In The Court of Appeal of Nigeria
On Tuesday, the 31st day of October, 2017
Before Their Lordships
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
CHIEF RUFUS ADEGBUYI –Appellant
TRANS NIGERIA ASSURANCE CO. LTD –Respondent
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Oyo State High Court sitting in Ibadan, delivered on the 20th day of March, 2003 in Suit No: I/656/98.
By paragraph 19 of the Amended Statement of Claim dated the 11th day of May, 1999, the Appellant who was the Plaintiff prayed the Court below to grant him the following reliefs:
1. Declaration that the Counter indemnity dated 15th day of September, 1997 in favour of the Defendant covers only the period of 15th September, 1997 to 14th day of November, 1997 and that any act(s) or transaction(s) made thereafter null and void and of no effect
2. An order revoking and or setting aside the said Counter Indemnity.
3. Declaration that the defendant is not entitled to retain Plaintiff;s title documents presently in its custody pursuant to Counter Indemnity No. PB/17213/H beyond 14th day of November, 1997 having regard to the provisions of the last two paragraphs of the Performance Bond No. PB/17213/H executed on September 15th, 1997 in favour of the Oyo State Government.
4. An order directing the Defendant to return forthwith to the Plaintiff the following title documents of the Plaintiff (a) Original Certificate of Statutory Right of Occupancy dated 6th June, 1982 and Registered as No.41 at page 41 in Volume 2426 in the Lands Registry, Ibadan; and (b) Approved Building Plan No. 37/C/45674 dated 14th September, 1978 both in respect of his Building consisting of offices, stores and mechanic workshop situate, lying and being at KM7, Old Lagos Road, Podo, Ibadan Oyo State of Nigeria deposited with the Defendant for the purpose of the said Performance Bond and Counter Indemnity.
The case of the Plaintiff/Appellant briefly is that, a Messrs Gem Touch Nigeria Limited, one of whose Directors was Yemisi Adegbuyi a daughter to the Plaintiff/Appellant, was awarded a contract for the supply, delivering and installation of Alternative Package Air-Conditioning System in the Banquet Hall, Government House, Ibadan by the Oyo State Government. That in pursuance of the contract, Messrs Gem Touch Nigeria Limited was required to produce a Performance Bond from the Defendant/Respondent to the Oyo State Government. Being that the Plaintiff/Appellant’s daughter was a Director of Gem Touch (Nig.) Ltd, the Plaintiff/Appellant deposited some title documents to the Defendant/Respondent as security for the Performance Bond. In further pursuance of the Performance Bond, the Plaintiff/Appellant signed a Counter Indemnity No. PB/17213/H dated the 15/9/97 to cover the Performance Bond.
The title Deeds deposited and the Counter-Indemnity signed by the Appellant was on condition that the Performance Bond will cover the sum of Four Million, Four Hundred Thousand Naira (N4,400,000.00) only. The said sum was to be paid in block before the expiration of the Performance Bond which was to cover the period of two months from 15th day of September, 1997 to 14th day of November, 1997. That the Oyo State Government failed to pay the sum of N4,400,000.00 before the expiry of the Performance Bond. The Appellant therefore contended that, if the Oyo State Government made any payment to Messrs Gem Touch (Nig.) Ltd, it was not in accordance with the terms of the performance Bond; and therefore the Respondent could not enforce the Counter-Indemnity. The Plaintiff/Appellant also contended that, he neither extended the validity of the Performance Bond nor was the Performance Bond extended with his knowledge or consent as there was no renewal clause in the Performance Bond and the Counter Indemnity.
The Defendant/Respondent on the other hand contended that, Messrs Gems Touch (Nig.) Ltd had by a letter dated the 11th day of November, 1997 applied for extension of the Performance for a period of two months and that same was duly extended. That since the Appellant was not a party to the Performance Bond, he had no capacity to enforce any right under it. That, due to non-performance of the contract by Gems Touch (Nig.) Ltd., the matter was referred to the Property Funds (Recovery and Investigation) Panel by the Oyo State Government whereof the Panel ordered that the Appellant???s property be forfeited to the Oyo State Government due to non-performance of the contract by Gems Touch (Nig.) Ltd.
At the trial, the Appellant testified in support of his case but called no other witness. The Respondent also called one witness. Several documents were tendered and admitted in evidence. Counsel addressed the Court, and in a well-considered judgment delivered on the 20th day of March, 2005, the learned trial Judge dismissed the Plaintiff/Appellant’s claims entirely. Being dissatisfied with the judgment, the Appellant has appealed to this Court.
The Notice of Appeal which is at pages 93 – 94 of the record of Appeal was dated and filed on the 02/4/2003. It consists of two Grounds of Appeal.
