Suit Number:SC.96/2006
Judges:MARY UKAEGO PETER-ODILI JSC (Presided) OLUKAYODEARIWOOLA JSC JOHN INYANG OKORO JSC AMINAADAMU AUGIE JSC (Read the Lead Judgment) EJEMBI EKO JSC PAULADAMU GALINJE JSC SIDI DAUDA BAGE JSC
Counsel:Afolabi Kuti Esq (with him, Ikechukwu Nwakanma Esq) -
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for the Appellant. C
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Ebun-Olu Adegboruwa Esq (with him, Eniola Aiyenuberu Esq and Gbadebo Ikuesan Esq) - for the Respondent.
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AUGIE JSC (Delivering the Lead Judgment): The respondent D is the son of Professor Asuquo Antia (deceased), who was the plaintiff at the Edo State High Court, and appellant at the Court of Appeal, Benin. He was substituted for his deceased father by the Court of Appeal. The late Professor Asuquo Antia, who was Chief E Paediatrician Consultant with the third appellant, had instituted
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an action at the High Court, Benin (trial court).
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The late Professor’s case at the trial Court is that he took on the employment with third appellant on a salary of five thousand
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United States Dollars monthly, which was to be paid to him partly F
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in dollars and partly in naira. He claimed that although he worked as agreed; he was not paid as agreed in that the Dollar component of his salary was not paid at all and the Naira component was not
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paid for October 1994. He, therefore, claimed the following: G
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The sum of N66,000.00 (sixty-six thousand naira)
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being the unpaid salary due to the plaintiff from the defendants for the month of October, 1994 which sum represents that part of the plaintiff’s remuneration payable in naira under the contract of employment with H
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the defendants.
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The sum of N2,210,000.00 (two million, two hundred and ten thousand naira) equivalent of U.S $26,000.00 being the unpaid salary due to the plaintiff from the defendants for the month of October 1993 to October, 1994. 13 months at the rate of U.S $2,000.00 per month which sum represents that part of the plaintiff’s remuneration payable to his London account in U.S
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dollars under his contract with the defendants.
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10% interest from judgment till the total sum is fully paid. The appellants, who were the defendants, claimed inter alia that there was no portion of the salary payable in United States dollars; and no salary was payable for the month of October 1994, as his employment had been terminated at the end of September
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The learned trial judge, Idahosa J., believed the appellants.
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He concluded as follows in his Judgment delivered on 6 June 1997:
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The inference one can draw from this state of facts is E that plaintiff did not complain or protest because he knew he was not entitled to any payment in dollars. It
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is natural to expect a worker, who is not paid his full wages as agreed to protest at the earliest opportunity. It is also natural and in the normal course of events
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that a worker, who has been paid all his entitlements
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will continue to perform his duties without any protest about unpaid salaries or salaries not completely paid. The plaintiff is a renowned paediatrician and a retired
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Professor Emeritus, according to the pleadings and evidence. It cannot be successfully argued that a man
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of such learning and experience, who worked for over 31 years as at 1993, could be enticed into a contract of service, which was not written, and thus had no firm
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and easily identifiable conditions of service. It cannot
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be successfully argued that such a man, as the plaintiff, did not find it necessary to check that the payment of
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that part of his salary “payable in dollars” was being A made regularly as and when due, especially as he had cause to complain that the naira “part of the salary” was not being paid regularly. Thus, it is in consideration
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of the evidence before me in this suit that I have come B
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to the following conclusions and I make the following
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findings of fact:-
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That the plaintiff was actually engaged to work in the 3rd defendant hospital as its Chief
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Consultant Paediatrician. C
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That he actually worked in that capacity from 5 October 1993 till 30 September 1994. That his salary or remuneration was the sum of
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$3,000.00 (three thousand United States Dollars) payable in the naira equivalent. D
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That the plaintiff was paid all his remuneration as above for the period he worked. I do not accept the contention of the plaintiff when he said that his salary was 5000 U.S. E dollars payable as follows: - 3000 U.S. dollars equivalent in naira and 2000 U.S. Dollars payable into his London account in Dollars, for the reasons already outlined above. I do not accept the contention of the plaintiff F
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that he worked till October 1994 and as such he was entitled to be paid for the month of October 1994, for reasons already outlined above.
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In the light of the above findings, I am satisfied that G
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the action of the plaintiff has no merit and it ought to
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be dismissed. It is hereby dismissed with costs of N1,000 (one thousand naira) to all the defendants jointly.
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Dissatisfied with the decision of the trial court, the late H
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professor appealed to the Court of Appeal with an original notice of appeal that was issued and signed “for Chief P. C. Ajayi-Obe
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(SAN) & Co”.
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He later sought and was granted leave by the Court of Appeal to amend his notice of appeal. The amended notice of appeal, however was also signed by “Chief P. C. Ajayi-Obe (SAN) & Co”.
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In its judgment of 19 January 2005, the Court of Appeal held that:
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“With regard to the calibre of the person and institution he was dealing with, it would have been uncalled for the appellant to doubt the $2,000 was
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paid as he got the naira equivalent as at when due”.
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At the end of the day, the Court of Appeal concluded as follows:
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“The appeal succeeds in part. Appellant is entitled to
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be paid $2,000 per month from October 1993 till
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D September 1994. He failed to prove his claim for salary
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up to the end of October 1994. Though, he pleaded interest on the sum he claimed, he offered no evidence relating to his claim for interest, and pleading is not
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evidence. His claim for naira equivalent of U.S. $3,000 for October was not proved and is dismissed. Appeal allowed in part. Respondents to pay costs at N3,000 (three thousand naira)”
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Dissatisfied with part of the judgment in which the lower
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court held that Professor Asuquo Antia, the respondent be paid
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the scam of US $2,000.00 per month from October 1993 to September 1994, the appellants appealed to this court with a notice of appeal that had six grounds of appeal. The notice of appeal was
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amended, and the amended notice of appeal has seven grounds of appeal.
