O’bau Engineering Ltd V. Almasol (Nig.) Ltd (2022)
LAWGLOBAL HUB Lead Judgment Report
ABDU ABOKI, J.S.C.
This appeal is against the judgment of the Court of Appeal, sitting at Lagos, delivered on the 10th of December, 2012.
The Appellant, as Plaintiff, commenced this suit at the trial High Court of Lagos State, against the Respondent, claiming the following reliefs:
(1) A DECLARATION that the monthly rental contract of 1st March, 1987, between the Plaintiff and the Defendant wherein the Defendant hired from the plaintiff and for a fee all the Plaintiff’s equipment mentioned in paragraph 4 above is a valid and subsisting contract.
(2) The sum of N43,316,600.00 (Forty-Three Million, Three Hundred and Sixteen Thousand, Six Hundred Naira) being arrears of rent due to the Plaintiff under paragraph 18 above.
(3) Mesne profit on the sum in paragraph 31(2) above from November 1997 until all the equipment are returned to the Plaintiff at the prevailing hiring market rate per month for the Plaintiff’s equipment as may be led in evidence, bit and lower than the rate of N684,500.00 (Six Hundred and Eighty-four Thousand, Five Hundred Naira only) per month being the prevailing market rate as at October 1997.
ALTERNATIVELY, (to paragraphs 31(2) and 31(3) above
(4) The sum of N11,176,000.00 (Eleven Million, One Hundred and Seventy-Six Thousand Naira) being arrears of rent due to the Plaintiff under paragraph 19 above.
(5) Mesne Profit on paragraph 31(4) above from November, 1997, until all the equipment are returned to the Plaintiff at the initial hiring rate for the equipment at the rate of N88,000.00 (Eight-Eight Thousand Naira) per month.
(6) An order directing the Defendant to return forthwith the entire Plaintiff’s equipment in its possession under paragraph 23 above in working condition.
ALTERNATIVELY
(7) The sum of N11,871,000.00 (Eleven Million, Eight Hundred and Seventy-One Thousand Naira) being the value of the Plaintiff’s equipment under paragraph 23 above.
(8) The sum of N3,656,000.00 (Three Million, Six Hundred and Fifty-Six Thousand Naira) as special damages for breach of contract under paragraph 26 above.
(9) The sum of N15,375,000.00 (Fifteen Million, Three Hundred and Seventy-five Thousand Naira) as special damages for breach of contract under paragraph 26 above.
(10) The sum of N661,500,000.00 (Six Hundred and Sixty-One Thousand, Five Hundred Naira) as special damages for breach of contract under paragraph 28 above.
(11) N5,000,000.00 (Five Million Naira) as general damages for breach of contract.
The story of the Appellant is that the Respondent recklessly used the Appellant’s equipment, without guidance by the Appellant or its technicians, which led to the breakdown of some of the equipment. The equipment were delivered to the Appellant’s work yard at Ogo Oloruntedo Street, Ipaja, Agege in Lagos by the Appellant. Later, the Respondent conveyed the equipment from the Work Yard to its Maya Belwa Construction site, using the services of Build Well Plant Equipment Industries Limited. It alleged that the conditions of service as agreed between them were:
i. That the Respondent shall pay a monthly rental fee of N88,000.00 (Eight-Eight Thousand Naira only) to the Appellant at its office at 10A Ogunlowo Street, Ikeja, Lagos such monthly rental fee of N88,000.00 (Eight-Eight Thousand Naira only) to be subject to upward review by the Appellant depending on prevailing market condition.
ii. That the Appellant shall deliver the said construction equipment in the Respondent at its works yard situate at Ogo Oloruntedo Street, Ipaja, Agege in Ikeja Division of Lagos State.
iii. That the Respondent shall convey the said equipment from the Appellant’s yard at Ipaja, Agege for use at Mayo Belwa, Adamawa State.
iv. That the Respondent shall return the said equipment to the Appellant’s yard at Ipaja, Agege in Ikeja Division of Lagos State on completion of the construction work at Mayo Belwa, Adamawa State.
