JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
1. ALHAJI ABDULLATIF HASSAN
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal is
against the judgment of the Kano state High Court
delivered on 31st January 2008, by Hon. Justice A. M.
Haliru (of blessed memory).
The judgment was levied on the property of the first Respondent at Kawaji Quarters in Kano, specifically on property covered by certificate of occupancy No. CON/RES/95/282. The 4th and 5th Respondents in this appeal sold the said property by auction on 12th July 1999 to Bashir Abubakar who eventually sold the property to the Appellant herein Ibrahim Adamu.
challenged the consent judgment of the Borno Upper Area
Court, the Borno State High Court sitting as an
Appellate Court set-aside the consent judgment of the
Upper Area court. The 1st, 2nd and 3rd Respondents filed
action against the Appellant at the lower court in Kano
on 4th July 2005, claiming jointly and severally against
the Appellants as follows:
1. A Declaration that the first Plaintiff is the legal and lawful owner of the property situate at Kawaji Quarters Kano and covered by certificate of Occupancy No. LKN/CON/RES/95/282, having validly obtained judgment against the 1st defendant.
2. A declaration setting aside the sale of the 1st Plaintiffs said property based on a judgment validly over-ruled on appeal.
An order of mandatory injunction commanding the
4th defendant whether acting by themselves or their
servants, privies, assigns or whatsoever called, to
vacate the premises of said property by leaving same
4. General damages.
NO. 65, IBRAHIM TAIWO ROAD, KANO.
trial judge erred in law, when in his judgment found as
"On the issue of application of Section 47 and 48 of the Sheriffs and Civil Process Act, I hold that since the claim on loss of title to the property is grounded on the nullification of the judgment being retrospective to the decision of the UAC, on all actions consequent to it, the issue is not that of irregularity in Section 47 and 48 of the Sheriffs and Civil Process Act. In the end I hold that, the plaintiffs are entitled to all their reliefs and grant them accordingly except general damages which the plaintiff never bothered to substantiate in the evidence of PW1".
The learned trial judge erred in law, when in his judgment delivered on the 31st January 2008 found as follows:
"This brings to me the issue of non-joinder of Alhaji Hamdan and Bashir Abubakar, to which I say that, even though they are necessary parties to the Defence, they are not from peculiar facts of this case which is the reversed judgment of the Maiduguri UAC necessary parties for the plaintiffs case. In the circumstances, since the basis for the title passed to the 1st Defendant, has collapsed with exhibit I the 1st plaintiff is entitled to his reliefs".
The learned trial judge erred in law, when he held in his judgment delivered on the 31st January 2008 as follows:
"At this stage, it is pertinent to review the supposed area of divergence as to who the auction winner was by saying that, since DW1 has traced his title to Bashir Abubakar, it matters less to refer to him as the person who won the auction".
Mustapha Bulama settled Appellants brief of argument,
and distilled from Appellants grounds of appeal the
following issues for determination:
1. Whether the failure of the Respondent to institute action to set aside the auction sale conducted by the 4th and 5th Respondents within 21 days of the said Auction sale as provided by the provision of the Sheriffs and Civil process Act, Laws of the Federation 2004 deprived the lower trial court of the jurisdiction to grant the reliefs claimed by them.
2. Whether the lower court was right to determine this action without joinder of Hamdan Idriss and Bashir Abubakar, whom he found in his judgment as necessary parties.
3. Whether on the basis of the pleadings filed by the parties before the court and evidence led, it is correct to say that, the Appellant was the one to whom the said property was auctioned to at the auction sale conducted on the 12th July 1999 by the 4th and 5th Respondents if not what is the effect on the claim of the Plaintiffs/Respondents.
4. Whether, the originating processes filed in this matter, the writ of summons and the statement of claim could be said to be capable of vesting jurisdiction in the trial court to proceed with hearing of the plaintiffs/Respondents claim.
brief of argument was settled by learned counsel
Okechukwu Nwaeze who nominated on behalf of the
Respondent the following three issues:
Whether the learned trial judge was bound to
apply the provisions of Sections 47 and 48 of the
Sheriffs and Civil Process Act, Laws of the Federation
2004, in an action for declaration of title to land
covered by Kano State Certificate of Occupancy No.
