OWOADE, MOHAMMAD AMBI-USI DANJUMA, JAMES SHEHU
G. A. Adesina Esq. for
S. O. Popoola Esq. for
JURISDICTION- whether an
incompetent writ robs court of jurisdiction –
Difference between technicality and jurisdiction
LEGAL PRCTITIONER- who can sign
court processes – Competence of court processes
signed in the name of a law firm instead of an
individual lawyer properly enrolled
Madukolu V. Nkemdilim (1962) All
Sea Trucks Anigboro (2001) 1 SCNJ
Okafor & Ors. V. Nweke &
Ors. (2007) 3 SCNJ 185
Magaji V. Matari (2000) 5 SC 46
Ukwu V. Bunge (1997) 1 NWLR
Nnonye V. Anyichie (2005) 2 NWLR
Dapialong V. Dariye (2007) 8 NWLR
First Bank V. Maiwada (2012) 5 SCNJ
S.L.B. Consortium V. N.N.P.C (2011)
4 SCNJ (pt.211)
Tunde Akinlusi V. Central Bank Of
Nigeria Appeal No.CA/L/298/1997
Cole V. Martins (1968) 1 ALL N.L.R
161 (Lardner's case)
Ogundele V. Agiri (2010) 180 LRCN
First Bank Of Nigeria Plc V. T.S.A.
Industries Limited (2010) 15 NWLR (PART 1216)
Dr. Braithwaite V. Skye Bank Plc
(2012) Pt.1 page 1
JAMES SHEHU ABIRIYI, J.C.A.
(Delivering the Leading Judgment):
This is an appeal against the
judgment of the Osun State High Court Osogbo Judicial
Division delivered on 24th October, 2007 wherein the
appellants were the defendants while the respondents
were the plaintiffs.
The claim of the respondents at the Lower Court was for
declaration that the plaintiffs are entitled to the
piece of land along Railway Line, Alekuwodo Area, Osogbo
being the property they inherited from their father
Alhaji Lamidi Adeyinka.
(Two Million Naira) damages for trespass committed by
the defendants on the land and
(3) An order of perpetual
injunction restraining the defendants from further acts
of trespass on the disputed land.
The facts of the case are that
the respondents' father Lamidi Adeyinka farmed on the
disputed land since 1969 but in 1972 or 1975 he bought
it. He was in possession of the land. The father of the
respondents executed a deed of conveyance. The
respondents' father was in possession of the land until
1981 when he died. After his death Ajayi Awoniyi became
the caretaker of the land. In 2002 he noticed that some
people were clearing the land and he challenged them.
According to the respondents, the land in dispute is
outside the one covered by the judgment of the Supreme
The case of the Appellants is that the land in dispute
is at Alekuwodo Area of Osogbo. It is a minute part of
the land acquired by settlement by Oba Laro. The 1st and
2nd appellants are members and representatives of the
royal family. That the land in dispute was given to the
3rd appellant's father for building a church.
The 3rd Appellant in his evidence in Court stated that
the land belonged to his father who bought it from the
Olomo - Obas with the consent of the Ataoja of Osogbo in
1976. After the death of his father, he inherited it.
At the Lower Court, the respondents called three
witnesses; the caretaker, 1st respondent and a
photographer. The appellant called four witnesses, a
surveyor, 2nd and 3rd appellants, and a legal
After hearing these witnesses the Lower Court in a
reserved judgment found for the respondents in the
Plaintiffs' claim for damages for trespass, there is
evidence adduced before me that the 3rd defendant went
into the land in a manner inconsistent with the
Plaintiffs' possession of it by building of small
structure on it. I hold that the entry of the 3rd
defendant into the land in dispute and his building
thereon are all acts of trespass. This fact in my view
is sufficient to sustain the plaintiffs claim for
damages for trespass. I therefore award the sum of
N100,000.00 in their favour."
An order of perpetual
injunction was also made against the appellants.
Miffed by the above decision the appellants appealed to
this Court by an original notice of appeal containing
(14) fourteen grounds of appeal. The notice of appeal
was amended by an amended notice of appeal equally
containing (14) fourteen grounds of appeal. Eight issues
were condensed by the appellants from the fourteen
grounds of appeal. They are reproduced immediately
suit was properly initiated by the due process of the
law before the Lower Court, and if not, whether it is
competent for the Learned Trial Judge to grant the
reliefs granted to the respondents on incompetent
processes. (Relates to Ground 14 of the grounds of
not the Lower Court was justified in awarding any
damages at all and alternatively, whether the
N100,000.00 damages awarded against the Appellants was
justified and not excessive in law and in the
circumstances of this case. (Relates to Ground 8 of the
grounds of appeal).
