(2017) LPELR-42383(CA)

Transcription

1 FIRST BANK OF NIGERIA PLC. v. ALDAR & CO.LTD. & ANOR CITATION: In the Court of Appeal In the Ibadan Judicial Division Holden at Ibadan ON FRIDAY, 17TH MARCH, 2017 Suit No: CA/I/76/2010 Before Their Lordships: MONICA BOLNA'AN DONGBAN-MENSEM MODUPE FASANMI NONYEREM OKORONKWO FIRST BANK OF NIGERIA PLC. 1. ALDAR & COMPANY LTD. 2. YEMISI ADEGBUYI Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documents signed/franked by a law firm "Okafor vs. Nweke (supra) dealt with the mode of commencing suits/action as stipulated by the Legal Practitioner Act and the various Civil Procedure rules of the various High Courts. Every such action must be commenced in the manner stipulated otherwise the process initiating the action would be void. In a similar case CA/I/4/2012 Chief Fatai Agbabiyi & Ors vs. Chief Sikiru Balogun Court of Appeal Ibadan delivered on 22nd January, 2016, I commented on the same issue in the following manner. "Now Section 2 (1) of Legal practitioner Act, Cap. 207 of the Laws of the Federation provides. 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 roll. And Section 24 of the same Act provides: - a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding. The simple question that arises, in view of the clear provisions of Cap. 207 reproduced above is whether or not J.H.C. OKOLO & CO. SAN is a person entitled to practice as a barrister and solicitor. It seems to me that only human beings actually called to the Bar could practice or practice by signing documents as a motion Paper. The argument that it is an over adherence to technicality to annul the process improperly signed and filed by J.H.C. OKOLO & CO. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere non-compliance with Court rules. In conclusion, I uphold the objection of Mr. G.R.I. EGONU, SAN and agree with the views of my brother, Onnoghen, JSC. I would uphold the conclusion that the processes filed in the application, particularly the motion on notice filed on 19/12/05 and the proposed notice of cross appeal are incompetent." PER OGUNTADE J.S.C. There is nothing special or new in the opinion of the trial judge to call for a change of opinion. I therefore adopt the same view for this case and hold that the suit in this case wherein the Writ of Summons and the accompanying Statement of Claim were all signed by A.O. SANNI & CO. a firm of Legal Practitioners are each a nullity and indeed did not commence any action/suit at all."per OKORONKWO, J.C.A. (Pp , Paras. E-E) - read in context

3 2. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court process signed in the name of a law firm "The writ of summons and the statement of claim signed in the name of a firm of legal practitioners are incompetent and should be struck out."per FASANMI, J.C.A. (P. 13, Paras. D-E) - read in context

4 NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): The appeal herein relates to the ruling of the Hon. Justice O.A. Boade of the High Court of Oyo State whereby the Preliminary Objection of the appellant to the competence of the suit and jurisdiction of the Court was dismissed. Against the dismissal, the appellant who was defendant in that Court filed this appeal. Upon the matter coming up, the issue was raised whether the Writ of Summons and the Statement of Claim signed by a law firm as Sanni & Co. is competent. This is a threshold issue and arguments were taken thereon, it was argued thus for appellants thus: Furthermore, it is a legal practitioner whose name appears on the Rolls of Legal practitioner that can issue and sign a legal process to initiate proceedings in Nigeria Court. We humbly refer this Honourable Court to the provisions of Section 2 (1) of the Legal Practitioner Act Cap. 297, Laws of the Federation of Nigeria and the following cases:- (1) OKAFOR VS. NWEKE (2007) 19 WRN 1 at 11 LINES (2) NEW NIGERIAN BANK PLC. VS. DENCLAG LIMITED & ANOR. (2005) 4 NWLR pt. 916 Pg (3) HON. 1

