Olu Ode Okpe V. Fan Milk Plc & Anor (2016)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.S.C.
The appellant herein, as plaintiff at the Plateau State High Court of Justice, holden at Jos, (Trial Court) instituted an action by a writ of summons and Statement of Claim against the respondents herein, who were the 1st and 2nd defendants at the said trial Court
Paragraph 29 of the appellant’s Amended Statement of Claim reads as follows:
“WHEREOF the plaintiff’s claim against the defendants jointly and severally in this suit (is) as follows:
1 . A declaration that the sale of the property situate at No.86 Yakubu Gowon Way, Jos covered by Certificate of Occupancy No. BP 1373 is null and void and without any legal effect as the purported sale was done without obtaining the prior consent of the Governor of Plateau State and consent of the Commissioner of Lands pursuant to the mandatory provision of the Land Use Act 1978 and terms of the Certificate of Occupancy and the sales by Auction Law.
- No (sic: An) order setting aside the purported sales and purchase of No. 86 Yakubu Gowon Way, Jos as it is tainted with secrecy and bad faith and therefore unlawful,
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unenforceable and of no legal effect.
- An Order that the plaintiff is still at liberty to redeem the property comprised in the legal mortgage dated the 8th day of September, 1979 between the plaintiff and first defendant.
- An injunction restraining the defendants jointly and severally by themselves, their servants, functionaries, agents privies and other persons whosoever or whatsoever from selling, alienating or otherwise interfering with plaintiff’s legal right over No. 86 Yakubu Gowon Way, Jos or doing any further act inconsistent with the right and interest of the plaintiff at law or in equity over the aforesaid property.”
The 1st and 2nd respondents, each filed its Statement of Defence. The 2nd defendant set-up in its Statement of Defence a counter-claim against the plaintiff.
The matter proceeded to full trial at the end of which the learned trial judge delivered his judgment in favour of the plaintiff and against the defendants. The 2nd defendants counter claim was dismissed.
Dissatisfied with the decision of the trial Court, the defendants filed their Notices of Appeal to the Jos Division of the Court of Appeal (Court
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below) the Court below on the 4th May, 2006 allowed the appeal, set aside the judgment of the trial Court. It also held that the 1st defendants counter claim particularly the declaration sought in paragraph 12 thereof, except 12(c) succeeded and were granted.
Dissatisfied with the decision of the Court below, the appellants appealed to this Court. They filed an Amended Notice of Appeal on 11/07/2014.
In this Court, briefs were filed and exchanged. On the hearing date, 4/10/16: learned counsel for the appellant Mr. Ogunwumiju adopted appellants amended brief, urged the Court to allow the appeal and restore the Judgment of the trial Court. Learned counsel for the 1st respondent Mr Onietan, adopted his amended brief and urged the Court to dismiss the appeal. Learned counsel for the 2nd respondent Mr. Ajose-Adeogun, adopted his brief and urged the Court to dismiss the appeal. Issues set out for the determination of the appeal by learned counsel for the respective parties are as follows:-
Appellants’ Issues
i. Whether or not the judgment of the lower Court allowing the respondents’ appeals is a nullity and should be set aside having regard to
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the fact that the Notices of Appeal which initiated the proceedings of the lower Court were not filed/signed by legal practitioners known to law (Ground 5).
ii. Whether the Court below was not in error, when it held that the doctrine of estoppel per rem judicatam could avail the 1st and 2nd respondents (Ground 2)
iii. Whether having regard to the entire pleadings and evidence adduced, the Court of Appeal was not in error when it held that the evidence before the learned trial judge was at variance with the pleadings on the issue of fraud thereby disentitling it to give judgment in favour of the appellant (Grounds 1&2).
iv. Whether the Court of Appeal was not in error when it set aside the order of the trial Court that the 1st respondent shall pay rent into an interest yielding account pending the final outcome of the appeal(s). (Ground 4).
1st Respondent’s issues:
i. Whether the Court below wrongly assumed jurisdiction on the appeal that gave rise to this appeal having regard to the manner in which the Notice of Appeal filed by the 1st respondent before it was signed (Ground 5)
ii. Whether the learned justices of the Court below (the
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Court of Appeal) were in error in holding as they did that the doctrine of estoppel per rem judicatam availed the respondents herein (Ground 2)
iii. Whether the Court below was in error in setting aside the order of the trial Court directing that the 1st respondent should pay rent into an interest-yielding account pending the final outcome of the appeal (Ground 4).