The contention of the Appellant is that the failure of the Respondent to return the said equipment on demand, and the refusal to pay the agreed cost of hire/rent, led to the decline of the Appellant’s business as it could neither utilize the said equipment nor buy new ones to replace them. This made the Appellant lose various construction contracts as it resulted to its hire of similar equipment. This led to the indication of the suit leading to this appeal, at the trial Court.
The Respondent admitted taking the Appellant’s equipment in March 1987 for its construction work at Mayo Belwa, but denied that any agreement or arrangement was made as to the terms of payment for the use of the equipment. That the understanding was that as friends, they would work out amicably, whatever would be fair consideration between the parties, relative to the use to which the equipment were put. The Respondent’s contention is that most of the equipment were not in good condition and were not adequate for the work the equipment were taken for. That the only working equipment among them was the leveling instrument including the Tripod and staff, which it used. That after the Appellant’s and even the Respondent’s mechanics could not fix the equipment, it brought in an American Consultant Engineer, who, after assessing the equipment, declared them to be unserviceable. The Respondent stated that it was after the American Consultant’s report that it sent the Jones crane back to the Appellant’s Work Yard at Ipaja, Lagos while the other equipment were sent to the Yard of one Mr. Ibe (PW3, a well-known, equipment hirer), at Agege, Lagos.
After hearing the witnesses, the trial Judge on the 26th of September, 2003, dismissed the Appellant’s claims. It held inter alia:
“In order to establish the tort of Detinue, therefore, the Plaintiff herein has to satisfy the Court that it made a demand for the equipment and that the Defendant refused to return it as requested. Exhibit P1 is a demand for the return of the equipment and by Exhibit 4, the Defendant’s Solicitor replied his letter and informed the Plaintiff that the equipment had been returned to Lagos, and was deposited in the premises of one Mr. Ibe in Agege and the Plaintiff was advised to collect the equipment from him. The Plaintiff acknowledged that the crane had been sent to him previously so it is only the rest of the equipment as set out above that was outstanding. The evidence of DW3 the said Mr. Ibe is unchallenged as he was not cross-examined and he stated categorically that he kept the equipment for about 11 years before the Lagos State Task Force removed all the equipment from his yard. This confirms the evidence of the Defendant that the equipment was lying in his yard for several years but the Plaintiff neglected to go and collect it. I acknowledge the fact that there is evidence before this Court that the Defendant picked up the equipment from the Plaintiff’s Yard but considering the state of the said equipment and the expense that the Defendant had been put to, in order to get the equipment working, coupled with the fact that the Plaintiff accepted delivery of the crane at Akure with no complaint, I see no reason why it should not have collected the equipment from DW3’s Yard. Electing instead to leave the equipment there until it was carted away by the officials of the Lagos State Task Force on Environmental Sanitation. Accordingly, I cannot find the Defendant liable in Detinue on the strength of these facts as the Plaintiff was duly notified of the whereabouts of the equipment but it failed to collect it from the place it was deposited. The Defendant had therefore done all that it was supposed to do in the circumstances and is not liable in any of the claims for arrears of rent or mesne profit against it in this suit…”
This decision was affirmed by the Court below.
The Appellant has further appealed to this Court.
At the hearing of the appeal on the 1st of February, 2022, Learned Counsel on both sides, adopted and relied on their briefs of argument, in support of their views.
In the Appellant’s brief, Seven (7) issues were identified as the issues calling for determination. They are:
- Whether the Court of Appeal was right in law when to hold that a characteristic feature of detinue is that property must have been wrongfully taken by another and thereafter determine the Appellant’s case on the basis of the said characteristic feature?
- Whether the Court of Appeal was right in law when it held that the Respondent was not liable to the Appellant in detinue because the Appellant failed to collect its equipment from the unknown place the Respondent deposited the equipment?
- Whether the Court of Appeal was right in law when after finding that the Respondent hired and used the Appellant’s leveling equipment for two years and three months, it failed to provide the Appellant any remedy whatsoever despite the Appellant’s claim in contract or alternatively or, quantum meruit basis?