In the process of writing this judgment, I noticed a fundamental defect in the Writ of Summons filed on the 22/10/98 at pages 1 – 3 of the Record of Appeal, the Statement of Claim dated the 21/10/98, the Amended Statement of Claim dated the 05/5/99 and filed on the 06/5/99, the Amended Statement of Claim dated and filed on the 11/11/99, Amended Statement of Claim dated the 18/5/99 were all issued in the name of a Law Firm. So also are the Statement of Defence dated the 6/4/99 and filed on the 07/4/99 and the Statement of Defence dated the 12/5/99 and filed on the 13/5/99. The law has now been settled since the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521, that a Law Firm is not a Legal Practitioner known by the law and therefore cannot legally sign and/or file any process in our Courts. That, any Court process signed by or in the name of a Law Firm is incompetent, null and void. In that case, the applicant filed a Notice of Cross-Appeal, Brief of Arguments and a Motion on Notice, all signed in the name of a Law Firm known as J.H.C. Okolo, SAN & Co. In determining the competence of those processes, the Supreme Court had recourse to Sections 2(1) and 24 of the Legal Practitioners Act, Cap.207, Laws of the Federation of Nigeria, 1990, to hold as follows:
The question that follows is whether J.H.C. Okolo SAN & Co. is a Legal Practitioner recognized by the law? From submissions of both counsel, it is very clear that the answer to the 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 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 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 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’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 cited decision generated a lot of furore and pandemonium within the legal community in Nigeria, such that the Chief Justice of Nigeria had to empannel a full compliment of the Supreme Court to put the issue to rest. That was in the case of First Bank of Nigeria Plc & Ors v. Alhaji Salmanu Maiwada & Ors (2012) LPELR 9713 (SC). Therein, Fabiyi,
JSC who read the lead judgment said:
The decision in Okafor v. Nweke was based on a substantive law- an Act of the National Assembly i.e the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC at page 534 of the judgment in Okafor v. Nweke: It would have been quite another matter if what is in issue is a mere compliance with Court rules. Let me say it bluntly that where the provisions of an Act like the Legal Practitioners Act is at play, as herein, provisions of Rules of Court which are subject to the law must take the side line.”
The Supreme Court also had the opportunity of reviewing other earlier cases on the point, such as, SLB Consortium Ltd v. NNPC (2011) 9 NWLR (pt.1252) 317; Ogundele v. Agiri (2009) 18 NWLR (pt. 1173) and Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63, and further held per Adekeye, JSC that:
the Supreme Court shall usurp the role of the legislature by not interpreting the law as it is but by interpreting it as it ought to be. In these appeals, the points raised are not issues of procedural irregularities or instant technicalities but that of tardiness of the legal practitioners in their duties towards their clients. It is all about putting the Court in that awkward position of having to strike out cases and by so doing visiting the clients with the suits of their counsel. It is the impression of the Courts now that the principle that a party should not be punished for the mistakes of his counsel need to be qualified. This is because, if Courts are to allow litigant to plead every wrong step counsel took in the prosecution of their clients case, and uphold such plea, such liberal access to this laudable legal principle will engender a retrogressive effect which cannot be imagined. The Court will only uphold it where the peculiar circumstances justify resort to it.
It therefore remains the law, at least as of now, that any Court process required to be issued or signed by a legal practitioner, must be issued or signed by or in the name of a person registered to practice as a Barrister and Solicitor of the Supreme Court of Nigeria by virtue of Sections 2(1) and 24 of the Legal Practitioners Act (Supra). In other words, the person issuing or signing any Court process as a Legal Practitioner must have his name on the ROLL kept at the Supreme Court. Accordingly, where a legal practitioner purporting to issue or sign a Court process, issues or signs same in the name of his Firm, such process would be incompetent, null and void ab initio. The effect would be that, the Court will not have the jurisdiction to hear and determine the matter on such a void process. Thus, where the Court hears and determines the matter on such incompetent and void process, the entire proceeding and the judgment given thereon will be a nullity. See Mr. Samir Sulaiman v. Sword Sweet & Confectionery (Nigeria) Limited & Ors (2009) LPELR 8749 (CA); KLM Royal Dutch Airlines & Anor v. Chief Yakubu Toba & Ors (2014) LPELR 23993 (CA); S.P.D.C. Nigeria Ltd v. Sam Royal Nigeria Limited (2016) LPELR 40062 (SC); Zenith Bank Plc v. Mrs Elizabeth Umom (2013) LPELR 22001 (CA) and Alhaji Isiyaku Yakubu v. Federal Mortgage Bank of Nigeria Limited (2014) LPELR 24188 (CA). In the case of Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR 24302 (SC), Peter-Odili, JSC further cleared the air when he said that:
From what is put across by learned Counsel for the Respondent to which learned Counsel for the Appellant merely glossed over and in doing that failed to appreciate the danger their processes and competence were in, I find it easy to go along with the contention of the Respondent that the Appellant’s Statement of Claim on which evidence was led is a nullity having not been signed by a legal practitioner as known by the definition of Section 24 of the Legal Practitioners Act and so the Statement of Claim has to be struck out as a nullity and of course along with the striking out would be evidence hanging on the purported pleadings. This is a situation well established by this Court in Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521.