2nd Respondents issues:
i. Whether or not the judgment of the lower Court allowing the respondents’ appeals is a nullity and should be set aside having regard to the fact that the Notices of Appeal which initiated the proceedings at the lower Court were not filed/signed by legal practitioners known to law. (Ground 5)
ii. Whether the Court below was not in error when it held that the doctrine of estoppel per rem judicatam could avail the 1st and 2nd respondents. (Ground 2)
iii. Whether having regard to the entire pleadings and evidence adduced, the Court of Appeal was in error when it held the evidence before the learned trial judge was at variance with the pleadings on the issue of fraud thereby disentitling it to give judgment in favour of the appellants. (Grounds 1 and 3).
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In the brief of argument for each party, learned counsel for the respective party made copious submissions in support of the issues he formulated. Further oral submissions were also made by each of the learned counsel on the hearing date.
My noble lordships, I think in view of the potency of the 1st issue raised by each learned counsel for the respective parties, which tally with one another and which is capable of determining the appeal at once. I should firstly determine that issue. For the sake of more clarity and certainty, permit me to set out below appellants 1st issue.
”Whether or not the judgment of the lower Court allowing the respondents appeals is a nullity and should be set aside having regard to the fact that the Notices of Appeal which initiated the proceedings at the lower Court were not filed/signed by legal practitioners known to law.
The above issue, in essence, is what both the 1st and 2nd respondents put across though in different words, as 1st issue for each of them. It is my understanding that the most important points raised in the said issue are two: (a) Notice of Appeal and (b) who is competent to
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sign a Notice of Appeal
The English word “notice, my lords’ originates from the Latin word ”Nortia” which connotes knowledge, information” “intelligence and or ”notice (see: Blacks Law Dictionary fifth edition St. Paul Minn West Publishing Co, 1579 p.959). In its general day to day usage, therefore, the word notice represents knowledge of the existence of a fact or state of affairs. It is the means of knowledge. It presupposes intelligence by whatever means communicated. Notice is thus, knowledge of facts which would naturally lead an honest and prudent person to make inquiry. And, a person “notifies or gives another a notice or notification by taking such steps as may be reasonably laid down by law or practice and required of him to inform the other in ordinary course whether or not that other actually comes to know of it.
Thus, in legal proceedings, a Notice of Appeal is a document giving notice of an intention to appeal filed with the appellate Court and served on the opposing party. It is an originating document. In Okotie v Olughor (1995) 5 SCNJ, 217, this Court held
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that Notice of Appeal is the foundation of a proper appeal and where the notice of appeal is null and void, there can be no valid appeal pending before the appellate Court. An appeal is deemed to have been brought upon filing of the Notice of Appeal in the registry of the Court below or the Court from which the appeal emanated. See IBWA v Pavex International (2000) 4 SCNJ 200 AT P.277. A valid Notice of Appeal shall contain all the necessary requirements provided by Rules of Court regulating that appeal. Such requirements include but not limited to the signing of the Notice of Appeal by the appellant himself or by a lawyer of his own choice where the appellant is a body corporate, the usual practice is for an officer or a legal representative of that body to sign the Notice of Appeal. In criminal appeals, the appellant shall sign the Notice of Appeal. Where the person signing the Notice of Appeal is a qualified legal practitioner, he should append his signature along his name with which he has been registered as a legal practitioner licensed to practice law in the Federal Republic of Nigeria See: Okafor v Nweke (2007) 10 NWLR (Pt. 1043) 521. Alawiye v. Ogunsanya
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(2013) 5 NWLR (P1.1348) 570; Nigerian Army v. Samuel & Ors (2013) 14 NWLR (Pt. 1375) 466; SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317.
In his submissions, the learned counsel for the appellant stated that the originating processes by which the respondents appeals to the Court below were initiated i.e. the notices of appeal, were incompetent having not been signed by a legal practitioner known to law. He itemized these processes as follows (i) 1st respondents Notice of Appeal dated 9th May, 1996 filed/signed by J. B Majiyagbe & Co. (pp 73 – 75 of the record of appeal); (ii) 2nd respondents undated Notice of Appeal filed/signed by Omolade Makanjuola & Co (pp 76 – 78 of the record of appeal) (iii) 1st respondent’s Notice of Appeal dated 11th October, 1997 filed/signed by J. B. Majiyagbe & Co (pp 86- 87 of the record of appeal) and (iv) 1st respondent’s Amended Notice of Appeal dated 2nd November, 2000 filed/signed by J. B. Majiyagbe & Co (pp 97- 100 of the record of appeal).
