Nigerian Deposit Insurance Corporation V. Lagos State Govt. & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an interlocutory Appeal against the ruling of the Federal High Court delivered by Okeke J. on February 18th, 2003 wherein she discharged an Ex-parte order made on 27th January, 2003 on the ground that the order had elapsed by effluxion of time.
The Plaintiff now appellant brought an action by way of originating summons at Federal High Court Lagos claiming the following reliefs:-
“i. A declaration that the 1st Defendant having taken over the 3rd Defendant’s debt/liability to the Plaintiff to which the 1st Defendant has part performed; is bound by law to honour and perform all obligations entered thereto.
ii. A declaration that the 1st Defendant having defaulted in the payment of the sum of N250 million monthly installment in the cumulative sum of N1.750 billion has breached the agreement entered into with the Plaintiff.
iii. An order for specific performance of the agreement reached between the 1st Defendant and the Plaintiff on 28th February, 2002 to wit: that the 1st Defendant shall pay the sum of N250 million on the 25th of every month to the Plaintiff for itself and all the creditors of the Eko Akete 2004 housing project until the debt owed the consortium/creditors by the 3rd Defendant is finally liquidated.
iv. Judgment in the sum of N1.750 billion being the arrears of the N250 million monthly installment due to Plaintiff and payable by the 1st Defendant as per the agreement entered into by the parties.
v. Cost of the action.”
The Plaintiff now appellant instituted the action in a representative capacity at the Federal High Court. The lower court on the appellant’s motion ex-parte and the Exhibit attached, granted the Appellant leave to sue in representative capacity and made a preservative order on the 27th January, 2003 owing to the colossal amount involved. Upon the service of the lower court’s said orders the 1st Respondent filed an application dated 31st January, 2003 to discharge the ex-parte order and another application dated 3rd February, 2003 challenging the jurisdiction of the court. At the instance of the 1st Respondent the matter was fixed for 5th February, 2003 but was refixed for 6th February, 2003 due to absence of counsel to 1st respondent in court. On the 6th February, 2003 the court ruled that the 1st Respondent’s application dated 3rd February, 2003 challenging jurisdiction of the court would be heard first, and the matter was adjourned to the 10th February, 2003 the date originally fixed for the hearing of the Appellant’s motion on notice. On 10th February, 2003 the 1st Respondent’s application dated 3rd February, 2003 challenging the jurisdiction was heard. The 1st Respondent’s counsel thereof by oral application urged the court to discharge the interim order made on the 27th January, 2003 on the grounds set out in the motion paper dated 31st January, 2003. The court adjourned to 19th February, 2003 for Ruling on both applications. On 17th February, 2003, the Appellant received hearing notice to hear the 1st Respondent’s application dated 14th February, 2003 seeking discharge of the Ex-parte Order filed “this time” by the Attorney General of Lagos State for hearing on 18th February, 2003. On the 18th February, 2003 the court held that the 1st Respondent application of 14th February, 2003 filed by the Attorney-General is same as their earlier application dated 31st January, 2003 and therefore would not take argument on the application and by consent of counsel delivered its ruling whereof it discharged the preservative order on the ground of effluxion of time. The lower court specifically discharged its preservative order on the ground of effluxion of time.
Being dissatisfied with the decision of the Federal High Court, the appellant filed a Notice of Appeal on 19th February, 2003 containing one ground of appeal.
In accordance with the practice of this court, the appellant’s brief of argument settled by Oluwakemi Balogun was filed on 27/5/2003. A reply brief was also filed on 13/1/04. 1st and 2nd Respondents brief of argument was also filed on 26/8/03. 3rd respondent also filed cross-appellant’s brief on 8/4/04 and same filed pursuant to Notice of Appeal filed on 7/4/04. 4th, 5th and 6th respondents did not file their brief of argument. 7th respondent filed brief dated 30/9/03 pursuant to order of this court made on 16/10/2003.
