CENTRE FOR

JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One


Home Nigeria
Constitution Attorneys General
Law Firms Judiciary
Legislature
About Us












ASOL NIGERIA LIMITED

V.

ACCESS BANK NIG PLC

Date

21st March, 2014

Practice Area

1.   DEBTOR CREDITOR

2.   BANKING AND FINANCE

3. LITIGATION

Originating State

LAGOS HIGH COURT OF JUSTICE (A. A. OYEBANJI J.)

Court

COURT OF APPEAL

Citation(s)

CA/L/164M/10, (2014); LN-e-LR/2014/21 (CA); LPELR-22524(CA)

Judge(s)

SIDI DAUDA BAGE, JOSEPH SHAGBAOR IKYEGH, RITA NOSAKHARE PEMU JJCA

Counsels

Alade Agbabiaka, SAN with G. K. Abdulsalam for Appellant

Richard Oluwole with D. Ajayi for Respondent

Main issue(s)

EVIDENCE-effect of facts admitted

APPEAL- consequence of an issue for determination not deriving from any ground of appeal

PRACTICE AND PROCEDURE- validity of application signed by entity unknown to law- whether the law takes a retrospective effect or it is protective having subsequently come into effect

Cases referred to

A.I.C LIMITED V. NIGERIAN NATIONAL PETROLUEM CORPORATION (2005) 1 NWLR (pt 937) 563

ATTORNEY GENERAL OF THE FEDERATION V. CHIEF PATRICK IBIKUNLE FAFUNWA-ONIKOYI & ORS (2006) 18 NWLR (PT 1070) 51

HONOURABLE ABRAHAM ADEOLU ADELEKE & ANOR V. OYO STATE HOUSE OF ASSEMBLY & ORS (2008) 11 NWLR (Pt 990) 521

VICTOR ADELEKAN V. ECULINE (2006) 12 NWLR (PT 993) 33

ALHAJI IBRAHIM TAHIR V. KAPITAL INSURANCE CO. LTD (2006) 13 N.W.L.R (pt. 997) 452

THE STATE v. GRACE ABRAHAM AKPABIO (1993) 4 NWLR, (pt 286) 204

EMMANUEL OKAFOR 7 ORS V. AUGUSTINE NWEKE & ORS (2001) 10 NWLR 9 (PT 1043) 521

ONIAH V. ONYA (1989) 1 NWLR (Pt. 99) 514

CHIEF E.I. EZENDUKA V. NIEN SPANISH ENGIN (2002) 1 NWLR (Pt. 745) 469

UMOH V. INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4 NWLR (Pt. 703) 281

ADEROUNMU V. OLOWU (2000) 25 CNJ 180

GOV. OF OYO STATE V. FOLAYAN (1995) 95 CNJ 50

OWATA V. ANYIGOR (1993) 2 NWLR (Pt. 276) 380

COLE V. MARTIN (1968) 5 NSCC 120

NIGERIAN BOTTLING COMPANY PLC V. STEPHEN OBOH (2000) 9 WRN 114

CAPPA & DALBETO V. AKINTOLA (2003) 9 NWLR (Pt. 822) 49

OGUNAIKE V. OYAYEMI (1987) 1 NWLR (Pt. 53) 760

ADEWUNMI V. WESTEX (1987) 3 NWLR (Pt. 32) 767

MOSHESHA GENERAL MERCHANTS V. NSL (1987) 2 NWLR (Pt. 55) 100

FIRST BANK OF NIGERIA PLC & ANOR V. ALH. SALMANU MAIWADU & ORS. (2013) 5 NWLR (Pt. 1348) 444

BRAITHWAITE V. SKYE BANK PLC (2013) 5 NWLR (Pt. 1346) 1

 

 

FULL REPORT

 

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment):

 

This appeal is against the decision of the Lagos High Court of Justice presided over by Honourble Justice A. A. Oyebanji and contained in her ruling dated 5th October, 2006.(Found on pages 62-70 of the record of appeal).