Whether or not the Trial Court was justified by
suo motu (1) discountenancing the receipt with which the
3rd Appellant's father bought the land in dispute
according to native law and custom from the Olomo Obas
after admitting same as Exhibit 1 at the trial, (2)
raised and determined the issue of the capacity in which
the Olomo Obas sold the land in dispute to the 3rd
Appellant's father and basing his judgment on the said
issues without first giving the Appellants the
opportunity to be heard on the issues raised suo motu
and by holding that the Respondents joined issues with
the Appellants on the sale of the land in dispute
without filing any reply to the Appellants' amended
joint statement of defence (Relates to Grounds 5 and 13
of the grounds of appeal).
Whether the Learned Trial Judge having held that
the respondents did not prove title to the land in
dispute and whatever acts of ownership and possession
done by them on the land amounted to acts of trespass,
was at the same time right in (1) using the same acts
said to be act of trespass to grant the Respondents'
claim for damages for trespass and injunction against
the Appellants' and (2) holding that the land in dispute
was conveyed to the Respondents' father and he was in
possession thereof between 30/4/1975 and 13/11/1981
after which the Respondents continued in undisturbed
possession thereof until September 2002 when the
Appellants trespassed thereon. (relates to grounds 3, 7
and 9 of the grounds of appeal).
Whether or not the Appellants proved original
ownership and possession of the land in dispute and the
other surrounding lands at Alekuwodo Area, Osogbo and
whether the evidence led thereon was properly evaluated.
Whether the Learned Trial Judge was right in
admitting and relying on Exhibit B in making his
findings for damages and injunction against the
Appellants and in favour of the Respondents. (Relates to
Ground 10 of the grounds of appeal).
Whether or not the Lower Court was justified by
giving judgment in favour of the Respondent without
first making specific findings on and resolving the
contradictions and inconsistencies in the pleadings and
evidence of the Respondents. (Relates to ground 2 of the
grounds of appeal).
"Whether or not the Learned Trial Judge
adequately and properly evaluated the evidence led at
the trial before arriving at his conclusions and who
between the Appellants and the Respondents were entitled
to judgment at the Lower Court based on the weight of
evidence before him." (Relates to Grounds 1, 4 and 12 of
the grounds of appeal)."
However, the respondents
presented only three issues for determination. These
the failure of the Respondents' claim for declaration of
title to the land in dispute should automatically affect
their claim for damages and injunction against the
the appellants who have no counterclaim before the Court
can be said to have proved title to the land in dispute.
the appellants can raise the issue of competency of the
respondents' suit at the Court of Appeal for the first
time having failed to raise same at the Lower Court and
having also been guilty of the same irregularity that
they are complaining about.
Arguing issue 1 which is
whether this suit was properly initiated by due process,
it was submitted that a Court will only have
jurisdiction to entertain a suit if the suit has been
properly initiated by due process of the law. Reliance
was placed on Madukolu V. Nkemdilim (1962) All NLR
587 and Sea Trucks Anigboro (2001) 1 SCNJ 55
at 74. A valid Court process especially a writ of
summons and statement of claim, it was submitted, must
be signed by the plaintiff personally but if it is
signed by a legal practitioner, it must be signed by a
person enrolled to practice as a Solicitor and Advocate
of the Supreme Court of Nigeria and whose name is on the
roll of Legal Practitioners under Section 2 (1) of the
Legal Practitioners Act.
The writ of summons, statement of claim and reply to the
Statement of Defence in this case were issued and signed
by "Chief A. Oladele Oladipo & Co.," it was
submitted. Chief A. Oladele Oladipo & Co., it was
further submitted, is neither a party on the record nor
a legal practitioner enrolled to practice as such under
the Legal Practitioners' Act nor a person known to law
by way of incorporation. Chief A. Oladele Oladipo &
Co, it was submitted cannot properly sign or initiate
any proceedings in a law Court as was purportedly done
by him or it as in this case. The originating processes
before the Lower Court, it was submitted, were
incompetent, null and void and of no effect and the suit
was not properly initiated by due process of law. We
were referred to Okafor & Ors. V. Nweke &
Ors. (2007) 3 SCNJ 185 at 191.