When the appeal came up for hearing on 20/4/09 Appellant’s counsel adopted both appellant’s brief and rely brief and urged the court to allow the appeal. Issue 2 was abandoned and same struck out. 1st respondent’s counsel Mr. Williams (Jnr) adopted the brief of argument and urged the court to dismiss the appeal. While 3rd respondent’s counsel adopted the cross-appellant’s brief filed on 7/4/04 pursuant to Notice of cross-appeal filed on 8/4/04. 7th respondent’s counsel Mr. Onamade also adopted the brief dated 30/9/03 filed pursuant to order of court made on 16/10/2003. Learned counsel abandoned issue 2 out of the three issues formulated and same was struck out.
Appellant initially formulated three issues for determination but during the hearing of the appeal issue 2 was abandoned and struck out. Issue 3 is now renumbered issue 2. The remaining issues are:-
- Whether having regard to order 9 Rule 12 of the Federal High Court Rules 2000, the Ex-parte order of 27th January, 2003 elapsed on the 10th February, 2003 by effluxion of time.
- Whether in the circumstances the lower court’s exercise of discretion in discharging her Ex-parte order on 27th January, 2003 was exercised judiciously and judicially.
For the 1st and 2nd respondents they adopted issues formulated by the appellant.
3rd respondent cross-appealed vide Notice of Appeal filed on 8/4/04. One issue was formulated in cross-appellant’s brief as follows:-
“Was the lower court’s decision to discharge its ex-parte order of 27/1/2003 an appropriate order to make in the circumstances?”
Similarly, the 7th respondent distilled three issues from the two grounds of appeal but abandoned issue 2 during the hearing of the appeal and same was struck out. The two issues are:-
- Whether having regard to Order 9 Rule 12(2) Federal High Court Rules 2000, the Ex- parte order of 27th January, 2003 elapsed on 10th February, 2003 by effluxion of time.
- Whether in the circumstance, the lower court’s exercise of discretion in discharging her Ex-parte order on 2nd January, 2003 was exercised judiciously and judicially.
I will adopt the issues formulated by appellant in the determination of this appeal.
Issue 1 is whether having regard to order 9 rule 12 of the Federal High Court (civil Procedure) Rules, 2000, the ex-parte order of 27th January, 2003 elapsed on the 10th February, 2003 by effluxion of time. The contention of appellant’s counsel is that the 14 days contemplated by and provided by Order 9 rule 12(1) and 2, of the Federal High Court (Civil Procedure) Rules 2000 begins to run from the date the 1st Respondent filed its application dated 31st January, 2003 seeking to discharge the Ex-parte order. Learned counsel contended that since the 1st Respondent application to discharge the ex-parte order was filed on 31st January, 2003, and argued on 10th February, 2003, a simple application of the rule in NPASF Vs Fasel Services Ltd (2001) 17 NWLR (Pt 742) 261 means the application was heard six (6) days of its being filed since the lower court delivered its ruling on the 18th day February, 2003, a simple calculation of the time means that the ruling was delivered six (6) days of its being argued, therefore the submission of learned counsel for the 1st respondent that the order elapsed on 10th February, 2003 was in law most misconceived, unmeritorious and totally at variance with the rule laid down by the Court of Appeal in N.P.A.S.F. Vs Fasel Services Ltd (supra). It was further argued that the learned trial Judge was in error when she accepted the submission of learned counsel for the 1st Respondent.
