Emmanuel Okafor & 2 Ors V Augustine Nweke & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

On the 19th day of December 2005, the applicants filed a motion before this Court praying for the following orders:-

“(i) An order for extension of time within which to apply for LEAVE to (CROSS) appeal in this suit.

(ii) LEAVE to (CROSS) appeal against he judgment of the Court of Appeal, Enugu, delivered on 25/1/01.

(iii) Extension of time within which to file the applicants notice and grounds in the said (CROSS) appeal.

(iv) An order deeming the said notice and grounds of appeal herein exhibited as properly filed and served, subject to the payment of the requisite court fees thereon.

(v) An order for leave to file and argue the grounds of mixed law and facts contained in the said notice and grounds of appeal at the hearing.” The motion was signed by:

J.H.C. OKOLO, SAN & CO.

APPLICANT’S COUNSEL

162B ZIK AVENUE

UWANI, ENUGU.

There is an affidavit of 22 paragraphs in support of the said motion to which has been exhibited a NOTICE OF (CROSS) APPEAL (PROPOSED) which applicants want deemed properly filed and served upon payment of requisite filing fees. The said notice of cross appeal is again signed by J.H.C. OKOLO, SAN & CO. and it is exhibit A attached to the said affidavit.

Finally, the applicants also filed a brief of argument in respect of the application as required by the rules of this Court on the 19th day of December, 2005. Like the previous two documents, the brief was signed by J.H.C. OKOLO, SAN & CO. On the 6th day of March, 2005 the respondents filed a counter Affidavit in opposition to the application while learned Senior Counsel for the respondents, G.R.I. EGONU SAN, filed the plaintiffs’ – respondents’ brief of argument in which he raised the issue, inter alia:

“1. Whether the notice of motion, notice of (CROSS) appeal and the applicants’ brief of argument for extension of time in this application are null and void.”

The above issue and the argument thereon contained in the said brief were adopted and relied upon by learned senior counsel for the respondents during the oral hearing or argument of the motion on 30th day of January, 2007. In arguing the issue, learned Senior Advocate referred the court to section 74(1) of the Evidence Act, cap 112, Laws of the Federation of Nigeria, 1990 and submitted that by virtue of that provision this court is enjoined to take judicial notice of all legal practitioners authorized by law to appear or act before it and further submitted that “J.H.C. OKOLO SAN & CO.” is not a legal practitioner authorized by law to appear or act before the Supreme Court of Nigeria. Referring to and relying on sections 2(1) and 24 of the Legal Practitioners Act, Cap 207, Laws of the Federation of Nigeria, 1990, learned senior counsel submitted that the firm, J.H.C. OKOLO, SAN & CO” not being a person whose name is on the roll of Legal Practitioners in Nigeria was not entitled to sign or issue the notice of motion, notice of (CROSS) appeal and applicants’ brief of argument for extension of time in the application and that the said documents as signed and issued by the firm are null and void relying on the court of Appeal decision in New Nigerian Bank Plc v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549 at 573.