The learned counsel for the appellant contended that the respondents appeals were not commenced by due process of law and therefore utterly failed to
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satisfy one of the conditions set down by the Court in the case of Madukolu v Nkemdilim (1962 ) 1 ALL NLR (pt.4) 587, as their Notices of Appeal were not signed by legal practitioners known to law, and were therefore incompetent and invalid. Learned counsel urged this Court to allow the appeal by striking out the respondents’ appeals for want of competence and to restore the decision of the trial Court. He cited and relied on several authorities including Nigerian Army v. Samuel & Ors (2013) 14 NWLR (P1.1375) 466 at 485; SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt.1252) 317 at 337-338.
Learned counsel for the 1st respondent, in his submission on this issue, first and foremost, cited the case of Okafor v. Nweke (supra) to contend that the decision in that case opened the flood-gate for a review and filing of appeals against decisions that were predicated on processes so signed or raising objections on processes so signed. It is not unimaginable, he contended further that, some people may have taken benefits under such decisions predicated on such wrong signing of processes and such parties may have even died when another decision of a Court
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striking out other decision is given. Learned counsel argued further that the decision in Okafors case was not meant to or supposed to apply universally to render null and void cases that were heard on the merit and concluded 10 to 15 years ago as same would not promote Justice on the merit. He urged this Court to distinguish its decision in Okafor’s case from this appeal and consider this appeal against the background of the reason given in Okafors case with a view to arresting the current embarrassing trend in the legal practice and in order not to shut out the appellant. Learned counsel contended that the appellant was not misled by the fact that the Notice of Appeal was signed by J. B. Majiyagbe & Co. instead of J. B Majiyagbe or any other cognizable person in that office. The Court of Appeal was also not misled. He argues that misconception of the law by counsel, his mistake inadvertence or negligence should not be visited on his client. Learned counsel for the 1st respondent urged this Court not to embark on a gratuitous voyage of discovery and to hold that the Court below was not wrong in assuming jurisdiction on the appeal before
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He finally urged that the appeal be dismissed.Learned counsel for the 2nd respondent after having reviewed several decisions of this Court on the subject matter under consideration such as Okafor v Nweke (supra), SLB Consortium v. NNPC (supra), Braithwaite v. Skye Bank (2012) 1 SCNJ 106: Alawiye v. Ogunsanya (supra): Nwani v. Bakari (2005) All FWLR (Pt.281) 803 at 1825; FBN Plc & Anor v Maiwada (2003) All FWLR (Pt 151) 2001 at 2014, asked two important questions (i) Was the Notice of Appeal filed by the 2nd respondent in the lower Court properly signed by the legal practitioner who filed the said Notice of Appeal (ii) What is the effect of signing the Notice of Appeal as OMOLADE MAKANJUOLA & CO. alone Learned counsel attempted to suggest answers to the two questions he posed. The first question was answered by its author
”The answer to this question should be found at pages 76 to 78 of the Record which show the Notice of Appeal in question. The document shows that the name OMOLADE MAKANJUOLA & CO was typed on the document. See page 78 of the Record of Appeal. Looking at the record of appeal alone which is the document before
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the Court on page 78, it appears that we do not have the name of counsel indicated at all on the Notice of Appeal …… it will be necessary to see the original Notice of Appeal filed by the 2nd respondent in the lower Court to determine if the said Notice of Appeal was properly signed or not. (See page 11 of the 2nd respondents brief of argument).
The second question was answered by the same author as follows:
”The answer to this is found in the decision of this Court in ALAWIYE V. OGUNSANYA (2013) 5 NWLR (Pt. 1348) 581 – 584 where this Court held:
Once these processes have been voided as being nullities it must follow logically that the decisions of the two lower Court must necessarily be void as also being nullities.