For the 1st – 2nd respondents Mr. Williams (Jnr) contended that having regard to the ruling of the lower court, the only motion on notice argued before the court on 10/2/03 was 1st respondents notice of motion dated 3/2/03 objecting to the jurisdiction of the lower court. The motion on notice dated 31/1/03 to set aside the ex-parte order earlier made by the court on the application of the Plaintiff was not argued that day. What was raised at the tail end of the arguments of counsel for the Lagos State Government on that day was (according to counsel) an “oral application”. It was contended that learned counsel for the appellant fell into very serious error when he stated in his brief that the 1st Respondent’s application to discharge the ex-parte order was filed on 31st January, 2003 and argued on 10th February, 2003. Learned counsel further argued that the correct position on the facts was that the 1st and 2nd respondents motion on notice dated 31/1/03 was not argued on 10/2/03 and had not been argued at the time when the court read its Ruling on 18/2/03. Learned counsel submitted that it is undisputable that as at the date of the said Ruling (i.e. 18/2/03) more than 14 days have elapsed since the 1st and 2nd respondents motion (dated 31/1/03) to discharge the ex-parte order was filed. Learned counsel contended that the learned trial Judge was right in making the order to vacate the ex-parte order but was however, wrong in claiming to have done so by upholding the submission of counsel for the 1st and 2nd respondents on his oral application hereinbefore mentioned. Learned counsel contended that the ex-parte order of 27th January, 2003 did not elapse on 10th February, 2003 by effluxion of time but it did so elapse at the time when the lower court read its Ruling on 18/2/03. The 3rd respondent sought for extension of time to file 3rd respondent’s brief dated 16/12/03 but same was refused and dismissed. The 3rd respondent is only left with cross-appellant’s brief which will be considered later in the course of this judgment.
The 4th respondent filed its brief of argument on 5/02/04 but same was struck out. No other brief of argument was filed on behalf of 4th respondent. There was no appearance and no argument proferred on behalf of the 4th respondent.
Similarly, no brief of argument was filed in respect of 5th and 6th respondents. There was also no appearance and no argument proferred on behalf of both 5th and 6th respondents.
For the 7th respondent Mr. Onamade submitted that the appropriate question ought to be: whether having regard to Order 9 Rule 12(2) the ex-parte Order of 27th January, 2003 was still in force by 18th January, 2003 when it was discharged. Learned counsel referred to the provisions of Order 9 Rule 12(2) Federal High Court Rules 2000 and contended that the words are clear and unambiguous and ought to be given their ordinary meaning. Learned counsel cited the cases of Bamaiyi Vs A.G. Federation (2001) 38 WRN 1 and City Engineering Limited Vs Nigeria Airport Authority (1999) 11 NWLR (Pt 625) 76 at 80 to support his submission. Learned counsel argued that the ordinary meaning of this provision is that where a motion to discharge is pending for 14 days after being filed, the order is automatically discharged. It needs no application by counsel and the court pronouncing its vacated can only be confirmatory. It was further argued that the motion for discharge was filed on 31st January, 2003. As at 10th February the motion has not been in existence for up to 14 days. Learned counsel contended that 1st and 2nd respondents’ counsel’s oral application to discharge the order on 10th February, 2003 was premature. By 18th February, 2003 when the order was discharged, the motion dated 31st January, 2003 has been pending for more than 14 days. Learned counsel submitted that going by the provisions of Order 9 Rule 12(2) the order has automatically lapsed. It was further contended that the learned trial Judge was right in law when the order was vacated on 18th February, 2003 based on effluxion of time. He said the trial court derives support from Order 9 Rule 12(2) and not the 1st respondent’s submission which has been impliedly refused on 10th February, 2003.
In reply appellant’s counsel contended that the proceedings on the 10/2/03 as acknowledged by him show clearly that 1st and 2nd respondent’s counsel made oral application to discharge the ex-parte order of 27/1/03 to which his motion of 31/1/03 seeks to achieve. The lower court heard argument for the discharge of ex-parte order and reserved its ruling and indeed delivered same on 18/2/03. It was argued that the lower court heard the application for discharge of the ex-parte order on 10th of February, 2003 upon the oral application of the learned senior advocate, for the 1st and 2nd defendants/Respondents and ruled on the issue of discharge on the 18th February, 2003 at which time the ex-parte order had not lapsed within the rules of Order 9 Rule 12 of the Federal High Court (civil procedure) Rules 2000 as interpreted by this court in the case of N.P.S.F. Vs Fasel Services Ltd (supra). Learned counsel submitted that the automatic operation of Order 9 Rule 12 of the Federal High Court (Civil Procedure) Rules 2000 has no application in this case, since the 1st and 2nd respondents’ application for discharge of the ex-parte order granted on 27/1/03 was delivered on 18/2/03. The learned trial Judge could not therefore have exercised her discretion judicially and judiciously in discharging the ex-parte order of 27/1/03 on the basis of effluxion of time. Learned counsel urged the court to allow the appeal and set aside the order of the lower court discharging the ex-parte order.