In reaction to the above, learned Senior Advocate for the applicants J.H.C. OKOLO, SAN filed applicants reply to respondents’ brief on application for extension of time on the 19th day of January 2007, in which counsel submitted that the argument of his learned friend betrays a misconception in the interpretation placed both on the motion paper and the applicants’ brief of argument; that a casual look at the documents confirms that each of them was signed by the party issuing same as the counsel in the proceeding; that it is not the argument of counsel for the respondents that the signature on either document was not that of a legal practitioner; that provisions in all rules of court merely require a legal practitioner representing a party in any proceeding to sign any process and that the issue as raised is one in which it will be necessary to canvass vital evidence of who signed the documents before arriving at a proper determination. For the above submission learned senior counsel cited and relied upon the decision in the case of Izuogu v. Emuwa (1991) 4 NWLR (Pt.183) 78 at 85 – 86; Banjo v. Eternal Sacred Orders of Cherubim and Seraphim (1975) 3 SC 37 at 44. It is also the submission of learned senior counsel for the applicants that a signature on any document is the attribute that authenticates the document for which counsel referred to Blacks Law Dictionary (Special Deluxe Fifth Edition) at page 1239; that the documents in issue were duly signed by “J.H.C. OKOLO (SAN),” a registered Legal Practitioner shown on the rolls of the Supreme court as No. 1265 and on the rolls of Senior Advocates of Nigeria as No. 76; that the addition of the words “& CO.” not in the signature authenticating the process but in the further description of that known identity is a mere surplusage which cannot take the place or displace the signature, for which counsel cited and relied on the views of Oputa, JSC in Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 281; that the decision of the Court of Appeal in the case of New Nigerian Bank Plc v. Denclag Ltd. supra is only persuasive and is distinguishable in that the facts are different and that the other two justices who heard the case did not express an opinion on the issue. Learned Senior Advocate then cited and relied on the case of Reg.Trustees of Apostolic Church Lagos Area v. Akindele (1967) 1 All NLR 110 and urged the court to overrule the objection. It is very important to note that the reply brief was signed by J.H.C. OKOLO, SAN not J.H.C. OKOLO SAN & CO. There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed notice of Cross Appeal and appellants’ brief in support of the said motion were all signed: J.H.C. OKOLO SAN & CO. Learned Senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of J .H.C. OKOLO SAN & CO it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izugu v. Emuwa supra and Banjo v. Eternal Sacred Orders of Cherubim & Seraphim, also supra. However section 2(1) of the Legal Practitioners Act, cap 207 of the Laws of the Federation of Nigeria 1990 provides thus:

” 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.”

From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name. Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be: “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 proceeding.” The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria.The question that follows is whether J.H.C. OKOLO SAN & CO is a legal practitioner recognized by the law From the submissions of both counsels, it is very clear that the answer to that question is in the negative. In other words both senior counsels agree that J.H.C. OKOLO SAN & CO is not a legal practitioner and therefore cannot practice as such by say, filing processes in the courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. OKOLO SAN & CO. actually belongs to J.H.C. OKOLO SAN who is a legal practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name. That apart it is very clear that by looking at the documents, the signature which learned senior advocate claims to be his really belongs to J.H.C. OKOLO SAN & CO. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C.OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said J.H.C. OKOLO SAN & CO. cannot legally sign and/or file any process in the courts and as such the motion on notice filed on 19th, December 2005, notice of cross appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called J .H.C. OKOLO SAN & CO. are incompetent in law particularly as the said firm of J.H.C. OKOLO SAN & CO. is not a registered legal practitioner. In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.

The law exists as a guide for actions needed for the practice of the law, not to be twisted and tuned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged. It is rather unfortunate that the offending processes originated from the hallowed chambers of a learned senior advocate of Nigeria who did not even see them as improper and unacceptable but went on and on to argue that the documents, which in law are supposed to speak for themselves, actually told a lie as to their authentication.

It should however be mentioned that learned senior advocate for the applicants in filing a reply brief in reaction to the submission of his learned friend silk, signed the said reply brief in the proper way, as follows:-

J.H.C. OKOLO SAN

J.H.C. OKOLO SAN & CO

Applicants Counsel

162 Zik Avenue

Uwani, Enugu.

On the other side of the judicial scale in the balancing act, is the issue of substantial justice which I said had been adequately taken into consideration in this ruling. The conclusion that must be reached in this matter is that the documents are incompetent and are struck out leaving the applicants with the opportunity to present a proper application for consideration by this Court. The effect of the ruling is not to shut out the applicants but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of ‘anything goes.’ In conclusion I agree with the submission of learned senior advocate of Nigeria for the respondents that the processes filed in this application particularly the motion on notice filed on 19/12/05, the proposed notice of cross appeal and applicants’ brief of argument in support of the said motion on notice are incompetent in that they were not issued by a legal practitioner known to law and are

consequently struck out, with N1,000.00 costs in favour of the respondents.

SC.27/2002