5 ENG. BAKO SARAI & ANOR VS. IWUSA HARUNA & 2 ORS (2008) 23 WRN 130 at (4) IBRAHIM ALIYU & 1 OR VS. THE STATE (2008) 49 WRN 189 at The learned trial judge was right when he observed that it is not certain who signed the processes on top of S.O. Sanni & Co. as the signature thereon cannot be easily ascribed to Mr. S.O. Sanni and that the decisions in the Registered Trustees of Apostle Church, Lagos Area vs. RAHMEN (1967) NMLR 263 & COLE VS. MARTINS (1968) ALL NLR 165 are not applicable to the Plaintiff/1st Respondent s suit. The learned high Court Judge thereafter erred in law when he held that the decision in OKAFOR VS. NWEKE was not applicable to this case because, it was based on decision in interlocutory application and relied heavily in the decision of the Court of Appeal in UNITY BANK PLC. VS. ABIOLA (2009) ALL FWLR (pt. 452) 1084 without considering the decision in NEW NIGERIAN BANK PLC. VS. DENCLAG LIMITED & ANOR. (Supra) and SCC (NIG) LTD VS. EKENMA (2009) 27 W.R.N. 70 at 95. We submit with respect that the Writ of Summon is just like the Notice of Appeal, it 2

6 is the Court process that forms the very foundation of the case. The law is also that one cannot put something on nothing and expect it to stand. A suit just like an appeal founded on a Writ of Summon or Notice of Appeal that is signed and filed by one not so empowered by law to do so, definitely is no Writ of Summon or Notice of Appeal. It is a still born. Therefore, nothing based on it can properly have life. We humbly refer to the case of SCC (NIG) LTD VS. EKENMA (Supra) at 94, lines The learned High Court Judge ought to apply various decisions of the Court of Appeal that were based on substantive issue rather than relying on the Court of Appeal decision in UNITY BANK PLC. VS. ABIOLA (Supra) which was based on COLE VS. MARTINS, having held that the decision in COLE VS. A MARTIN was not applicable to this case. Even recently the Supreme Court in the case of BELLO OGUNDELE & ANOR VS. SHITTU AGIRI & ANOR (2010) 9 WRN 1 AT 31 LINES affirmed the decision in NWEKE VS. OKAFOR (SUPRA) and held that it is not an irregularity that can be waived but a fundamental error for Learned Counsel who appear before the Court 3

7 to sign any process of the Court as & Co. For the 2nd respondent, it was argued thus: The Supreme Court has consistently held that the validity of originating process in a proceeding before a Court is a fundamental and necessary requirement for the competence of the suit and proceeding the processes set out to commence. We refer to BRAITHWAITE VS. SKYE BANK PLC. (2012) 12 S.C. (pt. 1) Page 1 at 2-3. We submit that failure to commence a suit with a valid writ and/or statement of claim goes to the root of the action since the conditions precedent to the exercise of the Court s jurisdiction would not have been met to duly place the suit before the Court. We refer to MADUKOLU VS. NKEMDILIM (SUPRA) Failure to sign the Writ of Summons and statement of claim as required by law is a fundamental defect to the suit. This is because it is settled that a process prepared and filed in a Court of law must be signed by a person who was called to the Nigerian Bar and is thus a legal practitioner. We refer to SLB CONSORTIUM LTD. VS. NNPC (2011) 5 SCM 188 at 199 in the instant case, the Writ and Statement of Claim was not singed by a 4

8 Legal Practitioner as required by law. It was signed by S.O. SANNI & CO. which is not a person called to the Nigerian Bar. The Supreme Court has put to rest the fact that a document as in this case, that is legally required to be singed is worthless if it is not so signed. We submit with respect that the defeat in an originating process by which an action is begun robs the Court of its incompetence to entertain the matter before it. We refer to: a) EQUITY BANK OF NIGERIA LIMITED VS. HALILCO NIGERIA LIMITED (2006) 33 WRN 75 at 99. b) CHINA GEO-ENGINEERING CORPORATION (NIG) LTD. VS. ALHAJI MUSTAPHA ISA (2008) 12 WRN 171 at 199. We therefore submit that since the Writ which brought this suit is incompetent, there is nothing on which the other processes filed subsequently could hang on and the judgment on it will be invalid. We refer to: a) OKETADE VS. ADEWUNMI & ORS. (2010) 4 SCM 1, at Pages 2-4 b) MACFOY VS. UAC LTD. (1962) A.C. 150 at Page 160. We further submit that, assuming without conceding that the Writ is competent one may ask, is the Statement of Claim competent having been signed by S.O. SANNI 5

