Mr. Rasaki Rabiu V. Mr. Musibali Atepete & Anor (2016)
LawGlobal-Hub Lead Judgment Report
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
This is an appeal against the Ruling of the High Court of Lagos State delivered by A.M NICOL-CLAY J. on the 4th day of October 2012 in suit No LD/1759/2011 wherein the Defendants (now Respondents) preliminary objection seeking the dismissal of the suit on the ground that it was statute barred by virtue of the provisions of Section 16(2) (a) and 21 of the Limitation Laws of Lagos State 2008 was upheld.
The Appellant herein had as Claimant in the Lower Court filed a writ of summons and statement of claim dated 29th September 2011 commenced an action against the Respondents as Defendants wherein he claimed as follows:-
WHEREOF THE CLAIMANT CLAIMS FOR:-
23. A DECLARATION that the parcel of land lying and situate at ARAROMI/ATEPETE STREET, EPE, LAGOS STATE belonged to the Claimant by inheritance from his late FATHER, MR. RABIU BAKARE who died in 1957.
24. A DECLARATION that the Claimants right of ownership and possession was further enhanced by the Judgment of the GRADE A CUSTOMARY COURT, EPE, on the 12th of July 1977 A
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CERTIFIED TRUE COPY of the said Judgment provided and marked Exhibit A.
25. A DECLARATION that the Defendants unwarranted act of trespass by burying their deceased relations: FIVE IN NUMBER, on the Claimants landed property at ARAROMI/ATEPETE STREET, EPE, LAGOS STATE without his knowledge, consent and permission is an unlawful and illegal occupation of the Claimants landed property.
26. A PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants from further acts of unlawful trespassing and to end their present occupation of the Claimants landed property by exhuming the bodies of their THREE DECEASED relations already buried on the Claimants landed property.
27. GENERAL DAMAGES against the 1st and 2nd Defendants, jointly and severally in the sum of N25,000,000.00 (TWENTY MILLION NAIRA) for acts of unlawful trespass and occupation by burying FIVE of their deceased relations on the Claimants landed property with impunity, without his knowledge, consent and authority.
The Appellants case was that his late father MR RAIBU BAKARE was in physical occupation of the land in dispute
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located at Araromi/Atepete Street, Epe until his death in 1957. After his death, one MADAM AMUDATU RABIU trespassed on the land and he (the Appellant) sued her in the Grade A Customary Court Epe and obtained judgment against her in 1977. He then fenced the land and put a gate on it, fitted with a padlock.
He left Epe for Lagos in the 1982 but continued to visit the land at intervals until 1984 when on such visit he discovered that the 2nd Defendant had buried a corpse on part of the land without his consent and authority.
He sued the Respondents in the Erodo Customary Court but the Court declined jurisdiction. In 1986, he discovered that the Respondents have not vacated the land so he reported the matter to the Divisional Police Officer Epe Division who asked the Respondents to vacate the land. In 1995 he returned to Epe and still found that the Respondents were still on the land. Then in 1996 he lodged a complaint before the traditional ruler of Eko-Epe against the Respondents and they were condemned for their act of trespass. In 1999 the Appellant still went back to the Traditional Ruler of Eko-Epe to complain about the continued
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trespass before he left Epe to Lagos to continue treatment for his poor eye sight. He returned in 2007 to discover that the Respondents have buried two more persons on the land. In 2008, he referred the matter to the Lagos State Multi-door Court House but to no avail as the Respondents remained on the land. Hence, the filing of this suit at the Lower Court on 29-9-2011.
The Respondents upon being served filed their statement of defence and therein challenged the competence of the action on the ground that it was statute barred by virtue of Section 16 and 21 of the Limitation Laws of Lagos State. This was followed with a Notice of Preliminary Objection dated 22-11-2011 challenging the jurisdiction of the Court on the same ground that the action is statute barred.
In a Ruling delivered by A.M. NICOL-CLAY J. on 4-10-12 the said preliminary objection was upheld and the suit was dismissed.
This necessitated the filing of a Notice of Appeal by the Appellants. The said Notice of Appeal containing four grounds is dated and filed on 7-11-2012.
The Appellants brief of argument settled by OLUWAFEMI ADETIBA is dated and filed on 18-3-2014.<br< p=””>
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The Respondents brief of argument settled by MRS. ABIOLA SERIKI is dated 30-9-2014 and filed on 2-10-2014.
At the hearing of the appeal on 8-6-2016 the parties duly adopted their respective briefs of argument.
This was however preceded by the moving of the notice of preliminary objection filed by the Respondent on 2-10-14.
It is customary that whenever a notice of preliminary objection is filed in a matter, it must be heard and determined by the Court before venturing into the merit of the substantive issues where the need arises.
