DICKSON OGUNSEINDE VIRYA FARMS LIMITED v. SOCIETE GENERALE BANK LIMITED & ORS (2018)

         

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.209/2005

Before Their Lordships

OLABODE RHODES-VIVOUR  Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI  Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI  Justice of The Supreme Court of Nigeria
AMIRU SANUSI  Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE  Justice of The Supreme Court of Nigeria


Between

DICKSON OGUNSEINDE VIRYA FARMS LIMITED –Appellant

AND

1. SOCIETE GENERALE BANK LTD
2. ALHAJI A. ARINOLA
3. MRS. MONISOLA ALAKE AYOOLA-
Respondents                                                                               ……………………. A…………………….CLARA BATA OGUNBIYI, J.S.C. (Delivering the Leading Judgment): The facts of this case are fairly straight forward. On the 15th of June 2005 the appellants had three pending applications before Court of Appeal Ibadan, as follows:
1). A motion for leave to appeal on grounds of mixed law and fact dated the 9th of February, 2005.
2). Motion for stay of execution dated the 2nd of March, 2005.
3). Motion to substitute the 3rd respondent dated the 16th of May, 2005.

On the 15th of June 2005 counsel for the Appellant herein withdrew the motion of 16th May, 2005 for substitution and same was struck out.
Thereafter as evident from the records of appeal, the other pending applications were brought to the attention of the Court by counsel for the 3rd Respondent, one Chief Mathew Adepoju in the following terms:
“Counsel for the Respondent Chief Adepoju says the application is incompetent since the three months period within which to appeal has elapsed. He says the motion be struck out.
Court: Regard to the fact that the three months period within which to appeal to the Supreme Court has elapsed, this Court no longer has 
jurisdiction to grant leave or extend the time within which to appeal. That can only be taken at the Supreme Court. The result is that the application of 19/2/005 for leave to appeal to the Supreme Court and that for stay of execution filed on 2/3/05 are struck out.
It is against that decision that the appellant herein has filed this appeal now before us.
In accordance to the rules of this Court briefs were filed by counsel on behalf of their clients as follows:
1). Amended Appellants Brief was settled by one A.R. Daramola Esq., and filed on the 14th March, 2017, but deemed properly filed on 14th March, 2017.
2). Amended 1st and 2nd Respondents Brief was settled by one Olayode O. Delano Esq. and filed on 13th March, 2017 but deemed properly filed also on 14th March, 2017.
3). 3rd Respondents Brief of Argument was settled by Alex Ejesieme, Esq. and filed on 20th March, 2017.

On the 13th November, 2017, all counsel adopted and relied on their respective briefs of arguments. On the one hand, the learned counsel for the appellant urged in favour of allowing the appeal and remit the applications dated 9th February, 2005 and 2nd March, 2005 back to the lower Court for hearing.
On the other hand however, the learned counsel on behalf of the 1st and 2nd respondents prayed the Court to strike out the said applications which were not within the jurisdiction of the lower Court to grant and the counsel for the 3rd Respondent urges further that the appeal be dismissed for being incompetent and also an abuse of process.
Two issues were formulated on behalf of the appellants as follows :
1). Whether there is any justiciability on the part of the Justices of the lower Court in striking out applications dated 9th February , 2005 and 2nd March, 2005. See Ground one (1).
2). Whether failure of the justices of the lower Court to hear the appellants applications is not a breach of the principle of fair hearing. See Ground two (2).

