First Bank Of Nigeria Plc. & Ors. V. Alhaji Salmanu Maiwada & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
J.A. FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Jos Division (“the court below” for short) delivered on 27th March, 2002.
It is apt to state the relevant facts which are material to the determination of the core or central issue in this appeal. The plaintiff at the trial court sought declaratory reliefs in respect of landed property in Jos; setting aside of warrant of possession and damages in the sum of N1,000,000:00 against the defendants for trespass.
By way of preliminary objection the appellants urged Uloko, CJ to dismiss the plaintiff’s claim on the ground that issues between them had been determined to finality by Oyetunde, J in Suit No. PLD/J/51/1994 when the plaintiff’s suit was dismissed in its entirety. Uloko, CJ was duly addressed on the point. At the end of the day, Uloko, CJ refused the application because there was a pending appeal at the Supreme Court against certain aspects of the decision in PLD/J/1994 and that the suit being touted as res judicata, to that extent, could not have been determined to finality.
The defendants felt dissatisfied and appealed to the court below. Thereat, learned counsel for the respondent raised preliminary objection.
Paragraph (a) of the preliminary objection which is of moment at this point reads as follows:-
“(a) The appeal of the appellants is incompetent in that the Notice of Appeal was neither signed by the Appellants nor by a Legal Practitioner acting on their behalf.”
In respect of the above, it was submitted on behalf of the respondent that the Notice of Appeal in issue was neither signed by the appellants nor by a legal practitioner. It was contended that David M. Mando & Co. is not a legal practitioner known to and prescribed by sections 2, 4, 7, 23 and 24 of the Legal Practitioners Act 1962 since there is no name like that on the Roll of Legal Practitioners. On that score, the court below was urged to strike out the appeal for being incompetent.
Mr. David Mando on the other hand submitted that the firm of David M. Mando & Co. is a firm of legal practitioners acting for the appellants. He submitted that under the Companies and Allied Matters Act (CAMA) it was not necessary for a legal practitioner to register his firm as a partnership before engaging in legal practice. He urged the court below to discountenance the objection.
On this point, the court below upheld the aspect of the preliminary objection and struck out the notice of appeal. The appellants felt dissatisfied and have appealed to this court.
The core issue in my considered opinion is – whether a court process not personally signed by a legal practitioner duly registered in the roll of this court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.
Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full court. A host of amici curiae got invitation to address the court on the issue.
On 27th February, 2012 when the appeal was heard, Mr. David Mando, learned counsel for the appellants adopted the brief of argument as well as the reply brief filed on behalf of his clients. He urged the court to set aside and/or overrule the decision of this court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. He urged that the decision in Registered Trustees of the Apostolic Church v. Rahman Akindele (1967) All NLR 110 and Cole v. Martin (1968) All NLR 16 should be restored.
In the same manner, Mr. Obla, learned counsel for the respondent adopted the brief of argument filed on behalf of the respondent and urged the court not to depart from the decision in Okafor v. Nweke. He associated himself with the views and submissions expressed in the brief of argument filed by Mr. J. B. Daudu, SAN as amicus curiae. He observed that in the Registered Trustee’s case, J. A. Cole, a registered legal practitioner signed for J. A. Cole and Co. as contained in the writ of summons.
Mr. J. B. Daudu, SAN appeared as amicus curiae on invitation in his capacity as the President of the Nigerian Bar Association. He adopted the brief of argument filed by him and advanced oral submissions. He submitted that the narrow issue is whether a court process is invalid if it fails to carry the name of a legal practitioner who is registered in the roll of this court. He submitted that such a process is invalid and therefore null and void. He referred to the cases of Okafor v. Nweke (supra) and SLB Consortium Ltd. v. NNPC (2011) 3 SCNJ 185 at 191. He observed that it has been argued that insistence on process being signed by a real legal practitioner is a mere technicality. Senior counsel advanced three reasons why the court should not depart from its decision in Okafor’s case. He maintained that – (1) the applicable provision of section 2(1) of the Legal Practitioners Act remains the law until it is amended by the Legislature; (2) if the court departs from its decision, it will lead to more confusion and lack of responsibility on the part of counsel. He cited Atake v. President of the Federation (1982) 11 SC 63; (3) references being made to sections 574 and 575 of the Companies and Allied Matters Act (CAMA) which relate to general provisions cannot supplant the special provision made in the Legal Practitioners Act.
Senior counsel strongly felt that the absence of a named legal practitioner on the court process in issue to wit: the notice of appeal rendered the process incompetent and invalid as the signatory is that of a firm carrying on business as legal practitioners which is not registered in the roll of legal practitioners in Nigeria. He opined that the lapse is grievous as it creates a jurisdictional issue of immense proportions; the result of which is that the court below cannot rightly countenance the said notice of appeal which was rightly struck out.