The Court was urged to resolve
this issue in favour of the appellants and strike out
the entire suit of the respondents as being incompetent.
The above issue is the same with issue 3 formulated by
the respondents. The appellants' complaint, respondents
argued, is the use of the firm name of the Respondents'
counsel which is Chief A. Oladele Oladipo & Co.
instead of Chief A. Oladele Oladipo. It was submitted
that both names refer to one and the same person as both
names carry the same signature. The signature of Chief
A. Oladele Oladipo it was submitted is the same with
that of Chief A. Oladele Oladipo & Co. It was
submitted that a legal practitioner and his firm cannot
be divided since the firm has no legal personality of
its own unless it is incorporated under the Company and
Allied Matters Act.
It was submitted that the fact that Chief A. Oladele
Oladipo & Co. is not incorporated, is also conceded
by the Appellants' counsel which supports the fact that
both names belong to one and the same person who is a
qualified legal practitioner whose name is on the roll
of the legal practitioners at the Supreme Court of
Nigeria. His signature on the roll of legal
practitioners it was argued is the same as signed on the
writ of summons and statement of claim in this case.
It was submitted in the alternative that the appellants
waived their right to complain about the competency of
the writ of summons and statement of claim having failed
to raise this issue at the Lower Court. What is more,
appellants are guilty of the same irregularity having
signed the statement of defence and amended statement of
defence in the firm name of defence counsel G.A. Adesina
It was further submitted that the challenge was a mere
technicality and our Courts have long moved away from
dealing with technicalities at the expense of justice.
It was contended that the complaint that the learned
counsel for the respondents signed the processes in the
name of his firm is not enough. The appellants must go
further to show how the irregularity affected the
findings and final judgment of the Lower Court.
It is now trite law that a Court is competent when the
court is properly constituted as regards members and
qualifications of the members of the bench and no member
is disqualified for one reason or the other; the subject
matter of the case is within its jurisdiction; and there
is no feature in the case which prevents the Court from
exercising its jurisdiction and the case comes before
the Court initiated by due process of the law and upon
fulfillment of any condition precedent to the exercise
of jurisdiction. All these requirements must co-exist
conjunctively before jurisdiction can be exercised by
the Court. See Madukolu Vs. Nkemdilim (1962). All
NLR 567 and Magaji Vs. Matari (2000) 5 SC 46.
Learned counsel for the
respondent contended that the issue of jurisdiction or
competency of the suit at the Lower Court having not
been raised in that Court cannot now be raised in this
Court. It is trite law that the issue of jurisdiction
can be raised at any time by a party even on appeal to
the Supreme Court. This is because the question of
jurisdiction of court is a fundamental and crucial
question of competence because if a Court has no
jurisdiction to hear and determine a case the
proceedings are a nullity. See Ukwu V. Bunge (1997)
1 NWLR (Pt.518) 527, Nnonye Vs. Anyichie (2005) 2 NWLR
(Pt.910) 623 and Dapialong Vs. Dariye (2007) 8 NWLR
Learned counsel for the Appellants submitted that
processes of Court in this case; the writ of summons,
statement of claim and reply to the statement of defence
were not issued and signed by any of the parties or by a
legal practitioner on the roll of Legal Practitioners
under Section 2 (1) and Section 24 of the Legal
Practitioners Act but by Chief A. Oladele Oladipo &
Co. thereby rendering the processes and proceedings at
the Lower Court a nullity.
In Okafor vs. Nweke (2007) 10 NWLR
(Pt.1043) 521 at 530 - 531 the Supreme Court per
Onnoghen JSC stated thus:
"There is no doubt whatsoever that the
motion paper giving rise to the objection as well as
the proposed notice of Cross appeal and appellants'
brief in support of the said motion were all signed:
J.H.C. OKOLO SAN & CO. Learned Senior Counsel for
the appellants does not dispute this but stated that
since there is a signature on top of J.H.C. OKOLO SAN
& CO it is necessary to call evidence to establish
the identity of the person who signed the documents
for which counsel relied on Izugu V. Emuwa Supra and
Banjo V. Eternal Sacred Orders of Cherubim &
Seraphim, also Supra.