9 & CO. The 1st Respondent however, has a very different approach to the argument. It was argued thus that: On issue 5, the Respondent with due respect submits that the Supreme Court decisions in OGUNDELE VS. AGIRI (2009) 12 S.C. (pt. 1) 135 and OKAFOR VS. NWEKE (SUPRA) have not overruled or reversed the decision of the same Court in COLE VS. MARTINS (1968) ALL NLR 191 at 165 on the propriety or otherwise of a legal practitioner signing an originating processes in his registered name and not his personal name. In the both OKAFOR VS. NWEKE (SUPRA) and OGUNDELE V. AGIRI (SUPRA), five justices sat to consider the normal business of the day. It is the humble submission of the Respondent that it is trite law that the Supreme Court will overrule or reverse its earlier decision when a full Court made of seven justices sit. The Respondent relies on the case of UNITY BANK PLC. VS. MR. ABDULHAKEEM ABIOLA (2009) ALL FWLR (pt. 452) 1082 at 1084 where Alagoa JCA stated thus:..the Supreme Court had not overruled or reversed its decision in COLE VS. MARTINS. Whenever the Supreme Court is about to consider its earlier 6

10 decision, a full Court of the Supreme Court made up of seven Justices sit. In Nweke s case five Justices sat to consider the normal business of the day. In the same vein, in the case of OGUNDELE VS. AGIRI (SUPRA) only five justices sat. The Respondent also with due respect submits that the learned trial judge misconceived the case of COLE VS. MARTINS (SUPRA) when he stated that same is not applicable. The Respondent submits that the case of COLE VS. MARTINS is applicable in Suit 1/594/03. The Writ of Summons dated or filed 03/12/2003 at page 2 of the record is as follows: The plaintiff s claims against the defendant are as follows: i) DECLARATION that the defendant has negligently honoured First Bank of Nigeria Agodi Branch Ibadan forged cheque leaves No. 335, 336, 346, 347 and 354 for a total sum of N (Nine Hundred and Eighty Six Thousand Naira only) purportedly paid on behalf of the plaintiff to Yemisi Adegbuyi between 9th May and 8th September, ii) DECLARATION that the defendant has wrongfully debited the plaintiff s account with its Agodi Branch with the sum of N (Nine 7

11 Hundred and Eighty Six Thousand Naira only) shown in the plaintiff s statement of account issued by the defendant between 9th May and 8th September, ALTERNATIVELY iii) DECLARATION that the defendant breached the duty of care and trust owned the plaintiff when it (Defendant) honoured forged cheque leaves Nos. 335, 336, 346, 347 and 354. iv) AN ORDER that the plaintiff is entitled to the said N (Nine Hundred and Eighty Six Thousand Naira only) and directing the Defendant to credit the account of the plaintiff with the said amount. v) 20% interest on the said N (Nine Hundred and Eighty Six Thousand Naira only) from 9th May, 2003 till the judgment debt is finally liquidated and 10% thereafter until the total judgment is finally liquidated. This writ is issued by S.O. SANNI & CO. It will be seen that the Originating Writ of Summons was signed by S.O. Sanni & Co. The Statement of Claim at page 3 6 of the record was similarly signed thus: S.O. SANNI & CO. PLAINTIFF S SOLICITORS TOP FLOOR SUITE HARRODS BUILDING 8