In her said ruling, the learned trial judge refused the application of the Appellant (then judgment creditor/Applicant) for the release to it of the sum of N17, 492,081.11 representing the judgment sum awarded it by the learned trial judge in her judgment of 2nd December, 2005 (found on pages 49-53 of the record) entered in favour of the Appellant/judgment creditor on the basis of admissions made by the Respondent/Judgment Debtor in its pleadings before the court below, together with interest therein (see application on pages 36-48 of the record of appeal) and which said amount was and still is in the custody of the Chief Registrar of the Lagos High Court consequent upon an order of interim preservation of the court made on the 20th of December, 2004 (found on pages 34 and 35 of the record of appeal).
The learned trial judge had maintained in her said ruling that in view of the fact that the substantive suit/matter was still pending in the High Court, the release of the said judgment sum should await the final judgment in the substantive suit.
Being dissatisfied with the said ruling, the Appellant appealed the same, vide its notice of appeal dated 18th October, 2006 (found on pages 136 to 138 of the record of appeal).


This brief is in support of arguments in respect of the said appeal against the ruling of the learned trial judge of 5th October, 2006, refusing the Appellant's application for the release, by the Chief Registrar of the Lagos High Court of Justice, of the said judgment debt of N17, 492,081.11 plus all accrued interest thereon, consequent upon the entry of judgment for the said amount in the Appellant's favour by the learned trial judge on the basis of admissions made by the Defendant (now Respondent) in its pleadings.

 

The facts which gave rise to the subject hereof is that the present appellant (as claimant in the court below) had brought an action against the Respondent (as Defendant) by a writ of summons and statement of claim (found on pages 1-10 of the records), praying for the following reliefs:

 

i.        "Payment of the sum of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) being due and payable to the Claimant as money had and received its use and benefit. Or ALTERNATIVELY damages for conversion in the sum of N17, 492,081.22 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo.)

 

ii.       Payment of interest on the said sum of N17,492.081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) at the rate of 21% per annum from the 22nd of January, 2002 till the date of judgment herein and thereafter at the rate of 10% per annum till final liquidation.

iii.      An order of perpetual injunction restraining the Defendant whether by itself or by its servants, Agents, privies or how whatsoever from further defalcating the Claimant's said current account with it in the said amount of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety-Two Thousand, Eighty One Naira, Eleven Kobo) or any other sum whatsoever standing to the credit thereof and from the continued conversion of the Claimant's funds.

iv.      The sum of N1, 101,988,566.94 (One Billion, One Hundred and One Million, Nine Hundred and Eighty Eight Thousand, Five Hundred and Sixty Six Naira, Thirty Four Kobo) as special damages for the wrongful dishonor of the Claimant's cheques by the Defendant and the defalcation by the Defendant of the claimant's said current account with the Defendant in the sum of N17, 492,081.11

v.       Aggravated and exemplary general damages of N900, 000,000.00 (Nine Hundred Million Naira) for the conversion of the Claimant's cheques totaling N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo), the wrongful dishonor of the plaintiffs cheques and the defalcation if its current account by the Defendant.

vi.      Cost.

Following the exchange of pleadings by the parties, the Respondent (then Defendant) had made certain admissions of facts in its statement of Defence (found in pages 11 to 13 of the record so wherein it admitted the Appellant's claim to the sum of N17, 492,081.11 (seventeen million, four hundred and ninety two thousand eighty one naira, eleven kobo) which represented the total number of cheques drawn in its favour and unlawfully and/or illegally cashed/cleared by the Respondent as its banker without the authority, consent and/or knowledge of the Appellant, who was the drawee of the said cheques, all of which were marked 'A/' or 'Account payee only'.


Consequent upon the said admission contained in the statement of defence of the Respondent (then Defendant) the Appellant then brought an application dated 13th September, 2005 for judgment to be entered in its favour the sum of N17,492,081.11 plus interest therein at the rate of 21% per annum from 22nd January, 2002 till the date of judgment thereafter at the rate of 10% per annum until liquidation on the basis of admission made by the Defendant in its pleadings (see application on pages 36-48 of the record of appeal).