However Section 2(1) of the Legal
Practitioners Act, Cap 207 of the Laws of the
Federation of Nigeria 1990 provides thus:-
"Subject to the provisions of this Act, a
person shall be entitled to practice as a barrister
and solicitor if, and only if, his name is on the
From the above provision, it is clear
that the person who is entitled to practice as a legal
practitioner must have had his name on the roll. It
does not say that his signature must be on the roll
but his name.
Section 24 of the Legal Practitioners Act
defines a "legal practitioner" to be:
"a person entitled in accordance with the
provisions of this Act to practice as a barrister or
as a barrister and solicitor, either generally of for
the purpose of any particular office proceeding."
The combined effect of the above
provisions is that for a person to be qualified to
practice as a legal practitioner he must have his name
in the roll otherwise he cannot engage in any form of
legal practice in Nigeria. The question that follows
is whether J.H.C. OKOLO SAN & CO is a legal
practitioner recognized by the law?
From the submissions of both counsel, it is very clear
that the answer to that question is in the negative.
In other words both senior counsel agree that J.H.C.
OKOLO SAN & CO is not a legal practitioner and
therefore cannot practice as such by say, filing
processes in the courts of this country."
In First Bank Vs. Maiwada (2012) 5 SCNJ 1, The Supreme
Court at the request of learned counsel for the
appellants empanelled a full Court to re-visit and
indeed depart from Okafor Vs. Nweke (Supra). After
hearing arguments from several counsel invited to
address it; the Supreme Court was not persuaded to
depart from the decision in Okafor V. Nweke (Supra).
Fabiyi J.S.C who delivered the lead judgment of the
Court stated thus at pages 23 -24 and 27:
"The decision in Okafor Vs. 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 of 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."
"I wish to repeat that we are
interpreting a law which seeks to make legal
practitioners responsible and accountable more
especially in modern times that we are presently
operating. I see nothing technical in insisting that a
legal practitioner should abide by the dictates of the
law in signing court process. 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 the 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."
Learned counsel for the
respondents submitted that the appellants' counsel
conceded it was the respondents' counsel who signed the
writ of summons, statement of claim and reply to
statement of defence and that he is a legal
practitioner. This is not borne out from the arguments
on the record. No such concession was made.
Learned counsel for the respondents further submitted
that Chief A. Oladele Oladipo is the same as Chief A.
Oladele Oladipo & Co. This cannot be true.
Learned counsel for the respondent claimed that the
signature of Chief A. Oladele Oladipo & Co., on the
roll of legal practitioners is the same as his signature
on the writ of summons and statement of claim. But there
is no such evidence. If by being on the roll, learned
counsel meant Chief A. Oladele Oladipo it was not Chief
A. Oladele Oladipo that signed those processes but Chief
A. Oladele Oladipo & Co. But learned counsel for the
respondent has not shown that Chief A. Oladele Oladipo
& Co., is on the roll of legal practitioners. In any
case the sweeping submission that the signature on the
roll of legal practitioners and on the processes is the
same has no basis.
Learned counsel for the respondents submitted that the
issue of competency of the initiating processes at the
Lower Court was in the realm of technicality. In Okafor
Vs. Nweke (Supra) at page 533 the Court
stated that the urge to do substantial justice does not
include illegality or encouragement of the attitude of
"anything goes." See also First Bank Vs. Maiwada(Supra) at 34 where the Court stated that there
is nothing technical in applying the provisions of
Section 2 (1) and 24 of the Legal Practitioners Act as
it is drafted by the Legislature. That one should not
talk of technicality when a substantive provision of the
law is rightly invoked.
I agree entirely with learned counsel for the appellants
that the writ of summons, the statement of claim and
reply to statement of defence were not signed by any of
the plaintiffs personally but by Chief A. Oladele
Oladipo & Co. who is neither a party nor a Legal
Practitioner under the Legal Practitioners Act whose
name is on the roll of legal practitioners.
The writ of summons and statement of claim are the
foundation and substratum of the suit. Any defect will
render the entire suit incompetent and the trial Court
would lack the required jurisdiction to entertain the
suit. Any defect in the writ and statement of claim robs
the Court of jurisdiction to entertain it.
The writ of summons and statement of claim having not
been signed by any of the parties or a legal
practitioner whose name is on the roll of legal
practitioners the suit was not initiated by due process
of law and was therefore incompetent. The proceedings at
the Lower Court were therefore a nullity.
