Aaron Okarika & Ors. V. Isaiah Samuel & Anor (2013)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.S.C.
The Suits between the parties before the High Court sitting in the Ahoada Judicial Division of the High Court of Rivers State (trial court) were between the same parties. The Suits were numbered AHC/12/82 and AHC/17/82. They were later consolidated. In AHC/12/82, the Plaintiffs’ therein, who are the Respondents’ herein, commenced their action against the Defendants, who are now Appellants’ herein. The Plaintiffs’ asked for the following reliefs:
- “A declaration to the customary rights of occupancy of a piece or parcel of land situate at OBOBURU town in AHOADA Local Government Area known as and called “MBIDE LAND.”
- N5,000.00, being general damages for trespass in that the Defendants’ wrongfully and unlawfully broke into and entered into the said “MBIDE LAND” which is and has been in the actual and lawful possession of the Plaintiffs’, destroying trees and planting building pegs.
- A perpetual injunction restraining the Defendants, their agents or servants from further acts of trespass, entering or interfering with same.”
In Suit No.AHC/17/82 the Defendants’/Appellants’ sued the Plaintiffs’/Respondents, claiming the following reliefs:
- “A declaration that the Appellants’ are entitled to the customary right of occupancy over the piece or parcel of land situate at OBOBURU town in the AHOADA Local Government Area known as IBEWA – UZOR LAND.
- N7,000.00 (Seven Thousand Naira) as general damages for trespass in that the Respondents’ wrongfully and unlawfully broke and entered into the said Ibewa-Uzor land in the lawful possession of the Appellants’.
- A perpetual injunction restraining the Respondents, their servants and agents from further acts of trespass upon the said land.”
At the end of the proceedings, the learned trial Judge made findings of facts that the Plaintiffs’ had adduced cogent evidence of traditional history pointing to the root of their title and entitlement to the right of occupancy to MBIDE land. The Defendants, on the other hand, according to the learned trial Judge, had failed woefully to show with certainty the area of UBEWUZOR land within the wider OBE land to which their claims related. The learned trial Judge held that the claim in Suit No.AHC/12/82 succeeded and he granted the Plaintiffs’ all the reliefs sought. The claim in Suit No.AHC/17/82 in which the Defendants’ were Plaintiffs’ failed and was dismissed. The trial Court’s Judgment was affirmed.
Further appeal was filed to this Court by the Appellants’. Briefs of argument were settled by the parties to the appeal. The learned Counsel for the Appellants’ formulated the following issues for determination by this Court:
“ISSUE 1
Whether upon a calm and reflective consideration of the traditional history pleaded by the Respondents’ and the evidence led thereon, the Court of Appeal was right in affirming the Judgment of the trial Court granting them title to the disputed land (Gd. 3).
ISSUE 2
Whether the Court of Appeal was right in affirming the Judgment of the trial Court dismissing the Appellants’ claim for a declaration of title to the disputed land. (Gds. 1, 2, 4 and 5).”
Learned Counsel for the Respondents’ set out in their brief of argument the following issues for determination. Viz:
“ISSUE 1
Whether having regards to the Notice of Appeal, the Supreme Court has jurisdiction to hear this Appeal.
ISSUE 2
Whether having regards to the pleadings and evidence proffered by the parties as to their traditional history, the Court of Appeal was right in affirming the Judgment of the trial Court.
ISSUE 3
The Respondents’ adopt Appellants’ issue 2.”
It is to be noted that a Notice of Intention to rely upon Preliminary Objection was filed on the date Respondents’ brief was filed.
My Lords, I shall consider the Preliminary Objection firstly. The Notice reads as follows:
“TAKE NOTICE that the Respondents’ will at the hearing of the Appeal rely upon preliminary objection AND FURTHER TAKE NOTICE that the Grounds of the objection are:
a) Jurisdiction
b) Appeal, incompetent Notice of Appeal-invalid not originated by due process, not being given by a person known to law.