The learned trial judge on the 2nd of December, 2005 entered judgment in favour of the Appellant for the said sum of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) with interest therein at the rate of 21% per annum from the 22nd January, 2002, until the 2nd of December, 2005 and thereafter at the rate of 10% per annum until liquidation (see pages 49 to 53 of the record of appeal).


Consequent upon the said judgment, the Appellant brought an application dated 9th December, 2005 (found on pages 34 to 61, of the record of appeal) praying for an order of the court below directing and/or instructing the Chief Registrar of the court below to pay the Claimant/Judgment Creditor the said sum of N17, 492.081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) plus accrued interest, which had been kept in his custody following the courts order of interim preservation of 20th December, 2004 (found on pages 34 and 35 of the record of appeal), in satisfaction of the said judgment of the court entered in its favour, of 2nd December, 2005 (found on pages 49 to 53 of the record of appeal). The learned trial judge by its ruling of 2nd October, 2006 (found on pages 62 to 70 of the record) refused the Appellant's said application on the ground that the said judgment was not in respect of the substantive suit.
It is against the said ruling of the learned trial judge that the Appellant has filed the present appeal.

 

From the notice of appeal contained in page 136 of the records, the following two grounds (2) shorn of their particulars are hereunder reproduced.

GROUND 1


The learned trial judge erred in law in refusing to order the release of the sum of N17,492,081.11 (seventeen million, four hundred and ninety two thousand and eighty one naira, eleven kobo) plus accrued interest kept by the Chief Registrar of the Ikeja High Court, following her earlier order of 20th December, 2004, when she ordered the same to be kept in an interest yielding account pending the hearing and determination of the case, on the ground that the said case was not yet determined.

GROUND 2


The learned trial judge erred in law by holding that an interlocutory judgment entered on the basis of admission made by the Defendant is unenforceable before the final determination of the other issues/ claims brought by the claimant in the substantive suit.


From the said grounds of appeal, learned counsel to the Appellant, Alade Agbabiaka SAN, distilled the following two (2) issues for the determination of the appeal as follows:

i.        Whether the judgment of the learned trial judge entered in the Appellant's favour on the 2nd of December, 2005 for the sum of N17, 492,081.11 (seventeen million, four hundred and ninety two thousand eighty one naira, eleven kobo) on the basis of admissions made by the Defendant in its pleadings is not enforceable by the Appellant upon the entry of judgment but must await the determination of the substantive suit.

 

ii.       Whether the decision of the learned trial judgment in refusing the Appellant's application to order/direct the Chief Registrar of the Lagos High Court to release to the Appellant the sum of N17,492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) kept with it under an order of interim preservation consequent upon the courts judgment of 2nd December, 2005 entered in the Appellant's favour for same sum of N17,492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-one Naira, Eleven Kobo) together with interest as claimed by it under reliefs (i) and (ii) of its amended statement of claim, was not perverse and wrong, having regard to the position of the law and to the particular circumstance of the case.

 

The Respondent on the other hand in its brief of argument, settled by one Sheni Ibiwoye Esq. of counsel and dated the 18th of June, 2013 formulated a lone issue for the determination of this appeal as follows:

 

"Given the circumstances of this appeal, was the lower court correct in its decision refusing to release the sum held in the name of the Chief Registrar of the court in the light of the courts preservative order of 20th December, 2004 based on the appellant's application."

 

In addition to this learned counsel to the Respondent filed a notice of preliminary objection dated and filed on the 18th June, 2013. The said notice of preliminary objection brought pursuant to Order 6 Rules 2, 7 and 8 of the Court of Appeal Rules 2011 and Section 2 (1) of the Legal Practitioners Act, CAP L11 LFN 2004. The said NPO, seeks for leave to be heard on the following: (see NPO)

 

1)      An order striking out the two grounds of appeal contained in the Appellant's notice of appeal dated 18th October, 2006 the same not having been derived from any discernable ratio of the decision of the lower court dated 5th October, 2006.

 

2)      An order striking out issue No. 2 formulated for determination by the Appellant as well as the argument based thereon because the issue is not based on any ground of appeal contained in the notice of appeal dated 18th October, 2006.