In other words if the Notice of Appeal filed by the 2nd respondent in the lower Court was wrongly signed in violation of Section 2(1) and Section 24 of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria, 1990, then this Court would declare the said Notice of Appeal filed in the lower Court by the 2nd respondent to
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be null and void and allow the appeal on this jurisdictional point.
Continuing his submission, learned counsel for the 2nd respondent argued that this (i.e. the fact of wrong signing of the Notice of Appeal by OMOLADE MAKANJUOLA & CO alone) can only be done where the Supreme Court after a proper examination of the original copies of the Notice of the Appeal as transmitted in the Record of Appeal discovers that indeed the name of the Legal Practitioner Omolade Makanjuola was not written above the typed name of the law firm on the document. Without proper proof of this fact, it would be wrong to declare the Notice of Appeal filed in the lower Court to be a nullity and therefore allow this appeal and the appellant was not presented to this Court based on the record of appeal filed in Court incontrovertible evidence that the Notice of Appeal was improperly signed. Learned counsel urged this Court to resolve the issue in favour of the 2nd respondent.
My Lords, it is not in dispute that the respondents herein, who were the appellants at the Court below, filed a total number of four (4) separate Notices of Appeal. These notices of appeal are as
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follows:-
i. 1st respondents Notice of Appeal dated 9th May, 1996, filed/signed by J.B Majiyagbe & Co (pp 73-75 of the record of appeal).
ii. 2nd respondents (undated) Notice of Appeal, filed/signed by Omolade Makanjuola & Co (pp 76-78 of the record of appeal).
iii. 1st respondents Notice of Appeal dated 11th October, 1997, filed/signed by J.B Majiyagbe & Co. (pp. 86-87 of the record of appeal).
iv. 1st respondents Amended Notice of Appeal dated 2nd November, 2000 filed/signed by J.B Majiyagbe & Co. (pp 97-100 of the record of appeal).
(Underlining for emphasis)
It is to be noted that all the (4) four Notices of Appeal were filed and signed by:
OMOLADE MAKANJUOLA & CO and J.B MAJIYAGBE & CO.
It is elementary my lords, but worthy of constant repetition, the principles of the law stated by this Court and encapsulated in the case of Madukolu v Nkemdilim (supra) that for a Court of law to properly assume jurisdiction to entertain a matter or affirm any decision made thereon on appeal, three (3) conditions must be fulfilled and that is to say:
a) the
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matter/suit/case/appeal must be commenced by due process of law:
b) that there must be no feature which deprives the Court of its jurisdiction in respect of the subject matter of the suit/case:
c) that the Court must be properly constituted
These were the conditions spelt out in Madukolus case (supra). This Court even went further to point out the serious effect of non-compliance thereof:
Any defect in competence is fatal for the proceedings and a nullity however well conducted and decided, the defect is extrinsic to the adjudication.
It was highlighted at the early stage of this judgment that for a Court to assume jurisdiction, the originating process(es) laid before it must be commenced by due process of law. The originating process under which the appeal was brought to the Court below is/are the “NOTICE(S) OF APPEAL” filed by the then appellants. Rules of Court and practice mandate that for a Notice of Appeal to be valid, it has to be signed by the appellant himself or his counsel/legal practitioner. Thus the requirement of such Court Rules, and in fact the Legal Practitioners’ Act is that generally, it is a
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legal practitioner called to the Nigerian Bar and whose name appears in the Roll of legal Practitioners, who may issue Court processes including originating processes such as a notice of appeal. The word” may is cautiously preferred as no rule of Court or law that prohibits an appellant, for instance, from seeking redress from an Appeal Court (or any other Court of law, on some subject matters) from having access to such a Court. It is even more absolute in criminal matters/appeals. This, in my belief is anchored on the Constitutional provision Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which guarantees to a citizen of Nigeria unhindered access to a Court of law. However, a particular mode of commencing an action or appeal is made by some subsidiary laws or Rules of Practice in furtherance of the Constitutional provision which makes access to Court within the reach of every citizen, that mode has to be complied with.
In respect of appeals, the initiating or originating process as defined earlier, is a NOTICE OF APPEAL. For a Notice of Appeal filed by a legal practitioner to be valid, this Court interpreted
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the provisions or some laws and other Rules of Court in several of its decisions, for instance, Okafor v. Nweke (supra): SLB Consortium Ltd. v NNPC (supra); Alawiye v. Ogunsanya {supra}; Nigerian Army v Samuel & Ors (supra); FBN Plc v. Maiwada (supra); Registered Trustees of Apostolic Church Lagos Area v Rahmam Akinde (1967) NMLR 263; Cole v. Martins (1968) ALL NLR 161.