CON/RES/95/282 before it.
2. Whether the learned trial judge was right to hear and determine the case before it in the absence of persons whom it has ruled were not necessary parties to the plaintiffs case before it.
3. Whether in the interest of justice, the judgment of the lower court could be affected and or set aside solely on the fact that, the Respondent averred that, the Appellant was the winner of the auction whilst the Appellant averred and led evidence to prove that he purchased same from Bashir Abubakar.
brought preliminary objection challenging the competence
of the initiating processes before the lower court that
the initiating processes with which the action before
the trial court was commenced were not in accordance
with Section 2(1) of the Legal Practitioners Act Laws of
the Federation of Nigeria 2004 as amended. That the name
Okechukwu Nwaeze & Co is a business name.
"4. That, I am informed on the 10th December 2013 at about 5:00pm by Baba Duna Abubakar Esq. a counsel in our chambers situate at No. 144 Ibrahim Taiwo Road Kano, which information I verily believe to be true as follows:
That he has read the printed record of
proceedings in this matter.
That, from the documents contained in the printed
record, the initiating processes in this matter was
commenced by filing of writ of summons and statements of
That both the writ of summons and the statement
of claim with which the action was commenced, were not
duly signed by a legal practitioner, whose name is on
the roll of the Legal Practitioners and was not equally
signed by the plaintiff".
Learned counsel Mustapha Bulama submitted argument at page 7 to l0 of Appellants brief of argument. Preliminary objections are usually on points of law and consequently filing of affidavit is in most cases not necessary, but where the party objecting feels the need or thinks it desirable to rely on facts, in such circumstance an affidavit ought to be filed. See CONTRACT RESOURCES NIG. LTD & ANOR v. UBA PLC SC. 292/2003.
Bulama said the objection is basically on the
jurisdiction of the trial court, counsel said Appellants
raised this issue on appeal with the leave of the Court
of Appeal granted on 27th November 2013.
Mr. Bulama said the objection is targeted at the jurisdiction of the trial court to hear and determine the action filed by the plaintiffs/Respondents. Counsel said the writ of summons filed before the lower court dated 4th July, 2005 found at pages 2 - 7 and 134 - 139 of the record of Appeal were not signed in the manner prescribed by law. Learned counsel said the processes ought to be signed by the plaintiff or a legal practitioner acting on behalf of the plaintiff whose name is on the roll of legal practitioners qualified to practice as Barrister pursuant to Section 2(1) of the Legal Practitioners Act 2004.
above decision has clearly and sufficiently settled
the narrow issue in this appeal.
Supreme Court of Nigeria gave reasons behind the
conclusion in OKAFOR & ORS v. NWEKE & ORS.
(2007) NWLR (Pt. 1043) 521, the rationale behind the
decision is that members of the Bar must note that
processes signed by firm of Legal Practitioners in
their firm name are incompetent, the decision is to
inject sanity and quality in Legal practice. The
decision is not designed to shut the doors of the
court house against litigants, certainly litigants
will be left with option to return to court to
commence their suits a fresh if they desire so doing.
conclusion that must be reached in this matter is that
the documents are incompetent and are struck out,
leaving the applicants with the opportunity to present a
proper application for consideration by this Court. The
effect of the ruling is not to shut out the applicant
but to put the house of the legal profession in order by
sending the necessary and right message to members that
the urge to do substantial justice does not include
illegality or encouragement of the attitude of "anything
We join in
sending similar message to members of the Legal
Profession by upholding the Preliminary Objection in
this appeal, and holding that Plaintiffs/Respondents
writ and statement of claim at the lower court suffer
incurable defects deserving of instant termination.
allowed and Suit No. K/407/2005 is hereby struck out.