Issue 1 presented by appellants and issue 3 submitted by
the respondents which are the same are resolved in
favour of the appellants. Because of the order I shall
proceed to make it is unnecessary to consider the other
issues presented by the parties for determination. The
Writ of Summons and Statement of Claim in Suit
No.HOS/160/2002 being incompetent are struck out.
The judgment of the Osun State High Court Osogbo
Judicial Division in Suit No.HOS/160/2002 delivered on
24th October 2007 is accordingly set aside. Parties
shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.:
I had the opportunity to read
in advance the lead judgment just delivered by my
learned brother James Shehu Abiriyi, JCA, and I
agree entirely with the reasoning and conclusion reached
In addition, a process prepared and filed
in a Court of Law by legal practitioner must be signed
by the legal practitioner. It is sufficient signature
if the legal practitioner writes his own name over and
above the name of his firm in which he carries out his
practice. See the case of S.L.B. Consortium v. N.N.P.C
(2011) 4 SCNJ (pt.211).
In the instance case, the name
of legal practitioner in which he carries on his
practice is not on the processes he has filed before the
court. It would have been sufficient if Chief A. Oladele
Oladipo had simply written his name on top of Chief A.
Oladele Oladipo & Co. because Chief A. Oladele
Oladipo is the legal practitioner registered to practice
law in the roll at the Supreme Court, not Chief A.
Oladele Oladipo & Co.
The Writ of Summons and Statement of Claim
are the originating processes which give the court
jurisdiction to hear and determine a case and where such
processes are incompetent by not been properly initiated
by the process of law, it renders the proceedings a
nullity. See Okafor V Nweke (2007) 10 NWLR (pt. 1043)
521 at 530 - 531.
For this and fuller reasoning
elucidated by my learned brother, I too shall strikeout
the Writ of Summons and Statement of Claim. And it's
hereby struck out for being incompetent. The judgment of
the Lower Court is also hereby set aside. I abide by the
consequential order(s) made there-in.
MOHAMMAD AMBI-USI DANJUMA, J.C.A.:
I have been privileged to read
before now, the draft of the lead Judgment of my Lord,
James Shehu Abiriyi, JCA in its raw form, wherein he set
aside the Judgment and all proceedings leading thereto
as INCOMPETENT as the Writ of Summons originating the
suit at the trial court was not signed by a natural
person in either the plaintiff himself or by his
The said Writ of Summons was signed by Chief A. Oladele
Oladipo & Co., a Juristic or Juridical personam. An
abstract creation of the law.
I would have been content to merely concur with the
erudite and well articulated Judgment that is amply
supported by the Apex Court (the Supreme Court), but
because of the STUBBORN REFUSAL OR INSTISTENCE TO
JUSTIFY THE NONE COMPLIANCE TO THE LAW IN THIS RESPECT
on the part of Counsel in some instances, that I shall
recall two of my previous Judgments on this issue of the
validity or otherwise of a process of a court that is
not signed in accordance to law, and not by a Legal
Practitioner, but by a firm of a Legal Practitioner.
In TUNDE AKINLUSI VS CENTRAL BANK OF NIGERIA APPEAL
No.CA/L/298/1997 delivered on 31st January, 2011 I
had stated thus:-
"When this appeal came up on
27th May, 2010, this Court suo motu raised the issue of
the competence of the said Notice of Appeal and matter
was accordingly adjourned for address by the respective
counsel for the parties on 3rd November, 2010.
The Notice of Appeal dated 22nd June, 1998 has signature
inscribed above the words "B. Aluko-Olokun & Co,
Solicitors for the Defendants/Appellant.
"34, Shirro Street,
Ikorodu Road, Fadeyi,
Arguing the issue raised by the Court, Gabriel O.
Ibiwoye learned counsel for the Appellant
conceded that the said Notice of Appeal was not signed
by a counsel but by the firm of legal practitioners
itself, but that it was however competent. In this wise,
counsel submitted that even the amended Notice of Appeal
signed in like manner was also competent.
It was the contention of counsel that the notice was
signed by a firm and was therefore competent. Counsel
urged that the decision in OKAFOR & vs NWEKE
& ORS (2007) 10 N.W.L.R. (PART 1043) 5-21
was reached Per incuriam in view of the earlier decision
of the Supreme Court in COLE vs. MARTINS (1968) 1
ALL N.L.R 161 (Lardner's case) that a
process signed by a firm is competent.