The lone issue formulated on behalf of the 1st and 2nd Respondents reads as follows:
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
                                                                            ……………………. B…………………….
Lastly, and on behalf of the 3rd respondent, two issues were also formulated with the 1st issue being similar to that of the appellant, while issue no. 2 reads thus:
2. Whether the Notice of Appeal, the initiating process in this appeal was signed in any manner known to law.
I seek to restate again that since the appellants issue 2 is similar to that of 3rd respondent; the issue is subsumed in the 1st issue which was brought about as a result of questioning the initiating process.
The two issues would be taken together with both having been subsumed or integrated one into the other.
The appellants by the fore-goings issues contend that the two applications struck out on the 15th June, 2005 were not justifiable in that the one of 9th February, 2005 in particular was not heard. Counsel submits that the lower Court ought to have taken argument on the application especially the one dated 9th February, 2005 since it was filed within the (3) months statutory period.
The Court of Appeal, in applying the decision of this Court in the case of Bowaje vs. Adediwura (1976) 6SC. 143, the learned Counsel submits, took argument of counsel on the applications for leave of the Court to appeal on point of facts and mixed law and fact, in the case of Chief K. Oje & Anor vs. Chief G. Babalola (1987) 4 NWLR (Pt.64)208; Unlike in the present case, counsel submits no argument whatsoever was taken by the lower Court.
The learned counsel in further submission re-iterates that where a party has no input as to the date a matter is adjourned at the lower Court; such party cannot be made to bear the brunt of the act of the lower Court. The applicants, the counsel argues, have no control over the diary of the lower Court, hence the adjournment before it is of its discretion; that the exercise of such discretion when made unjustly, parties should not be made to suffer the consequential effect of the unjust exercise or bear the pains thereof.
Counsel submits again that any matter to which an affidavit of urgency is attached, stating reasons why the application should be heard on time, ought to be given a short adjournment.
In the matter at hand, the lower Court adjourned for a long period of four months – February to May, 2005: Counsel submits that such adjournment is very unreasonable and in – ordinate.
The learned counsel submits with emphasis again that the decision of the lower Court in the present matter, by striking out the applications of 9th February, 2005 and 2nd March, 2005 is misconceived, premature and portrays bias against the Appellants. The lower Court, counsel contends never availed the appellants the opportunity of arguing their applications on the peculiarity and therefore did not act justifiably in striking out the appellants applications on 15th June, 2005.
                                                                    ……………………. C…………………….
Submitting on issue 2, appellants’ counsel argues that his clients were not given hearing on the two applications struck out, especially the application of 9th February, 2005. Hence the failure amounted to denial of fair hearing and breaching the appellants’ right as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. Counsel cites in support, the case of Agbahomovo vs. Eduyegbe (1999) 3 NWLR (Pt. 594) Page 170 at 184 -185. A further authority is the case of Igboho L.G. vs. Boundary Settlement Commissioner & Anor (1988) 1 NWLR (Pt.69) page 189 at 201 – 202 per Nnamani JSC and Amoo vs. Alabi (2003) FWLR (Pt.174) Page 198 at 213 – 214 per Iguh, JSC.
The Proceeding of 15th June, 2005, counsel submits, shows clearly that the appellants were not heard at all.
It is the reaction of counsel that this is a breach of the principle of Audi alteram partem and a grave violation of the appellants/applicants’ right to fair hearing. Hence the Court should find that the lower Court failed to give the applicants the necessary fairness in the determination of the applications before it.
The learned counsel urges this Court on the totality to allow this appeal and remit the appellants applications dated 9th February, 2005 and 2nd March, 2000 back to the lower Court for hearing in the circumstance.
In response to the two issues raised by the appellants, the learned counsel for the 1st and 2nd respondents made a joint and brief submission thereon in terms of the lone issue he raised. The learned counsel submits on the totality that the lower Court was perfectly within the exercise of its powers when it struck out the said applications which were not within its jurisdiction to grant ex facie.
The 3rd respondent’s counsel formulated two issues for determination. For all intents and purposes. I am of the firm view that only the 1st issue is relevant to this appeal as it is in line with the grounds of appeal filed. In respect of the 2nd issue raised however, it is not shown to arise from the two grounds of appeal on the amended notice of appeal filed on 10/3/2017. The said issue as a consequent is of no relevance and it is discountenanced.
In his submission in reply to the appellants’ issues therefore, the counsel for the 3rd respondent relates copiously to Section 27 of the Supreme Court Act, 2004 of Sub-sections (2) and (3) which counsel argues are clear and unequivocal. Counsel submits further that on the 15th June, 2005 when the Court struck out the two pending applications, it had no jurisdiction at that point to adjudicate thereon, hence same were struck out, following the observation made by the counsel who appeared for the 3rd Respondent.
The learned counsel on the totality urges that this appeal be dismissed as being incompetent and also an abuse of process.
The determination of this appeal can easily be disposed of on the lone issue raised by the 1st and 2nd Respondents which raises the question thus:
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
The two main complaints by the
                                                                      ……………………. D…………………….appellants are: – (1) that they were never given the opportunity to argue their applications on the merit and (2) that they were not given a fair hearing, therefore.
It is pertinent to say that by the provision of Section 27 of the Supreme Court, Act, 2004, where a person desires to appeal to this Court, he shall give notice of appeal or notice of his application for leave to appeal in such manner as be directed by rules of Court within the period prescribed by Subsection (2) of the said section that is applicable to the case.
Section 27 Subsection (2) provides for the period prescribed for the giving of notice of appeal or notice of application for leave to appeal which relates to an appeal in a civil case. In other words it provides for fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.
Subsection (3) of Section 27 of the Act also provides that where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) above, be allowed a further period of fifteen days from the date of the hearing of the application by the Court below to make an application to this Court.