 

3)      An order striking out the notice of appeal because it does not contain the names and addresses of all the parties directly affected by the appeal.

4)      An order striking out the appeal because the application with which the Appellant initiated the subject matter of this appeal was signed by an entity unknown to law.

 

GROUNDS FOR THE APPLICATION

 

A.       "The notice of appeal does not contain the names and addresses of all the parties directly affected by the appeal contrary to Order 6 Rule 2 of the Court of Appeal Rules, 2011.

 

B.       The application with which the Appellant initiated the subject matter of this appeal was signed by an unknown entity to law contrary to the Legal Practitioners Act, 2004.

C.      The two grounds of appeal contained in the notice of appeal do not derive from any ratio contained in the lower court's decision.

D.      Issue number two formulated for the determination of this appeal by the Appellant does not spring from any of the grounds of appeal."

 

ARGUMENTS ON RESPONDENT'S PELIMINARY OBJECTION


On the Respondent's contention that the two grounds of appeal as formulated by the Appellant are not derived from the ratio of the lower court's decision dated 5/10/2006, at page 68-69 of the record the ratio of the lower court's decision can be distilled thus:

 

"The lower court did not simply said it would not order the release of the held funds pending the hearing and determination of the suit but that she lacked the jurisdiction to vary her initial order that the money be kept in an interest yielding account in the name of the Chief Registrar and the lower court aptly situated the ratio thus:

 

"A grant of the application of the learned SAN will amount to setting aside the earlier order of this court and substituting it with another order when the suit is yet to be determined."

 

Your Lordships can see that the Appellant's two grounds of appeal couched thus without the particulars at pages 136 - 737 of the record DO NOT ATTACH THE RATIO OF THE LOWER COURT'S DECISION and they are reproduced hereunder:

GROUNDS OF APPEAL

1.       "The learned trial Judge erred in law in refusing to order the release of the sum of N17, 492,081,11) (Seventeen Million, Four Hundred and Ninety-Two Thousand and Eighty-One Naira, Eleven Kobo) plus accrued interest kept by the Chief Registrar of the Ikeja High Court, following her earlier order of 20th December, 2004, when she order the same to be kept in an interest yielding account pending the hearing and determination of the case, on the ground that the said case was not yet determined.

 

2.       The learned trial Judge erred in law by holding that in interlocutory Judgment entered on the basis of admissions made by the defendant is unenforceable before the final determination of the other issues/claims brought by the claimant in the substantive suit."

It is glaring that contrary to the second ground of appeal there is no where that the learned lower Court held that an interlocutory judgment entered on the basis of admission is not enforceable until the final determination of the other issued or claims brought before the court in the substantive suit.

 

We submit that the Appellant's two grounds of appeal as contained in the notice of appeal dated and set out above cannot be any stretch of the imagination be said to constitute an attack on any ratio decided by the lower court's decision of.
It is trite law that grounds of appeal are only directed and formulated against the ratio in a decision and never against an obiter or worse still as the Appellant had done in its imagination. See A.I.C LIMITED VS. NIGERIAN NATIONAL PETROLUEM CORPORATION (2005) 1 NWLR (pt 937) 563 @ 589 - 590.

 

We therefore urge the court to strike out the two grounds of appeal and with the attendant consequence that there is nothing left to sustain this appeal and the same is also liable to be struck out also. See ATTORNEY GENERAL OF THE FEDERATION V. CHIEF PATRICK IBIKUNLE FAFUNWA-ONIKOYI & ORS (2006) 18 NWLR (PT 1070) 51 @ 86-87.

 

The Respondent/Applicant will therefore urge your lordships to exercise the Court's power under Order 6 Rule 6 of the Court of Appeal Rules 2011 to strike out the Notice of Appeal dated 18/10/2006. In essence there is no valid notice of appeal to support the appeal, because it is the notice of appeal that gives your Lordship the jurisdiction to hear an appeal and any defect in it goes to the root of the appeal. See HONOURABLE ABRAHAM ADEOLU ADELEKE & ANOR V. OYO STATE HOUSE OF ASSEMBLY & ORS (2008) 11 NWLR (Pt 990) 521 SEE ALSO VICTOR ADELEKAN V. ECULINE (2006) 12 NWLR (PT 993) 33 @ 56.


