Klm Royal Dutch Airlines & Anor V. Chief Yakubu Toba & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano state in suit No.K/152/2001 delivered by Honorable Justice Saka Yusuf on the 16th of June, 2003. The action in the lower Court was commenced by the Respondents, as plaintiffs, against the Appellants, as defendants, and their claim was for the total sum of N57.5 Million as damages payable by the Appellants jointly and severally for defamation of character and solicitor’s re-imburseable professional fees.

The matter was heard on the pleadings filed by the parties and the Respondents called four witnesses in proof of their claims and the Appellants too called four witnesses in proof of their defence. At the conclusion of trial, and after the final addresses of counsel, the lower Court entered judgment in favour of the Respondents and it awarded the four Respondents damages in the sum of N5 Million against the Appellants, jointly and vicariously. The Respondents were also awarded the costs of the action assessed at N250,000.00.

The Appellants were dissatisfied with the judgment and they approached this Court by a motion on notice dated the 4th of February, 2010 praying for extension of time within which to appeal against the judgment. The application was heard and granted by this Court on the 13th of February, 2013 and consequent on which the Appellants filed a notice of appeal dated the 19th of February, 2013 against the said judgment.

The notice of appeal contained eight grounds of appeal. By another motion dated the 29th of April, 2013 and filed on the 3rd of May, 2013, the Appellants sought the leave of this court to raise, for the first time on this appeal, the issue of the incompetence of the originating processes in this suit before the lower Court on the ground that they were signed by a law firm and not by a legal practitioner. This Court heard and granted the application on the 28th of November, 2013 and the amended notice of appeal filed alongside the application was deemed properly filed. The amended notice of appeal was dated the 30th of April, 2013 and it contained eight grounds of appeal.

In ventilating the grievances of the Appellants on this appeal, their Counsel filed a brief of arguments dated the 29th of November, 2013 on the 2nd of December, 2013. The records of the Court showed that the Appellants’ brief of arguments was served on the counsel to the Respondents and the Respondents failed and/or neglected to file any response brief of arguments.

The appeal came up for hearing on the 24th of June, 2014 and the Respondents were absent from Court and were not represented by Counsel despite the records of Court confirming that they were duly served with a hearing notice. The Appellants were granted leave to argue the appeal on the their brief of arguments alone and their counsel relied on and adopted the arguments in the brief as the submissions of the Appellants in this appeal and counsel urged this Court to allow the appeal.

Counsel to the Appellants formulated three issues for determination in this appeal and these were:

i. Whether the learned trial Judge was right to assume jurisdiction over a matter that was initiated by an entity with no authority in law to do so.

ii. Whether the trial Judge was right to hold that the words in question were defamatory and actionable per se and enter judgment for the Respondents, despite the fact that no independent witnesses testified to hearing the words and the Respondents themselves did not ascribe criminal imputations to the said words as to render them actionable per se.

iii. Whether the learned trial Judge was right to award the Respondents the special damages and costs that he did.

The Appellants’ first issue for determination raised the issue of the jurisdiction of the Lower Court to entertain the matter filed before it by the Respondents. The Supreme Court has stated many times over that the issue of jurisdiction of a Court to hear a matter filed before it is a threshold issue and it must be heard and decided first before proceeding to consider the merits of the matter – Ajayi Vs Adebiyi (2013) 11 NWLR (Pt.1310) 137, Peoples Democratic Party Vs Sylva (2012) 13 NWLR (Pt.1316) 85, Emeka vs Okadigbo (2012) 18 NWLR (Pt.1331) 55, Attorney General of Lagos State vs Attorney General of the Federation (2014) 9 NWLR (Pt.1412) 217. This Court will thus first resolve the issue of jurisdiction raised by the Appellants before, if need be, proceeding to consider the other issues for determination.

On the first issue for determination, Counsel stated that the practice of law in Nigeria is the exclusive preserve of legal practitioners that have formally qualified to practice law in the country and he thereafter referred to the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act and stated, on the strength of the provisions, that it was beyond dispute that only persons whose names are listed on the Roll of Barristers and Solicitors can practice law in Nigeria. Counsel stated that the practice of law includes the drafting and signing of court processes and that as such, apart from the special exception of litigants who choose to represent themselves, all court processes signed by anyone other than a person qualified to practice law were in law null and void. Counsel stated that the writ of summons and statement of claim by which the Respondents commenced this present case in the lower court were not signed by a legal practitioner whose name was on the Roll of Barristers and Solicitors, but by the law firm of M/S Sanya Ogunkuade & Co.

Counsel stated that the propriety of signing a court process in the name of a law firm rather than in the name of a individual legal practitioner was considered by the Supreme Court in Okafor vs Nweke (2007) 10 NWLR (Pt 1043) 521 and that the conclusion of the Supreme Court in that matter was that such a process was incompetent and liable to be struck out. Counsel stated that the writ of summons and statement of claim relied upon by the Respondents in prosecuting their claims in the Lower Court were thus incompetent and that this tainted the entire proceedings and rendered them null and void as the jurisdiction of the lower Court was not properly ignited and he referred to the cases of Madukolu vs Nkendilim (1962) 1 All NLR 587 and Macfoy Vs United Africa Company Ltd (1961) 3 All ER 1169. Counsel stated that the position of the Respondents was not saved by the “interest of justice” doctrine not withstanding that with the striking out the proceedings before the lower Court, the Respondents would be unable to commence a fresh action by reason of the Limitation Law and he quoted extensively from the decision of the Supreme Court in Okafor vs Nweke supra and further referred to the case of In Re: Pritchard (deceased) (1963) 1 All ER 873. Counsel urged this Court to resolve this issue for determination in favour of the Appellants and to determine this appeal on the strength of this issue alone.