In reply, learned counsel for the Respondent submitted
that the said notice was incompetent based on the later
decision in OKAFOR VS. NWEKE, Learned
Counsel submitted that it is not within the powers of a
subordinate Court to declare the decision of a superior
Court in this case, the decision of the Supreme Court
Counsel concluded by submitting that while the Notice of
Appeal may have been valid under the old state of the
law but with the amendment of the Notice of Appeal
coming as it were in 2008, Appellant's counsel ought to
have rectified the error, and not having done so, the
Notice of Appeal should be dismissed for being an abuse
of court process.
I have carefully listened to arguments from
and was seemingly signed for a firm of Solicitors. A
corporate entity has no hand of its own and cannot sign:
it acts through agent or representative. In the instant
Notice of Appeal, it is not expressed that B.
ALUKO-OLOKUN & CO., SO acted. Who the signatory is,
as inscribed above the corporate name is not known. Even
if it was known, the law is now well settled and beyond
dispute that a Notice of Appeal shall be personally
signed by an intended Appellant or his legal
representative. A legal representative or counsel must
be a person who has been called to the bar and
registered to practice as legal practitioner.
It is for that reason, that a named
counsel who appears for a party in any legal
proceedings ascribes his name and address. E.
ALUKO-OLOKUN & CO. is not a legal practitioner
enrolled to practice law and cannot therefore be a
counsel for the purpose of signing legal process in a
court. The said Notice of Appeal and its purported
amendment i.e. "Amended Notice of Appeal" are both
The Supreme Court had made the point clear beyond
dispute in OKAFOR VS. NWEKE supra that Notice of
Appeal signed by a firm and not a registered legal
practitioner was invalid and the appeal incompetent.
My Lord, OGBAUAGU, J.S.C., years after OKAFOR Vs
NWEKE'S, case (supra) in OGUNDELE vs AGIRI (2010) 180
LRCN 153 @ 164 made the point clear beyond any
equivocation as follows:,
"A partnership or firm, unless duly registered as such
with respect, is not a legal practitioner recognized
by law or a person entitled to practice as a Barrister
and Solicitor. See also Sections 2 (i) and 24 of the
legal practitioners Act, Cap. 2009 LFN. See the case
of THE REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS
ARCH DIOCESE VS. RAHMAN AKINDELE (1967) NWLR 263, @
265, FIRST BANK PLC & RANKASSA ENTERPRISES LTD. VS
ALHNI SALMANU MAIDAWA dated 27th March, 2002, @ pages
13 and 14 - per Magaji; J.C.A. (of blessed memory)
(unreported); my concurring Judgments/contributions in
suit No.CA/J/241/200- Major - General MUSA BAMAIYI
(Rtd,) vs. DANDALADI A. S. GARHA dated 9th December,
2004 (unreported) and CA/J/241/2001-DOMINIC NWANI vs
BAKARI & ANOR. Also dated 9th December, 2004
If learned counsel who appears before
this court persists in this practice of signing any
process of this court as and Co. without evidence of
being duly registered as such, it may be obliged to
disregard or discountenance such process including
briefs. Such signing is in my respectful view, but
firm view is not an irregularity as held by the Court
of Appeal - Per Alagoa, J.C.A. in the case of UNITY
BANK PLC Vs. R. OLUWAFEMI (2007) ALL FWLR (PART. 382)
1923 relying on the case of or decision in COLE vs.
MARTINS (1969) 1 ALL NLR 161 (Lardner's, case). It is
a fundamental error. However, in the interest of the
Litigants, I will go on for the last time, with the
merit of this appeal."
In FIRST BANK OF NIGERIA Plc vs. T.S.A.
INDUSTRIES LIMITED (2010) 15 NWLR (PART. 1216), page
242 @ page 287 par. E.G. the Supreme Court in its
Judgment delivered 9th July 2010 per Adekeye, JSC
"A Notice of Appeal is a very important
document because it forms the foundation of an appeal.