In the same vein, My Lord, Ogunbiyi, JSC in the case of Senator Rashidi Adewolu Ladoja v. Senator Abiola Adeyemi Ajimobi & Ors (2016) LPELR 40658 (SC) said:
It is expected as a matter of duty on the Court to have struck out the purported Notices of Appeal which are deemed to constitute originating process. See Okafor v. Nweke (2007) 10 NWLR (pt. 1043) 521. Also the case of Okarika v. Samuel (2013) 7 NWLR (pt. 1352) 19 at 27 wherein this Court affirmed that an initiating process whether Writ of Summons, Originating Summons or Notice of Appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute between them.”
It should be noted that such originating process signed in the name of Law Firm is irredeemably defective, and therefore cannot be resuscitated by a subsequent amendment. It is a process that is void, and what is void is void. No amount of ingenuity can give it life. See Tubonemi v. Dikibo (2006) 5 NWLR (pt. 974) 565; Mark v. Eke(2004) 5 NWLR (pt. 865) 54; Macfoy v. U.A.C. (1962) A.C. 152 at 160; Africa Mining Coy. Ltd v. NIDB Ltd (2010) 2 NWLR (pt. 640) 618 at 629 and Uwazurike v. A.G: Federation (2007) 8 NWLR (pt. 1035) 1. Thus, in the case of Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) 466 at 483 paragraphs E – H, His Lordship Onnoghen, JSC (as he then was) held that:
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 capacity personality is a fundamental defect which cannot be cured even 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.”
In the instant case, as I noted earlier, the Writ of Summons and the Statement of Claim, which are the originating or initiating processes were issued and signed in the name of Kunle Faokunla & Co., a Firm of Legal Practitioners. It is beyond argument, to say that Kunle Faokunla & Co., is not the name of a person registered in the Roll of Legal Practitioners kept in the Supreme Court of Nigeria. The Statement of Defence filed on the 07/4/99 was also signed by Ogunkeye & Ogunkeye, also a firm of Legal Practitioners. Those initiating processes were ab initio void and could therefore not be remedied by any subsequent amendment. That being so, the entire proceedings of the Court below conducted on the basis of those void processes, including the evidence adduced in those processes and judgment thereon is a nullity. In the eye of the law, such processes did not exist as to have conferred jurisdiction on the trial Court to hear and determine the matter predicated therein. The only remedy is to have same struck out.
Having thus found, I am of the view that this appeal be and is hereby allowed on the ground that the originating or initiating processes leading to the judgment of the Court below are void. The Writ of Summons filed on the 22/10/98, the Statement of Claim, both issued and signed in the name of Kunle Faokunla & Co. are accordingly struck out. So also is the Statement of Defence filed on the 07/4/99 in the name of Ogunkeye & Ogunkeye. Consequently, the judgment of the Oyo State High Court, Ibadan Judicial Division, delivered on the 20th day of March, 2003 in Suit No. I/656/98 is hereby set aside.
MODUPE FASANMI, J.C.A.: I had a preview of the draft of the judgment of my learned brother Haruna Simon Tsammani, JCA just delivered.
I agree entirely with the reasoning and conclusion therein. The appeal is meritorious and it is also allowed by me on the ground that the originating processes leading to the judgment of the Court below are incompetent and void ab initio. I abide by the consequential orders contained therein.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. I agree with his reasoning and conclusions. Again the vexed question of signing of Court processes by a non legal practitioner – a law firm. The action giving rise to the judgment was instituted in 2003 before OKAFOR v. NWEKE (2007) 10 NWLR (PT. 1043) 521. All legal practitioners have by now learnt that there is no saving grace when originating processes are signed by a law firm. Any such error will surely result in the striking out of the offending process. Here the issue was not raised by any of the parties. The defects in the processes were discovered by my learned brother Tsammani JCA. His lordship took it up suo motu and wrote the judgment without inviting the parties to address him on the issue as is usually the case. However, this particular point of law is now so trite and the outcome so certain that it is a waste of time to call for address. The outcome is known to all and none of the sides will feel prejudiced by the failure to call for address. It could now be regarded as an exception to the rule. My learned brother has dealt exhaustively with the relevant points. There is nothing more to add. I also allow the appeal. I abide by the consequential orders in the lead judgment.
Parties are absent and unrepresented. –For Appellant
Parties are absent and unrepresented. –For Respondent