Chief Wole Olanipekun, SAN also appeared as amicus curiae (friend of the court). He adopted the brief of argument filed by him. He orally submitted that the court has not overruled the decision in the Registered Trustee’s case and Cole v. Martin’s case. Senior counsel referred to section 231(3) of the Constitution and seriously felt that the issue relates to technicality. He maintained that if the decision is retained, there should be saving grace for pending cases between 1968 and 2007. According to the senior counsel, the decision is being employed as a sword by counsel with weak cases.
Dr. O. Ikpeazu, SAN also appeared as amicus curiae. He adopted the brief of argument filed by him. Senior counsel submitted that there is a conflict between the decision in the Registered Trustees and Cole v. Maytin cases on the one part and the cases of Okafor v. Nweke and SLB Consortium Ltd. v. NNPC on the other part. He observed that the later cases never mentioned any of the two previous cases.
Senior counsel observed that between 1968 and 2007, many cases have been filed under the tag of ‘and Co’. He felt that there may be hardship in matters that were filed before the decision in Okafor v. Nweke. He submitted that if the court will not depart from the decision in Okafor v. Nweke, there must be savings for such pending cases.
Mr. S.E. Elena also appeared as amicus curiae. He adopted the brief filed by him to support the upholding of the decision in Okafor v. Nweke. He urged the court not to depart from the decision.
Chief O. J. Onoja also appeared as a friend of court. He adopted the brief of argument filed by him to urge the court to depart from its decision in Okafor v. Nweke. He felt it has to do with technicality for which injustice may arise. He urged for savings in respect of pending cases if the decision is retained.
Mr. A.A. Adedeji as amicus curiae adopted his brief. He also urged the court to depart from the decision in Okafor v. Nweke. He observed that foreign cases referred to by him are only of persuasive authority.
M. G. A. Oyewole, as amicus curiae, also adopted the brief of argument filed by him. He urged the court not to depart from the decision in Okafor v. Nweke. He felt that there has never been a departure from previous cases as in the Registered Trustee’s case, J. A. Cole, a legal practitioner preceded J.A. Cole and Co in the writ of summons. He observed that there is the point of accountability and responsibility which must be preserved; more especially as at now.
Mr. Wale Taiwo as amicus curiae also adopted the brief of argument filed by him. He urged that the decision in Okafor v. Nweke should be retained. He urged the court to be firm as he associated with the submissions of Mr. J. B. Daudu, SAN.
Mr. A. Adesokan equally appeared as amicus curiae. He urged the court to depart from the decision in Okafor v. Nweke and if otherwise an opportunity should be given to counsel to regularrze the process.
Mr. Paul C. Ananaba, as amicus curiae adopted the brief of argument filed by him and urged the court to depart from the decision in Okafor’s case. He urged the court to embark upon activism and do purposive interpretation of the applicable section of the Legal Practitioners Act.
Dr. O. O. Olatawura with full force also appeared as amicus curiae. He adopted the brief of argument filed by him. At the on-set, he submitted that the court should depart from the decision in Okafor v. Nweke. According to him, the rules of court are more central to the issue than the Legal practitioners Act. He submitted that the court should do substantial justice according to law and without undue regard for technicality. He opined that the court should not punish a litigant because of the mistake of counsel.
Learned counsel felt that on the other hand the court may not depart from its decision in Okafor v. Nweke.
While one should appreciate the stand point of each senior counsel/counsel and the effort and dexterity with which each of them marshalled his points, it should be noted that this salient issue shall be determined based on the determination of the applicable law. This is a matter of great concern to legal practitioners which cannot be determined by casting of votes.
The decision in Okafor v. Nweke was basically determined based on the provisions of sections 2(1) and 24 of the Legal practitioners Act, Laws of the Federation of Nigeria 2004. It is apt to reproduce here below the stated sections of the law for ease of reference and undiluted appreciation.
Section 2(1) of the law provides as follows:-
“Subject to the provisions to this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll.”
Section 24 of the Legal practitioners Act provides thus:-
“In this Act, unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say –
“Legal Practitioner” means 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 purposes of any particular office or proceedings”
In interpreting the law, the court was invited to embark upon purposive interpretation. It was contended that a negative interpretation of the law should be avoided as such is against the canon of interpretation of laws.
It is not in doubt that in deserving situations, purposive interpretation should be employed by the court. The purpose of a legislation is of paramount factor. The purpose of sections 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession. This, in my considered opinion, accords with the sacred canon of interpretation of law. See: Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 513; U.A. Ventures v. FCNB (1998) 4 NWLR (Pt.547) 546; IBWA v. IMANO (Nig.) Ltd. & Anr. (1988) 2 NSCC 245.