If a Notice of Appeal is defective, the Appellate
court must strike it out on the ground that it is
incompetent. Thus the question whether or not a proper
Notice of Appeal has been filed in the Lower Court is
question which touches on the jurisdiction of the
Appellate court because if a proper notice was not
filed, there is not appeal for the Appellate court to
The later decision of the Supreme Court
overruling COLE VS. MARTINS is binding on this court
and this court has no jurisdiction to declare that it,
had been reached Per incuriam. To do that would amount
to judicial rascality.
It appears clear that the Supreme Court
has by the decision in the OGUNDELE VS. AGIRI'S case
supra departed from and reconfirmed its departure and
overruling of the case of COLE VS. MARTINS (supra)
when His Lordship, Ogbuagu, JSC. made it clear that
the decision of the Court of Appeal Per Alagba, JCA
relying on COKE vs. MARTINS was wrong.
From the foregoing, I am of firm view
that the decision in OKAFOR VS. NWEKE was not reached
Per incuriam; and even if it had been so reached, a
Lower Court has no jurisdiction to so declare, as that
will amount to judicial rascality. For the reasons so
stated, the Notice of Appeal herein is liable to be
struck out under Order 6 of the Court of Appeal, Rules
2007 and on the authorities indicated in this Ruling.
I am also strongly inclined to agree with the learned
counsel for the Respondent when he argued that the
filing of an incompetent Notice of Appeal and its
amendment to the same effect is an abuse of court
process. There is no iota of law supporting the Notice
of Appeal as signed. It appears to have been recklessly
done. See: SARAKI VS. KOTOYE (1992) 9 NWLR (PART.254)
156 @ 169 - 170 Per KARIBI WHYTE JSC, @ 189. For the foregoing reasons as
advanced in this Ruling, it is my decision that the
preliminary objection raised on the competence of the
Notice of Appeal has merit. It succeeds. The Notice of
Appeal dated 22nd June, 1997 in respect of this case is
accordingly struck out".
My Lord, Clara Bata Ogunbiyi,
JCA (as she then was) in her concurring opinion stated
"The signature by "B. Aluko -
Olokun & Co" is that of an entity not recognized as
registered legal practitioner known to our law. In other
words the name is not of any person properly enrolled to
practice Law in Nigeria.
A notice of appeal as an originating process is so
fundamental that its competence should not be thrown
into question. The absence of signature goes into the
very foundational root base of the process itself.
Contrary to the submission by the Learned Appellant's
counsel therefore, the principle enunciated in the case
of Okafor V. Nweze cited in the lead ruling is governing
and applicable. I also adopt and endorse the ruling by
my brother and struck out the notice of appeal"
Hussein Mukhtar, JCA, Phd,
pungently concurred to the lead Judgment and emphasised
the need for a signature by a known and disclosed person
in a Notice of Appeal and I dare say every Legal
He stated thus:
"The Supreme Court decision in
Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521 still
represents the current position of the law on the issue
of requirement of signing a notice of appeal by
appellant or his legal practitioner. A firm of
solicitors is not a legal practitioner. The name of the
person signing must therefore be endorsed to enable the
court determine if such person is a legal practitioner
called to the Nigerian Bar and duly enrolled to practice
as such. The signature on the notice of appeal by "B.
Aluko-Olokun & Co" does not satisfy this
requirement. One wonders why the person signing has to
conceal his identity if he really is a legal
The notice of appeal dated 22nd June 1997 is therefore
incompetent and same ought to be struck out. It is
pathetic that such an old incompetent notice has been
pending for so long. However an incompetent notice
cannot but be struck out.
I subscribe to all the consequential orders in the said
My Lord, Mshelia, JCA in her
characteristic pungent but calm style reinforced this
stand that a compliance to the law as to who can act as
a legal practitioner must be observed, This, she did in
this court at the Makurdi Division in CA/J/403/2007
delivered in .......
I, in my contributory Judgment
minced no words in holding that the non-observance of
this notorious imprimatur that only a legal practitioner
can sign any process of court to be filed and not his
legal firm as an inanimate person which is of course not
registered to practice law in Nigeria.
I made it clear that all courts in Nigeria below the
Supreme are to stand akimbo to this stance.
For the avoidance of doubt, this is what I said and
there is no reason warranting any change of heart, more
so that the Supreme Court fortifies that stand.