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Ground 1 complains that “the lower court erred in relying on the amended notice of appeal dated 7 September 2000 in determining the appeal filed by the respondent”. The particulars
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of error are: The respondent filed his notice of appeal and a subsequent amended notice of appeal dated 30 July
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1997 and 7 September 2000 respectively against the A
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decision of the trial court.
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Both the notice of appeal and the amended notice of appeal was issued and signed in the name of “Chief P.
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C. Ajayi-Obe (SAN) & Co”, the law firm representing B
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the respondent at the lower court.
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“Chief P. C. Ajayi-Obe (SAN) & Co”, is not a legal practitioner under the Nigeria law that can competently sign a process upon which the appeal could have been commenced. C
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The appellant formulated the following issues for determination -
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Whether the learned justices of the Court of Appeal
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acted within their jurisdiction in relying on a fundamentally defective notice of appeal issued and D
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signed by Chief P.C. Ajayi-Obe (SAN) & Co., which is not a legal practitioner recognized by law to practice law in Nigeria?
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Whether the learned justices of the Court of Appeal E were right when they relied solely on exhibit F in coming to the conclusion that a recommendation of
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$5,000.00 was made by the appellants and accepted
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by the respondent as the latter’s monthly salary as employee of the 3rd appellant? F
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(e) Whether the lower court was right in holding that the evidence of the respondent with respect to his conversation with the 1st appellant on the amount of monthly salary payable was uncontroverted and liable G to be accepted and acted upon by the court.
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(d) Whether the lower court was right in reaching a conclusion that the doctrine of waiver could not avail the appellants on the facts submitted before it?
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The respondent also formulated four issues for H
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determination i.e.
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Whether the learned justices of the Court of Appeal were right in holding that the monthly salary payable to the respondent was $5, 000 out of which US$3,000 was payable in naira equivalent? Whether the learned justices of the Court of Appeal gave exhibit F the legal factual interpretation supported by evidence? Whether the learned justices of the Court of Appeal adequately evaluated the evidence before them and if they did, whether they applied the evidence to the judgment? Whether the learned justices of the Court of Appeal were right is failing to award the respondent the sum of N66,000.00 (sixty-six thousand naira) being his salary for October 1994? The respondent made no reference to the complaint in
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ground 1 of the said grounds of appeal and formulated no issue there-from.
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However, the appellant’s issue 1 raises a jurisdictional issue, E which must be resolved quickly because “there is nothing as useless as doing efficiently that which should not have been done at all” Oni v. Cadbury Nigeria Plc (2016) All FWLR (Pt. 827) 605,
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(2016) LPELR-26061(SC) - per Rhodes-Vivour JSC.
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In other words, the issue touching on jurisdiction has to be
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F resolved first because jurisdiction is the life wire or lifeblood of
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any litigation before a court of law, and if the court has no jurisdiction, the proceedings, however ably and well conducted, will be a nullity - see Ocholi Enojo James SAN v. I.N.E.C. (2015)
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G All FWLR (Pt. 787) 652, (2015) LPELR-24494(SC).
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In this case, the appellants contend that the judgment of the
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court below is predicated upon an incompetent notice of appeal, and so, as held in Macfoy v. UAC (1962) AC 152, “there was nothing upon which the judgment of the lower court could be
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H predicated and every judgment founded on such notice of appeal
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is a nullity”.
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They cited the following cases on the nature of a notice of
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appeal: A
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Shelim v. Gobang (2009) All FWLR (Pt. 496) 1866, (2009) 12 NWLR (Pt. 1156) 435 Nonye Iwunze v. F.R.N. (2015) All FWLR (Pt. 788)
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844, (2015) 6 NWLR (Pt. 1404) 580 B
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Thor Ltd v. F.C.M.B. Ltd (2002) FWLR (Pt. 95) 276,
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(2002) 4 NWLR (Pt. 757) 427, (2002) 2 SCNJ 85
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Ebokam v. Ekwenibe and Sons Trading Co. Ltd
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(1999) 10 NWLR (Pt. 622) 242, (1999) 7 SCNJ 77
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Uwazurike v. Attorney-General, Federation (2007) C
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All FWLR (Pt.367) 834, (2007) 8 NWLR (Pt. 1035)
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1, (2007) LPELR-3448 (SC) 14
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Ikweki v. Ebele (2005) All FWLR (Pt. 257) 1401, (2005) 11 NWLR (Pt. 936) 397
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- Bob v. Akpan (2010) All FWLR (Pt. 501) 896, (2010) D
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17 NWLR (Pt. 1223) 421
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General Electric Co. v. Akande (2010) 18 NWLR (Pt.1225) 596, (2012) All FWLR (Pt. 631) 1474 Okeke Amadi v. Okeke Okoli (1977) 7 SC 57, 58 E Adelekan v. Ecu-Line NV (2006) All FWLR (Pt. 321) 1213, (2006) 12 NWLR (Pt.993) 33 Okolo v. U.B.N. Ltd (2004) All FWLR (Pt. 197) 981,
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(2004) 13 NWLR (Pt.859) 87
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- Agu v. Odofin (1992) 3 NWLR (Pt. 229) 350, (1992) F
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3 SCNJ 162; Aderibigbe v. Abidoye (2009) 10
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NWLR (Pt. 1150) 592, (2009) 4 SC 123.