I agree with the judgment just delivered by my learned brother, Abubakar, J.C.A. The civil proceeding before the lower Court was initiated via a fundamentally defective originating process and a pleading. As was depicted, the Writ of Summons and the Statement of Claim filed by the Respondents at the Kano State High Court in suit No.K/407/2005 were all authenticated by Okechukwu Nwaeze & Co., a Law Firm, not being a human or living person called to the Nigerian Bar and enrolled to practice as a Barrister and Solicitor of the Supreme Court of Nigeria. See Order 25 Rule 4 of the Kano State High Court (Civil Procedure) Rules which provides inter-alia that pleadings shall be signed by a Legal Practitioner, or by the party if he sues or defends in person.
improper where a law firm is consulted by an
individual for legal services, indicate on the
initiating process that such a process is signed by
the law firm. The law firm is incapable of signing the
process. It is incapable of pursuing the appeal to its
logical conclusion, as it lacks these human qualities.
It has to act through natural persons or human beings.
Once an initiating process, be it Writ of Summons or
notice of Appeal is not signed or authenticated either
by the litigating party or the legal practitioner on
his behalf, then the process is invalid and the
jurisdiction of the Court ousted. The defect is taken
as incurable and the process signed in the name of the
legal firm would not suffice. In the instant case, the
notice of appeal, not having been signed by a human
person, where as appellant or Legal Practitioner, was
invalid; the implication of which was that there was
no appeal." (underlined for emphasis)
Further, in Alawiye v. Ogunsanya (2013) 5 NWLR Part 1348 page 570 at 581 to 584, Chukwuma-Eneh, J.S.C held that:
"A law Firm is not a legal person and so cannot under the Legal Practitioners Act sign and issue legal processes being a non-cognizable person under the Act. A legal process signed and issued by a law firm is incompetent and is liable to be set aside. Processes must be signed and issued by a person as enrolled to practice law in Nigeria under the Legal Practitioners Act. Anything short of signing and authenticating legal processes in that manner is unacceptable”.
In the instant case, the Writ of Summons, the statement of claim and the notice of cross-appeal signed and issued in the name of "Chief Afe Babalola, SAN & Co." were nullities and void ab initio. The law firm is not a Legal Practitioner known to law. Okafor v. Nweke (2007) 10 NWLR Part 1043 page 521; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR Part 1252 page 317 referred to page 611-612 paragraphs G-H; page 617 paragraphs E-G. All processes filled in Court are to be signed as follows:
(a) The signature of Counsel, which may be any contraption;
(b) The name of Counsel clearly written;
(c) The party Counsel represents;
(d) Name and address of Law Firm.
In the case of FBN. Plc v. Maiwada (2013) 5 NWLR Part 1348 page 444 at 455 and 461, Fabiyi, J.S.C. expressed thus:
"It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in Okafor v. Nweke is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated.
I cannot trace the issue to the domain of public policy. The convenience of counsel should have no pre-eminence over the dictate of law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and legal Practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession."
There is a
clear breach of the provisions of sections 2(1), 4(1)
and 7 of the Legal Practitioners' Act by the
Respondents' Counsel. The said provisions were not
complied with, in other words, they were contravened. It
is trite that when a law is breached or disobeyed, an
action carried out as a result of the breach or contrary
to the dictates of the law, is illegal, null and void,
therefore, any Court process not authenticated by the
person authorized by Law to so author, is fundamentally
defective and incompetent. It is settled that where
there is non compliance with a stipulated precondition
for the commencement of an action or for setting a legal
process in motion, any suit or action instituted in
contravention of such a precondition provision of the
relevant law or statute is regarded as incompetent and
as such, the court in which the action is instituted or
sought to be instituted lacks the jurisdictional power
to entertain the suit or action - See UBA Plc v. Ekpo
(2003) 12 NWLR Part 834 page 322.
privileged to read in draft the succinct judgment
prepared by my learned brother, Tijjani Abubakar, JCA,
with which I agree and adopt as my judgment in the
appeal with the addition, by way of emphasis, that any
court process signed "and Co" as was the originating
process in the suit at the court below which was signed
by "Okechukwu Nwaeze and Co" is incurably defective and
must be struck out on that score. See SLB Consortium
Ltd. v. NNPC (2011) ALL FWLR (Pt. 583) 1875, Bello v.
Adamu (2012) 3 NWLR (Pt. 1287) 286, Braithwaite v. Skye
Bank PLC (2013) 5 NWLR (Pt. 1346) Page 1.
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