Holden at Abuja On Friday, the 22nd day of January, 2021 Before Their Lordships
Nwali Sylvester Ngwuta John Inyang Okoro Chima Centus Nweze Ejembi Eko (Dissenting) Uwani Musa Abba Aji Justices, Supreme Court SC.254/2012
Between
1. Adekunle Ajibode 2. Karimu Ajibode 3. Chief Raimi Ajibode 4. Chief M. A. Ajibode 5. John Ayinde Appellants
And
1. Dauda Gbadamosi 2. Prince Sadiru Obalanlege 3. Yisa Akinboyede 4. Muraina Abatan Respondents (For themselves and on behalf of Aidokun-Ogbo Family of Ewupe)
(Lead Judgement delivered by Honourable Nwali Sylvester Ngwuta, JSC)
Facts
The Respondents commenced an action against the Appellants at the High Court of Ogun State, seeking inter alia, a declaration that they are not members of or related to a certain Adoku-Ogbo Family of Ewupe, Ota, Ogun State. Several amendments characterised both the Statements of Claim and the Statements of Defence filed by both parties, spanning to 2002.
The trial court delivered its judgement on 25th May, 2007 in which it granted two of the reliefs sought, and dismissed the rest of the Respondents’ claims. The Appellants appealed the judgement to the Court of Appeal. However, the Court of Appeal affirmed the judgement of the trial court, in respect of two reliefs which it granted in part. Aggrieved, the Appellants filed an appeal at the Supreme Court. Thereat, they ultimately challenged the competence of the suit at the trial court, and the judgement of the Court of Appeal delivered in the appeal that emanated from suit.
Issue for Determination
The Appellants formulated a single ground of appeal, from which it distilled a sole issue for determination thus:
Whether the Court of Appeal had jurisdiction to sit on an appeal that emanated from the judgement delivered on the 25th day of May, 2007, in an action that originated by a Writ of Summons signed by the law office of Chief Toye Coker & Co.
Arguments
Counsel for the Appellants argued that the law firm of Chief Toye Coker & Co, is not qualified under Section 2(1) of the Legal Practitioners Act to sign processes. Relying on the decision of OKAFOR v NWEKE (2007) All FWLR (Pt. 368) 1016 at 1025 – 1027, he contended that the law firm of “Chief Toye Coker & Co” is not a person entitled to practice as a Barrister or a Solicitor, and the processes signed by the law firm are null and void. He submitted that the suit commenced based on the said processes is incompetent, and the court had no jurisdiction to entertain the suit.
Conversely and in an attempt to distinguish the facts in OKAFOR v NWEKE (supra) cited by the Appellant and the instant case, counsel for the Respondents argued that the offending processes signed in the name of a law firm in OKAFOR v NWEKE were a Motion on Notice, a Proposed Notice of Appeal exhibited with the affidavit in support of the motion, and the written address in the motion. The issue before the court in the case was predicated on a breach of the rules of court, contrary to the ground of objection in the instant case. He relied on OMNIA NIG. LTD v PYKTRADE LTD. (2007) SCNJ 288 and argued that the Statement of Claim is part of the originating process, and when it is filed, it supersedes the Writ of Summon and the contents therein determine the jurisdiction of the court to entertain the suit. He submitted that the Statement of Claim was signed by a legal practitioner; hence, the suit was competent and the Court of Appeal had the jurisdiction to entertain the appeal that emanated from the decision of the trial court in the suit.
Court’s Judgement and Rationale
The Court held that by the provision of Sections 2(1) of the Legal Practitioners Act, CAP 201, LFN 1990, no person or institution other than that prescribed in the Act shall be allowed to practice as a legal practitioner in Nigeria. The Apex Court held that by the description of a legal practitioner under Section 24 of the Act, a legal practitioner means a natural person who must have been duly called to the Bar, and must have enrolled in the Supreme Court of Nigeria.
The court held further that the combined effect of these provisions is that for a person to be qualified to practice as a legal practitioner in Nigeria, he must have his name on the roll of Legal Practitioners, otherwise, he cannot engage in any form of legal practice including the signing of legal documents to be used in court. The Court held that the decision in OKAFOR v NWEKE (supra) which the Respondents tried to distinguish, did in fact establish that any document or process for filing in court, and not only an originating process, must be signed by a person qualified to practice under the Act, and any other mode of signing or authenticating a legal process will render the process a nullity. The Court referred to FBN PLC & 3 ORS. v MAIWADA & ORS (2012) 5 SC (Pt. III) 1 and ALAWIYE v OGUNSANYA (2012) 12 SC (Pt. III) 1. A process filed in violation of the provisions of the Act, cannot be said to have been duly filed before the court. In the eye of the law such process does not exist, and cannot invoke the judgement of the court.
The court held that, the principle that the Statement of Claim when filed supersedes the Writ of Summons would not apply in a situation where a Writ of Summons is filed in violation of the Legal Practitioners Act and ipso facto null and void, because the Writ is a nullity and there is nothing in existence that can be superseded by the Statement of Claim or anything. In the instant case, the writ of summons filed and signed by “Chief Toye Coker & Co.” which is a law firm and not a legal practitioner on the roll of Legal Practitioners in Nigeria as mandatorily required under the Legal Practitioners Act, is substantially and fundamentally defective to give the general proceedings any life. The defect which is a breach of the Legal Practitioners’ Act, cannot be treated as a mere irregularity that a party can waive. The trial court thus, lacked the jurisdiction to entertain the suit and the Court of Appeal did not have the competence to determine the appeal arising from the proceedings which were void ab initio.
Dissenting Opinion of Honourable Ejembi Eko, JSC
Dissenting, His Lordship opined that it was too late in the day for the Appellants to be heard complaining about any defect in the Writ of Summons to which they unconditionally entered appearance, filed pleadings and called evidence. His Lordship referred to HERITAGE BANK LTD v BENTWORTH FINANCE (NIG.) LTD (2018) 9 NWLR (Pt. 1625) 420 (SC).
Appeal Allowed on a Ratio of 4:1.
Representation S.A. Sanni Esq. for the Appellants.
F.T. Shotikare Esq. with J.T. Komolafe Esq. for the Respondents.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)