Issue No 2 as formulated by the Appellant reads:

 

"Whether the decision of the learned trial Judge in refusing the Appellant's Application to order/direct the Chief to release to the Appellant the sum of N17, 492,081.11 (Seventeen Million, Four Hundred and Ninety Two Thousand, Eighty-One Naira, Eleven Kobo) kept with it under the Court's or interim preservation made on the 20th of December, 2004 and consequent upon the court's judgment of 2nd December, 2005 entered in the Appellant's favour for the same sum of N17,492,081.11 together with interest, as claimed by it under reliefs prayers (9i) and (ii) of its amended statement of claim, was not perverse and wrong, having regard to the position of the law and to particular circumstance of the case?"

 

As can be seen above, the thrust of issue No 2 formulated by the Appellant is the fact that the decision of the court being appealed against is perverse and this fact is also supported by its arguments in support of the said issue.
The Respondent will submit that the Issue No 2 based on perversity of the ruling of court as raised by the applied is not supported by any of the grounds of appeal, therefore this renders the said issue incompetent, qud ipso facto the arguments based on the issue.


The rule governing the formulation of issues for determination was brought home by the court in ALHAJI IBRAHIM TAHIR V. KAPITAL INSURANCE CO. LTD (2006) 13 N.W.L.R (pt. 997) 452 according to the Court.

 

"It is indeed trite law that issues for determination which have the function of accentuating the issues in the grounds of appeal should be in concrete terms, arising from and related to the grounds of appeal representing the questions in controversy between the parties. Put in another way, it is that the issue for determination must be formulated with reference to the grounds of the appeal and fall within their purview" Per Nzeako, J.C.A @ 469.

On the consequence of an issue for determination not deriving from any ground of appeal the court further held that an issue for determination which has no arisen from any ground of appeal will be liable to be struck out.

 

We therefore urge your Lordship to strike out Issue No 2 formulated by the Appellant together with the submissions based thereon. See THE STATE v. GRACE ABRAHAM AKPABIO (1993) 4 NWLR, (pt 286) 204 @ 212.

 

The Respondent/Applicant will respectfully refer your lordship to page 36-48 of the record to have a detailed look at the motion for Judgment based on admission upon which the lower Court erroneously granted judgment to the Appellant albeit without jurisdiction.

Your Lordship can see that the motion at page 36 of the record was filed and signed by ALADE AGBABIAKA & CO, similarly the written address at page 42 of the record was signed by the said ALADE AGBABIAKA & CO contrary to Section 2 (1) of the Legal Practitioners Act, CAP LII Laws of the Federation of Nigeria, 2004 which stipulates that only legal practitioners enrolled at the Supreme Court can practice as such and not Law firms like the Appellant had done in this case. This position of the law had been well articulated by the Apex Court in this land in EMMANUEL OKAFOR 7 ORS V. AUGUSTINE NWEKE & ORS (2001) 10 NWLR 9 (PT 1043) 521.
In OKAFOR & NWEKE's case (supra) the Supreme Court set a bar against improper authentication or signing of court processes by law firms or on behalf of laws firms because law firms are not nature persons that can be called to bar to practice as legal practitioners. The court further held that the signing by the law firm will render the affected process incurably incompetent
.


We therefore urge your Lordship to hold that the motion with which the subject matter of this appeal was brought was incompetent and at law nothing can be built on an incompetent process, therefore it cannot birth a valid appeal, with this urge your Lordship to strike out the appeal having been based on an incompetent process.

We therefore urge the court to uphold our preliminary objection and strike out this appeal but in the unlikely event that your Lordship could that this appeal is competent the respondent will formulate its brief of argument as follows:
In reply to the arguments of the learned counsel to the Respondent, learned counsel to the Appellant submitted that, contrary to the argument of the Respondent that grounds 1 and 2 of the ground of appeal are not extracted from any of the ratio decidendi of the decision of the court dated 5th October, 2006, the purpose of an appeal is to challenge the decision of a lower court by asking High Court to look at the various records of the lower court vis-'a-vis the decision of the court and review same.