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They submitted that a defective notice of appeal is non- existent in the eyes of the law, therefore, the appeal is incompetent, G citing:
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Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583 Joel Okunrinboye Export Co. Ltd & Anor v. Skye Bank H First Bank Plc v. T.S.A. Ind. Ltd (2010) All FWLR (Pt. 537) 633, (2010) 15 NWLR (Pt.1216) 247 SC
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- Olanrewaju v. B.O.N. Ltd (1994) 8 NWLR (Pt. 364) 622 Nwaigwe v. Okere (2008) All FWLR (Pt. 431) 843, (2008) 13 NWLR (Pt. 1105) 445 - Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466, (2013) LPELR-SC.75/2008, (2014) All FWLR
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(Pt. 720) 1287
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They further submitted that there is a veritable body of authorities of this court to the effect that by virtue of sections
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2(1) and 24 of the Legal Practitioners Act, only a person, whose name appears on the roll of legal practitioners can practice law in this country, and this includes signing of legal documents. So, any legal document signed by any other person is incompetent
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and must be struck out. They referred this court to the following
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authorities on this point: N.N.B. Plc v. Denclag Ltd (2004) All FWLR (Pt. 228) 606, (2005) 4 NWLR (Pt.915) 549 Okafor v. Nweke (2007) All FWLR (Pt. 368) 1016,
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E (2007) 10 NWLR (Pt. 1043) 521
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Oketade v. Adewunmi (2010) All FWLR (Pt. 526) 511, (2010) 8 NWLR (Pt. 1195) 63, (2010) 2 - 3 SC
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(Pt. 1) 140
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F.B.N. Plc v. Maiwada (2013) All FWLR (Pt. 661)
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F 1433, (2013) 5 NWLR (Pt. 1348) 444
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SLB Consortium Ltd v. N.N.P.C. (2011) All FWLR (Pt. 583) 1902, (2011) 9 NWLR (Pt. 1252) 317
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Relying on these authorities, they argued that the notice of G appeal having been signed by a law firm instead of a legal practitioner is incompetent, which is in tandem with another
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pronouncement of this court in Hamzat & Anor v. Sanni & Ors
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(2015) All FWLR (Pt. 776) 436, (2015) 5 NWLR (Pt. 1453)
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486, (2015) LPELR 24302(SC). They contend that the
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H respondent’s notice of appeal before the Court of Appeal is incompetent, and same is liable to be struck out.
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The respondent did not say anything about this issue at all.
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But it is clear from the authorities cited by the appellant that the A
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issue before this full court is whether this court can depart from or find any extenuating circumstances in this particular case to make this court deviate from its earlier pronouncements that any
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court process that is signed in the name of a law firm without B
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indicating the name of the particular legal practitioner, who had
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issued and signed the process, is incompetent and is liable to be struck out.
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To start with, the appellants are right that a notice of appeal
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is the originating process that sets the ball rolling for the valid C and lawful commencement of an appeal - Shelim v. Gobang (supra), therefore, any defect in the notice of appeal goes to the root of the appeal and robs this court of jurisdiction to hear the appeal - see Iwunze v. F.R.N. (supra), where Rhodes-Vivour JSC,
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observed - D
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“The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the rules of court. The Court of Appeal would lack E jurisdiction to hear an appeal if an appellant fail to comply with statutory provisions or the relevant rules
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of court. The originating process in all appeals is the notice of appeal. Once it is found to be defective, the
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Court of Appeal ceases to have jurisdiction to entertain F
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an appeal in whatever form.”
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See also F.R.N. v. Dairo (supra), (2015) All FWLR (Pt. 776) 486, (2015) 6 NWLR (Pt. 1454) 141 - 166/177, wherein Nweze
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JSC, likened a defective notice to a virus, thus - G
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“As it is well-known, it is a notice of appeal that
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initiates an appeal from a High Court to the lower court. Put differently, the notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower H
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court. As such, any virus in this process would, invariably, corrode or taint the entire appeal thereby
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rendering it incompetent. The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal court which must, as of necessity, strike out such a process. In effect, the absence of a competent notice of appeal, simply, translates to the non-existence of an appeal. This must
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be so for it is a condition precedent to any valid exercise of appellate jurisdiction.”
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In other words, the importance of a notice of appeal in the C process of an appeal is tremendous as it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent - see First Bank v. T.S.A. Industries Ltd
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(supra).
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In this case, the appellants’ contention is that the amended
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D notice of appeal on which the court below based its judgment is
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defective, since it was signed by a law firm; not a legal practitioner. Now, section 2(1) of the Legal Practitioners Act, stipulates
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that -
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“Subject to the provisions of this Act, a person shall be entitled to practice as barrister and solicitor if, and only if, his name is on the roll.”
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And section 24 of the same Act (interpretation section) says
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that -
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“In this Act, unless the context otherwise requires, the
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following expressions have the meaning assigned to them respectively, that is to say. “Legal practitioner” means a person entitled in accordance with the
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provisions of this Act to practice as a barrister or solicitor, either generally or for the purposes of any
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particular office or proceedings.”
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As the appellants rightly submitted, this court has considered these provisions of the Legal Practitioners Act in
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numerous cases. For instance, in the well-known case of Okafor Nweke (supra), where a motion on notice was signed by “J.H.C. Okolo SAN & Co”, this court per Onnoghen JSC (as he then was),
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categorically said - A
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“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,
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otherwise, he cannot engage in any form of legal B
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practice in Nigeria. The law does not say that what
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should be in the roll should be the signature of the legal practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which learned counsel claimed to be his really belongs C to J.H.C. Okolo SAN & Co or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo SAN & Co is
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not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo SAN & Co cannot D
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legally sign and/or file any process in the courts and as such the motion on notice, notice of cross-appeal and brief of argument, all signed and issued by the
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firm known and called J.H.C. Okolo SAN & Co are E
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incompetent in law, particularly, as the said firm of
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J.H.C. Okolo SAN & Co is not a registered legal practitioner.
