Royal United Nigeria Limited V. Sterling Bank Plc (2008)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This is an appeal against the judgment of Hon. Justice R.I.B. Adebiyi of the High Court of Lagos delivered on the 21st day of May, 2003 dismissing the claims of the (Plaintiff) now the appellant herein.
The appellant as plaintiff at the High Court Lagos brought a claim against the respondents as defendants jointly and severally claiming the following reliefs:
(i) The sum of N376,000.00 (Three hundred and seventy-six thousand naira) being the value of an Inland Bank (Nig) Plc Certified Cheque No 05286 dated 15th March, 1999 issued in favour of the Plaintiff.
(ii) N1,000,000.00 (One million naira) as damages for fraudulent conversion of the said Certified Cheque by the Defendants
(iii) interest at the rate of 21% per annum from the 1st day of November, 1999 until judgment and thereafter at 20% per annum until final payment.”
At the completion of hearing the trial court gave judgment in favour of the respondents. Being dissatisfied with the judgment of the lower court, appellant filed Notice of Appeal dated the 27th June, 2003 which contained two grounds of appeal. Pursuance to the Practice and Procedure of this court, briefs of argument were filed and exchanged by respective counsel.
When the appeal came up for hearing on 16/10/08 appellant’s counsel Rotimi Rhodes adopted appellant’s brief of argument. While 1st respondent’s counsel U. Udom adopted 1st respondent’s brief filed on 24/2/05.
In the course of hearing the appeal the court observed that the Notice of Appeal was purportedly signed by Rhodes and Rhodes. The court called upon appellant’s counsel to address us as to the competency of the appeal in the light of the recent decision of the Supreme Court. The Notice of Appeal which appeared on pages 57 – 59 of the printed record was signed by Rhodes and Rhodes. Appellant’s counsel conceded that the name Rhodes and Rhodes is not a name of a legal practitioner appearing on the roll but he signed as O. Rhodes which cures the defect. Respondent’s counsel on the other hand submitted that his understanding of the authority is that the notice of appeal should be signed by a legal practitioner. He contended that appellant’s counsel signed O. Rhodes which bears the name of an individual.
The issue as to whether the appeal is competent or not, has to be resolved first before considering its merit. I have earlier stated that the notice of appeal initiating this appeal is dated 27th June, 2003 and is contained at pages 57 – 59 of the printed record. I have carefully examined it. The notice of appeal was endorsed as follows:-
“O. Rhodes
RHODES & RHODES
APPELLANT’S COUNSEL
NO.3 EMINA CRESCENT
OFF TOYIN STREET
IKEJA
LAGOS”
The law is that for a notice of appeal to be valid and proper it must be signed by the appellant. It is also good if the legal Practitioner representing him signs it. By virtue of S.2 (1) of the Legal Practitioners Act Cap. 207, Laws of the Federation of Nigeria, 1990, person is entitled to practice as a barrister and solicitor if and only if his name is on the roll. Section 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation of Nigeria 1990 also defines Legal Practitioner as person entitled in accordance with the Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding. The question now is was the notice of appeal under consideration signed by a Legal Practitioner? If the notice of appeal is signed in the name of a firm of solicitors, it is fundamentally defective. Both the Supreme Court and this court have held that a firm of Legal Practitioners cannot sign a process in the place of a Legal Practitioner. 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 Okafor & Ors v. Okeke & Ors (2007)10 NWLR (Pt. 1043) 521 at 530. It is pertinent to note the observation of Onnoghen, J.S.C. at pages 531 – 532 paragraphs C – A where he stated thus:-
“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 in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J. H. C. Okolo SAN & Co. is a Legal Practitioner recognized by the law?From the submissions of both counsel, it is very clear that the answer to that question is in the negative. In other words both senior counsel agree that J.H.C. Okolo SAN & Co. is not a Legal Practitioner and therefore cannot practice as such by say, filing processes in the courts of this country. It is in recognition of this fact that accounts for the argument of Learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J. H. C. Okolo SAN & Co. actually belongs to J.H.C. Okolo SAN who is a Legal Practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the Legal Practitioner but his name. That apart it is very clear that by looking at the documents the signature which Learned Senior Advocate claims to be his really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo SAN & Co. is not a Legal Practitioner recognized by the law, it follows that the said J.H.C. Okolo SAN & Co. cannot legally sign 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’s brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo SAN & Co are incompetent in law particularly as the said firm of J.H.C Okolo SAN & Co is not a registered legal practitioner.”
The above observation is clear and unambiguous. In the instant case, looking at the notice of appeal, it is obvious that the inscription O. Rhodes was appended on behalf of Rhodes & Rhodes since it was signed on top of that name. In short the signature belongs to Rhodes & Rhodes. Following the decision of the Supreme Court in Okafor vs Okeke supra, I am of the humble view that Rhodes and Rhodes is not a legal practitioner recognized by the law. It is very important to note that the appellant’s brief of argument was signed by Olurotimi Rhodes and not Rhodes and Rhodes in line with the recent Supreme Court decision in Okafor & Ors v. Okeke & Ors. supra. The endorsement appearing at page 9 of the appellant’s brief read as follows:-
“O Rhodes
Olurotimi Rhodes
Appellants counsel
Rhodes & Rhodes
3, Emina Crescent
Off Doyin Street
Ikeja Lagos”
I would not hesitate to hold that Rhodes and Rhodes not being a Legal practitioner recognized by the law is not competent to file or sign any process in the courts of this country. It is settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it. See Uwazurike vs A.G. Federation (2007) 40 WRN 79 at 97 and Okeke Amadi vs Okeke Okoli (1977) 7 SC 56 at 57.
This court has power to strike out an incompetent notice of appeal under order 6 rule 6 0f the Court of Appeal Rules, 2007. For clarity order 6 rule 6 provides as follows:-
“The court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”Having found and held that the notice of appeal in this appeal is fundamentally defective same is accordingly struck out in accordance with Order 6 rule 6 of the Court of Appeal rules, 2007.
There shall be no order as to cost. Parties to bear own costs.
Other Citations: (2008)LCN/3007(CA)