Generally, where the words of a statute are clear and unambiguous, the court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. Literal construction has been defined as the interpretation of a document or statute according to the words alone. A literal construction adheres closely to the words employed without making differences for extrinsic circumstances. See: Black’s Law Dictionary sixth Edition, Page 993.
In my considered opinion, the words employed in drafting sections 2(1) and 24 of the Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this court.
It has been urged upon this court that it should embark upon activism in interpreting the law to nail the decision in Okafor v. Nweke. Mr. Paul Ananaba cited the cases of Transbridge Co. Ltd. v. Survey International Limited (1986) 4 NWLR (Pt. 37) 578 and Okotie-Eboh v. Manager (2005) 2 MJSC 125.
In Transbridge Co. Ltd. v. Survey International Ltd this court per Eso, JSC pronounced as follows:-
“I believe it is the function of judges to keep the law alive, in motion and to make it progressive for the purposes of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable but accepted way of avoiding narrowness that would spell injustice, short of a judge being a legislator, a judge to my mind, must a possess an aggressive stance in interpreting the law.”
And in Okotie Eboh v. Manager (supra) Pats-Acholonu, JSC (of blessed memory) pronounced as follows:-
“An interpretation that seeks to emasculate should be avoided as it would do disservice to the citizenry and confine everyone into a legal container or labyrinth from which this court may not easily extricate itself ——– I believe that though justice is blind, it is nevertheless rooted in the nature of society and therefore the court should avoid constructions that could cause chaos and disenchantment. Justice must be applied in a way that it embraces and optimizes social engineering that is for the welfare of society. Enlightened society should expect a highly refined and civilized justice that reflects the tune of the time.”
I am at one with the pungent views expressed above. I agree that a judge should be firm and pungent in the interpretation of the law but such should be ‘short of a judge being a legislator.’ This is because it is the duty of the legislature to make the law and it is the assigned duty of the judge to interpret the law as it is; not as it ought to be. That will be flouting the rule of division of labour as set out by the Constitution of the Federal Republic of Nigeria, 1999. The provisions of sections 2(1) and 24 of the Act as reproduced above remain the law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law.
The decision in Okafor v. Nweke was based on a substantive law – an Act of the National Assembly i.e. the Legal practitioners Act. It is not based on Rules of court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke. “It would have been quite another matter if what is in issue is a mere compliance with court rules.” Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rules of court which are subject to the law must take the side line.
As pointed out by S. E. Elema, Esq. in his brief of argument, it has been argued in some quarters that a law firm registered as a business name under section 573(1) of the Companies and Allied Matters Act, Laws of the Federation of Nigeria 2004 (CAMA) is entitled to practice and sign processes in its registered name.
In my considered view, such is a misconception of the law. The said section 573(1) of Companies and Allied Matters Act Provides as follows:-
“Every individual firm or corporation having a place of business in Nigeria and carrying on business under a business name shall be registered in the manner provided in this part of this Act if—–.”
The above is not an authority that can be relied upon to uphold the view that a process signed and filed by a firm of legal practitioners which has no live is valid in law. The general provision of the law as in section 573(1) of Companies and Allied Matters Act is subject to the specific provisions of section 2(1) and 24 of the Legal Practitioners Act. See: FMBN v. Olloh (2002) 4 SC (Pt. 11) 177 at 122-123; Kraus Thompson Org.v. NIPSS (2004) 5 SC (Pt.1) 16 at 20-21.
There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See: Dada v. Dosumu (2006) 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked.
It was seriously contended that the court did not consider the Registered Trustees’ case and Cole v. Martins’ case while considering Okafor v. Nweke. The inference being drawn is that the decision in Okafor v. Nweke was rendered per incuriam.
I wish to discuss what happened in the previous two cases determined by this court. In the Registered Trustees case, under rule 4 of the Registration of Titles (Appeal) Rules, which, applied to the Trustees’ appeal to the High Court, the notice of appeal must be signed by the appellant or the legal practitioner representing him and must contain the name of the legal practitioner.
The notice of appeal gave the legal practitioners’ name – J.A. Cole & Co. and was signed J. A. Cole for J.A. Cole & Co. After hearing argument on the merits, the appellate judge, of is own motion and without having invited argument from counsel, dismissed the appeal as not being properly before the court on the ground that the notice of appeal was given by the firm – J. A. Cole & Co. which was not a legal practitioner under the Legal Practitioners Act 1962.