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This court maintained the same position and reiterated its point that a law firm “cannot legally sign and/or file any process F
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in the courts”; and any such process signed by a law firm is “incompetent in law” in F.B.N. v. Maiwada (supra) and SLB Consortium v. N.N.P.C. (supra).
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In SLB Consortium v. N.N.P.C. (supra), the originating G summons was signed by a law firm. This court per Fabiyi JSC, held that -
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“It is not in doubt that the signature of “Adewale Adesokan & Co” on the originating summons robs the process of competence ab initio as the said firm is H not a registered legal practitioner enrolled to practice law as barrister and solicitor in this court. In the
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prevailing circumstance, all the proceedings, which rested on the inchoate originating summons, are deemed not to have taken place in law. One cannot put something on nothing and expect it to stand. This is as stated in UAC v. Macfoy (supra), it has been established that the originating summons signed by a law firm of
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“Adewale Adesokan & Co was not initiated by due process. As same is incompetent, this appeal rests on nothing.”
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The same Fabiyi JSC, stated as follows in F.B.N. v. Maiwada (supra) -
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“We are interpreting a law, which seeks to make legal practitioners responsible and accountable in modern
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times. I see nothing technical in insisting that a legal
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practitioner should abide by dictates of the law in
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signing court processes. It is my view that if the decision in Okafor v. Nweke is revisited as urged, more confusion will be created. The decision in
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Okafor v. Nweke is not in any respect wrong in law. The convenience of counsel should have no pre- eminence over the dictates of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision in Okafor v. Nweke should be revisited. It has come to stay and
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legal practitioners should reframe their minds to live by it for due accountability and responsibility on their’ part and for due protection of our profession.”
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The decision in Okafor v. Nweke (supra) has come to stay ; that is the message entrenched in the decisions of this court thereafter - see Hamzat & Anor v. Sanni & Ors (2015) 5 NWLR
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(Pt. 1453) 4861 wherein this court per Galadima JSC, very aptly stated as follows -
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“This court was faced with a similar situation - - in
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Okafor v. Nweke. In SLB Consortium v. N.N.P.C., this court citing the case of Okafor v. Nweke struck out
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the plaintiff’s originating summons and statement of A
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claim, both having been signed by “Adewale Adesokan & Co”, who was held not to be a legal practitioner known to law. In view of our clear position in Okafor
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v. Nweke and other similar cases, I hold that the B
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appellant’s statement of claim on which evidence was
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led, were a nullity, same having been signed in the name of a law firm.”
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In this case, it is clear that the amended notice of appeal filed at the court below was signed by “Chief P.C.Ajayi-Obe (SAN) C & Co”, who is not a legal practitioner that is known to law; it was not filed according to the dictates of law, and it is, therefore incompetent, and must be struck out. Thus, the appeal itself rested
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on nothing.
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This is a full court with seven justices of the Supreme Court. D
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The respondent has not placed anything before the court that will sway this court to depart from its previous decisions in the cases of Okafor v. Nweke (supra), SLB Consortium Ltd v. N.N.P.C.
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(supra), F.B.N. v. Maiwada (supra) and that of Hamzat v. Sanni E
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(supra).
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In the circumstances, the appeal filed at the Court of Appeal by the late Professor is incompetent and it is, therefore, struck out.
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PETER-ODILI JSC: I agree with the judgment just delivered by my learned brother, Amina Adamu Augie JSC and to register that support, I shall make some comments. G
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This is an appeal against the judgment of the Court of Appeal,
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Benin Division delivered on 19 January 2005 in which the Court of Appeal or court below set aside the decision of the Edo State High Court, Benin Division per C.O. Idahosa J (as he then was).
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The plaintiffs claim are as stated briefly hereunder thus:- H
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The sum of N66,000.00 (sixty six thousand naira) being the unpaid salary due to the plaintiff from the
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defendants for the month of October 1994 which sum represents that part of the plaintiff’s remuneration payable in naira under the contract of employment with the defendants. ii. The sum of N2,210,000.00 (two million, two hundred and ten thousand naira) equivalent of U.S $26,000.00
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(twenty-six thousand U.S Dollars) being the unpaid salary due to plaintiff from the defendant for the month of October 1993 to October 1994, 13 months at the
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rate of U.S $2,000.00 (two thousand U.S Dollars) per month, which sum represents that part of the plaintiff’s remuneration payable to his London account in United States Dollars under his contract with the
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defendants.
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iii. 10% interest from the judgment sum till the total sum
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is fully paid.
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The respondent filed a statement of claim dated 10 November 1995 and led evidence in support. The appellants filed
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a joint statement of defence and Mr. Ivowe, Executive Director (medical services) of the 3rd appellant, proffered evidence in support of the statement of defence. At the conclusion of the case, the learned trial judge found for the defendant holding , as its
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judgment, the following conclusions.
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i. That the plaintiff was actually engaged to work in the
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3rd defendants hospital as its chief consultant paediatrician.
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The respondent worked in that capacity from 5 October
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1993 till 30 September 1994. That the respondent’s salary or remuneration was the
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sum of $3,000.00 payable in naira equivalent.
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That the respondent was paid all his remuneration throughout the period of employment.
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Aggrieved with the decision of the trial court, the appellant
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(now respondent herein); filed a notice of appeal at the Court of Appeal vide a notice and grounds of appeal dated 30 July 1997.
