Al-masmoon Security Ltd V. Pipelines & Marketing Products Co. Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellant and the respondent herein, entered into a contract on 1/10/2007 wherein the appellant was contracted to provide security for the respondent’s headquarters at NNPC Towers Abuja, Kaduna Depot, Zaria Depot and Zaria Pump stations respectively. The respondent however terminated the contract on 31/01/2014. The appellant was aggrieved and instituted an action before the High Court of the Federal Capital Territory (FCT) seeking the following reliefs:

“1. An order directing the defendant not to terminate the security agreement unless in accordance to the terms of agreement dated 1st day of October, 2007.

2. A perpetual order restraining the defendant from acting on its letter of termination of the security contract for the plaintiff to provide security guards at the defendant’s Kaduna Depot and Zaria Pumping station.
3. An order that the purported letter of termination of contract of security between the parties amounts to a breach of contract.
4. The plaintiff claims the sum of Twenty Million Naira (N20,000,000.00) from the defendant for breach of contract.
5. The cost of this suit.”

The respondent, upon receipt of the Writ of Summons, Statement of Claim and accompanying documents, filed a notice of preliminary objection challenging the competence of the suit for failure of the appellant to serve one month’s pre-action notice, contrary to Section 12(2) of the Nigerian National Petroleum Corporation (NNPC) Act Cap. N.23, Laws of the Federation of Nigeria (LFN) 2004. In a considered ruling delivered on 5/3/2014, the preliminary objection was overruled on the ground that the Pipelines and Products Marketing Co. Ltd. is not a wholly owned subsidiary of NNPC and therefore does not fall within the purview of Section 12(2) of the NNPC Act requiring pre-action notice. Consequently, the Court assumed jurisdiction.

The respondent, being dissatisfied with the ruling appealed to the Court below. Allowing the appeal, the Court held, inter alia:

Having regard to the fact that the appellant is a corporate subsidiary of NNPC, as can be discerned by the respondent’s Statement of Claim, the respondent’s witness statement on oath, the agreement between the parties and the respondent and the affidavit in support of the appellant’s notice of preliminary objection, the appellant is entitled to be served a pre-action notice as provided for by Section 12(2) of the NNPC Act. By the failure of the respondent to serve the appellant the prescribed pre-action notice before filing its suit, a pre-condition to the competence of the action has not been complied with. The respondent’s action is therefore premature and it is liable to be struck out …Consequent, the respondent’s action with suit No, FCT/HC/CV/160/2014 is hereby struck out for lack of jurisdiction.”

It is the appellant who is now aggrieved. Its notice of appeal filed on 31/10/2015 can be found at page 160-163 of the record. It contains 4 grounds of appeal.

​At the hearing of the appeal on 2nd November 2021, E.J. ESENE ESQ adopted and relied on the Appellant’s brief filed on 23/12/2015 and its Reply brief filed on 4/8/2016, both deemed filed on 2/11/2021, in urging the Court to allow the appeal. M.E. ORU ESQ. drew the Court’s attention to Notice of Preliminary Objection filed on 2/3/2016 and deemed filed on 8/2/2017, which is also incorporated in the Respondent’s brief filed on 29/2/2016 and deemed filed on 8/2/2017. He adopted and relied on the preliminary objection in urging the Court to strike out the appeal, or alternatively, to dismiss the appeal on the merits based on the arguments therein against the appeal.

The Preliminary objection challenges the hearing of the entire appeal. It must therefore be considered and resolved before delving into the merit of the appeal, should the need arise. The reason is not far-fetched. In the event that the objection has merit, the appeal will be terminated in limine.

The grounds of the objection are as follows:

1. The Notice of Appeal filed on 31st August, 2015 was not signed by any of the solicitors named therein but signed for the solicitor by a person who neither indicated his name and designation nor known to be a legal practitioner contrary to the provisions of Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. L11 LFN 2004.
2. The Notice of Appeal as shown at pages 160-163 of the Record is not stamped and sealed with the stamp of the Legal Practitioner who signed it contrary to Rule 10(1) of the Rules of Professional Conduct, 2007 made pursuant to the Legal Practitioners Act Cap. L11 LFN 2004.
3. All the grounds of appeal are grounds of mixed law and facts and leave of Court was not sought and obtained before filing, thus rendering the grounds null and void.

On the first ground of objection, learned counsel for the respondent observed that the Notice of Appeal was not signed by any of the counsel stated at page 163 of the record. He noted further that there is a signature above the name Emmanuel Esene Esq. with the letters “PP” written beside the name, signifying that someone signed on behalf of Emmanuel Esene. He submitted that there is nothing to show that the person who signed for Emmanuel Esene Esq. is himself a legal practitioner as provided for in Sections 2(1) and 24 of the Legal Practitioners Act. He submitted that the letters “PP” stand for “per procurationem” meaning “by authority” or “representing” in Latin.

​He submitted that all legal processes must be signed by identifiable legal practitioners whose names are on the roll of Legal Practitioners at the Supreme Court. He submitted further that being the foundation or substratum of an appeal, any defect in the Notice of Appeal will render the appeal incompetent and the Court would lack the requisite jurisdiction to entertain it. He referred to: Uwazurike Vs A.G. Federation (2007) ALL FWLR (Pt.367) 834 @ 846; Shellim Vs Gobang (2009) ALL FWLR (Pt.496) 1866 @ 1880- 1881; Tukur Vs Government of Gongola State (1988), NWLR (Pt. 68) 39; Okafor Vs Nweke (2007) ALL FWLR (Pt.368) 1016 @ 1025-1027; (2007) 1 NWLR (Pt.1043) 521.

On the importance of it being clear who signed a process and the identity of such person as a Legal Practitioner whose name is on the roll of Legal Practitioners in Nigeria, he referred to Ministry of Works & Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt.1351) 481; (2013) ALL FWLR (Pt.694) 23 @ 36 F-H; SLB Consortium vs NNPC (2011) 9 NWLR (Pt.1252) 317 @ 337 – 338, and a host of other authorities.

​On the second ground of objection, learned counsel submitted that there was non-compliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, 2007, in that the person who prepared the Notice of Appeal did not affix his stamp and seal thereto. He submitted that the provision is mandatory and therefore legal practitioners are not afforded any discretion in the matter. On the effect of the word “shall” when used in a statute, he referred to Okereke Vs Yar’adua (2008) 12 NWLR (Pt.1100) 95 @ 127 F – G; Ugwu Vs Ararume (2007) ALL FWLR (Pt.377) 807 @ 857 C – F. He argued further that where the law prescribes the procedure for doing a particular thing, the prescribed procedure must be complied with. He referred to: Dongtoe Vs CSC Plateau State (2001) ALL FWLR (Pt.50) 1637 @ 1663A; Amaechi vs INEC (2008) ALL FWLR (Pt.407) 1 @ 98 C – D. On the need for a legal practitioner to comply with the directives of the Nigerian Bar Association (NBA), he referred to: Chinwo Vs Owhonda (2006) 2 NWLR (Pt.1074) 341.