See:
- Okafor & 2 Ors v. Nweke & 4 Ors (2007) 3 SC (Pt 2) 55 at 63-64
- First Bank Plc v. Maiwada (2003) F.W.L.R. (Pt.151) 2001
- Registered Trustees Apostolic Church Lagos Area v. Akindele (1967) 1 All NLR 110
- Form 12 Cap. C 23 LFN, 2004 page 23 – 250 – 251.”
The learned Counsel for the Respondents’ argued the above Preliminary Objection in his No.1 issue of his brief of argument. He submits that the initiating process, whether Writ of Summons, Originating Summons or Notice of Appeal must be valid to confer jurisdiction to adjudicate in all cases. That the instant appeal can only be originated in this Court if the Notice of Appeal which is the initiating process is proper, regular and valid. Where the Notice of Appeal is faulty, irregular or invalid it cannot confer jurisdiction in the appellate court as there is no authentication. Learned Counsel referred to Form 12 Cap. C. 23 LFN, 2004 Vol.3, pp C23 -250 -251; Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 594; Sken Consult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.
The learned Counsel submitted further that H. E. WABARA & Co. is not a legal practitioner within the meaning of who a legal practitioner qualified to originate or sign Notice of Appeal on behalf of an appellant. He referred to the Legal Practitioners Act Cap L11, LFN, 2004, Section 2[1]. He submits finally that if there is no Notice of Appeal, there is no appellant and jurisdiction of this Court can only be invoked through a valid Notice of Appeal. He cited Macfoy v. U. A. C. (supra). He urged this Court to strike out the Appeal for want of jurisdiction.
Learned Counsel for the appellants’ filed a reply brief in response to the Notice of Preliminary Objection and other issues raised by the Respondents’ in their brief of argument. He submitted on the Preliminary Objection that the Notice of Appeal is competent since there is no provision in either the Constitution of the Federal Republic of Nigeria, 1999 (as amended); the Supreme Court Act or the Supreme Court Rules (as amended) requiring any signature to be endorsed on a Notice of Appeal filed in this Court. Learned Counsel for the Appellants’ conceded that the judicial authorities cited by the learned Counsel for the Respondents’ represented good law but are, he argued, inapplicable in the circumstances of this case. Learned Counsel cited Order 8 Rule 2 of the Supreme Court Rules 1999 (as amended) which makes provision for filing of the Notice of Appeal and specified the contents of the Notice of Appeal and that nowhere is it provided that an Appellant or his Legal Practitioner must sign the Notice of Appeal as Order 6 Rule 2[4] of the Court of Appeal Rules, 2011 explicitly and unequivocally provides. Learned Counsel submitted that any signature appended on a Notice of Appeal filed in the Supreme Court is mere surplusage as it is not one of the contents of a Notice of Appeal explicitly specified in Order 8 Rule 2 of the Supreme Court Rules and no other Rule in Order 8 mandates that the Appellant or his Legal Practitioner must sign the Notice of Appeal. He cited and relied on the cases of Ogbunyiya & Ors v. Okudo & Ors (1979) 6 – 9 SC (Reprint Edition) 24 at 35 lines 15 – 20; Awuse v. Odili (2004) 8 NWLR (Pt.876) 481 at 541 G – H; Mkpa v. Mkpa (2010) 14 NWLR (P1.1214) 612 at 645 F – G. It was argued further for the Appellants’ that improper appendage of signature ought not to vitiate the Appellants’ Notice of Appeal. Technicality, learned Counsel argued, ought not to defeat substantial justice as the mischief which Okafor & Ors v. Nweke & Ors (supra) seeks to prevent, namely anonymity of Counsel does not arise since all Order 8 Rule 2 of the Rules of Supreme Court requires is that the Notice of Appeal contains all the names and addresses of all the parties to the appeal. He urged this Court to discountenance the Preliminary Objection and resolve all issues raised in favour of the Respondents’ in allowing the Appeal.