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By judgment of the Court of Appeal dated 19 January 2005, A the judgment of the lower court was upturned and the appeal was allowed in part. The lower court held the respondent herein was entitled to be paid the sum of $2,000.00 per month from October
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1993 till September 2004. The appellant being dissatisfied with B
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the judgement of the lower court, appealed against the judgment
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by initiating appeal to this honourable court via notice of appeal dated 12, 2005. At the hearing on 26 September 2017, Afolabi Kuti Esq. learned counsel for the appellants adopted the amended appellants’ brief of argument filed on 15 July 2016 and deemed C filed on 26 September 2017, and reply brief filed on 21 September 2017 and deemed filed on 26 September 2017. Learned counsel identified four issues for determination which are as follows:-
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Issues
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Whether the learned justices of the Court of Appeal D
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acted within their jurisdiction in relying on a fundamentally defective notice of appeal issued and signed by Chief P.C Ajayi-Obe (SAN) & Co., which is not a legal practitioner recognized by law to practice E law in Nigeria? (Ground 1 of the notice of appeal).
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Whether the learned justices of the Court of Appeal were right when they relied solely on exhibit F in coming to the conclusion that a recommendation of
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$5,000.00 was made by the appellants and accepted F
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by the respondent, as the latter’s monthly salary as employee of the 3rd appellant? (Grounds 2,4 and 5 of the notice of appeal).
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Whether the lower court was right in holding that the G evidence of the respondent with respect to his conversation with 1st appellant on the amount of
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monthly salary payable was uncontroverted and liable to be accepted and acted upon by the court.
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Whether the lower court was right in reaching a H
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conclusion that the doctrine of waiver could not avail the appellants on the facts submitted before it?
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(Ground 3 of the notice of appeal).
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Ebun-Olu Adegboruwa Esq., for the respondent adopted his brief of argument filed on 3 May 2017 and deemed filed on 26 September 2017. He crafted five issues for determination, viz:-
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a. Whether the learned justices of the Court of Appeal acted within jurisdiction in relying on the notice of
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appeal of the respondent filed in the lower court? (Ground 1 of the notice of appeal).
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Whether the learned justices of the Court of Appeal C were right in holding that the monthly salary payable to respondent was $5,000.00 out of which U.S
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$3,000.00 was payable in naira equivalent.
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Whether the learned justices of the Court of Appeal gave exhibit F, the legal factual interpretation supported by evidence. Whether the learned justices of the Court of Appeal adequately evaluated the evidence before them and if they did, whether they applied the evidence to the judgment. Whether the learned justices of the Court of Appeal were right in failing to award the respondent the sum of N66,000.00 (sixty-six thousand naira) being his salary for October 1994? I shall confine my comments to issue no 1 of the appellant
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which is substantially the same as issue one of the respondent.
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Issue No 1
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Whether the learned justices of the Court of Appeal G acted within their jurisdiction in relying on a fundamentally defective notice of appeal issued and
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signed by Chief P.C Ajayi-Obe (SAN) &Co., which is not a legal practitioner recognised by law to practice law in Nigeria? .
-*-
H Learned counsel for the appellant, Afolabi Kuti Esq.
-*-
submitted that a notice of appeal has been held to be the most important step in the initiation of an appeal and consequently,
-*-
where the notice of appeal turns out to be defective, the appeal A
-*-
would be considered incompetent. The follow up to such a defect is that the Court of Appeal ceased to have jurisdiction to entertain appeal in whatever form. The cases of Thor Ltd v. F.C.M.B. Ltd
-*-
(2002) FWLR (Pt. 95) 276, (2002) 4 NWLR (Pt. 757) 427, B
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(2002) 2 SCNJ 85; Ebokam v. Ekwenibe and Sons Trading Co.
-*-
Ltd (1999) 10 NWLR (Pt. 622) 242, (1999) 7 SCNJ 77;
-*-
Uwazurike v. Attorney-General, Federation (2007) All FWLR (Pt.367) 834, (2007) 8 NWLR (Pt. 1035) 1, (2007) LPELR-
-*-
3448 (SC) 14; Ikweki v. Ebele (2005) All FWLR (Pt. 257) 1401, C
-*-
(2005) 11 NWLR (Pt. 936) 397; J. A. Aderigbe v. Tiamiyu Abidoye
-*-
(2009) 10 NWLR (Pt. 1150) 592, (2009) 4 SC 123, (2009) 4
-*-
SCNJ 259-281.
-*-
Learned counsel for the appellant further contended that
-*-
the effect of signing a process in the name of a law firm as happened D
-*-
in this instance, breached the provisions of sections 2(1) and 24 of the Legal Practitioners Act Cap. L11, Laws of the Federation of Nigeria (LFN) 2004. He relied also on the cases of N.N.B Plc
-*-
Denclag Ltd (2005) 4 NWLR (Pt. 915) 549 at 582; Okafor v. E Nweke (2007) All FWLR (Pt.368) 1016 at 1018; F.B.N. Plc v. Maiwada (2013) 5 NWLR (Pt.1348) 444.
