Bank Of Industry Limited V. Awojugbagbe Light Industries Limited (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The facts relevant for the determination of this appeal are these. The appellant and three others, as defendants filed a Motion on Notice wherein they contended that the plaintiff/respondents suit in an Ibadan High Court was incompetent, since the said plaintiff/respondent was in Receivership. Their contention was that the plaintiff/respondents suit could only be commenced by a Receiver. They urged the trial judge to strike out the suit.

The learned trial judge heard both sides and dismissed the motion. With that dismissal of the motion on Notice, the coast was clear for the plaintiff/respondent to proceed with his case.

The appellant was not satisfied with the Ruling, so he filed an appeal. The appeal was heard by the Court of Appeal, Ibadan Division. That Court agreed with the trial Court and dismissed the appeal.

The appellant was still not satisfied, this time with the judgment of the Court of Appeal, and so he filed an appeal to this Court.

Briefs of argument were filed and exchanged by counsel.

Learned counsel for the appellant T.A.B. Oladipo Esq

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filed an appellants brief on 11 October 2016 which was deemed duly filed and served on 4 July, 2017. He also filed a reply brief on 4 July 2017.

Learned Counsel for the respondent B. R. Omotoso, Esq filed a respondents brief on 22 May 2017 which was also deemed duly filed and served on 4 July, 2017.

The appellant formulated six issues for determination of this appeal. They are:

1. Whether the Court of Appeal was right in dismissing the appeal of the appellant without making finding on any of the issues of law that were raised in the brief of argument and reply brief of the appellant that the suit was instituted by the respondent when it was in receivership is incompetent and that on the proper construction of exhibit D1 and D2 there is an implied renewal of the appointment of the Receiver beyond the period of 3 months
2. Whether the Court of Appeal was right by not making finding on the specific issues of law that were raised before it, that on the admission of the Respondent that it lost the suit to challenge the appointment of the Receiver at the High Court, Court of Appeal and Supreme Court, the issue of validity

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of the appointment of the receiver cannot be reopened.

3. Whether in the absence of a competent plaintiff the Court can assume jurisdiction in a suit.
4. Whether the Court of Appeal was right by formulating in its judgment issues for determination that did not have their origin from the grounds of appeal of the appellant.
5. Whether the judgment of the Court of Appeal was not given without jurisdiction and a nullity same having been based on the Respondent’s action which had not been initiated in the trial Court by due process of law and upon fulfillment of the condition precedent to the exercise of the Court’s jurisdiction.
6. Whether the Court of Appeal was right in holding that the Respondent’s claims in the amended statement of claim conferred it with the right to seek the remedies claimed in the trial Court.

On his part, learned counsel for the Respondent formulated five issues for determination. They are:

1. Whether the respondent was still in Receivership when suit No.1/869/93 was instituted.
2. Whether the Court of Appeal did not make findings on the specific issues of law that were raised before it

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that on the admission of the Respondent that it lost the suit to challenge the appointment of the Receiver at the High Court, Court of Appeal and the Supreme Court, the issue of validity of the appointment of the Receiver cannot be reopened.

3. Whether there is a competent Plaintiff in suit No.1/869/93.
4. Whether the Respondents action was initiated at the trial Court by due process of law.
5. Whether the Court of Appeal was right in holding that the Respondents claims in the amended statement of claim conferred it with the right to seek the remedies claimed at the trial Court.

At the hearing of the appeal on 14 November, 2017 learned counsel for the appellant adopted both briefs and urged the Court to allow the appeal. He observed that both sides agree that the judgment of the Court of Appeal was given without jurisdiction.

Learned counsel for the respondent adopted respondent’s brief observing that the judgment of the Court of Appeal was given without jurisdiction.

I shall put on hold the decision to decide which issues shall be considered for the determination of the appeal until the respondents Preliminary Objection is

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resolved, if the need still arises.