Bear with me my lords, to cite in chronological order what happened in some of these cases:
Firstly, in the Registered Trustees of Apostolic church Lagos Area v Rahman Akinde (supra) in which following the success of an objection to the application of the appellants for registration as owners of some land, the firm of Solicitor of J. A Cole & Co. filed a notice of appeal at the High Court, Lagos, against the ruling. In signing the Notice of appeal learned counsel used his name in which he was called to Bar and enrolled at the Supreme Court i.e. J. A Cole. After the hearing of the appeal the learned trial judge drew attention to the fact that Order 3 Rule 2 of the High Court of Lagos (Appeals) Rules had not been complied with because the firm of J.A Cole & Co. is not a legal
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practitioner under the Legal Practitioners Act 1962 and consequently dismissed the appeal. Upon appeal to the Supreme Court, the Court allowed the appeal and held inter alia:
“The notice filed in this case was given in the prescribed form. It stated the name and address of the legal practitioner representing the appellants as Messrs 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 in signing the notice of appeal, Mr. Cole used his own name, that is to say, the name in which he registered as a legal 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 A.J. Cole & Co. would invalidate the signature if a signature in a business name was not permitted.
Secondly in August Cole v. Sergius Olatunji Martin & Anor (supra) the notice and grounds of appeal were purported to be signed by a firm of solicitors known as Lardner and Company. By virtue of the Legal
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Practitioners Act of 1962, Larder and Company is not a legal practitioner and therefore there had been no compliance with Order 3 Rule 2 of the High Court of Lagos (Appeal Rules) and under Order 3 Rule 12 of the High Court of Lagos (Appeal Rules).
Thirdly, in Okafor v Nweke (supra) the Court held, inter alia:
“Since both counsels agree that JHC OKOLO SAN & CO is not a legal practitioner recognized by the law, it follows that the said JHC OKOLO & CO cannot legally sign and/or file any process in the Courts and as such the motion on notice filed on 19th December, 2005; notice of cross-appeal and applicant brief of argument in support of the said motion all signed and issued by the firm known and called JHC OKOLO SAN & CO are incompetent in law particularly as the said firm JHC OKOLO SAN & CO is not a registered legal practitioner.
(Underlining for emphasis)
Fourthly, the holding by this Court in the case of SLB Consortium v NNPC (supra) is to the effect that:
”A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal
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practitioner simply writes his own name over and above the name of his firm in which he carries out his practice.
Fiftly, the cases of FBN Plc v Maiwada (supra); Alawiye v Ogunsanya (supra) and Nigerian Army v. Samuel (supra) were, one after the other decided by this Court in 2013 and widely reported in the same year. The decisions in these cases did not differ in any material particular with earlier decisions of the Court as sampled above. In all, the primary point worth reiterating is that a law firm cannot sign an originating process as it is not a legal practitioner recognized by the law. Any originating process signed and issued under the name of a law firm only, such as, J H.C OKOLO SAN & CO (as in Okafor v Nweke {supra) or Chief Afe Babalola SAN & Co.,(as in Alawiye v Ogunsanya (supra) and “Lardner and Co (as in Cole v Martins) supra purporting to be legal documents, are in fact, incurably defective and any decision predicated thereon, is indeed a nullity.
Section 2(1) of the Legal Practitioners Act, Cap 207. Laws of Federation of Nigeria, 1990 (and now in Section 24 of the Legal Practitioners Act Cap L. 11 Laws of the
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Federation, 2004 provides:
“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.
The circumstance presented by the appeal on hand is that the originating process listed earlier in this judgment, especially the Notices of Appeal (including any amendment thereto) were signed either by J.B MAJIYAGBE & CO or OMOLADE MAKANJUOLA & CO. Both J.B Majiyagbe & Co and Omolade Makanjuola & Co are law firms belonging to some individual legal practitioners. The principle regulating legal appearance for a party/parties before a Court of law is often recited that a law firm is not a legal practitioner in the contemplation of the Legal practitioners Act. It lacks capacity to sign, file or issue out Court processes, solely, in that name. Thus, any Court process initiated by a person who is not enrolled in the Register of Roll in the Supreme Court of Nigeria, licensed to practice as a legal practitioner in the Federal Republic of Nigeria would amount to a void process and any proceeding conducted therein would be declared a nullity. See Okafor v.
