First Bank Nigeria Limited & Anor Vs Alhaji Salman Maiwada & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Jos Division (‘the court below’ for short) delivered on 27th March, 2002.

It is apt to state the relevant facts which are material to the determination of the core or central issue in this appeal. The plaintiff at the trial court sought declaratory reliefs in respect of landed property in Jos; setting aside of warrant of possession and damages in the sum of N1,000,000:00 against the defendants for trespass.

By way of preliminary objection the appellants urged Uloko, CJ to dismiss the plaintiffs claim on the ground that issues between them had been determined to finality by Oyetunde, J in Suit No. PLD/J/51/1994 when the plaintiffs suit was dismissed in its entirety. Uloko, CJ was duly addressed on the point. At the end of the day, Uloko, CJ refused the application because there was a pending appeal at the Supreme Court against certain aspects of the decision in PLD/J/1994 and that the suit being touted as res judicata, to that extent, could not have been determined to finality.

The defendants felt dissatisfied and appealed to the court below. Thereat, learned counsel for the respondent raised preliminary objection.

Paragraph (a) of the preliminary objection which is of moment at this point reads as follows:

‘(a) The appeal of the appellants is incompetent in that the Notice of Appeal was neither signed by the Appellants nor by a Legal Practitioner acting on their behalf.’

In respect of the above, it was submitted on behalf of the respondent that the Notice of Appeal in issue was neither signed by the appellants nor by a legal practitioner. It was contended that David M. Mando & Co. is not a legal practitioner known to and prescribed by sections 2, 4, 7, 23 and 24 of the Legal Practitioners Act 1962 since there is no name like that on the Roll of Legal Practitioners. On that score, the court below was urged to strike out the appeal for being incompetent.

Mr. David Mando on the other hand submitted that the firm of David M. Mando & Co. is a firm of legal practitioners acting for the appellants. He submitted that under the Companies and Allied Matters Act (CAMA) it was not necessary for a legal practitioner to register his firm as a partnership before engaging in legal practice. He urged the court below to discountenance the objection.

On this point, the court below upheld the aspect of the preliminary objection and struck out the notice of appeal. The appellants felt dissatisfied and have appealed to this court.

The core issue in my considered opinion is – whether a court process not personally signed by a legal practitioner duly registered in the roll of this court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent.

Among legal practitioners, we have two schools of thought in respect of the above salient, issue. The division is very grave indeed. To put the dispute at rest, the Hon. Chief Justice of Nigeria has empanelled a full court. A host of amici curiae got invitation to address the court on the issue.

On 27th February, 2012 when the appeal was heard, Mr. David Mando, learned counsel for the appellants adopted the brief of argument as well as the reply brief filed on behalf of his clients. He urged the court to set aside and/or overrule the decision of this court in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521. He urged that the decision in Registered Trustees of the Apostolic Church v. Rahman Akindele (1967) NMLR 263; (1967) All NLR 110 and Cole v. Martin (1968) All NLR 16 should be restored.

In the same manner, Mr. Obla, learned counsel for the respondent adopted the brief of argument filed on behalf of the respondent and urged the court not to depart from the decision in Okafor v. Nweke. He associated himself with the views and submissions expressed in the brief of argument filed by Mr. J. B. Daudu, SAN as amicus curiae.