Learned counsel for the respondent filed a Notice of Preliminary Objection on 22 May 2017 and made submissions on it in the respondent’s brief. The grounds of objection are:

1. The appeal is incompetent as the proceeding at the Court below which led to this appeal is void, there was no valid Notice of Appeal from the trial Court to the Lower Court.
2. The purported Notice of Appeal from Trial Court to Court of Appeal was not signed in a legal practitioner but same was signed in the name of a law Firm.
3. The purported Brief of Argument of the appellants filed at the Lower Court was not signed by a legal practitioner but same was signed in the name of the Law Firm”

Learned counsel for the respondent observed that the Notice of Appeal filed in the Court of Appeal and the appellant’s brief of argument filed in that Court were signed in the name of a Law Firm, Oluwole Aluko & Co. Reference was made to page 61 – 63 and 65 – 71 of the Record of Appeal. He submitted that there was no valid Notice of Appeal filed against the Ruling of the trial Court contending that the proceedings at the Court of Appeal is void while the judgment is a nullity.

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He submitted that the processes ought to have been signed by a human and since that was not the case, the appeal ought to be struck out for being incompetent. Reliance was placed on Okafor v. Nweke (2007) ALL FWLR (Pt.368) p.1016. Contract Resources v. Standard Trust Bank (2013) 3 SCM P.35.

In reply, learned counsel for the appellant conceded that the appellants notice of appeal at the Court of Appeal signed by Oluwole Aluko & Co. was not validly filed, contending that the proceedings and judgment of the Court of Appeal are null and void. He however submitted that the amended Writ of Summons that commenced this suit is unsigned and so incompetent. Reliance was placed on SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt.1252) p.317; Oguma v. I.B.W.A. Ltd (1988) 1 NWLR (Pt.73) p.658.

He urged this Court to declare that the amended Writ of summons and amended statement of claims are incompetent, invalid, null and void. He further urged this Court to strike out suit No.1/869/93.

The respondent as plaintiff filed Suit No.1/869/93 at an Ibadan High Court. It is from this suit that

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the appellant, as defendant filed an interlocutory appeal when his motion to strike out the suit was dismissed. The Court of Appeal agreed with the Ruling of the High Court. Still dissatisfied the appellant has filed an appeal in this Court.

This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that:

A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal.

The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice. See Dakolo & 2 Ors v. Dakolo & 3 Ors (2011) 6 7 SC (Pt.iii) p.104<br< p=””

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Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) p.531.”

Both sides are ad idem that the Notice of Appeal filed in the Court of Appeal was signed in the name of a Law Firm, Oluwole Aluko & Co. and so fundamentally defective, consequently the judgment delivered by the Court of Appeal was given without jurisdiction and a nullity. The Preliminary Objection has achieved its purpose as the hearing of this appeal comes to an end, as both sides are correct.

Though both sides agree that the judgment of the Court of Appeal was delivered without jurisdiction and so a nullity, because the Notice of Appeal was not signed according to law and so fundamentally defective, I shall explain how processes are to be signed and why.

Jurisdiction in adjudication is very fundamental. It is like the foundation of a building. Where the foundation is faulty the building crumbles.

A case ceases to exist at least in the Court in which it is filed if it is found that the Court has no jurisdiction to hear the case on the merits. Issue of Jurisdiction is threshold, so once it is raised it must be heard first before any other issue is considered. A case heard and

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decided without jurisdiction would have no redeeming features. It remains a nullity forever.

A Court is competent to hear and decide a case when:

(a) It is properly constituted as regards the number and qualifications of its members of the bench and no member is disqualified for one reason or another;

(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(c) The case before the Court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 NSCC p.374.

The complaint in the Preliminary Objection is that the Notice of Appeal, that is, the originating process in the Court of Appeal was not signed by a person known to law. That is to say the Respondent contends that the appeal in the Court of Appeal was not initiated by due process. This complaint comes under (c) above. See Cole v. Mattins (1968) ALL NLR p.161; Okafor v. Nweke (2007) 3 SC (Pt.ii) p.55; Oketade v. Adewunmi (2010) 8 NWLR (Pt.1195) p.63.

How was the Notice of Appeal in the Court of Appeal signed It was signed as follows:

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Oluwole Aluko & Co.

Appellants Solicitor

189B Adekume Fajuyi Road,

Adamasingba,

Ibadan.