Learned counsel submitted further that the Application of the Appellant dated 9th December, 2005 for release of judgment sum of (N17,492,081.11), which is for all intent and purpose an application for enforcement or execution of judgment, was brought pursuant to Order 11, Rules of the Judgment Enforcement Rules, CAP. S6, Laws of Lagos 2003 and Order 21 Rule 1(2) of the then Lagos High Court Civil Procedure Rules 2004). See pages 59-61 of the records). (Also pages 62-70 and 69). See also ONIAH VS. ONYA (1989) 1 NWLR (Pt. 99) 514.

Learned counsel submitted further that the law is elementary that whether or not the language or choice of words adopted by a party in couching his or her ground of appeal is same as or ipsisima verba as the one used in the decision, so long as the grounds formulated capture the purview of the judgment being protested by the Appellant, same is competent. See CHIEF E.I. EZENDUKA V. NIEN SPANISH ENGIN (2002) 1 NWLR (Pt. 745) 469. The 1st and 2nd grounds of appeal can be extracted from the whole decision of the court particularly the holding of the learned trial judge at page 69 of the record.

 

Learned counsel submitted further that what makes a ground of appeal incompetent is whether, in the way it is couched, the Respondent is left in doubt and without adequate information as to what the complaint of the Appellant actually is. See UMOH VS. INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4 NWLR (Pt. 703) 281; ADEROUNMU V. OLOWU (2000) 25 CNJ 180.
Learned counsel submitted further that the trial court decided conclusively and finally on who is entitled to and/or who has the right over the sum of N17,492,081.11 vide its judgment of 2nd December, 2005 (found on pages 49-53 of the records).

 

Learned counsel submitted further on the argument that the motion on notice dated 13th September, 2005 on the basis of which the Appellant obtained judgment on admission dated 2nd December, 2005 was signed in the name of Alade Agbabiaka & Co. and therefore same is incompetent, the law that governs a matter/action is the law at time of instituting the said action. See GOV. OF OYO STATE V. FOLAYAN (1995) 95 CNJ 50; OWATA V. ANYIGOR (1993) 2 NWLR (Pt. 276) 380.

Learned counsel further submitted that reference is made to the 1st Respondent's motion on notice dated 13th September, 2005, in that respect, as at 2003 when this suit was filed on the 13th September, 2005 when the application for judgment on admission was filed, the law as to signing of court process applicable was the law as laid down in COLE VS. MARTIN (1968) 5 NSCC 120, under which a legal practitioner who holds himself out as practicing under a firm of legal practitioners is allowed to sign a court process in the law firm's name and same is competent.
Learned counsel submitted further that the decision in OKAFOR VS. NWEKE (2007) 10 NWLR (Pt. 1043) 521 as well as other subsequent decision of court following same (which the Respondent herein seeks to evoke) was decided on 9th March, 2007 exactly about 5 years after instituting of this suit and/or about one and half year after the filing of the application for judgment on admission by the Appellant herein.
The law does not act retroactively. The law that governs an action/matter must be that which was in existence at the time of instituting/filing the matter and not one that comes up subsequent upon filing it for that will not satisfy the end of justice. More so the decision of the trial court dated 2nd December, 2005 with respect to the Appellant's application for judgment upon admission dated 13th September, 2005 was never appealed against by the Respondent herein.