Let me first and foremost disabuse the mind of the learned Counsel for the Appellants’ on the views he expressed in his submission on the non-existence of a provision in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Supreme Court Act and Rules (as amended). It is not correct to say that an objection cannot be raised against an issue/a point simply because the Constitution, the Supreme Court Act and/or Rules (as amended) or any other law or rule for that matter has not made provision relating to that matter or issue. The Constitution, although being the Supreme law of the country; the Supreme Court (enabling law) and the Supreme Court Rules (Procedural Laws) are not the only valid, existing and applicable laws on all matters. There are other laws which are equally valid and applicable to certain matters and until they are either repealed or declared null and void, they shall continue to apply to those matters to which they relate. One of such laws is the Legal Practitioners Act, which came into existence since 1962.
The Locus CLASSICUS, on the issue of whether a corporate body, or a law firm is competent to sign a signature on an initiating/originating process such as a Notice of Appeal has, not quite long, been settled in the case of Okafor & 2 Ors v. Nweke & 4 Ors (2007) 3 SC (Pt.2) 55 at 63 – 64. The salient facts of the case are: Augustine Nweke and others as applicants before this court filed a motion asking for extension of time within which to apply for leave; for leave and for extension of time within which to file their Notice and Grounds of Cross-Appeal. They also asked for a deeming order of the said Notice and Grounds of Appeal, among other reliefs.
The motion was signed by:
J. H. C. Okolo, SAN & Co.,
Applicant’s Counsel,
162B Zik Avenue,
Uwani, Enugu.
There was an affidavit of 22 paragraphs in support of the said motion to which had been exhibited a Notice of the proposed Cross-Appeal which the applicants asked for a deeming order. The said Notice of Cross-Appeal was signed by J. H. C. Okolo, SAN & Co. which was Exhibit ‘A’ attached to the said affidavit in support.
The Applicants also filed a brief of argument in respect of the application as required by the rules of this Court. The brief was also signed by J. H. C. Okolo, SAN & Co.
The Respondents on their part, filed a Counter-Affidavit in opposition to the Application and a Respondents’ brief of argument in which the following issue was, among others, raised:
“(1) whether the Notice of Motion, Notice of Cross-Appeal and the Applicants’ Brief of Argument for extension of time in this application are null and void.”
After having considered the Application, this Court agreed with the submission of learned Senior Advocate of Nigeria for the Respondents that the processes filed in the Application particularly the Motion on Notice filed on 19/12/05, the proposed Notice of Cross-Appeal and the Applicants’ brief of argument in support of the said Motion on Notice were incompetent in that they were not issued by a legal practitioner known to law and were consequently struck out. My learned brother, Onnoghen, JSC, who delivered the lead Ruling had this to say:
“it is very important to note that the reply brief was signed by J. H. C. Okolo, SAN not J. H. C. Okolo SAN & Co.
There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed Notice of Cross-Appeal and appellants’ Brief in support of the said motion were all signed: J. H. C. Okolo, SAN & Co. Learned Senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of J. H. C. Okolo, SAN & Co., it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izuogu v. Emuwa supra and Banjo v. Eternal Sacred Orders of Cherubim & Seraphim, also supra.
However, section 2[1] of the Legal Practitioners Act, Cap. 207 of the Laws of the Federation of Nigeria, 1990 provides thus:
‘Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.’
From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.
Section 24 of the Legal Practitioners Act defines a “Legal Practitioner” to be:
“a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding.”
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 on the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J. H. C. Okolo, SAN & Co. is a legal practitioner recognized by the law
From the submissions of both Counsel, it is very clear that the answer to that question is in the negative. In other words, both senior Counsel agree that J. H. C. Okolo, SAN & Co. is not a legal practitioner and therefore cannot practice as such by say, filing processes in the courts of this country.”
In furtherance of his reasoning process, Onnoghen, JSC, commented:
“I had earlier stated that the law does not say that what 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 Senior Advocate claims to be his really belongs 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 not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo & Co. cannot legally sign and/or file any process in the courts and as such the Motion on Notice filed on 19th December, 2005, Notice of Cross Appeal and Applicants’ Brief of Argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo, SAN & Co. are incompetent in law particularly as the said firm of J. H. C. Okolo SAN & Co. is not a registered legal practitioner.”