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Nweke (supra) Oketade v Adewunmi (2010) 2-3 SC (Pt. 1) 1160; Ogundele v. Agiri (2009) 12 SC 135.
In justification of submissions made earlier in his brief of argument that the decision in Okafors case (supra) was not meant to and was not supposed to apply universally to render null and void cases that were heard on the merit and concluded 10 or 15 years ago on the ground that the processes were not properly signed as same would not promote justice on the merit, the learned counsel for the 1st respondent, Mr. Enietan, put forward the following argument:
It is therefore clear from the above that the Supreme Court would have made that ruling if it meant shutting out the applicants. This is because that will not be in the interest of justice. It thus means that whanever this decision is to be cited or considered in deciding other matters, it must be looked at from the perspective in which it was given i.e. to correct an embarrassing trend in legal practice and not among the innocent members of the general public.
Secondly, if this Court is set to correct an embarrassing trend in the legal profession, one would have thought that the innocent
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litigant who cannot be said to be in pari delicto with the legal practitioners should not pay so clearly for what he knows nothing about and have no control over. The point we are trying to make is this the 1st respondent, as it was constitutionally entitled to secured the services of a lawyer of its own choice in 1992 and in 1996 when the case and the appeal to the High Court and the judicial system or process was introduced for the benefit of the general public all over the world. From the time the appeal to the Court below was filed and now is about 19 years. One may now want to examine the phrase interest of justice. The Appeal to the Court of Appeal was heard on the merit and judgment delivered on 4th May 2006, i.e. about 9 years ago. The Notice of Appeal is alleged to have been signed by non-cognizable person in law but the facts and the law that ought to be considered before giving the judgment were adequately considered by the Court below. The appellant was not misled by the fact that the Notice of Appeal bringing him to the Court of Appeal may have been signed by J.B Majiyagbe & Co. instead of J.B Majiyagbe or any
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other cognizable person in that office. The Court of Appeal was also not misled. If the Notice of Appeal had been signed by J.B. Majiyagbe or any other natural person in that office qualified to sign what value has it added to justice or the interest of justice if the decision of the Court below is held by this Court to be perverse and totally wrong in law upon hearing the appeal on the merit, one may ask Of what value has the alleged signing of the same process by J.B Majiyagbe & Co really taken away from justice or interest of justice if in respect of the subject matter of the appeal the facts and the law were appropriately examined and the decision thereon impeccable, one may ask again
This Court has consistently held that the misconception of the law by counsel, his mistake, inadvertence or negligence should not be visited on his client, in an attempt to correct an embarrassing trend in the legal practice, one would have thought that the correction should be done without any harm to the litigant who will become more embarrassed to hear that a process that commenced about 19 years ago has to be recommended just because his counsel did not perhaps
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sign the process well as provided for in the legal practitioners Act.
It is rather unfortunate that the 1st respondent will, by the alleged mistake of its counsel, be visited with this fait accompli that it has to go back to 1992 or 1996 to re-start the action again and perhaps have to call witnesses that may have died. The chaotic scenario this development may create is better imagined. To the ordinary unlearned mind, this will appear unjust and unfair that it has to pay so dearly to enable the judiciary put its house in order for no apparant fault of hers. Would this not amount to visiting the sin of its counsel on her What the Court is saying if this appeal is struck out is that you have to restate the whole process all over because the lawyer that represented you made a mistake in his signature and I must arrest the current embarrassment trend in the legal practice. We submit that the current embarrassing trend in the legal practice can be arrested without making an innocent litigant pay so dearly remembering that the Court was created for the same litigant.
Equally, in an attempt to throw more light on the two posers (questions) put
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earlier, learned counsel for the 2nd respondent Mr. Ajoose-Adogun submitted:
It is our submission that if the original Notice of Appeal filed in the lower Court by the 2nd respondent herein has the name of late Mr. Omolade Makanjuola written above the typed Omolade Makanjuola & Co, then the said Notice of Appeal filed in the lower Court would have satisfied the requirement of the Legal Practitioners Act and the law as interpreted in the SLB Consortium case as what this Court has stated that it would have been sufficient if M. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co., because Mr. Adewale Adesokan is a legal practitioner registered to practice law in the Roll at the Supreme Court, not Adewale Adesokan & Co.
