Slb Consortium Limited V. Nigerian National Petroleum Corporation (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against judgment of the Court of Appeal Holden at Lagos in appeal NO. CA/L/31/2005 delivered on the 20th day of May, 2008 in favour of the respondent who was the defendant at the court of trial.

Both counsel for the parties have filed their briefs of argument which were adopted and relied upon at the hearing of the appeal on the 1st day of February, 2011.

The learned Senior Counsel for the respondent, OLAWALE AKONI ESQ, SAN raised a preliminary objection which was argued in the respondent’s brief filed on 9th June, 2009. The substance of the objection is that the originating processes in this action were signed by a law firm instead of a qualified legal practitioner as required by the Rules of Practice of the Federal High Court and the decision of this Court in the case of Okafor vs Nweke (2007) 3 S.C (pt. II) 55 at 62 – 63.

In arguing the objection, learned Senior Counsel referred the court to the Originating Summons at page .3 of the record of appeal which document is signed by “Adewale Adesokan & Co” as the legal practitioner acting on behalf of the plaintiff; that order 26 Rule 4(3) of the Federal High Court Rules, 2000 provides that pleadings shall be signed by a legal practitioner or the party if he sues or defends in person. It is the submission of learned Senior Counsel that the use of the word “shall” in the above provision clearly means that the provision is mandatory, Relying on the decision of this Court in Okafor vs Nweke supra, learned Senior Counsel submitted that for processes filed in the courts of this country to be valid, they must be signed by legal practitioners whose names are on the Roll as haven qualified to practice as Barristers and Solicitors in Nigeria; that since the Originating Summons was not signed by a legal practitioner as required by law, the trial court lacked the jurisdiction to entertain the matter as constituted thereby rendering the proceedings null and void; that the same defect afflicts the pleadings signed by “Adewale Adesokan & Co” and urged the court to sustain the preliminary objection and strike out the appeal.

In the reply brief filed on the 30th day of June, 2009, learned Counsel for the appellant Adewale Adesokan Esq submitted that the decision of this Court in Okafor vs Nweke supra is not applicable to the Originating Summons and the Amended Statement of Claim filed at the Federal High Court in the action resulting in the instant appeal; that the respondent is deemed to have waived his right to raise the objection and that the objection is incompetent.

In arguing further, learned Counsel cited and relied on the case of Cole vs Martins (1968) All NLR 161 in submitting that where only one person constitutes the practice of law in a law firm, it is correct to describe that person in terms of the registered business name; that Rule 4 of the Registration of Titles (Appeal) Rules which was interpreted in the Cole vs Martins (supra) case is very similar to the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules, 2000 cited and relied upon by learned Senior Counsel for the respondent; that the decision in the said Cole vs Martins (supra) remained the law until the decision in Okafor vs Nweke supra which was decided on Friday, 9th March 2007; that the said decision in Okafor vs Nweke (supra) has no retrospective effect so as to affect the Originating Summons filed on 30th June, 2000 and the Amended Statement of Claim filed on July 29, 2003, which were legally competent when filed; that the fact that a law is changed does not adversely affect or invalidate any act done under the law prior to the change.

Secondly, it is the contention of learned Counsel that the non-compliance with the provisions of Order 26 Rule 4(3) of the Federal High Court (Civil Procedure) Rules 2000 is an irregularity which may result in the setting aside of the proceedings if the objection is raised in limine and before any step is taken in the action by the respondent, relying on Order 3 Rules 1(1) and 2(1) of the said Federal High Court (Civil Procedure) Rules, 2000; that the respondent by filing various processes in response to the Originating Processes now complained of, and participating in the trials and appeals at the lower courts is deemed to have waived his right; that though respondent has coughed the objection as being based on jurisdiction, a party can waive procedural jurisdiction by submitting to the jurisdiction’ of the court as was done in the instant case by the respondent; relying on Saude vs Abdullahi (1989) 4 NWLR (pt. 387) 405; Mobil Producing (Nig) Unlimited vs LASEPA (2002) 18 NWLR (pt. 798) 1 at 36.

On the competence of the preliminary objection, learned Counsel submitted that for the objection to be competent, it has to be based on the grounds of appeal before this court, which is not the case in the instant matter and urged the court to dismiss the objection.

In the reply brief of the respondent deemed filed on 1/2/2011, in relation to the reply brief of the appellant, learned Senior Counsel for the respondent submitted that the law that was interpreted in Okafor vs Nweke (supra) was the Legal Practitioners Act Cap 207, 1990 sections 2 and 24 thereof which has been in existence since 1962; that the court merely interpreted the provisions of the Legal Practitioners Act, not that it made any new law in Okafor vs Nweke.

On the decision in Cole vs Martins (supra) learned Senior Counsel submitted that sections 2 and 19 of the Legal Practitioners Act 1962, which are similar to the present sections 2 and 24 of the Legal Practitioners Act, 1990, were not considered in the said decision and as such the decision was reached per incuriam; that the learned Counsel for the appellant has not demonstrated that Mr. Adewale Adesokan is the only counsel in the law firm of “Adewale Adesokan & Co” for the decision in Cole vs Martins (supra) to apply.

It is the further submission of learned Counsel that the complaint of the respondent affects the foundation of the action since it affects the competence of the commencement of the proceedings, and not procedural in nature, relying on Okolo vs Union Bank of Nigeria (2004) 3 NWLR (pt. 859) 87 at 108; Madukolu vs Nkemdilim (1962) 2 NSCC 374 at 379 – 380.

On the competence of the objection, learned Senior Counsel submitted that an issue of jurisdiction can be raised at any stage of the proceeding or even on appeal for the first time; that the objection is grounded on Order 2 Rule 9(1) of the Supreme Court Rules 1999 and once more urged the court to uphold the objection.

In the case of Okolo vs Union Bank of Nigeria supra at page 108, this Court has the following to say on the importance of jurisdiction in adjudication:-