The argument of counsel to the preliminary objection is carefully examined. In determining the objection, this court will consider in the fore most the motion on notice dated the 13th September, 2005, which was signed in the name of "Alade Agbabiaka & Co." This same motion had formed the basis of the judgment obtained on admission, dated 2nd December, 2005. It is not disputed that the motion dated 13th September, 2005, was signed in the name of Alade Agbabiaka & Co.
The law is already trite that, anything admitted, need no further proof. See in NIGERIAN BOTTLING COMPANY PLC v. STEPHEN OBOH (2000) 9 WRN 114; CAPPA & DALBETO VS. AKINTOLA (2003) 9 NWLR (Pt. 822) 49; OGUNAIKE VS. OYAYEMI (1987) 1 NWLR (Pt. 53) 760; ADEWUNMI VS. WESTEX (1987) 3 NWLR (Pt. 32) 767; MOSHESHA GENERAL MERCHANTS V. NSL (1987) 2 NWLR (Pt. 55) 100. What is disputed is the law that governs the subject. The learned counsel to the Appellant maintained that as at the 13th September, 2005, the law as to signing of court processes applicable was the law a laid down in COLE V. MARTIN (supra) under which a legal practitioner who holds himself out as practicing under a firm of legal practitioners is allowed to sign a court process in the law firm's name and same is competent.

The Respondent/Applicant argued on the contrary that the decision of the Supreme Court in OKAFOR V. NWEKE (supra) and other subsequent decision of the court which followed that makes such process as incompetent. The learned counsel relied on sections 2 (1) and24 of the legal practitioners Act.

 

The issue of whether the law takes a retrospective effect or it is protective having come into effect after the current position of law is put to rest by the Supreme Court in its later decision in FIRST BANK OF NIGERIA PLC & ANOR V. ALH, SALMANU MAIWADU & ORS. (2013) 5 NWLR (Pt. 1348) 444 at 483. Paras F-G as to who can sign a court process. The Apex court stated as follows:

"The words employed in drafting Sections 2 (1) and 24 of the Legal Practitioners Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of the Supreme Court."

The question as to whether the Supreme Court's decision in NWEKE V. OKAFOR (supra) cannot have effect retrospectively with matters filed before that decision in 2007 as the case with the instant appeal. The Supreme Court answered that effectively in this case of F.B.N. PLC V. MAIWADA (supra) per Fabiyi JSC at pages 485-487 paragraph H-E:

 

"It was seriously contended that the court did not consider the Registered Trustees' case and COLE VS. MARTINS case while considering OKAFOR V. NWEKE. The inference being drawn is that the decision in OKAFOR VS. NWEKE was rendered per in incuriam.

 

I wish to discuss what happened in the previous two cases determined by this court. In the Registered Trustees case, under Rule 4 of the Registration of Titles (Appeal) Rules, which applied to the Trustees' appeal to the High Court? The notice of appeal must be signed by the Appellant or the legal practitioner representing him and must contain the name of the legal practitioner.


The notice of appeal gave the legal practitioner's name - J.A. Cole & Co. and was signed J.A. Cole for J.A. Cole & Co. After hearing argument on the merits, the Appellate judge, of his own motion and without having invited argument from counsel, dismissed the appeal as not being properly before the court on the ground that the notice of appeal was given by the firm - J.A. Cole & Co. which was not a legal practitioner under the Legal Practitioners Act 1962.

Mr. Cole, a duly registered legal practitioner entitled to practice as such under the Act, practiced alone but unduly registered business name - J. A. Cole & Co; which no professional objection was suggested.


This court held "that the notice filed in the case was given in the prescribed form. It stated the name and address of legal practitioner representing the Appellant as Messrs J.A. Cole & Co. 14/16 Abibu Oki Street, Lagos and was signed by J.A. Cole for 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 but he has registered name of J.A. Cole & Co. under the Registration of Business Name Act, 1961 and uses the name in his Practice. It is not suggested that there is any professional objection to his doing this and it is frequently done by solicitors in England, as the law list shows. In our view, the business name was correctly given as that of the legal practitioner representing the Appellant. In signing the notice of appeal, Mr. Cole used his own name, that is to say, the name which he is 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 this submission that the addition of the words for J.A. Cole & Co would invalidate the signature if a signature in a business name was not permitted."

 

The above decision, to say the least, was followed by this court in OKAFOR V. NWEKE.

I cannot see the difference in the thought process leading to the two decisions. The only point of divergence is that in OKAFOR V. NWEKE; J.H.C. OKOLO SAN who is a legal practitioner whose name is in the roll did not sign as J.H.C, Okolo SAN for J.H.C. Okolo, SAN & Co.


