Alhaji Lateef A. Gbadamosi & Anor V. Chief Alfred Biala & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is over a Ruling of the Lower Court. The dispute in the Lower Court was over a piece of land. The Respondents who were the Plaintiffs in the Lower Court filed a Writ of Summons, a Motion on Notice for an Order of Interlocutory Injunction and a Statement of Claim. However the Appellants who were the Defendants in the Lower Court after entering a conditional appearance in the matter filed an application wherein they prayed:

(1) That the Lower Court lacked jurisdiction to entertain the case as the Writ of Summons dated 17th July 2009, the Motion on Notice for an Order of Interlocutory Injunction dated 17th July 2009 and the Statement of Claim dated 6th October 2009 were all not signed by a legal practitioner; and

(2) That the case before the Lower Court was an abuse of court process.

After hearing the interlocutory application, the learned trial judge in a considered ruling delivered on 4/3/11 dismissed it for lack of merit. Dissatisfied with the Ruling,the appellants on 15/3/11 filed a Notice of Appeal containing two grounds of appeal. The said Notice of Appeal was amended with the leave of court. The Amended Notice of Appeal was filed on 11/5/11. It was however deemed as having been properly filed and served on 23/1/12. The Amended Notice of Appeal also had two grounds of Appeal to which the particulars of appeal were included. The grounds of appeal excluding the particulars read as follows:

1. The learned trial judge erred in law by not following the decision of the Supreme Court in the case of Okafor vs. Nweke (2007) 19 WRN p.1 and the decision of the Court of Appeal in Onward Enterprises Ltd. vs. Olam (2010) ALL FWLR part 531 p.1503 when he consequently held that the Lower Court has jurisdiction to entertain this suit when the originating writ of summons dated 17th day of July 2009; motion on notice for an order of interlocutory injunction dated 17th day of July 2009 and statement of claim dated 6th day of October, 2009 were not signed by a legal practitioner known to law.
2. The learned trial judge erred in law when the court held that this case is not an abuse of court process.

In the Appellants’ Brief of Argument filed on 2/9/71 and deemed as properly filed and served on 23/1/12 following an order of this court, the appellants learned counsel Olakunle Faokunle Esq. identified two issues for determination, viz-

1. Whether the Lower Court has jurisdiction to entertain this suit when the originating writ of summons dated 17th day of July 2009, motion on notice for an order of interlocutory injunction dated 17th day of July 2009 and the statement of claim dated 6th day of October, 2009 were not signed by a legal practitioner known to law.
2. Whether this suit before the Lower Court is an abuse of court process.

The 1st and 2nd Respondents Brief of Argument was filed on 19/9/11. It was however by an order of this court of 23/9/14 deemed as having been properly filed and served on 23/1/12. In the said Brief of Argument learned counsel for the 1st and 2nd Respondents Michael F. Lana Esq. identified two issues for determination. The issues are not different from the issues for determination formulated by the appellants learned counsel.

The 1st and 2nd Respondents’ issues were however tersely stated.

They read:

1. Whether the person who signed for Michael F. Lana is a person known to law; and
2. Whether the suit is an abuse of process.

I prefer the issues for determination as formulated by the Respondents. They go straight to the point, are crisp and clear.

Let me state here that although the 3rd and 4th respondents were served with the Appellants Brief, they failed to respond to the said brief as they did not file any brief of argument. It is also necessary to state here that the 1st and 2nd Respondents filed a Notice of Cross-Appeal on 20/4/11. However their counsel withdrew the said Notice of Cross Appeal and same was dismissed pursuant to Order 11 Rule 5 of the Court of Appeal Rules; 2011.

In respect of issue 1, the appellants learned counsel submitted that the writ of summons dated 17/7/2009 and the motion on notice dated 6/10/2009 were both signed by an unidentified person for Michael F. Lana

Esq. The unidentified person he submitted, cannot be identified as a legal practitioner known to law. Learned Counsel referred to the case of onward Enterprises Ltd. vs. Ilam Int. Ltd. (2010) ALL FWLR part 531 at p.1503 at p.1512. It was submitted that the Lower Court was wrong to have relied on Ogunsakin vs. Ajidara (2008) 6 NWLR part 1082 p.1. and Dalhatu vs. Dikko (2005) ALL FWLR part 242 p.483 as the cases are not applicable in this case. It was submitted that Dalhatu vs. Dikko was decided before the case of Okafor vs. Nweke while the said case of Okafor vs. Nweke was not brought to the notice of the court in Ogunsakin vs. Ajidara. Had it been brought to the notice of that court it was submitted, the decision in Ogunsakin vs. Ajidara might have been different.

In his argument in response, Respondents learned counsel contended that the questions before the Lower Court were whether the person who signed the processes was identifiable and if he were whether he could be identified as a legal practitioner known to law. In answer to those questions, the signatory to the processes one Babatunde Akinola, learned counsel submitted, filed a counter-affidavit wherein he (Babatunde Akinola) deposed to the fact that he is a legal practitioner. No further affidavit was filed by the appellants to counter that deposition. That being the case, learned counsel urged that the facts in the counter affidavit would be deemed as admitted. He cited in support Anah vs, Anah (2008) 9 NWLR part 1091 p.75 at 83; Zakari vs. State (2008) 10 NWLR part 1096 p.458 at 479. Learned Counsel submitted that the Lower Court accepted the counter- affidavit deposed to by Babatunde Akinola to the effect that he was the legal practitioner that signed the processes for and on behalf of his principal in chambers. The Lower Court it was further submitted, was satisfied that the processes were signed by a legal practitioner known to law. It was contended that the finding of the Lower Court that Babatunde Akinola signed the processes and is a legal practitioner was not appealed by the appellants and that the finding therefore binds the parties. The cases of Anyaduba vs. NRTC (1902) 5 NWLR part 243 p.535 at 553. Nwabueze vs. Okoye (1988) 4 NWLR part 91 p.564 at 679; Udom vs. Micheletti & Sons (1997) 8 NWLR part 516 p.187 at 200 were cited in support.