For all intents and purposes, I seek to say that at the time the said applications were struck out on the 15th of June 2005, they were both in fact incompetent and the Court of Appeal had no jurisdiction to entertain same. This is bearing in mind that the jurisdiction to grant an application for leave is limited to the 3 months period as stipulated by Section 27 of the Act Supra. Again see the cases of Bowaje v. Adediwura (reference supra) and Owoniboys Tech Service Ltd v. John Holt Ltd (1991) 6 NWLR (Pt.199) pages 550 at 559.
Jurisdiction as entrenched in various judicial authorities implies the power or authority of a Court to adjudicate over a particular subject matter. It is the nature of the claim that determines the jurisdiction of a Court.
The law is well established also that all the Courts, in this country without exception, have no power to prescribe jurisdiction to themselves. Neither, do they have the power to expound or reduce on their areas of jurisdiction. It is constitutionally prescribed. See case of Gafar v. Government of Kwara; State & 2 Ors (2007) 1-2 SC.189.
As rightly submitted by the 3rd respondent’s counsel herein, the appellants cannot be heard to complain that they were denied fair hearing because the applications that were struck out were incompetent. The principles of fair hearing can apply only in a case where a party has the right to be heard on a Court process but was denied. To the contrary, if a party has no right to be heard in respect of a process because it did not comply with the Rules of Court, the party cannot be heard to invoke the Principles of fair hearing. See Sosanya v. Onadeko (2005) 2 SC (Part 11) 
The appellants counsel had submitted vehemently also in respect to the application for stay of execution which was struck out. It is trite and a well established general principle of law that stay of Proceeding/Execution will not be entertained unless an appeal has been lodged. See the case of NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221, and Fatoyinbo v. Osadeyi (2002) 5 SC Part 11)1.
In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. Accordingly in the absence of a
                                                                  ……………………. E…………………….
pending appeal (and indeed a valid motion for leave to appeal) the lower Court in the case at hand did not have jurisdiction to grant the relief sought.
The appellants counsel had argued in strong terms that there was a denial of fair hearing, I seek to say that it is not on every occasion where an application is refused hearing that it would amount to a breach of fair hearing. As a matter of fact, when an application, in which the Court has no jurisdiction to entertain, is maintained, some will amount to an abuse of Court process. The lower Court in the case at hand was perfectly within the exercise of its powers therein when it struck out the said applications.
The law is well entrenched further that the Appeal Court has the discretion to take on a point suo motu and the general principle is that the parties must be given an opportunity to be heard. However authorities have shown that the failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice.
An example is the case of Saude v. Abdullahi (1989) 4 NWLR Part 116 page 387 at page 408 where this Court held:
“There is no doubt that the Court of Appeal committed a serious misdirection in the lead judgment when it in appropriately raised and considered new issues in the appeal before it. The question is: what is the effect of the misdirection, unless the misdirection is so grave as to have occasioned a miscarriage of justice, an Appeal Court will not ordinarily interfere with decision of the lower Court.”
Following from the foregoing authority therefore, the question to pose in the matter herein is, was there a miscarriage of justice done to the appellants? The answer I hold is in the negative. This is predicated on the fact that, ex-facie and abinitio, the lower Court never had the jurisdiction to either entertain/grant the applications brought by the appellants.
See the case ofOdiase v. Agho (1972) 3 SC. 73where it was held that a fundamental issue of jurisdiction is one of the circumstances where a Court can indeed take a point suo motu.
With the striking out of the application for leave to appeal therefore, it became clear that no valid appeal exists in the eyes of the law. As a result, the application for stay of Execution became an incompetent process before the Court which was liable to be struck out.
The striking out of the two incompetent applications, on 15/9/2005 by the Court below was in the circumstance done within the ambit of the law. The said issue is hereby resolved against the appellants and in favour of the respondents.
The appeal on the totality is devoid of any merit and same is hereby dismissed on the ground of being an abuse of Court process.
There shall be no order made as to costs.
Appeal is dismissed and no order is made as to costs.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother, Ogunbiyi JSC. I agree with it and for the reasons given I too dismiss the appeal. I must observe that Section 27 of the Supreme Court Act 2004 provides for the time within which an appeal may be filed. As at the time the Court of Appeal struck out the applications seeking leave to appeal and stay of execution on 15 June 2005, three months had elapsed. The Court of Appeal no longer had jurisdiction to grant leave or extend time within which to appeal.
                                                                            ……………………. F…………………….
See Bowaje v. Adediwura (1976) 6 SC p. 143
The resultant effect of striking out the application for leave to appeal is that there is no valid appeal. The application for stay of execution becomes incompetent and is also struck out.
For these brief reasons as well as those more fully given by my learned brother, Ogunbiyi JSC I, too also dismiss the appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Clara Bata Ogunbiyi JSC and to underscore that support, I shall make some comments.
This is an interlocutory appeal against the order of the Court of Appeal, Ibadan Division or lower Court or Court below dated 15th June, 2005 striking out the application of the appellant for leave to appeal against the judgment of the Court below delivered on the 2nd December, 2004 and another application dated 2nd March, 2005 for stay of execution of the said judgment.
The fuller facts of this matter are well set out in the lead judgment and so I shall refrain from repeating them unless the occasion warrants a reference to any part thereof.
On the 13th day of November, 2017 date of hearing, learned counsel for the appellant, Anthony Rotimi Daramola Esq. adopted the amended appellant’s brief filed on 10/8/17 and deemed filed on 14/3/2017. He raised two issues for determination which are thus:
1. Whether there is any justiciability on the part of the Justices of the lower Court in striking out applications dated 9th February, 2005 and 2nd March, 2005 – (Ground 1).
2. Whether failure of the Justices of the lower Court to hear the appellants’ applications is not a breach of the principle of fair hearing (Ground 2).