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For the respondent, learned counsel, Mr. Adegboruwa submitted that this court should depart from its earlier decisions
-*-
in Okafor v. Nweke (Supra ) and N.N.B. Plc v. Denclag Ltd F
-*-
(Supra), that this court should hold, that judgments of this court should not take retrospective effect over cases that are already concluded wherein, some agreements that are settled, payments already made, judgments already executed prior to the principle G of the court on subject matter. That section 4(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as
-*-
amended) forbids the National Assembly from enacting a law that has a retrospective effect. He cited Ojokolobo & Ors v. Alamu & Anor (1987) 3 NWLR (Pt. 61) 377, (1987) LPELR 2392. H
-*-
It was stated for the respondent that in the spirit of substantial justice, there is a cry for the departure from the earlier
-*-
decisions which goes against the justice that should prevail in this case. He cited Uwazurike & Ors v. Attorney-General of the Federation (2013) LPELR-20392; Erisi v. Idika (No1) (1987) 4 NWLR (Pt. 66) 503,(1987) 11-12 SCNJ 27 etc. The crux of the appellant’s contention on this issue 1 is that the notice of appeal before the court below being incompetent is
-*-
liable to be struck out. This is because it was not signed by a legal practitioner as known to law.
-*-
The stand of the respondent is an invitation to the Supreme
-*-
Court to depart from its earlier decisions along that line of position of the appellant.
-*-
A notice of appeal is the originating process in an appeal and so when it turns out defective, the appeal would be considered
-*-
incompetent. This court per Rhodes-Vivour JSC in Nonye Iwunze
-*-
D v. F.R.N. (2015) 6 NWLR (Pt.1404) 580 at 596 stated thus:-
-*-
“The constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the
-*-
rules of the court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of court. The originating process in all appeals is the notice of appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain
-*-
an appeal in whatever form”.
-*-
It is a safe conclusion, therefore, that a notice of appeal is the spinal cord of an appeal, the foundation upon which an appeal
-*-
is based. Therefore, once it is found defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal, as an ineffectual notice of appeal is incapable of activating an appellant’s right of
-*-
appeal. See Uwazurike & Ors v. Attorney-General, Federation
-*-
(2007) LPELR - 3448; Kweki v. Ebele (2005) 11 NWLR (Pt.
-*-
H 936) 397; Bob v. Akpan (2010) All FWLR (Pt. 501) 896, (2010)
-*-
17 NWLR (Pt. 1223) 421; Agu v. Odofin (1992) 3 SCNJ 161;
-*-
Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295)
-*-
583. A
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The clear picture of the effect of a defective notice of appeal
-*-
is well captured in its raw form by my learned brother, Nweze JSC, in the case of F.R.N. v. Dairo & Ors (2015) LPELR-24303
-*-
as thus:- B
-*-
“As such, any virus in this process would, invariably,
-*-
corrode or taint the entire appeal thereby rendering it competent. First Bank of Nigeria Plc v T.S.A Ind Ltd (2010) LPELR-1283 (SC) 49, paragraphs A-D; Okeke Amadi v. Okeke Oko1i (1977) 7 (SC) 57, 58; C Adelekan v. ECU-Line NV (2006) 12 NWLR (Pt.993) 33; Okolo v. UBN Ltd (2004) 3 NWLR (Pt.859) 87;
-*-
Ikweki v. Ebele (2005) 11 NWLR (Pt.936) 397...
-*-
The effect of such a viral corrosion is, usually,
-*-
far-reaching as it nibbles at the jurisdiction of the D
-*-
appeal court which must, as of necessity, strike out such a process, Attorney-General, Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618)
-*-
187; (2001) FWLR (Pt. 32) 87; Odunze v. Nwosu E
-*-
(2007) All FWLR (Pt. 379) 1295, (2007) 13 NWLR
-*-
(Pt.1050) 1; Agu v. Odofin (1992) 3 SCNJ 161,172-
-*-
173; Ibeto v. Aminu (2007) All FWLR (Pt. 355) 521,
-*-
(2007) 5 NWLR (Pt.1028) 446; Danmusa v. Inuwa
-*-
(2007) 17 NWLR (Pt. 1063) 391; Clev Josh Ltd v. F
-*-
Tokimi (2008) 13 NWLR (Pt.1104) 422.
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In effect, the absence of a competent notice of appeal, simply, translates to the non-existence of an appeal, Amadi v. Okoli (1972) 7 SC 57; C.B.N. v. Okojie G (2004) 10 NWLR (Pt.882) 488; Olanrewaju v. B.O.N.
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Ltd (1994) 8 NWLR (Pt.364) 622; Olowokere v. African Newspapers Ltd (1993)5 NWLR (Pt.295) 583; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503;
-*-
Josiah Cornelius Ltd v. Ezenwa (1996) 4 NWLR (Pt. H
-*-
443) 391, (1996) 37 LRCN 618; Tukur v.
-*-
Government of Gongola State (1988) 1 NWLR
-*-
(Pt.68) 391; First Bank of Nigeria Plc v. Maiwada (2012) LPELR -9713 (SC) 187. This must be so, for it is a condition precedent to any valid exercise of appellate jurisdiction, Okeke Amadi v. Okeke Okoli (supra); Okotie v. Olughor (supra)”.
-*-
To bring the principles of the law to the facts of the case, it
-*-
is not in dispute that the notice of appeal filed by the respondent and appellant in the court below was signed in this way:-
-*-
“ For Chief P. C. Ajayi-Obe (SAN) & Co, the
-*-
appellant’s solicitors, Ance building (2nd Floor) Magazine Road, Jericho, Ibadan”.
-*-
The same respondent sought leave of the lower court to amend the aforesaid notice of appeal and upon the grant of the
-*-
application, filed an amended notice of appeal dated 7 September
-*-
2000, and once again the same mode of signing which read as
-*-
follows:-
-*-
“Chief P. C. Ajayi - Obe (SAN) & Co, The appellant’s solicitors, Ance building (2nd Floor) Magazine Road,
-*-
Jericho, Ibadan”.