I will now address the said notice of preliminary objection which raised objection to the competence of the notice of appeal on the grounds that:-
(a) This appeal as presently constituted and conceived is incompetence and should be struck out in limine.
(b) The notice of appeal in this appeal was not signed or authenticated by either the Appellant himself or his counsel.
The argument in support of the preliminary objection is embedded in pages 3 to 5 of the Respondents brief of argument. Therein it was submitted inter alia that the notice of appeal which is the foundation of the
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Appellants appeal is not signed or authenticated by the Appellant himself or by his legal practitioner contrary to the legal practitioners Act. He relied on the case of SLB CONSORTIUM LTD VS NNPC (2011) 9 NWLR (PT 1252) 317 at 337-338 to submit that what the law requires is that the process be signed or executed by the legal practitioner and his name alone without his signature does not satisfy the requirement of the law because it is the signature that gives the process the required authenticity.
Therefore the absence of the signature of the Appellants counsel in the notice of appeal renders it invalid and where a notice of appeal is defective the Court lacks the jurisdiction to entertain the appeal since the notice is a nullity. He referred to the following cases MOBIL OIL (NIG) PLC VS RABIU & ANOR (2003) FWLR (PT 149) 1546; NNB PLC VS DENCLAG LTD (2005) 4 NWLR (PT 916) 549; SAM FARM FINANCIER LTD VS AINA (2003) FWLR (PT 159) 1482 at 1494.
Further relying on the case of UWAZURIKE VS A.G FEDERATION (2007) 8 NWLR (PT 1035) 1 he submitted that once a notice of appeal is defective and therefore incompetent, there is nothing
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left for the Court to consider in the appeal other than to strike out the whole appeal.
This Court was then urged to strike out the appeal based on a defective notice of appeal.
The Appellants response to the preliminary objection is contained in page 1 of the reply to the preliminary objection dated 28-10-2014.
Therein it was submitted that the Respondents preliminary objection is pointless and baseless because in the notice of appeal, the counsels signature on top of his address as Appellants counsel is quite obvious.
He further argued, vide SLB CONSORTIUM LTD VS NNPC Supra, that the four requirements stated by the Supreme Court were duly met in the notice of appeal. Therefore the preliminary objection is misconceived, misplaced and mischievous.
I have carefully perused the notice of appeal dated 7-11-2012 and contained in pages 153 to 154 of the record of appeal.
What I can glean therefrom is that there is what could be more regarded as a signature rather than a name. But what is printed under the said signature is herein below set out:-
C/o OLUWAFEMI ADETIBA & CO
APPELLANT COUNSEL<br< p=””>
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OLUWAFEMI ADETIBA & CO.
366 MURTALA MOHAMMED
WAY, YABA.
The issue then is, does the above satisfy the requirement of the law with regard to a duly and properly signed originating process, such as the notice of appeal?
Numerous authorities have emerged in recent times on the issue of proper signing of processes by a legal practitioner. The locus classicus though is the case of OKAFOR VS NWEKE (2007) 10 NWLR (PT 1043) 521 which is premised on the Legal Practitioners Act 1975 with particular reference to Section 2(1) and 24 which defines who is a legal practitioner competent to sign a Court process.
In SLB CONSORTIUM LTD VS NNPC Supra relied on by both parties the Supreme Court per RHODE VIVOUR JSC provided the requirements for a duly signed court process by stating at page 338 that:-
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 the legal firm.
The Appellants counsel contended that all the four requirements as
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prescribed above were met in the notice of appeal filed by the Appellant.
I had earlier reproduced what was contained in the said notice of appeal but for the sake of clarity I will do so again. To wit:- Signed—————————————————
c/o OLUWAFEMI ADETIBA & CO.
APPELLANT COUNSEL
OLUWAFEMI ADETIBA & CO.
366 MURTALA MOHAMMED WAY
YABA
From the above set out portion of the notice of appeal, there is a signature, there is the party represented by counsel as well as the name and address of the legal firm. But the name of the counsel who signed the process is nowhere written, but what is there is OLUWAFEMI ADETIBA & CO. There was therefore a satisfaction of first, third and fourth requirements, but the second requirement which is as important as the first one was not satisfied. It follows therefore that the said notice of appeal was not signed by a legal practitioner within the meaning of Section 2 and 24 of the legal practitioners Act but by a law firm known as OLUWAFEMI ADETIBA & CO.
Where a process is prepared and signed on behalf of a firm the name of the signatory must be
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clearly indicated or stated beneath the signature. This is to ensure that the signature is indentifiable with and linked to the person who signed it and not to be subjected to speculation or guess work. The basis for this strict but germane requirement of the law is clearly stated in OKAFOR VS NWEKE Supra where the Supreme Court held inter alia that:-
Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both 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 in this country.
