced the objection raised against it as being in the realms of technicality. (10) Okafor V. Nweke (2007) 3 FWLR (Pt.382) 4969; (2007) 10 NWLR (Pt.1043) 521 (Supreme Court, delivered on 9th March, 2007). In this case, the requisite court processes filed in the matter, were all signed and issued by the legal firm known and called J.H.C. Okolo SAN & Co. The Supreme Court held that such processes signed and issued by the firm known as J.H.C. Okolo SAN & Co. are incompetent in law and were struck out as the firm of J.H.C. Okolo SAN & Co. is not a registered legal practitioner. It is to be noted that the case of Cole V. Mattins (supra) was not referred to, considered or applied in all the five judgments in Okafor V. Nweke (supra), despite the seeming similarities or sameness of facts in both cases. As it was not examined at all therein even in passing, can it then be said that it is no longer good law and binding, moreso, when it has not been overruled? To my mind and understanding, until it is decided otherwise by the Supreme Court, sitting as a full court and pronouncing thereon, Cole V. Mattins is still good law – and binding case law and indeed as good and binding as Okafor V. Nweke.
(11) In Central Insurance Company Limited V. Okoli (Unreported) Appeal No. CA/K/76/05 delivered on 11th May, 2007, this Court (Kaduna Division) held that the notice of appeal having been signed by Femi Olorunyomi & Co., a registered law firm which is not a person on the roll of legal practitioners to be defective. The process was found to be incompetent and in the absence of a competent notice of appeal, the appeal was accordingly struck out.
(12) In Clev Josh Ltd. V. Tokimi (2008) 13 NWLR (Pt.1104) 422, delivered on 10th July, 2007 by this Court – Benin Division) the notice of appeal was signed by Olukayode Ogundana & Co. It is the name of the law firm of counsel for the appellants. The argument as to whether the notice of appeal is valid and competent or otherwise was resolved against the appellants. It was held that the notice of appeal was not signed by any of the appellants therein or their learned counsel. It was thereby adjudged defective having failed to substantially comply with the appropriate rules of the Court of Appeal. The notice of appeal was accordingly struck out for being incompetent.
From the above, it would be seen that both the Supreme Court and the Court of Appeal have held in numerous cases that a firm of legal practitioner( s) cannot and should not sign a court process meant to be signed personally by the party or his legal representative. Put differently, where a counsel is required to sign a document or court process, it is expected that this would be done by a person whose identity is readily ascertainable and determinable from the roll of legal practitioners enrolled in the register kept with the Supreme Court. It is only such a person who can append his or her signature to such a document or court process and not otherwise.
From the analytical exposition of cases conducted above by me, it is my humble view point that as the case law position stands today, both litigants and the courts are somewhat sharply divided into two schools of thought, so to say; for and against. Litigants and their counsel may find it difficult or risky to determine where to pitch their tents; for or against. Thus, the task of taking decisive decisions will become a fifty-fifty chance and or at the toss of a coin – head you win, tail you lose depending on the school of thought to which the particular judge or court belongs. Methinks, that legal issues deserve a high degree of predictability or certainty which is as valuable and indispensable to justice as perfection.
Now back to the case at hand. At the invitation of O.A. Dada Esq., the learned counsel for the applicant, I have seen and examined Exhibit A.B.1 attached to the further affidavit sworn to on 14th March, 2007. Very well. But can it be rightly said that Adamu Abubakar Esq. is the sole legal practitioner practicing under the legal firm name of Adamu Abubakar & Co.? It can be gleaned that Exhibit E.V.3, the notice of appeal being sought to be amended herein is dated and filed on 23rd June, 2005. The wrongly headed “Further and Better Counter Affidavit” of the Respondent herein sworn to on 26th March, 2007 annexed Exhibits CAF1, 2 and 3. They are correspondence exchanged on the letter headed paper of and between Adamu Abubakar & Co. and Messrs O.E.B. Offiong & Co. They are variously dated 12th February, 2001, 19th February, 2001 and 13th March, 2001 respectively. The said letter headed papers inter alia carry the following notations:
In Chambers: Adamu Abubakar LL.B (Hons),BL., E.B. Mohammed LL.B (Hons) BL, Waziri M. LL.B (Hons) BL Alhassan Idoko LL.B (Hons) BL.