In order to appreciate the argument canvassed by counsel I think it is necessary to state briefly the background facts relevant to this appeal. Briefly the facts are: upon commencement of the action the lower court granted an ex-parte order of injunction restraining the defendants/respondents. The 1st and 2nd defendants/respondents upon being served with the ex-parte order dated 27th January, 2003 filed two motions. The first motion sought to discharge the ex-parte order of the lower court and was dated and filed on 31st January, 2003, while the second challenged the jurisdiction of the court and was filed on 3rd February, 2003. The two motions came up for hearing on 10th February, 2003. The proceedings disclosed that counsel to the 1st and 2nd defendants/respondents urged the court to take both motions together. Counsel to the plaintiff/appellant however, opposed this procedure. The learned trial Judge ruled that the issue of jurisdiction should and ought to be taken first. See page 182 lines 9 – 22 of the record. The 1st and 2nd defendants/respondents’ counsel while rounding up his reply on issue of jurisdiction made oral application that the court should vacate its order made on 27/1/03 Since the ex-parte order according to him would end on 10/2/03.
For clarity and ease of reference I will reproduce Order 9 rule 12(1) and (2) hereunder:-
“12(1) No order made on a motion ex-parte shall last for more than 14 days after the party affected by the order has applied for the order to be varied or discharged or last for another 14 days after application to vary or discharge it had been concluded.
(2) If a motion to vary or discharge an ex-parte order is not taken within 14 days of its being filed, the ex-parte order shall automatically lapse.”
The correct position of events on 10th February, 2003 is that the motion dated and filed on 31st January, 2003 seeking for discharge of the ex-parte order was never moved. It was only the motion challenging the jurisdiction of the court which was filed on 3rd February, 2003 that was argued on the 10th February, 2003. However, the record showed that when senior counsel to the 1st and 2nd respondents was rounding up his argument on the issue of jurisdiction he made oral application for the discharge of the ex-parte order based on effluxion of time. The learned trial Judge delivered the ruling on 18/2/03 and vacated the ex-parte order of 27th January, 2003 that it had lapsed by effluxion of time.
The question now is whether the ex-parte order was vacated due to effluxion of time as provided by Order 9 Rule 12(2) reproduced supra. It is undoubtedly true that the 1st and 2nd respondents oral application seeking to discharge the ex-parte order of 27/1/03 was made on 10/2/03 (i.e. 10 days) well within 14 days rule in order 9 Rule 12(2) and the ruling in respect thereof delivered on the 18/2/03 (6 days) equally within 14 days Rule in Order 9 Rule 12(2) of the Federal High Court (Civil Procedure Rules) 2000. This rule has been interpreted by this court in N.P.A.S.F. Vs Fasel Services Ltd (supra). This court divided the operation of Order 9 rule 12 into two parts namely:
(a) discharge of an order where the motion to discharge is not taken within 14 days of its being filed; and
(b) discharge of an ex-parte order where ruling is not delivered within 14 days after the completion of arguments on the application.