In other words, if the Notice of Appeal filed by the 2nd respondent in the lower Court was wrongly signed in violation of Section 2(1) and Section 24 of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria 1990, then this Court would declare the said Notice of Appeal filed in the lower Court by the 2nd respondent to be null and void and allow
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the appeal on this jurisdictional point. It is our submission that this can only be done where this Supreme Court after a proper examination of the original copies of the Notice of Appeal as transmitted in the Record of Appeal discovers that indeed the name of the legal practitioner Omolade Makanjuola was not written above the typed name of the law firm on the document. We submit that without proper proof of this fact, it would be wrong to declare the Notice of Appeal filed in the lower Court to be a nullity and therefore allow this appeal. We submit that the appellant has not presented to this Court based on the Record of Appeal filed in Court in controvertible evidence that the Notice of Appeal was improperly signed.
My lords, in the first place, Mr. Onietan for the 1st respondent, put forward sympathetic and thought provoking argument in respect of his client that:
i. Neither the appellant nor the Court below that was misled by the filing of the Notice(s) of Appeal as it was/they were;
ii. the sin committed by a counsel should not be visited on his client and
iii. interest of justice must be taken into consideration.
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Permit me to say, my lords, that Mr. Onietan for the 1st respondent yielded to sentiments. But it is only natural as a counsel he should show concern in sympathy to his client. However, Mr. Onietan should know, that in the realm of law, sentiments or sympathy have no place. It is only law and law only that should take its course. See:Ezeugo v. Ohanyere (1975) 6-7.SC. 17, at 184. Where Obaseki, JSC admonished thus;
Sentiment commands no place in judicial deliberation for if it did, our task would be infinitely more difficult and less beneficial to the society.
Secondly, Mr Onietan should also know that however well conducted a proceeding may be, if it has no basis or legs upon which to stand, it will certainly collapse. The maxim coined by Lord Denning Mr. that one cannot put something on nothing and expect it stand. No! it will certainly collapse. See: Mackfoy v. UAC Ltd (1962) A. C 152. The proceedings conducted by the Court below were predicated on a Notice of Appeal (or Notices of Appeal) which were incurably defective. The proceedings however well conducted could not yield any valid result as they were based ab initio on wrong/invalid
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originating process(es).
Thirdly, law, they say, is an ass not minding who will ride upon its back and to which direction he will drive it. All that is known is that it is not a respecter of persons. The position of the law will not change. Where it is valid it remains to be so irrespective of whether it misleads anybody or not. The fact that no one complained that the appellant or, and the lower Court was mislead by the filling of a void originating process cannot be valid reason for allowing the void process to be acted upon. Once that voidity or invalidity of the process is discovered by a person, concerned or the Court, that process must be declared null and void, affecting, consequently, anything that comes out of it by way of order, ruling or judgment. See: First Bank v Maiwada (supra) Oketade v Adewunmi (supra) Ogundele v Agri (supra) Okafor v Nweke (supra).
Fourthly, visiting the sin of the counsel on his client is not permitted by the law Courts. See Akinpelu v Adegbore & Ors (2008) 4 SCNJ. What is not however, tolerated is where a counsel committed an unforgivable blunder which must affect his case, such as filing a wrong or an incompetent
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process (such as originating process), there is no way the Court can blind its eyes to allow the process have its way, as such.
Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/appellant. Justice to the defendant/respondent and justice to the Court itself. The last one of course requires that parties to a legal tussle or or their representatives should always come to Court with open mind sincerely of purpose diligent and coherent with unwavering confidence that the Court will at the end, deliver justice according to law. The justice of the appeal before the Court below demanded a pronouncement that the originating processes
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(Notices or Appeal) as signed by several firms of legal practitioners which are not legal practitioners as such recognized by law, were incompetent and ought to have been struck out.