Olayode O. Delano Esq., learned counsel for the 1st and 2nd respondent adopted their brief of argument filed on the 13/3/2017 and deemed filed on 14/3/2017. A single issue was distilled for determination which is as follows:
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
Alex Ejesieme Esq. of counsel for the 3rd respondent adopted her brief of argument filed on 20/3/17 and raised two issues for determination which are thus:
1. Whether the Court of Appeal was right to have struck out the two pending applications.
2. Whether 
the Notice of Appeal, the initiating process in this appeal was signed in any manner known to law.
I see the single issue as crafted by the 1st and 2nd respondents as adequate in the determination of this appeal and I shall utilise it.
SOLE ISSUE
Whether the Court of Appeal was right and empowered to strike out the two applications pending before it.
                                                          ……………………. G…………………….
Learned counsel for the appellant stated that the Court below ought not to have struck out the two applications particularly the one of 9th February, 2005 without taking arguments as it was filed within the three months statutory period. He cited: Bowaje v Adediwura (1976) 6 SC 143; K. Oje & Anor v Chief G. Babalola (1987) 4 NWLR (pt. 64) 208.
That the application for leave dated 9th February, 2005 was fixed for hearing on the 17th February, 2005 which application could not be heard on that day because counsel rejected service of the application on them. That the lower Court had to adjourn the application and the matter to which an affidavit of urgency is attached, stating reasons why the application should be heard on time ought to be given a short adjournment but the Court below
adjourned for the long period of 4 months i.e. from February to May, 2005. Learned counsel said the long adjournment was done is bad faith as the Court below did not take the appellants into consideration on that day of hearing.
He stated that the proceedings of 15th June, 2005 was meant for the hearing of the application dated 16th May, 2005. That the application having been withdrawn and struck out, the respondent’s counsel having placed their appearances for the respondents on record once again, the Court ought to have taken argument on the application of 9th February, 2005 or at worst adjourned for hearing of same. That the lower Court striking out the applications of 9th February, 2005 and 2nd March, 2005 is misconceived, premature and biased towards the appellants as the appellants were never availed the opportunity of being heard and this was not an act justifiably done when those applications were struck out on 15th June, 2005.
Mr. Daramola of counsel for the appellant contended that the appellants were denied their right to fair hearing on account of the striking out of the applications without hearing an argument from the appellants. He cited Section 36(1) Constitution of the Federal Republic of Nigeria 1999; Agbahomovo v Eduyegbe (1999) 3 NWLR (Pt. 594) 170 at 184 – 185; Igboho L. G. v Boundary Settlement Commissioner & Anor.(1988) 1 NWLR (Pt. 69) 189 at 201 – 202; Amoo v Alabi (2003) FWLR (Pt. 174) 198 at 213 – 214; Adigun v A. G. of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 684.
Olayode Delano Esq. of counsel for the 1st and 2nd respondents contended that the two applications were incompetent and the Court of Appeal had no jurisdiction to grant the applications for leave being limited to the 3 months period as stipulated by Section 27 of the Supreme Court Act. He referred to Bowaje v Adediwura (1976) 6 SC 143; Owoniboys Tech. Service Ltd v John Holt Ltd (1991) 6 NWLR (Pt. 199) 550 at 559.
He stated further for the 1st and 2nd respondents that the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal and in the absence of a pending appeal showed the Court of Appeal did not have jurisdiction to grant the relief sought. That there was no breach of fair hearing on the appellants.
That even though the Court exercised the discretion suo motu since there was no miscarriage of justice the decision would not be upturned. He cited Saude v Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 408.
Learned counsel for the 3rd respondent contended that the principles of fair hearing can only apply in a case where a party has the right to be heard on a Court process and in this instance the appellants do not have the right to
                                                                      ……………………. H…………………….
be heard and so cannot invoke the principles of fair hearing. He cited Sosanya v Onadeko (2005) 2 SC. (PT. 11) 13;
That the application for stay of execution which was also struck out will not be entertained until the appeal had been lodged which is not the case here. He referred to NDLEA v Okorodudu (1997) 3 NWLR (Pt. 492) 221; Fatoyinbo v Osadeyi (2002) 5 SC. (pt. 1) 1.
He stated that the Notice of Appeal, the initiating process was not properly signed as it was signed by the Law Firm instead of the legal practitioner. He cited SLB Consortium Ltd v NNPC (2011) 9 NWLR (pt. 1252) 317; Olagbenro v Olayiwola (2014) 17 NWLR (Pt. 1436) 313 at 366 to 367; Nigeria Army v Samuel (2013) 14 NWLR (pt. 1375) 466 at 483.