Furthermore, their lordships held that processes must be signed and issued by a person as enrolled to practice law in Nigeria under the Legal Practitioners Act Section 2(1) and 24. Anything short of this manner of signing and authenticating of legal processes is unacceptable and it will render the processes a nullity.
In SLB CONSORTIUM LTD VS NNPC supra it was also held that a process prepared and filed by in a Court of law by a legal practitioner must be
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signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice. Further, that a firm of Solicitors is not competent to sign a process and as such a signature without the name of counsel is incurably bad.
In the instant case, the Appellants counsel signed above the name of a firm as follows:-
c/o OLUWAFEMI ADETIBA & Co. He did not comply with the requirement of the law that a signature must also indicate the name of the signatory and not the name of the law firm. A similar scenario played out in the case of OKAFOR VS NWEKE (Supra.) Wherein the Supreme Court per ONNOGHEN JSC held thus:-
The question that follows is whether J.H.C. OKOLO SAN & CO. is a legal Practitioner recognized by the Law? From the submission of both counsels, it is very clear that the answer to that question is in the negative.
In other words both Senior Counsel 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
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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 signature of the legal practitioner but his name. That apart 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 law, it follows that the said J.H.C. OKOLO SAN & CO cannot legally sign and/or file any process in the Courts.
In the present case the Notice of Appeal being the foundation of the Appellants case at appellate Court level, and having not been shown to have been signed by any person
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whose name is in the roll of legal Practitioners by the aforementioned authorities renders it incurably bad because such an originating process as the Notice of Appeal in a civil matter must be signed and issued by a person as enrolled to practice law in Nigeria under Section 2(1) and 24 of the Legal Practitioners Act. Anything short of the prescribed manner of signing and authenticating of legal processes such as the Notice of Appeal will be deemed a nullity. See FBN PLC & ORS VS MAIWADA & ORS (2012) 12 SC (PT III) page I. ALAWIYE VS OGUNSANYA (2004)4 NWLR (PT 864) 486. As held in OKETADE VS ADEWUNMI (NEE OYEDE) (2010) 2-3 SC (PT 1) 140, there is a big legal difference between the name of a firm of legal practitioner and the name of a legal practitioner simpliciter.
Consequently, the Notice of Appeal dated 7-11-12 and which constitutes the originating process initiating this appeal is found to be defective and incurably bad. The law is that a fundamentally defective notice of appeal cannot be cured by way of amendment. Only a valid notice of appeal can be amended. See NWIGWE VS OKERE (2008) 13 NWLR (PT 1105) 445. In AMADI VS OKOLIE (1977) 7 SC 57
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at 58 the Apex Court posited to the effect that Notice of Appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of Appeal has inherent powers to strike it out on the ground that it is incompetent. Further in the case of AKINSANYA VS FEDERAL MORTGAGE FINANCE LTD (2010) LPELR (3687) CA this Court per MSHELIA JCA held at page 9 of the report that:-
It is trite that a fundamentally defective notice of appeal cannot be cured by amendment. See ATUVEVE VS ASHAMU (1987)1 NWLR (PT 49)267. It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or there from will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain it or any interlocutory application based on the said appeal.
See LAGOS STATE TRAFFIC MANAGEMENT AUTHORITY VS ESEZOOBO (2010) LPELR (4420) CA. Wherein this Court held that, it is sound law that where a notice of appeal is fundamentally defective, its incompetence cannot be cured and it ought to be struck out. See also
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UWAZURIKE VS A.G FEDERATION (2007) 8 NWLR (PT 1035) 1.
It follows therefore that once a notice of appeal is found to be defective and therefore incompetent, there would be nothing left to consider in the appeal other than an order to strike out the said appeal for lack of jurisdiction to entertain same.
That is the fate that has unfortunately befallen this appeal given the fundamentally defective nature of the notice of appeal.
There is sadly no room for remediation under the circumstance.
Consequently, the preliminary objection is hereby upheld and the notice of appeal is declared incompetent.
Having declared the notice of appeal incompetent a further discourse on the sole issue raised by the parties becomes moot and not navigable as every process associated with the appeal have been swept into the realm of incapacitation with no useful purpose to serve. There is therefore no need to go into the merits of the main appeal. See NEPA VS ANGO (2001) 15 NWLR (PT 737) 627 at 645; UWAZURIKE VS A.G. FEDERATION (2007) 8 NWLR (PT 1035) 1 SC.
This appeal is hereby struck for being incompetent.
Parties to bear their respective
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costs.
Other Citations: (2016)LCN/8917(CA)