Considering the argument of Mr. Ajose-Adeogun for the 2nd respondent, I am bold to state that two of the Notices of Appeal were exhibits which accompanied the motion on Notice filed before the lower Court by the 1st respondent for leave to amend its Notices and Grounds of Appeal. The Notices of Appeal sought to be amended were reflected in paragraph 4(a) & (b) of the affidavit in support of the said motion that both were filed on the 9th day of May, 1997. Both were attached to the affidavit as Exhibit PO1 and PO2 respectively. Sub-paragraph (c) of the said affidavit in support of the motion on Notice stated that there were two appeals pending before the lower Court and the applicant wanted the appeal consolidated as they arose from same suit at the trial Court. They asked for leave of that Court. The (proposed) amended Notice of Appeal was attached in support as exhibit PO3 (paragraph 4(g) of the said affidavit). The Court below, in a Ruling delivered on 7th of November, granted the
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appellant/applicant/respondent leave to consolidate the two Notices of Appeal and to also amend the Notices and grounds of appeal as per exhibit PO3 (pp 101-101a of the record of appeal).
This Court observes that the Notice of Appeal PO1 was issued by the firm of “J.B MAJIYAGBE & CO” simplicita, with prefix pp before the name of the legal practitioners firm. The Notice of Appeal attached as PO2, was dated 14th May, 1997. There is a contraption over the name of the firm J.B MAJIYAGBE & CO with a prefix pp: proceeding the contraption and the legal practitioners firm name. PO3 (”Amended Notice of Appeal”) was dated 2nd November, 2000. It bears the name of the firm of the same Majiyagbe. It is a contraption over the name of the firm.
It is to be noted my lords, that even where there appears a contraption of a name or signature, it is not clear to me, and I could not lay my hands anywhere (from the record of appeal which contains the original Notice of Appeal) to attach names to the contraptions in the two Notices of Appeal (one being an amended Notice of Appeal). It is clear that PO1 is not a legal
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document to indicate an appeal. PO2 and PO3 pose some confusion as to who signed any of them or both
The law is very clear that as there is no name written to legitimize the contraption, it then goes to nothing and it must be discountenanced. In SLB Consortium v. NNPC (supra) this Court made it clear:
All processes filed in Court are to be signed as follows:
a) First the signature of counsel which may be any contraption;
b) Secondly, the name of the counsel clearly written;
c) Thirdly, who counsel represents;
d) Fourthly, name and address of legal firm.
In the amended Notice of Appeal Exh PO3. it is not clear who signed on top of the legal practitioners firm. Further, no name of a legal practitioner is clearly written to own up the contraption. I agree with and reiterate the position taken by this Court in SLB Consortium v NNPC (supra) that:
Once it cannot be said who signed the process, it is incurably bad, and rules of Court that seem to provide a remedy are (of) no use as rule cannot override the legal Practitioners Act. There must be a strict compliance with the law.<br< p=””
</br<
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Accordingly, the two Notices of Appeal (as shown in Exhs PO2 and PO3 which were placed before the Court below, are incompetent and cannot enure to the benefit of the appellants before that Court. It was observed earlier what this Court quoted in the case of SLB Consortiums case (supra) that:
A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/her firm in which he carries out his practice. In the instant case, it would have been sufficient if Mr. Adewale Adesokan had simply written or stamped his name on top of Adewale Adesokan & Co because Mr. Adewale Adesokan is a legal practitioner registered to practice law in the Roll at the Supreme Court, not Adewale Adesokan & Co.
My lords, the appeal on hand to my understanding is of the same extraction with the ones in Registered Trustees of Apostolic Church Lagos Area (supra) and that of Cole v Martins (supra). None of the originating processes (i.e the Notices of Appeal) at the Court below was
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completely filed. It is unfortunate that this matter of incompetence of the originating processes at the Court below was never brought to the attention of the Court below and that Court by itself, did not observe that serious flaw in the originating processes. An originating process is the foundation stone of any proceedings in any Court. It thus, affects the jurisdiction of that Court. No Court of law can assume jurisdiction through a defective originating process. If it does, the proceeding however well conducted will amount to a nullity. As a nullity, nothing more can competently be considered in this appeal. All other issues formulated by the respective parties collapse and are accordingly struck out.
The appeal has merit and it is hereby allowed. Judgment of the Court below is hereby set aside. I find it difficult to accede to the request of the learned counsel for the appellant that judgment of the learned trial judge be restored. This is because that judgment was not put to test on merit before the Court of Appeal due to the defective nature of the originating processes which consequently affected the decision of that Court.
I make no order as
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to costs.
SC.309/2006