It is thus, the law that an initiating process whether Writ of Summons, Originating Summons or a Notice of Appeal must be valid to confer jurisdiction on a court to adjudicate between parties on a subject matter in dispute between them. Thus, a Notice of Appeal not signed by an Appellant or his Counsel is invalid as there is no stamp of authority or authentication. Although nowhere in Order 8 of the Supreme Court Rules is it provided that an Appellant or his legal practitioner must sign the Notice of Appeal as Order 6 Rule 2[4] of the Rules of the Court below has provided, it would be wild and callous to suggest, as the learned Counsel for the Appellants’ did, that “any signature appended on a Notice of Appeal” (although a mere surplusage) will suffice. Further, although the learned Counsel for the Appellants’ cited Order 8 of the Supreme Court Rules, 1999 (as amended), to back-up his submission that there are no provisions for the signature of the Appellant or his legal representative/Counsel and the same cannot be imported into Form 12, it appears to me to be that the learned Counsel, either, made a tactful omission or gloss-over or even misunderstood the import of what some of the provisions of the Rules made. An example is Form 12 referred to by the learned Counsel, which must be read as forming an integral part of the Rules. It is provided there after the paragraph for persons directly affected by the Appeal, a paragraph for date – “DATED this….” and then a blank space is left for the Appellant to append his signature and then address. This is in a civil appeal. There is a provision for the Appellant to sign the Notice of Appeal as prescribed by the Rules. In almost all Courts Rules, reference to an “appellant” includes the legal practitioner retained or assigned to represent him in the proceedings before the Court. Thus, the Notice of Appeal in a civil matter/appeal shall be valid and competent where the Appellant himself signed it or his legal representative/counsel signs.
In Order 9 Rule 3[1], though relating to criminal appeals, the requirement there is that the Notice of Appeal shall be in the form prescribed in the First Schedule to the Rules and shall be signed by the appellant. Form 24 forms part of First Schedule referred to in the rule. It provides in paragraph 5 for date and then a provision for the complaint/defendant (as the case may be) on appeal (or his legal practitioner) to sign and supply address.
My Lords, initiating a process in a Court of first instance or an Appeal which lies to an Appeal Court has to be sponsored by a person natural or artificial. In case the Appeal proceeds from a natural person, it has to be filed and prosecuted by that natural person who has the capacity to see; hear; talk; feel or perceive or, where circumstances demand, by his Counsel who has the same qualities/capacity.
Where the process or Appeal proceeds from an artificial person such as a corporation or a law firm, that corporation or law firm has to be represented by a natural person such as Director, Manager, Company Secretary (natural person) etc who should now pursue the matter on its behalf or by mandating a legal practitioner(s) who should pursue the matter/appeal to its logical conclusion. This is because the Corporation, law firm or Company lacks these human qualities which will qualify it to pursue the matter/appeal to its logical conclusion. That is why it is improper where a law firm is consulted by an individual for legal services to indicate on the initiating process(es) that such a process is signed by the law firm. The law firm is incapable of signing the process. It is incapable of pursuing the matter/appeal to its logical conclusion as it lacks these human qualities. It has to act through natural persons or human beings. All the decided authorities cited by the learned Counsel for the Appellants’ in his Reply Brief are irrelevant and inapplicable to the present Appeal.
Finally, H. E. WABARA & CO. is not a Legal Practitioner within the meaning of who a Legal Practitioner is as the various statutory definitions provide. The Notice of Appeal shown to have been signed by that law firm is invalid and incapable to initiate an Appeal to this Court. Accordingly, the Notice of Appeal filed and signed by H. E. WABARA & CO. on behalf of the Appellants’ is incompetent and the Appeal is hereby struck out. I make no order as to costs.
SC.251/2005