It is worthy of note the observation of the learned trial Judge recorded on 18/2/03 appearing on page 200 of the record. The lower court stated as follows:-
“…I have looked at the processes filed by the A.G. and that filed by Chief Williams and hold that they are similar and Chief Rotimi Williams in the cause of his submission on jurisdiction made an oral application to discharge the order. I need not belabour myself to consider the processes filed by the A.G. I would rather read my ruling…”
The lower court then went ahead and discharged the order in its ruling delivered on 18/2/03. I agree with the submission of appellant’s counsel that the purport of the above ruling reproduced supra is that the lower court heard the application for discharge of the ex-parte order on 10th February, 2003 upon the oral application of the learned senior Advocate, for the 1st and 2nd defendants/respondents and ruled on the issue of discharge on the 18th February, 2003 at which time the ex-parte order had not lapsed within the rules of order 9 Rule 12 of the Federal High Court (Civil Procedure) Rules 2000 as interpreted by this court in the case of N.P.S.F. Vs Fasel Services Ltd. (supra). I agree with the submission of appellant’s counsel that the automatic operation of Order 9 Rule 12 of the Federal High Court (Civil Procedure) Rules 2000 has no application in this case, since the 1st and 2nd respondents’ application for discharge of the ex-parte order granted on 27/1/03 was heard on 10/2/03 and ruling delivered on 18/2/03. It is evident that as at 10/2/03 the ex-parte order made on 27/1/03 did not lapse by effluxion of time as argued by 1st and 2nd respondents counsel, since the motion for discharge was filed on 31/01/03. The oral application was concluded on 18/2/09 as such the ex-parte order would lapse on or about 4/3/2003 and not 18/2/09. The learned trial Judge was in error to have discharged the order based on effluxion of time. I hold that the reason given for discharging the order was wrong. I will accordingly resolve issue 1 in favour of the appellant.
Issue 2 is whether the lower court exercise of discretion in discharging her ex-parte order on 27th January, 2003 was exercised judiciously and judicially. While arguing this issue appellant’s counsel referred to the case of Beredugo Vs College of Science & Technology (1991) 4 NWLR (Pt 187) 651 at 661 paras. F-G and contended that where a court exercise its discretion as a matter of facts, the discretion must be both judicious and judicial. See also University of Lagos Vs Aigoro (1985) 1 NWLR (Pt.1) page 143. It was contended that the 14 days time limit set by Order 9 Rule 12(1) & (2) of the Federal High Court (Civil Procedure) Rules 2000 within which an ex parte Order is to lapse is not mandatory. It is directory in view of the surrounding circumstances and events of a particular case. And the circumstances of each case determines the absolute necessity on which the preservation of ‘res’ in dispute is based. He said ex parte order, being preservative order is made to sustain and or keep the ‘res’ in dispute intact pending the determination of the motion on notice. It was further argued that the lower court should have considered the material before her to see whether in the circumstances the exercise of her discretion to discharge the order was judicious and judicial. Appellant’s counsel contended that the lower court did not exercise its discretion judicially and judiciously in discharging its ex-parte order made on 27th January, 2003. Appellant’s counsel further submitted that since the automatic operation of Order 9 Rule 12 was inapplicable in this case, the learned trial Judge could not have exercised her discretion judicially and judiciously in discharging the ex parte order of 27/1/03 on the basis of effluxion of time. Appellant’s counsel urged the court to allow the appeal and set aside the order of the lower court discharging the ex parte order.
In response learned counsel to the 1st and 2nd respondents contended in his brief that the discharge of the ex-parte order came into being automatically and not by force of any judicial decision or decree. That being so, the question raised by appellant herein cannot and does not arise. He urged the court to so hold. Learned counsel urged the court to dismiss the appeal.
3rd respondent as earlier stated cross-appealed and had filed cross-appellant’s brief which would be treated later in the course of this judgment.
4th, 5th and 6th respondents did not file respondents brief of argument.
For the 7th respondent Mr. Onamade submitted that as shown by the records, the oral application to discharge was made by counsel to the 1st and 2nd defendants/respondents in his reply. The court thereafter invited the appellant’s counsel to respond to this, even when he strictly speaking has no more right of reply. Learned counsel contended that the ex-parte order made on 27th January, 2003 was discharged on 18th February, 2003 i.e. 21 days after it was made and 18 days after a motion to discharge it has been filed. It is trite law that in exercising its discretion, the court must act not only judicially, but also judiciously on the facts and materials before it. See Ntukidem Vs Oko (1989) 5 NWLR (Pt 45) 909 at 911. Learned counsel submitted that the court by listening to the oral application and inviting the appellant’s counsel to respond, has acted judicially and judiciously. It was argued that the discharge of the ex-parte order arose automatically by operation of law. It needs no application by counsel and any pronouncement by the court is stating the obvious. Learned counsel further contended that the learned trial Judge in discharging the ex-parte order simply reaffirmed the provisions of order 9 Rule 12 (2). He said the 3rd question is misconceived and does not arise. He urged the court to dismiss the appeal.