-*-
The situation has brought into operation sections 2(1) and 24 of the legal practitioners Act. Section 2(1) of the said Act provides that a person is authorized to practice as a barrister and solicitor in Nigeria if and only if his name is contained on the roll
-*-
of legal practitioners. Then section 24 of the same Act defines a
-*-
legal practitioner to mean a person entitled to practice as a barrister or solicitor either generally or for the purpose of any particular office proceedings.
-*-
A community reading of sections 2 (1) and 24 of the Legal Practitioners Act leads to the conclusion that only a person whose
-*-
name appears on the roll of legal practitioners that can practice law in this country. The implication is that it is a natural human person and not a firm whose name appears in the roll of legal
-*-
practitioners that can sign legal documents. That interpretation is
-*-
what no less than Supreme Court had placed its stamp of definition or interpretation. That is the current state of the law and nothing
-*-
has happened for a reversal of the position or for this court A
-*-
departing from its earlier decisions on the point. See N.N.B Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549 at 583; Okafor v. Nweke (2007) All FWLR (Pt.368) 1016 at 1018; F.B.N. v.
-*-
Maiwada (2013) 5 NWLR (Pt. 1348) 444. B
-*-
It cannot never be overstated, the matter concerning the three
-*-
conditions that must exist before a court can competently assume jurisdiction and these are:-
-*-
The court must be properly constituted as regards number and qualification of members of the bench. C The subject matter of the case must be within the jurisdiction of the court. The case must come before the court initiated by due
-*-
process of law and upon fulfilment of all conditions precedent to the exercise of the jurisdiction. See D
-*-
Madukolu v. Nkemdilim (1962) 2 SCNLR 341;
-*-
Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6.
-*-
In the case at hand, while the two conditions for jurisdiction
-*-
of the court exist, the third condition is absent, the initiating E process having been validly or competently commenced, thereby robbing the court of its vires to entertain the appeal.
-*-
While we have been busy scouring whether a legroom could be found to validate the appeal process, it has been thrown up that
-*-
even the writ of summons is visited by the defeating vice. It was F
-*-
also signed by the legal firm of Ajayi-Obe & Co in this way :- “Chief P. C. Ajayi - Obe (SAN) & Co. Ance Building (2nd Floor) Magazine Road, Jericho, Ibadan”.
-*-
Indeed, the situation is even more grave than earlier thought. G
-*-
This is because “Ajayi-Obe & Co” is not a legal practitioner as
-*-
known to law and so the writ of summons, the initiating process was not commenced by due process of...
-*-
From the forgoing and in line with the well articulated lead judgment, I too strike out the suit at the trial High Court. I abide H by the consequential orders as made.
-*-
All FWLR Igbinedion v. Antia (Ariwoola, Okoro JJ.SC) 1919
-*-
ARIWOOLA JSC: I had the privilege of reading in draft, the lead judgment of my learned brother, Amina Augie JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal
-*-
B is unmeritorious and should be struck out. I too strike out the appeal, not having been commenced or initiated in accordance
-*-
with the law.
-*-
Appeal struck out.
-*-
OKORO JSC: The sole question which this court is to determine in this appeal is whether “Chief P. C. Ajayi-Obe (SAN) & Co” is a legal practitioner recognized by the law. From all the submissions of both counsel in this appeal, and the decided authorities cited in
-*-
support, the answer is simply in the negative. Both the original
-*-
notice of appeal and the amended version of same which was used to hear and determine the appeal at the lower court was signed by “Chief P. C. Ajayi - Obe (SAN) & Co”. This court has made it very
-*-
clear that such a notice of appeal is incompetent and cannot sustain an appeal. See Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, F.B.N. Plc v. Maiwada (2013) 5 NWLR (pt 1348) 444; SLB
-*-
Consortium Ltd v. NNPC (2016) 9 NWLR (Pt. 1252) 317 etc, etc.
-*-
In view of the provision of sections 2(1) and 24 of the Legal
-*-
Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, “Chief P. C. Ajayi - Obe (SAN) & Co”, not being a person whose name is on the roll of legal practitioners in Nigeria, was not
-*-
entitled to sign both the original and amended notices of appeal before the lower court. The two notices alluded to above, to say
-*-
the least, are null and void and of no legal consequence whatsoever, same having been signed by the said “Chief P. C.Ajayi - Obe (SAN) & Co”. The legal consequence is that there was no competent
-*-
appeal before the lower court and as such no proper judgment
-*-
could have been predicated on such incompetent notice of appeal. To take this matter further, it can be said that the court below
-*-
lacked the jurisdiction to entertain the appeal since the originating A
-*-
process (the notice of appeal) was not before the court. Since it is the notice of appeal which ignites the appellate jurisdiction of the court below, an incompetent notice of appeal cannot ignite its
-*-
jurisdiction. B
-*-
My lords, as was decided by my lord, Amina Augie JSC in
-*-
the lead judgment, I agree that the only reasonable thing to do at this stage is to strike out the incompetent notice of appeal before the lower court, the fact that it generated a judgment from it, notwithstanding. The said notice of appeal is accordingly struck C out.
-*-
EKO JSC: The respondent, aggrieved by the decision of the High Court of Edo State which dismissed his suit against the appellants, D
-*-
caused Chief P.C. Ajayi (SAN) & Co. a firm of legal practitioners to appeal the decision. The notice of appeal to the Court of Appeal was issued and signed by an unknown proxy “for P.C.Ajayi (SAN)
-*-
& Co.”. By this fact, this case is almost on all forms with the E situation in Bossom Ventures Ltd v. F.C.D.A. & Anor (2012) - NO. CA/A/29/2009 of 14 June 2012 in which an amended statement of claim, signed by unknown proxy “for R.O. Atabo” of
-*-
counsel, was held by the Court of Appeal to be incompetent. The rationale for the decision, correct and logical, is that the Legal F
-*-
Practitioners Act that statutorily enabled a legal practitioner to act as an agent or proxy of the litigant does not envisage that the legal practitioner would further delegate his powers or authority
-*-
under the law, to an unknown proxy. Delegatus non potest G
-*-
delegate is the basic principle in the law of agency.