The stance of the appellant is that the application of 9th February, 2005 was filed within time and adjournment to the application of 9th February, 2005 was unreasonable, inordinate and without basis as it was done mala fide. That the rejection of service by counsel for the respondents was done in bad faith in order to place the appellants in a difficult position and make it practically impossible to appeal.
Respectively counsel for 1st and 2nd respondent and that of the 3rd respondent disagreed with the position of the appellants holding that the Court of Appeal exercised its discretion properly.
The process of initiating appeals from one stage of litigation to the appellate stage is guided statutorily and by Rules of Court.
Section 27 of the Supreme Court Act, 2004 has provided that where a person desires to appeal to the Apex Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by Subsection (2) of this Section that is applicable to the case.
Subsection (2) of the said Section 27 provides that the period prescribed for the giving of notice of appeal or notice of application for leave to appeal,
(a) In an appeal in a civil case, fourteen (14) days in an appeal against an interlocutory decision and three (3) months in appeal against a final decision.
Then Subsection (3) of Section 27 stipulates that where an application for leave to appeal is made in the first instance to the Court below, a person making such application shall, in addition to the period prescribed by Subsection (2) of this Section, be allowed a further period of fifteen days, from the date of the hearing of the application by the Court below to make an application to the Supreme Court.
It is to be said that the provisions of Section 27(3) of the Supreme Court Act, 2004 are clear and left no room for equivocation and so on the 15th June, 2005 when the Court of Appeal struck out the two pending applications for leave to appeal to the Supreme Court dated 19th February 2005 had ceased to be a competent process and the Court below had no jurisdiction at that point to adjudicate on the application and so when the counsel for the 3rd respondent made the observation regarding the competence, the natural result was that the applications had to be struck out. Therefore
                                                               ……………………. I…………………….
the suggestions by appellant’s counsel of bias on the part of the Court of Appeal or inordinacy and unreasonableness were clearly baseless. This is so because counsel needs be reminded that jurisdiction which implies the power or authority of a Court to adjudicate over a particular subject matter and it is the nature of the claim that determines the jurisdiction of the Court.
Again to be brought out is that all Courts in the land none excepting have no power to endow itself with jurisdiction and in that wise has no power to expand or reduce the jurisdictional boundary. I place reliance on Gafar v Govt of Kwara State & 2 Ors (2007) 1 – 2 SC 189.
It is to be reiterated that appellants in this case cannot be heard to complain about fair hearing when the applications that were struck out were incompetent. That is the exception to the fair hearing principle as it only applies where the part has the right to be heard and when that right does not exist on account of a process that is incompetent or dead on arrival then the party has no leg on which to stand to cry out about fair hearing. See cited: Sosanya v Onadeko (2005) 2 SC. (PT. 11) 13; Bowaje v. Adediwura (1976) 6 SC 143; Owoniboys Tech. Service Ltd v John Holt Ltd (1991) 6 NWLR (Pt. 199) 550 at 559.
Since the application for leave to appeal was struck out for incompetence there is no valid appeal on which the stay of execution application could stand as the non existence of a valid appeal renders the motions for stay of execution pending appeal incompetent and liable to be struck out.
As if the fundamental vice discussed above are not enough, the Notice of Appeal which is the initiating process to this Court was signed by “Kayode Alli Balogun & Co”. That clearly is not signed by a legal practitioner as provided for by Order 6 Rules 2 (4) of the Court of Appeal Rules, 2011 and the Supreme Court has put its stamp of interpretation on who can sign an originating process upon which the process would be taken as valid.
In the case of SLB Consortium Ltd v NNPC (2011) 9 NWLR (Pt. 1252) 317, this Court had interpreted Order 26 Rule 4 (3) of the Federal High Court (Civil Procedure) Rules, 2000 which stipulates that “Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.
Order 3 Rule 12 (3) of same Federal High Court provides that every originating process shall be signed by the Legal Practitioner or by the plaintiff where the plaintiff sues in person.”
My learned brother, Rhodes-Vivour JSC in the said SLB Consortium Ltd v NNPC (supra) spelt out the position at pages 237 – 338 thus:
“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 written.
Thirdly, who the counsel represent.
Fourthly, name and address of legal firm.” His Lordship further held at 337 (para G) that
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)”
In the lead judgment, Onnoghen JSC at pages 331 – 332 (para H – A) held 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 write his own name over and above the name of his/or firm in which he