12 AWOLOWO JUNCTION BODIJA IBADAN. Though pleadings were duly filed, the appellant as defendant filed a Notice of Preliminary Objection urging the Court to dismiss the case in limine on the grounds stated in the Preliminary Objection as follows: That this Honourable Court lacks necessary competence and jurisdiction to entertain this suit in that: a) The Application for leave to issue Writ of Summons for service on the Defendant having its head office at 35 Marina Lagos, Lagos State, a place outside the jurisdiction of this Honourable Court was not sought for and obtained. b) The Writ of Summons and other processes issued and served in this case were not endorsed as specified by the Sheriffs and Civil Process Act. c) The Writ of Summons and Statement of Claim filed by the Plaintiff are incompetent having being signed by a non juristic person. d) The service of the Writ of Summons and Statement of Claim on the Defendant are incompetent for failure to comply with the provision of Order 12 Rule 8 of the High Court (Civil Procedure) Rules 1988 and Section 78 of the Companies and Allied Matters Act

13 At the hearing of the Preliminary Objection, counsel made extensive submissions before the lower Court including Okafor vs. Nnaife (2007) 19 WRN 1 at 11, Hon. Eng. Bako Sarai & Ors vs. Iwusa Haruna (2008) 2 WRN 130, and Owners of the MV Arabello vs. NAIC (2008) WRN 1 at 23. The statute Legal Practitioners Act Cap. 297 Law of the Federation 1990 Section 2 (1) thereof. In a very extensive ruling spanning pages 72 to 86 of the record, the learned trial judge considered the objections and submission of counsel and in the end dismissed the Preliminary Objection holding that the case of Okafor vs. Nweke is distinguishable from the case before him in that Okafor vs. Nweke dealt with an interlocutory application and so different from the case before his Lordship. At the outset, it is apposite to say right away that the Court below was grossly misconceived. Okafor vs. Nweke (supra) dealt with the mode of commencing suits/action as stipulated by the Legal Practitioner Act and the various Civil Procedure rules of the various High Courts. Every such action must be commenced in the manner stipulated otherwise the process 10

14 initiating the action would be void. In a similar case CA/I/4/2012 Chief Fatai Agbabiyi & Ors vs. Chief Sikiru Balogun Court of Appeal Ibadan delivered on 22nd January, 2016, I commented on the same issue in the following manner. Now Section 2 (1) of Legal practitioner Act, Cap. 207 of the Laws of the Federation provides. 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 roll. And Section 24 of the same Act provides: - a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding. The simple question that arises, in view of the clear provisions of Cap. 207 reproduced above is whether or not J.H.C. OKOLO & CO. SAN is a person entitled to practice as a barrister and solicitor. It seems to me that only human beings actually called to the Bar could practice or practice by signing documents as a motion Paper. The argument that it is an over adherence to technicality to annul the process improperly signed and 11

15 filed by J.H.C. OKOLO & CO. SAN fails to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been quite another matter if what is in issue is a mere non-compliance with Court rules. In conclusion, I uphold the objection of Mr. G.R.I. EGONU, SAN and agree with the views of my brother, Onnoghen, JSC. I would uphold the conclusion that the processes filed in the application, particularly the motion on notice filed on 19/12/05 and the proposed notice of cross appeal are incompetent. PER OGUNTADE J.S.C. There is nothing special or new in the opinion of the trial judge to call for a change of opinion. I therefore adopt the same view for this case and hold that the suit in this case wherein the Writ of Summons and the accompanying Statement of Claim were all signed by A.O. SANNI & CO. a firm of Legal Practitioners are each a nullity and indeed did not commence any action/suit at all. The appeal in the circumstance has merit and therefore succeeds. It is consequently allowed. The ruling of 30/7/2009 of the lower Court is set aside. The suit No. 1/954/2003 is hereby struck out for being 12

16 incompetent. Their shall be cost of N50, cost in favour of appellant. MONICA BOLNA'AN DONGBAN-MENSEM, J.C.A.: I agree. MODUPE FASANMI, J.C.A.: I had the opportunity of reading before now the draft of the lead judgment of my learned brother Nonyerem Okoronkwo JCA just delivered. The writ of summons and the statement of claim signed in the name of a firm of legal practitioners are incompetent and should be struck out. The appeal succeeds and I abide by the consequential orders contained therein inclusive of the order on cost. 13