The guiding principle is that discretion being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials. See University of Lagos vs Aigoro (1985) 1 NWLR (Pt 1) 143. The question to be born in mind at all times when reviewing the exercise of discretion therefore is whether the exercise accorded with the dictates of justice. See Fawehinmi Vs Akilu & Anr. (1987) 2 Vol. 18 NSCC 1265 at 1302. As earlier stated the reason relied upon by the learned trial judge to discharge the ex-parte order was wrong. Be that as it may this court is concerned with the correctness of the decision and not necessarily the reason for the decision. It is now settled that an appellate court, looks and base its decision, at the correctness of the decision and not necessarily at the reason for the decision. In other words, an appellate court will not set aside the decision of a lower court which is right and just merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See LTPP Ltd. Vs URN PLC (2007) 1 WRN 117; Odukwe Vs Ogunbiyi (1998) 8 NWLR (Pt.561) 339 at 350; Jikantoro & 6 Ors Vs Dantoro & 6 Ors (2004) All FWLR 3090 and A.G. Leventis Nig. Plc Vs Akpu (2007) 46 WRN 1 at 27.
It is not always that an appellate court interferes with the exercise of a discretion by the court below. This court is very reluctant to interfere. Despite the fact that the rules of court provides for formal application there are situations where the trial court would invoke its inherent power and through oral application revoke an order made ex-parte. It has to be borne in mind that when an ex-parte order of injunction is granted, the court must vigilantly supervise its existence and the order must not be kept in force longer than is necessary. The life-span of an ex-parte injunction should normally be short or brought to an end with the minimum of delay. The ruling of the lower court dated 18/2/2003 clearly indicates that the motion on notice was fixed against 6/3/2003 for hearing. It cannot therefore be said that the exercise of discretion worked hardship on the appellant. Being an ex parte order I am of the firm view that the learned trial judge rightly discharged the order though the reason given was wrong. I do not agree with the submission of appellant’s counsel that the ex-parte order be set aside for the reasons earlier stated. In the circumstances I will resolve issue 2 against the appellant.
I now consider the cross-appeal filed on 8/4/04. The notice of cross-appeal is dated 7/4/04. The 3rd respondent/cross-appellant filed cross-appellant’s brief on 8/4/04 but same dated 7/4/04. When the appeal came up for hearing learned counsel for the 3rd respondent adopted the 3rd respondent/cross appellant brief. From the brief of the 3rd respondent /cross-appellant one issue was distilled from the two grounds of appeal filed for the determination of this cross-appeal.
The sole issue read as follows:-
“Was the lower court’s decision to discharge its ex-parte order of 27/1/2003 an appropriate order to make in the circumstances?” .
Before I proceed to consider the cross-appeal on merit I find it necessary at this stage to first resolve the issue of competency of this appeal.
In the course of hearing the appeal on 20/4/09, 3rd respondent/cross-appellant’s counsel was called upon to address the court as to whether a notice of appeal signed by a firm of legal practitioners is competent or not.
In response Mr. Onigbanjo conceded that the notice of cross-appeal dated 7/4/04 was signed by a law firm. Learned counsel however, contended that it is valid for legal practitioner to sign court processes in the name of law firm. Learned counsel contended that the decision in Nweke’s case was decided per incuriam by the Supreme Court. Supreme Court is bound by its earlier decision except where it departed from it. Learned counsel also contended that this court can choose one of such conflicting decisions to follow. He urged the court to deem that the notice of appeal was properly filed. He also urged the court to allow the appeal.