                                                                         ……………………. J…………………….
carries out his practice.
It has been argued that noncompliance with the provision of Order 26 Rule 4(3) supra is mere irregularity…….as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v Nkemdilim (supra)…… the provision of the Rules of Court involved herein are, by the wordings mandatory not discretionary.”

The Court of Appeal followed that interpretation in the case of: Olagbenro v Olayiwola (2014) 17 NWLR (Pt. 1436) 313 at 366 to 367 (para H – C), where the Court of Appeal per Uwa JCA held thus:
“The learned counsel to the respondents had argued that with the amendment of the writ of summons and statement of claim granted by the trial Court, the 1st  3rd appellants could not be heard to complain about the incompetence of the amended processes. The learned counsel tried to distinguish Okafor v Nweke (supra) Oketade v Akinwumi (supra); SLB Consortium Ltd v NNPC (supra) and First Bank Plc & Anor. v Salmon (supra) from the Present case and gave reasons why they should be distinguished, two of which are that in the above cases, the Processes were notices of appeal, secondly no amendment had been sort and granted to amend the original processes. This argument is not tenable in law whether the originating process is a notice of appeal, writ of summons or statement of claim, it makes no difference, once such process is not signed by a legal practitioner where required, it is incompetent.
On the issue of amendment…..it is the law that an incompetent process cannot be amended”.