The case of COLE V. MARTINS (1968) 1 ALL NLR 16, (1968) SCNLR 215 was determined in 1968 by this court. The court held that the effect of registering a business name under the Registration of Business Name Act, 1961 is that where only one person constitute that business it is correct to describe that person as in the terms of the registered business name. In other words Mr. H.A. Lardner & Co. here referred solely to Mr. H.A. Lardner. That having regard to the context of rule 4 of the Registration of Titles (Appeals) Rules, purpose of which on this rule is to ensure that the name of the Legal Practitioner giving notice of appeal and representing the Appellant is clearly known, then it is a sufficient compliance with the requirement for a legal Practitioner to sign and give his name, as this can only refer and apply to the legal practitioner who so hold himself out as practicing under the business name. No possible doubt or confusion can therefore arise in these circumstances. This court in COLE V. MARTINS did not refer to the earlier decision in the Registered Trustee's case which, in my opinion clearly determined the core issues. In OKAFOR V. NWEKE the court rightly followed the decision in Registered Trustee's case. This is the position of the court."


By the doctrine of stare decisis, the position of the Supreme Court is in the position of the law, to be followed by this court and the courts below. In summary therefore, the motion on notice dated 13th September, 2005 signed in the name of Alade Agbabiaka & Co remains incompetent and or invalid for not been in conformity with the law. The Supreme Court in the case of OKAFOR V. NWEKE (supra) on pages 32-33 stated:

 

"The effect of the ruling is not to shut out the Applicants but to put the house of the legal profession in order by sending the necessary and right message that the urge to do substantial justice does not include illegality or encouragement of the attitude of anything goes."

 

What then is the effect of such process not signed by a legal practitioner known in the roll of the Supreme Court of Nigeria. The Supreme Court in a more recent decision on the subject, the case of BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (Pt. 1346) page 1 stated as follows:

 

"Since the initiating process were not signed by a legal practitioner as dictated by the applicable law, the suit was not initiated with due process. It is no doubt incompetent and the court is robbed of jurisdiction ab initio."

On the whole therefore, the motion on notice of the (Appellant) at the lower court dated 13th September, 2005, was incompetent or defective having not complied with the law. The entire proceedings, which includes the judgment obtained on admission dated 2nd December, 2005 on admission is also invalid. The consequence is that the motion on notice dated 13th September, 2005 is hereby struck out by this court. Also the proceedings and the judgment obtained on admission of the 2nd December, 2005 is set aside by this court.

 

In the final analysis, the Respondent's notice of preliminary objection is upheld on this point. This takes care of all the other grounds argued, as the proceedings was not initiated with the due process of the law. As a further consequence of this, the entire appeal is hereby struck out.



JOSEPH SHAGBAOR IKYEGH, J.C.A.:

 

I am in full agreement with the comprehensive judgment prepared by my learned brother, Sidi Dauda Bage, J.C.A., which I had the honour of perusing in advance and adopt it as my judgment with nothing useful to add.


RITA NOSAKHARE PEMU, JCA:

 

I had read in draft, the lead Judgment just delivered by my brother SIDI DAUDA BAGE J.C.A and I agree with his reasoning and conclusion.

His resolution of the Preliminary Objection puts paid to the resolution of the entire appeal, as you cannot put something on nothing.


The initiating process, being incompetent ab-initio renders the entire proceedings null and void ab initio.


The Notice of Preliminary Objection is upheld by me.


I subscribe to the consequential order made in the Judgment that the appeal be and is hereby struck out.

 

SUPPORTED BY

ABIODUN ADESANYA AND
                          CO




IKIEBE AND COMPNAY




HERMON SOLICITORS




CHANNINGS








To support this project, collaborate with us, receive research/project/legal support, or submit articles,
email us at lawnigeria@gmail.com; treentrees@gmail.com
or contact the Editorial Team: Sam Eleanya - +234 -7067102097 or Agboola Omolola -+234 - 8029063026



Served by TREE&Trees (A Justice Sector Social Enterprise)  lawnigeria.com@gmail.com  +2347067102097
A