- Whether the Court of Appeal was right in law to determine the appeal before it, based on non- existent pleadings?
- Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the absence of documentary evidence of the equipment hired by the Respondent from the Appellant was the justification for not determining the actual list of equipment hired by the Respondent from the Appellant?
- Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the Appellant need not avert its mind to the list of the Appellant’s equipment hired by the Respondent and their working conditions merely because the agreement between the parties was not written?
- Whether from the facts and circumstances of this case, the Court of Appeal denied the Appellant its constitutional right to fair hearing?
For the Respondent, a sole issue was distilled for determination, to wit:
“Whether there were legally existent, available, and valid pleadings, at all, of the parties upon which the Court of Appeal could have relied to competently and effectually determine the Appellant’s appeal, in the light of the clear provisions of Section 2(1) & 24 of the Legal Practitioners’ Act, CAP L11 LFN 2004 and the precedents of Okafor v. Nweke (2007) 10 NWLR (PT 1043) 521; and F.B.N PLC v. MAIWADA (2013) 5 NWLR (PT 1348) 444”
I have thoroughly perused the arguments proffered by Counsel on both sides, in their various briefs of arguments, and I shall make reference to them, where the occasion warrants. Suffice it to say that the core issues thrown up in this appeal, in my considered opinion, are:
- 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 Section 2(1) & 24 of the Legal Practitioners’ Act, CAP L11 LFN 2004 is valid and competent; and
- Whether the Court below determined the appeal before it, based on non-existent pleadings?
These two issues stem from the Respondent’s sole issue, and the Appellant’s Issue Four, respectively.
The law is settled beyond per adventure that the practice of law in Nigeria is the exclusive preserve of practitioners that have formally qualified to practice law in the country and by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, these are the persons whose names are listed on the Roll of Barristers and Solicitors in this Court. This Court has, in interpreting the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in a long line of cases, stated and reiterated this fact and has opined that since the practice of law includes the drafting and signing of Court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign Court processes for filing in our Courts, and that the only exception is where processes are signed by a litigant who chooses to represent himself.
Thus, the law is that all Court processes signed in the name of a law firm without specifically stating thereon the name of the individual Legal Practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria. See:
Okafor Vs Nweke (2007) 10 NWLR (Pt 1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt 1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt 1252) 317, Braithwaite Vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Vs Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444.
It is manifest from the Record in the instant appeal, that the matter was commenced and filed in 1990 on behalf of the Appellant by Lateef Adenekan, Esq., of Lateef Adenekan & Co. An examination of the processes filed on behalf of the Appellant reveals that the Writ of summons was signed for Lateef Adenekan & Co (See page 3 of the Record); the Appellant’s statement of claim dated 1st October, 1994 and filed 3rd November, 1994, was signed for the Law Firm of Lateef Adenekan & Co. (see pages 40 – 43 of the Record); the Appellant’s Reply to the Respondent’s defence, dated 8th April, 1995, was signed for the Law Firm of Lateef Adenekan & Co (see page 55 of the Record).
At page 93 of the Record, the Law Firm of Andy Igbokwe & Co, signed a Reply to the further amended statement of Defence; an amended statement of defence in answer to the Appellant’s statement of claim, dated 22nd June, 1990, was signed by the Law Firm of Fayokun & Co. (see page 30 of the Record).
At page 55 of the Record, the Law Firm of Chief G.O.K Ajayi & Co, signed an amended statement of Defence on behalf of the Respondents, and on and on it goes.
The Record of Appeal is replete with processes filed by Counsel on both sides, being signed by Law Firms. Practically all the processes filed at the trial Court were filed by Law Firms.
Section 2(1) of the Legal Practitioners’ Act, CAP L11 LFN 2004, states 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 on the roll, otherwise he cannot engage in any form of legal practice in Nigeria.
It follows therefore that only a person with his professional name is entitled to practice law in Nigeria and this does not include a legal firm. On no account should the name of a Law Firm be used interchangeably with the name of a Legal Practitioner. The former has some corporate connotation while the later has none. It follows that where Court processes are issued in the name of a Law Firm, such processes are fundamentally defective and remain incompetent, null and void.