1st and 2nd respondents counsel contended that only a legal practitioner can sign processes until we amend our law.
4th, 5th and 6th respondents did not file any respondents brief. They were duly served so appeal deemed argued in their absence.
7th respondent’s counsel contended that Nweke’s case is the latter decision and by necessary implication it overrules the earlier decision. He urged court to dismiss the cross-appeal.
Appellant’s counsel aligned himself with the submission of cross-appellant’s counsel.
The notice of cross-appeal dated 7/04/04 was filed on 8/04/04. A close examination of the said notice showed that same was signed by a firm of solicitors. The notice was endorsed as follows:-
sgd.
“M.J. ONIGBANJO & CO
CROSS -APPELLANT’S SOLICITORS
75B PAYNE CRESCENT
APAPA, LAGOS.”
Clearly, this is a firm of solicitors and not a legal practitioner that signed the notice of appeal. Section 2(1) of the legal practitioners Act cap 207 Laws of the Federation of Nigeria 1990 states that a person shall be entitled to ractice as a barrister and solicitor if and only if his name is on the roll. 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 and solicitor either generally or for the purpose of any particular office or proceedings.
In the case of Okafor v. Nweke (2007) All FWLR (Pt 368) 1016, the Supreme Court in a case where the motion papers giving rise to the objection therein as well as the proposed notice of cross-appeal and the appellant’s brief in support of the said motion were all signed by “J.H.C. Okolo SAN & Co.” held that the combined effect of the above provisions of the legal practitioners Act is that for a person to be qualified to practice as a legal practitioner he must have his name on the Roll otherwise he cannot engage in any form of practice in Nigeria. J.H.C. Okolo SAN & Co was found not to be a legal practitioner recognized by law and cannot legally sign and or file any process in the court. In other words, where a counsel is required to sign a document it is a person whose identity is ascertainable from the Roll of legal practitioners that must append his signature. See also New Nigerian Bank Vs Declang Limited & Anr. (2005) 4 NWLR (Pt.916) 573.
In the instant case it is obvious that the notice of appeal was not signed by a legal practitioner, recognized by law because M. J. Onigbanjo & Co. is not a name that can be ascertained from the Roll of legal practitioners. I had the privilege of reading the case of Cole Vs Martins (1968) All NLR 161. I wish to state that Okafor Vs Nweke is a latter decision of the Supreme Court. I have in a number of cases followed the latter decision of the Supreme Court in Okafor Vs Nweke (supra) and struck out Notice of Appeal not signed by a Legal Practitioner whose identity is not ascertainable from the Roll of legal practitioners. See for example the unreported case of Continental Shipyard Limited Vs Eziogoli Shipping Limited Appeal No.CA/L/97/2001 delivered on 19th day of June, 2008. I cannot deviate from the earlier stand taken by us in this Division, so I am bound by it. Without much argument I hold that the notice of cross-appeal dated 7/04/04 is fundamentally defective and incompetent and liable to be struck out. A notice of appeal is the foundation and substratum of every appeal. Failure to properly initiate an appeal is beyond mere technicality. I have also observed that the cross-appellant’s brief was not signed by a legal practitioner recognized by law. I am of the firm view that both the Notice of Cross-appeal and Cross-appellant’s brief are incompetent.
This court is empowered by virtue of Order 6 rule 6 of the Court of Appeal Rules, 2007 to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason. Having found the notice of cross appeal incompetent as well as the cross-appellant’s brief there is nothing for this court to consider in this appeal other than to strike out the appeal in its entirety. The cross-appeal is hereby struck out under Order 6 Rule 6 of the Court of Appeal Rules, 2007.
On the whole the substantive appeal is allowed in part having resolved issue 1 in favour of the appellant and dismissed issue 2. Appeal allowed in part. Decision of lower court dated 18/02/03 discharging the ex-parte order is affirmed. While cross-appeal is struck out as same is incompetent.
No order as to costs.
Other Citations: (2009)LCN/3427(CA)