This demonstrably prove or establish that Adamu Abubakar Esq. is not the sole practitioner practicing under the legal firm name of Adamu Abubakar & Co., irregardless of what Exhibit AB1 tends to portray. Anyway, Exhibit A.B.1 was dated and issued on 2nd October, 1985, while Exhibits CAF 1, 2 and 3 covered the period between 12th February, 2001 and 13th .March, 2001. Obviously, a lot of water must have passed under the bridge. Thus,” from the available documentary evidence in this matter and which said documents without strains speak for themselves, I find and hold that there is proof on record, that the legal firm of Adamu Abubakar & Co. is not being run by Adamu Abubakar Esq. as the sole legal practitioner. There are other legal practitioners who participate in the running of the said legal firm. It is thus my firm viewpoint that with this development, the facts of this matter can be readily distinguished from the ones in Cole V. Mattins (supra). For one, while it could be said in Cole V. Mattins that Lardner & Co. referred solely to Mr. H.A. Lardner, the same could not be said in the instant case. In this case, it could be garnered that Adamu Abubakar & Co. does not refer solely to Adamu Abubakar Esq. Since he is not practicing alone, there is thus the possibility for doubt and confusion. And with this distinguishing factor, is clear that the facts in both cases are not on all fours. As at the time when Exhibit E.V.3 was signed in the name of Adamu Abubakar & Co., the said Adamu Abubakar was not the only legal practitioner in Chambers.
It is also noteworthy that Abubakar Adamu Esq. admitted that he has more than one signature which he uses interchangeably. In the further and better affidavit which was sworn on 14th May, 2007, he maintained that he was the one who signed Exhibit E.V.3. He added in paragraphs 4 and 5 thereof thus:
- That as a matter of fact, I have more than one signature which I normally used interchangeably.
- That the signatures on Exhibits CAF1, CAF2, CAF3 and CAF4 belong to me.
This may be legally unquestionable, but what about the moral aspect? I am aware that morality is not the same as legality . Nevertheless, it raises eyebrows as to the need for such a thing in the first place. I need not say more.
It is a long standing principle of considerable weight and antiquity, that the Supreme Court and all courts below it are bound by its previous decisions. Howbeit, the doctrine of stare decis will only apply if the facts, circumstances and issues in the earlier case dovetails, in the sense that they are the same or similar to those in the later case, wherein it is being sought to apply the doctrine. In the instant case, the decision of the Supreme Court in Cole V. Mattins is not applicable. For one, it was found in Cole’s case that H.A. Lardner is the sole legal practitioner practicing under the firm name of Lardner & Co. On the other hand, in the instant case, I have already found that going by the documentary evidence on record, that Adamu Abubakar Esq. is not a sole legal practitioner practicing under the firm name of Adamu Abubakar & Co.. There are other legal practitioners in the said legal firm. It would thus amount to an unwarranted juxtaposition to fixate the ratio in Cole’s case on the instant case. The authority of any decision of any court in the hierarchical structure of courts ¢ in Nigeria do not and cannot extend to an issue which has not been pronounced upon by the said court. Indeed, the Supreme Court in Cole’s case in a veiled reference, berated the practice of lone rangers portraying themselves as Texas Rangers.
In Yusuf V. Egbe (1987) 2 NWLR (PT.56) 341, Kolawole, JCA (of blessed memory) reiterated that this Court is bound by its previous decisions which have not been overruled by the Supreme Court. Furthermore, that the Court of Appeal must accept and apply loyally, the decisions of the Supreme Court and where the decisions manifestly conflict, it was his opinion that the later decision is binding on the Court of Appeal. It was also held by Ademola, JCA (of blessed memory) that where there are two conflicting decisions of a higher court, the lower court is free to choose which of the decisions to be followed. See Adegoke Motors V. Odesanya (1988) 2 NWLR (Pt.74) 108. Both are decisions of this court – Lagos Division, delivered on 10th February, 1987 and 9th November, 1987 respectively.
In a way and in a sense, Okafor V. Nweke (supra) which conflicts with Cole V. Mattins (supra) is binding on lower courts such as this court. However, such lower courts can choose either of the two decisions to follow. There is also a sharp disagreement, contradiction or conflict between the decisions of this Court in Nwani V. Bakari (supra) and Unity Bank V. Oluwafemi (supra). In Ansa V. R.T.P.C.N. (2008) ALL FWLR (Pt. 405) 1681, it was noted by this Court – Calabar Division, that where there are conflicting judgments of courts of equal jurisdiction over the subject matter in dispute, the rule is that the decision that is later in time operates as a bar and it represents the correct position of the law. See also Mkpedem V. Udo (2000) 9 NWLR (Pt. 673) 63; Nwangwu V. Ukachukwu (2000) 6 NWLR (Pt. 662) 674.
I wish to reiterate that I am fully conscious of the position of the law that I am bound by the decisions of the Supreme Court under the doctrine of stare decisis. But it is also the law that where a lower court is faced with two conflicting decisions of a superior court, such as this court and the Supreme Court, the former is allowed to choose which of the two conflicting decisions to follow. See Obi Eze V. Att.-Gen. Rivers State (2000) 18 NWLR (Pt.746) 524; Ikweki V. Ebele (2005) All FWLR (Pt. 257) 1401.