-*-
In the instant case, the unknown proxy of “Chief P.C. Ajayi (SAN) & Co” cannot validly in law settle an originating court
-*-
process as the notice of appeal. The notice of appeal is consequently void ab initio. In purporting to amend the void H process, more fundamental errors, going to the root or vires of
-*-
the originating process, were further committed. Amended notice
-*-
All FWLR Igbinedion v. Antia (Galinje JSC) 1921
-*-
of appeal was, this time, signed by “Chief P.C. Ajayi (SAN) & Co.”. This is the same blunder committed in Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521 and this court stated categorically that the blunder, rendering the originating process defective, goes to the roots. It renders the process invalid.
-*-
The law is now settled, if not fossilised, that a court of law
-*-
lacks the jurisdiction to entertain an incompetent process which renders the proceedings incompetent. A court cannot give judgment upon an incompetent action. Madukolu v. Nkemdilim
-*-
C (1962) 2 SCNLR 341; Ajuwa v. S.P.D.C (Nig.) Ltd (2008) 10
-*-
NWLR (Pt.1094) 64 at 96, (2010) All FWLR (Pt. 536) 437. The
-*-
Court of Appeal, lacking the necessary competence to entertain the respondent’s appeal that was invalid and void ab initio, could not in law give judgment in the incompetent appeal. It was simply
-*-
D that the court erected and rested its judgment upon nothing, and
-*-
expected it to stand. It cannot stand. Macfoy v. U.A.C. Ltd (1952)
-*-
A.C. 154.
-*-
The appeal at the Court of Appeal ought to have been struck E out for being incompetent. On the basis of the foregoing and the fuller reasons contained in the lead judgment of my learned brother, Amina Adamu Augie JSC, which I endorse and concur, I allow the appeal and consequently strike out respondent’s appeal
-*-
at the Court of Appeal between the parties herein.
-*-
GALINJE JSC: I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Augie JSC and I
-*-
agree with the reasoning contained therein and the conclusion arrived thereat. In Okeke Amadi v. Okeke Okoli (1977)11 NSCC
-*-
117, this court, per Idigbe JSC held:-
-*-
“The notice of appeal is a very important document because it is the foundation of the appeal and if it is
-*-
defective, the Court of Appeal has inherent power to
-*-
strike it out on the ground that it is incompetent.” The amended notice of appeal before the court of Appeal in
-*-
the instant case is signed by “Chief P.C. Ajayi - Obe (SAN) & A Co.” who is not a person entitled to practice as a barrister and solicitor, as it is a firm that is incapable of being enrolled as such.
-*-
This court has held in a number of cases that a notice of appeal
-*-
signed by a firm is incompetent and ought to be struck out. See B
-*-
Okafor v. Nweke (2007)10 NWLR (Pt. 1043) 521; F.B.N. v.
-*-
Maiwada (2013) 5 NWLR (Pt.1348) 444; SLB Consortium Ltd
-*-
v. NNPC (2016) 9 NWLR (Pt.1252) 317.
-*-
This court, has been called upon to depart from its previous decisions by Ebun - Olu Adegboruwa, learned counsel for the C respondent. Learned counsel argued that sections 2(1) and 24 of the Legal Practitioners Act, upon which the previous decisions of this court are based are sections of an Act that was promulgated
-*-
to regulate legal profession, and that the Act has nothing to do with practice and procedure in courts. In a further argument, D
-*-
learned counsel submitted that in certain jurisdiction, lay men are permitted to file writ of summons, and by the decision in Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558, this court defined jural units as having legal personality to include E human beings, companies incorporated under the various companies Act, corporation sole with perpetual succession, trade unions, partnership and friendly societies. It is learned counsel’s submission that the decisions in Okafor v. Nweke (supra) and
-*-
F.B.N. v. Maiwada were based on technicalities, as such this court F
-*-
should adopt the attitude of doing substantial justice instead of relying on legal technicality. Learned counsel made extensive submission and finally urge this court to revisit and depart from the decision in Nweke v. Okafor (sic) (supra) and a host of others G on similar subject matter in the interest of justice and public policy.
-*-
Now, the issue of whether this court should or should not depart from its previous decisions is entirely a new issue. For the respondent to argue a new issue, he ought to have sought for H leave to raise it as a ground in his cross-appeal. Having failed to cross-appeal, all the argument canvassed by his counsel go to no
-*-
All FWLR Igbinedion v. Antia (Bage JSC) 1923
-*-
issue. A respondent who has not filed a cross-appeal, cannot formulate and argue issues that do not arise from the grounds of appeal filed by the appellant.
-*-
Be that as it may, learned counsel has failed to convince me
-*-
that this court should revisit its decision in Okafor v. Nweke (supra).
-*-
For these few words and the more detailed reasoning in the lead judgment, I find merit in this appeal which I allow. The respondent’s appeal at the lower court is according struck out for
-*-
being incompetent.
-*-
BAGE JSC: I have had the benefit of reading in draft, the lead
-*-
judgment of my learned brother, Amina Adamu Augie JSC, just delivered. I agree entirely with the reasoning and conclusion
-*-
reached. I do not have anything to add. The appeal lacks merit, and it is hereby struck out by me.
-*-
Appeal allowed
Other Citations:(2018) 15 NWLR (Pt. 1642) 262, (2017) JELR 79744 (SC)