In SLB Consortium Ltd. v. NNPC (2011) 4 SC (Pt. 1) 86, this Court opined:
“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 legal firm”.
Once it is correctly decided that the Court of Appeal had no jurisdiction to decide a matter due to fundamental defects in processes before it, this Court as an appellate Court has no appellate jurisdiction over the matter. Once it cannot be said who signed the process, it is incurably bad, and rules of Court that seem to provide a remedy are no use as a rule, cannot override the Legal Practitioners Act. There must be a strict compliance with the law. See also:
Daniel v. Independent National Electoral Commission (2015) LPELR-24566(SC), Okpe v. Fan Milk Plc (2016) LPELR-42562(SC), Emeka v. Chuba-Ikpeazu (2017) LPELR-41920(SC), Bank of Industry Ltd v. Awojugbagbe Light industries Ltd (2018) LPELR-43812(SC), Dickson Ogunseinde Virya Farms Ltd v. Societe Generale Bank Ltd (2018) LPELR-43710(SC).
Once the signature column of a Court process complies with the guideline laid down by this Court in substantial particulars, then it must be held to have met the requirements of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act.
A look at the writ of summons in the instant case shows clearly that after the endorsement of the claims of the Appellant, there is a distinct signature, and then the name of the Law Firm, Lateef Adenekan & Co., that the firm was representing the Appellant and lastly that address is No. 7 Ola Ayeni Street, (Top Floor), off Medical Road, Ikeja.
It is apparent from the above, that the Writ of Summons was in clear non-compliance with the laid down guideline for signing Court processes and it thus did not meet the requirements of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act.
It would have been sufficient and very much in order if Mr. Lateef Adenekan, Esq., had simply written or stamped his name on top of Lateef Adenekan & Co., because Mr. Lateef Adenekan is a Legal Practitioner registered to practice law in the Roll at this Court, but certainly not Lateef Adenekan & Co.
As already indicated above, the issue at hand relates to non-signing of both the originating process and other processes filed in this case at the trial Court, by a Legal practitioner, which makes this purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process, since the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named legal practitioner as opposed to an unknown proxy who is obviously not a Legal practitioner known to law. In the case at hand, it has been confirmed, that no known Legal Practitioner had signed the processes. In that regard, I am inclined to agree with the learned Respondent’s counsel that the non-signing of processes (both that of the Appellant and the Respondent), had therefore vitiated the jurisdiction of the two Courts below to rely and act on it, and determine the appeal before it, because in actual fact, there were no legally existent processes on which the Courts could rely on, to hear and determine the case, since their jurisdiction was eroded for non-availability of competent originating and other processes, filed by the parties.
It follows therefore that failure to comply with the express provision of the law in the instant case, was not of a minimal kind and that it went to the root of the matter because unless a suit is properly and legally initiated, it does not have life and a Court is bereft of jurisdiction to entertain same. See the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 234.
The basic and fundamental question to be answered now is whether there are competent processes validly filed before the Court which can be amended?
It is trite that you cannot put something on nothing, and expect it to stand. It would collapse. See: MacFoy v. UAC Limited (1902) AC 152; Ehuwa v. Ondo State Independent Electoral Commission (2006) 12 SCN (PT.2).
It remains to be said that an originating process like a Writ of Summons or Notice of Appeal, and other processes used in a trial, not signed or issued by a legal practitioner known to law, cannot be amended. Any purported amendment of such incompetent processes is invalid and a complete waste of time.
With all the above, I come to the conclusion that the suit giving rise to this appeal which was not initiated with due process of the law is incompetent. It is hereby struck out.
I have also noted that Counsel on both sides have asserted that the Court below relied on the wrong pleadings filed at the trial Court.
According to learned counsel for the Appellant, both the parties notified the Court below of the pleadings that defined the contest between the parties and on which the parties fought the case at the trial Court.