It stands to reason and that is the position of the law, that where a notice of appeal is fundamentally and structurally defective, there is no foundation for the appeal and therefore there is no appeal before the Court. It becomes an exercise in futility. A futile effort is a wasted effort and is as good as no effort. Afterall, a miss of an inch is as good as a mile. Thus, the appeal naturally collapses for lack of structural foundational base. See Nwaeze V. Eze (1999) 3 NWLR (Pt. 595) 41/418; Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 and Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267. The notice of appeal is the key to the door of every appeal. It heralds the invocation of the constitutionally vested right of appeal. It signifies a strong disapproval and disavowal against the judgment or ruling complained of. Thus, if it is found to be defective in a fundamental manner, it will render the entire appeal incompetent and the appellate court will lack jurisdiction to determine either the substantive appeal or any interlocutory application predicated thereon. Without a pending, subsisting and valid appeal predicated on a competent notice of appeal, an interlocutory application based thereon will never see the light of the day. See Olowokere V. Africa Newspapers (1993) 5 NWLR (Pt.295) 583; Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622.
For a notice of appeal to be valid and proper, it must have been issued and signed by either the appellant or the legal practitioner representing him. See Chrisdom Ind. Co. Ltd. V. A.I.B. Ltd. (2002) 8 NWLR (Pt. 768) 158. Let it be reiterated, that it is the signature appended atop of the name of the person who signed, that authenticates the document and renders it admissible in evidence. See Mobil Oil Nig. Ltd. V. Rabiu (2003) FWLR (Pt. 149) 1546.
Consequently, an application for amendment of a notice of appeal or filing additional grounds of appeal cannot be granted if it is based on an invalid notice of appeal. See Harriman V. Harriman (1987) 3 NWLR (Pt. 60) 244; Emecheta V. Ogueri (1998) 12 NWLR (Pt.579) 502. Hence, where either the notice of appeal or grounds of appeal are invalid, fundamentally defective and thus incompetent, an application to amend the same would also be invalid. Again, where a procedural step such as the filing of a notice of appeal is also jurisdictional, such an issue; has crossed the frontiers of technicality into the realms of substantive law. Whenever the letters of the law are invoked as stipulated; that is the essence of justice.
In Dada v. Dosunmu (2006) 18 NWLR (Pt.1010) 234 the Supreme Court held that where a rule of court in a clear, lucid, emphatic and unambiguous manner has provided for the modality of doing an act ,or the required conduct in a given a situation, the courts have a bounden duty to ensure and enforce compliance therewith. In this vein, the issue of doing substantial justice, demand of justice in preference to and above technical justice does not even arise. Accordingly, a party who fails to tread the path mapped out by the rules and thereby falls short with regards to compliance with a particular rule of court, will have no one to blame but himself, for such an unpardonable blunder and cannot be heard to hinge his plea on the need to do substantial justice. The applicable rules of substantial justice are be applied in accordance with the law, both substantive and procedural. It could not have been otherwise. A court of law should not apply the law in opposition to or defiance of the law. There is a limit to what extent a court of law should bend backwards in granting indulgence or accommodation to parties in the course of dispensing justice to the parties before it.
If the law is whittled down and allowed to be eroded at will, a time will come when there will be nothing to hold up either as remnant or vestige of the law. Justice should be an even handed dish which should not be doled out in a manner of largesse to one of the parties at the expense of the other party. Rules of courts are not toys to be toyed with. They are meant to be observed in compliance and not defiance. Courts must give bark and bite to rules of court.
The error in the instant case is beyond the label or ambit of “technical justice” which has occasioned miscarriage of justice. It is very fundamental, fatal and incurable. The law is settled that where a notice of appeal is fundamentally defective, the Court of Appeal has inherent powers to strike it out. The two issues raised and adopted in this matter are resolved in the negative and against the Applicant herein.
Upon proper, due reflections and in the given circumstances of the instant matter, I am more inclined to follow the decision in Okafor V. Nweke (supra) in preference to Cole V. Martins (supra) for reasons which I have duly set out above. That being the case, the objection raised in respect of and against the notice of appeal in the instant case is well taken and thus sustained by me. I hold that on any interpretation of the relevant and applicable laws and rules of this Court, there was non compliance by the Applicant herein with the requisite requirements of the law and our rules of court regarding the issuance and signing of notice of appeal.
It follows without much ado that in the premises of all the above, the notice of appeal herein, Exhibit E.V.3 dated 23rd June, 2005 against the judgment of the Kano State High Court delivered on 20th June, 2005 attached to this application and marked Exhibit E.V.2, issued, taken out II and signed by Adamu Abubakar & Co., not being a legal practitioner whose name can be found on the Roll is grossly incompetent, fundamentally defective and deserves to be struck out and is accordingly struck out by me. Also, the instant application dated and filed on 7th November, 2006 is dismissed by me. I award N30,000.00 costs in favour of the Respondent herein.
Ordered accordingly.
Other Citations: (2009)LCN/3255(CA)