See also the Supreme Court decision in Nigeria Army v Samuel (2013) 14 NWLR (Pt. 1375) 466 at 483 (Para E – H), where the Court per Onnoghen JSC (as he then was) held thus:
“N. O. O. Oke & Co. is not a legal practitioner registered in Nigeria to practice law and thereby clothed with the powers to sign/frank legal documents and file same in the Court of law, it is also not a legal person known to law which makes its position worse………..
The lack of legal personality is a fundamental defect which cannot be cured by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the notice of appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void.”

Similarly, at page 486, F- G of the above case, His Lordship Ogunbiyi, JSC in his respect held thus:
“The Originating notice of appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and as contended by the respondent’s counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand thereon”.
Akaahs JSC in the same SLB Consortium Ltd v NNPC in dealing on what should obtain upon an amendment of the defective notice of appeal stated thus:
“The Originating process i.e. the notice of appeal (which was purportedly amended) upon which the lower Court allowed the appeal from the General Court Martial was fundamentally defective which could not be cured by an amendment. Consequently the judgment of the lower Court predicated on an invalid notice of appeal is a nullity”.
From the above guides of this Court, it follows that the amendment granted by this Court by which the signature column was rectified was an amendment in futility as the motion on notice of 10th March, 2017 seeking leave to amend the defective notice of appeal was a prayer to resuscitate a dead process and so the grant was erroneously made and the error has to be admitted.
                                                                                   ……………………. K…………………….
From the foregoing, whether in respect of the incompetent Notice of Appeal on account of effluxion of time or the wrongly signed purported Notice of Appeal this appeal lacks merit and the Court of Appeal was right in striking out the defective process. I am at one with the well rendered lead judgment I too strike out the appeal for incompetence.
I abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: I had the advantage of reading before now, the judgment rendered by my learned brother Clara Ogunbiyi JSC, I am in entire agreement with the reasoning therein and the conclusion arrived at that this appeal lacks merit and deserves to be dismissed. I abide by the consequential orders made in the lead Judgment.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Clara Bata Ogunbiyi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.

Appearances

Anthony Rotimi Daramola-For Appellant

AND

Olayode Delano with him, A. Oyegbami -for the 1st and 2nd Respondents.
Alex Ejesieme with him, M. Oputa and C. Nweke -for the 3rd Respondent.

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