For the. Appellant, it was the Appellant’s writ of summons at pages 1 – 3 of the Record, the Appellant’s further amended statement of claim at pages 72 – 77 of the Record, and the Appellant’s Reply to the Respondent’s further amended statement of defence at pages 91 – 93 of the Record. For the Respondent, it was the Respondent’s further amended statement of defence at pages 84 – 87 of the Record.
It is submitted for the Appellant that the Court below proceeded to use an abandoned and inapplicable statement of defence and reply to the statement of defence, which is his view, occasioned a miscarriage of justice.
Learned counsel for the Respondent conceded this fact and submitted that the Respondent’s statement of defence, and the Appellant’s reply to the statement of defence, relied upon by the Court below, were non-existent, invalid, and inapplicable.
The settled position of the law is that the effect of the amendment of a process is that the amended process can no longer be relied on or referred to in the proceedings. It ceases to be a valid and relevant process in the proceedings.
In Jatau v. Ahmed & Ors (2003) LPELR-1597(SC); this Court held that:
“It is now well settled and trite law that any amendment of the pleadings in a case, made or ordered at any stage of the proceedings before judgment, or even made in an appeal, dates back to the date when the pleadings were originally filed. This means that “once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried”.
Also, in Afribank Nig Plc v. Akwara (2006) 5 NWLR (Pt. 974) 619 at 640, where the Appellant applied for and was granted leave to amend a notice of appeal and granted six weeks to file the amended notice of appeal but failed to do so, this Court held that the effect of applying for and obtaining an order to amend an existing notice of appeal is to vacate the notice of appeal and render it non-existent. The Court held further that the consequence of the failure of the Appellant to file its amended notice of appeal within six weeks as ordered by it is that there is no competent appeal before the Court, the initial notice having ceased to exist upon the grant of leave to amend. Because once a process is amended, the amendment relates back to the date of the document amended, and what, stood before the amendment is no longer material before the Court and no longer defines the issues to be tried.
This however, does not in any way imply that the amended processes are non-existent.
In Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170 @ 186; (1999) LPELR 224 SC, this Court stated as follows:-
“There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendments are no longer material before the Court and no longer defines the issues to be tried before the Court. See Warner v. Sampson (1959) 1 Q.B. 297. This is as far as this proposition of law goes. It does not and has not laid down any such principle that an original pleading which has been duly amended by an Order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the live issue to be tried before the Court, not that it no longer exists. It does certainly exist and is before the Court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of one’s case in any action. Nor may a Court of law rely on any such original pleading which has been duly amended as the basis for its judgment in the Suit. The issues to be tried will depend on the state of the final or amended pleadings.
See also: Nagogo v. C.P.C & Ors (2012) LPELR-15521(SC).
It is not in dispute that at page 360 of the record, the Court below stated as follows:
“Paragraphs 6, 7, and 8 of the amended statement of defence filed on 7th of March, 1995 are instructive, they answer to paragraphs 3 and 4 in the plaintiff’s further amended statement of claim…”
At page 361 of the Record, the Court opined inter alia:
“In Paragraphs 2 and 3 of the Reply to the Amended Statement of Defence, the Plaintiff/Applicant had this to say in reply to Paragraphs 3 and 4 of the further amended statement of Defence…”
The issue now is whether, by the above-quoted excerpts of the judgment of the Court below, it relied on abandoned and invalid processes, in arriving at its decision.
I have read the judgment of the Court below in detail. I am satisfied that notwithstanding the above quoted excerpts, the Court below painstakingly considered the evidence adduced of the trial, in arriving at its decision. Pages 365, 369 – 373 of the Record, attest to the fact that the Court below was not in any way prejudiced against the Appellant.
In any case, having set aside the Writ of Summons and other processes filed at the trial Court for failure to comply with the express provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11 of the Laws of the Federation of Nigeria 2004 and having decided that both the trial Court and the Court below had no jurisdiction to decide the matter due to the fundamental defects in the processes before them, this Court as an appellate Court has no appellate jurisdiction over the matter.
In the final analysis, I adjudge this appeal to be unmeritorious, and it is accordingly dismissed.
I make no order as to cost.
SC.381/2013