Mr. Cole, a duly registered legal practitioner entitled to practice as such under the Act, practiced alone but in the duly registered business name – J. A. Cole & Co; which no professional objection was suggested.
This court held “that the notice filed in the case was given in the prescribed form. It stated the name and address of the legal practitioner representing the appellants as Messr J. A. Cole & Co. 14/16 Abibu Oki Street Lagos and was signed – J.A. Cole & Co.’ Mr. J.A. Cole is admittedly a duly registered legal practitioner, and entitled to practice as such under the Legal Practitioners Act 1962. He has no partner in his practice, but he has registered the name of J. A. Cole & Co. under the Registration of Business Name Act, 1961 and uses the name in his practice. It is not suggested that there is any professional objection to his doing this and it is frequently done by solicitors in England, as the law list shows. In our view the business name was correctly given as that of the legal practitioners representing the appellants. In signing the notice of appeal, Mr. Cole used his, own name, that is to say, the name which he is registered as a regal practitioner. We hold that on any interpretation of the rules that was a sufficient compliance with them and we do not accept the submission that the addition of the words ‘for J. A. Cole & Co. would invalidate the signature if a signature in a business name was not permitted.”
The above decision, to say the least, was followed by this court in Okafor v. Nweke. I cannot see the difference in the thought process leading to the two decisions. The only point of divergence is that in Okafor v. Nweke, J.H.C. Okolo, SAN who is a legal practitioner whose name is in the roll did not sign as J.H.C Okolo, SAN ‘for J.H.C. Okolo, SAN & Co.
The case of Cole v. Martins (1968) All NLR 16 was determined in 1968 by this court. This court held that the effect of registering a business name under the registration of Business Names 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. In other words, Lardner &. Co. here referred solely to Mr. H.A. Lardner. That having regard to the con of rule 4 of the registration of titles (appears) rule, purpose of which on this rule, is to ensure that the name of the legal practitioners giving notice of appeal and representing the appellant is clearly known, then it is a sufficient compliance with the requirement for a legal practitioner to sign and give his name, under which he is registered as a business name, as this can only refer and apply to the legal practitioner who so hold himself out as practicing under the business name. No possible doubt or confusion can therefore arise in these circumstances.
This court, in Cole v. Martins did not refer to the earlier decision in the Registered Trustees’ case which, in my opinion, clearly determined the core issue. In Okafor v. Nweke, the court rightly followed the decision in the Registered Trustees’ case. That is the position of the court.
Chief Wole Olanipekun, SAN felt that there is need to revisit the case of Okafor v. Nweke and subsequent ones. He submitted that in Okulate v. Awosanya (2000) 2 NWLR (Pt.246) 530 at 543; Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382 at 447, Ewete v. Gyang (2003) 6 NWLR (Pt. 816) 345 at 374; Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 275, this court laid down the criteria where it would revisit or reverse or depart from any of its previous decisions. These include where the decision was reached per incuriam or where the decision is clearly wrong and there is real likelihood of injustice perpetrated, where the decision is clearly erroneous in law or where the issue of public policy was involved. He felt that the decision in Okafor v. Nweke apart from being technical would continue to create hardship and injustice to litigants involved at large as mistake of counsel should not be visited on litigant. He referred to Long John v. Black (1998) 6 NWLR (Pt. 555) 524, Similar arguments were proffered by Dr. O. Ikpeazu, SAN and Mr. Paul Ananaba.
I wish to repeat that we are interpreting a law which seeks to make legal practitioners responsible and accountable more especially in modern times that we are presently operating. I see nothing technical in insisting that a legal practitioner should abide by the dictates of the law in signing court processes. It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre-eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession.
The last point relates to balance of justice which most of the learned senior counsel/counsel touched upon. The question arises as to whether it does not lead to injustice against the litigant to declare processes filed by his counsel incompetent on the ground that such a process was signed and filed in the name of a law firm without indicating the name of the particular legal practitioner who issued and signed the process. Most counsel felt that there should be a saving grace.
In Okafor v Nweke (supra) this court per Onnoghen, JSC stated as follows at pages 532 – 533;-
“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 the consideration by this court. The effect of 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 encouragement of the attitude ‘anything goes’.”
It follows that no injustice is done to the litigant since the result of the irregularity is an order striking out the suit or process which leaves the real legal practitioner with an opportunity to come back to court to lift his veil and file a proper process as the legal practitioner whose name is on the roll of this court. The court should consider such an application on its merits. Such will enhance good practice culture amongst legal practitioners generally. I earnestly feel that I have made a point.
With all the above, I feel I am done. I come to the conclusion that the appeal which was not initiated with due process of the law is incompetent. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. It is hereby struck out. I make no order as to costs.
SC.204/2002 (Consolidated)