Hear this court, per Danjuma, JCA:
"I agree with the reasoning
and the conclusion that the appeal rests on nothing as
its substratum has not just withered away but was a
still born with paralytic limbs. Crawl it may, but the
courts do not have the jurisdiction in the state of the
law in Nigeria, now, to mimic any jurisdiction. In the
circumstance, no matter how hard party/counsel tries,
the resurrection power of asking the paralytic (to stand
and walk") does not lie in us, in respect of such
purported Notice(s) of Appeal. We have not been imbued
with the anointing.
The Apex Court - Supreme Court
has restated this stand of the law umpteenth time that I
think, by now, it should never be heard in any of the
courts of this land that such trite and notorious
question on the signing of an originating process such
as a Notice of Appeal is still an issue.
Are we hard at hearing or understanding? Will a better
option at no cost to litigants not lie in pursuing an
amendment to the Legal Practitioners' Act by those that
feel uncomfortable with the state of the law as settled
in the interpretation thereof by the Supreme Court?
I note for an instance, a situation in our courts where
a process is sometimes indicated as signed by XYZ (SAN)
& Co. even when the firm was not so registered,
merely because the Principal Practitioner or Partner
thereof has become a Senior Advocate of Nigeria. It is
either, a firm is so registered or if not so registered,
then, the particular or individual counsel that
subsequently dons the coveted rank of Senior Counsel may
sign, to the name(s) in addition the title or epithet
Senior Advocate of Nigeria or SAN.
I have digressed a bit to make clear that it is
important to adhere to the Law/Rules at all times,
including not signing for a Law Firm, or indicating a
Law Firm as signing, as a firm is not a legal
practitioner authorised to and registered in the Roll of
Legal practitioners, as such to practice. An inanimate
person/firm is not a legal practitioner in Nigeria, for
the purpose of signing documents.
An originating process must be validly and
legally initiated to properly place a suit before a
Only recently, (7th December 2012) the
Supreme Court, again in the case of Dr. Braithwaite v.
Skye Bank Plc (2012) 12 Se Pt.1 page 1, per Muhammad,
JSC stated thus:-
"I agree with learned counsel to the
Respondent/Objector that this court has consistently
held that the validity of the originating processes in
a proceeding before a court is a fundamental and
necessary requirement for the competence of the suit
and...failure to commence a suit with a valid writ
and/or statement of claim writ and/or statement of
claim goes to the root of the action since the
condition precedent to the exercise of the court's
jurisdiction would not have been met to duly place the
suit before that court. See Madukolu V. Nkimdilim
& Mohammed Maikida vs. A. D. Ogunmola (2006) 6 SC.
147; (2006) 13 NWLR (Pt.997).
As the Apex court pointed out
In Braithwaite v. Sky Bank, supra, the
objection in the this case, as in the Skye Bank case,
supra, was not about the Rules of Court applicable per
se which could be waived or remedied as an irregularity,
but the objection was founded on Sections 2(i) and 24 of
the Legal Practitioners Act Cap. 2007, Laws of the
Furthermore, as the apex court, per Muhammed, JSC
Appellants/Respondents Counsel in asking us to ignore
the decisions of this court in Okafor v. Nweke And SLB
Consortium Ltd. v. NNPC.. seem to be requesting the
impossible. The court remains bound by its previous
decisions where the facts and the laws considered in
the earlier cases are the same or similar in the cases
being subsequently determined. See Adisa v.
Oyinwola (2006) 6 SC (Pt.11) 47, Okulate v.
Awosanya (2000) 1 SC 107."
All courts in Nigeria below
the Supreme Court are to stand akimbo to this stance.
Bound by the consistent decisions of the Supreme Court,
now reaffirmed in the recent decision of the same court
in Braithwaite vs. Skye Bank, supra, I
agree with the lead judgment that the preliminary
objection raised orally was proper and could be heard. I
also agree that the objection has merit, as there was no
competent appeal before this court as the purported
Notice was invalid in law.
I adopt the said lead Judgment including the order
relating to "no costs" and hold that the purported
appeal is incompetent.
It is, therefore, struck out
There is, therefore, every compelling reason to agree in
toto with My Lord, James Shehu Abiriyi, JCA in the Lead
Judgment maintaining this binding and consistent stand
of this court, with the blessing of the Supreme Court.
It is for the above reasons that I endorse as my view
and concur in the Leading Judgment striking out the
instant appeal for incompetence. The writ of summons is
consequentially struck out and the "infected" Judgment
there from is set aside.
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