What is wrong with the above

Sections 2(1) and 24 of the Legal Practitioners Act makes it abundantly clear that a legal practitioner means a person entitled to practice as a Barrister and Solicitor, and such a person is entitled to practice as a Barrister and Solicitor if his name is on the roll. So only a person with his professional name is entitled to practice law in Nigeria and this does not include a legal firm.

On no account should the name of a firm be used interchangeably with the name of a practitioner. The former has some corporate connotation while the letter has none. Who is a legal connotation while the letter has none. Who is a legal practitioner affect fundamentally the legal process. It follows that where Court processes are issued in the name of a legal firm such processes are fundamentally defective and remain incompetent, null and void.

In SLB Consortium Ltd v. NNPC (2011) 4 SC (Pt.i) p.86. I said:

All processes filed in Court are to be signed as follows:

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First, the signature of counsel, which may be any contraption.

Secondly, the name of counsel clearly written.

Thirdly, who counsel represents.

Fourthly, name and address of legal firm.”

It would have been sufficient and very much in order if Mr. Oluwole Aluko had simply written or stamped his name on top of Oluwole Aluko & Co, because Mr. Oluwole Aluko is a legal practitioner registered to practice law in the Roll at the Supreme Court, but certainly not Oluwole Aluko & Co.

Once it is correctly decided that the Court of Appeal had no jurisdiction to decide a matter due to fundamental defects in processes before it, this Court as an appellate Court has no appellate jurisdiction over the matter. This is so since this Court has decided that the Notice of Appeal in the Court of Appeal and the judgment of that Court are null and void, no appeal can emanate from nullities, as you cannot put something on nothing, and expect it to stand. It would collapse. See Ehuwa v. Ondo State Independent Electoral Commission (2006) 12 SCMJ (Pt.2)

This Court has no jurisdiction to hear the interlocutory appeal from an Ibadan High Court on whether

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the respondent has locus standi to maintain proceedings against the appellant. This is due to the fact that there was no valid Notice of Appeal at the Court of Appeal, and so the appeal from the trial Court to the Court of Appeal was commenced on an invalid Notice of Appeal. The proceeding’s and the judgment of the Court of Appeal are void, and the appeal to this Court from void proceedings are incompetent, null and void.

Before I conclude I must comment on the submission of learned counsel for the appellant that the originating processes in this suit, i.e. suit No.1/869/93 was signed by Bola Ige & Co., so this Court should declare the amended Writ of Summons and amended statement of claim incompetent, invalid and strike out suit No.1/869/93 filed by the Respondent at the High Court of Oyo State as being incurably defective as the trial Court, and the Court of Appeal were without jurisdiction to hear and determine the appeal arising therein.

Issue No.5 in the appellant’s brief reads.

Whether the judgment of the Court of Appeal was not given without jurisdiction and a nullity, same having been based on the Respondent’s action which had not

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been initiated in the trial Court by due process of law and upon fulfillment of the condition precedent to the exercise of the Courts jurisdiction.

What is before this Court by the Preliminary Objection is for this Court to decide whether the Notice of Appeal filed in the Court of Appeal was properly signed and not whether the originating processes in suit No.1/809/95, the suit from which this appeal emanates was valid.

I have already found that the Notice of Appeal in the Court of Appeal is void. The consequence of that finding is that the appeal pending in this Court is struck out.

Considering issue No.5 in the appellant’s brief would not be right since the appeal for which the brief was filed has been held to be incompetent and struck out as the Court has no jurisdiction to hear it in view of the success Preliminary Objection.

The respondent’s/plaintiff’s case is pending in an Ibadan High Court. It is suit No.1/869/93.

In the light of this judgment, parties are to go back to the Ibadan High Court and proceed with trial. The Ibadan High Court is the proper venue to raise the issue of the originating processes in suit

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No.1/809/93 not being properly signed.

In the end, there is merit in the Preliminary Objection which is hereby upheld. The Notice of Appeal in the Court of Appeal is fundamentally defective and so incapable of initiating proceedings in the Court of Appeal thereby depriving this Court of jurisdiction to hear and determine the pending appeal.

Appeal struck out.

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SC.218/2006