Shell Petroleum Development Company Of Nigeria Limited V. Sam Royal Nigeria Limited (2016)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This appeal by the Appellant herein is against the judgment of the Court of Appeal Port Harcourt Division delivered on the 14th day of April, 2005 affirming the decision of the Rivers State High Court, Ahoda delivered on the 20th day of June, 2000, entering judgment for the Respondent herein under the undefended list procedure.
Appellants’ Notice of Appeal in this Appeal contains only a sole ground of Appeal. The ground reads thus:
“The Learned Trial Justices of the Court of Appeal misdirected themselves in law and thereby came to a wrong conclusion when they held that the Rule of the High Court of Rivers State on enlargement on time does not apply to matters brought under the undefended list.”
Detailed background facts of this case are not all that relevant or material to the determination of this appeal, save as set out to expose the indolence and lack of diligence and further ensuing incompetence of the Notice of Appeal raised in the Respondents’ Preliminary of Objection filed by it on 5/6/2009.
In his writ filed on the 10th day of April, 2000 which was subsequently placed under
undefended list, the Respondent herein as plaintiff claimed, inter-alia from the Appellant, as defendant, payment of the liquidated sum of N7,021,938.00 (Seven Million twenty-one thousand, nine hundred and thirty eight naira). The motion was fixed for hearing on the 18th day of May, 2000. Though the Appellant was duly served with the Respondent’s action, it did not file any notice of intention to defend the action together with an affidavit disclosing a defence on the merit; until the 18th day of May, 2000, when it filed a motion for extension of time within which to file and serve its notice of intention to defend the suit together with a supporting affidavit.
When the matter was called up for hearing, the trial Court took argument from both parties on the propriety or otherwise of the Appellants’ application for extension of time and adjourned for ruling. In its considered ruling of 20th day of June, 2000, the Court came to the conclusion that the fact contained in the Appellants’ Affidavit did not raise any bona fide defence on the merit. Consequently, the learned trial judge entered judgment in favour of the Respondent under undefended list.
The Appellant was not satisfied with this decision, he then appealed to the Court of Appeal, Port Harcourt Division which in its unanimous decision given on the 14th day of April, 2005, affirmed the decision of the trial High Court and dismissed the Appellant’s appeal for lacking in merit.
It is against the concurrent findings of facts of two Courts below that the Appellant is challenging in this appeal filed on the 15th day of April, 2005 vide Notice of Appeal containing a single ground of appeal (reproduced above) with an indication that further grounds will be filed upon receipt of the judgment of the Court below.
It is pertinent to further note that the conditions of appeal imposed by the Court below, giving the appellant 14 days within which to comply was not complied with. Hence the appellant brought an application before the Court below on the 15th day of June, 2006 for an extension of time within which to comply with the conditions of appeal and to set aside the certificate of non compliance issued by the Court.
Since the granting of the appellant’s application to file additional grounds of appeal on the 5th June, 2007, no such additional grounds of appeal
have been filed. Therefore, as stated earlier, this appeal relates only to the sole ground of appeal out of which two issues were raised in the following manner:
- Was the lower Court right in holding that extension of time to file the notice of intention to defend is in the discretion of the trial judge, which may be exercised only when the defendant has filed not less than 5 days before the day fixed for hearing an affidavit disclosing a defence on the merit
- Did the Court below not err in law in upholding that the trial Judge exercised his discretion in respect of the application for extension of time to file notice of intention to defend
It is to be noted that on the 5th day of June, 2009 the Respondent filed the following Notice of Preliminary Objection to the Appellants’ appeal:
”1. That the Appellants’ appeal is incompetent and liable to be struck out in that the notice of appeal filed on the 15th day of June, 2005 is fundamentally defective and void as it was issued and signed by N. Nwanodi & Co., which is not a legal practitioner recognized by law to practice law in Nigeria.
That the sole ground of
appeal contained in the notice of appeal of 15th June, 2005 is incompetent and ought to be struck out in that it does not arise from the decision appealed against or does not in any way represent the finding of the lower Court and/or it otherwise tells a lie against itself.
It is the submission of the learned counsel for the Respondent that the Appellants’ Notice of Appeal of 15/4/2005 contained at Pp.96-97 of the Records is fundamentally defective and incompetent in that it was issued, signed by N. Nwanodi & Co .” which is not a legal practitioner recognized by law to practice law in Nigeria.
It is urged on this Court to invoke its power under Section 74(1) of the Evidence Act and take judicial notice of all legal practitioners authorised by law to appear before Courts and practice and that it must be such legal practitioner whose name is on the Roll of Legal Practitioners in Nigeria as required by Sections 2(1) and 24 of the Legal Practitioners Act Cap L, II, Laws of the Federation of Nigeria 2004. That law firm such as “N. Nwanodi & Co.” not being a person whose name is on the roll of Legal Practitioners in Nigeria, therefore lacks the
competence to issue such and file a Notice of appeal in respect of an appeal such as the instant one. Reliance was placed on N.N.B Plc v. DENCLAG LTD (2005) 4 NWLR (pt. 916) 549 at 555, OKAFOR V. NWEKE (2007) ALL FWLR (PT. 368) 1016 at 1018 – 1021.
A Notice of Appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid, and lawful commencement of an Appeal. See AGU v. ODOFIN (1992) 3 SCNJ 161, J.A. ADERIBIGBE & ANOR v. TIAMIYU ABIDOYE (2009) 4 SC (pt.III) 123.
A valid Notice of Appeal is a condition sine qua non in an appeal. Where it is defective, there shall be no proper, valid and lawful appeal. It cannot stand, it will certainly collapse.
Appellants’ Notice of Appeal filed on 15/4/2005 in this Court as contained at pages 96 – 97 of the records is fundamentally defective. It is not valid and therefore cannot stand, in that it was issued and signed thus:
Plot D. Folf Course Layout
Old G.R.A. Port Harcourt.”
“N. Nwanodi & Co is not a legal practitioner recognized by law to practice in Nigeria.
Learned counsel for the appellant submitted that the signature of the legal practitioner inscribed
on top of the name of the firm is sufficient. The tone of argument is a mere misconception and mis-interpretation of the clear provision of Sections 2(1) and 24 of the Legal Practitioner Act (supra). The law does not say that what should be in the roll is just the signature of the legal practitioner. This is not sufficient. The habit or practice of legal practitioners’ merely signing Court processes in their partnership or firm’s name without indicating their actual name has been deprecated by this Court in so many cases notably, NNB PLC v. DECLAG (supra) OKAFOR v. NWEKE (supra) etc. This Court did not only approve the decision in NNB PLC case in OKAFOR’S but inter alia made some far-reaching pronouncements as follows:
“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 in the roll otherwise he cannot engage in any form of legal practice in Nigeria. From the submission of both counsel, it is very clear 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 Court of this country.”
It was my learned brother OGUNTADE JSC, who in his concurring judgment put the issue quite succinctly. At page 525 of the Report he stated thus:
“Legal Practitioners have formed the habit of signing Court processes in their partnership or firm’s name. Such documents are incompetent and are liable to be struck out. In the instant case, the processes filed in the application, particularly the motion on notice filed on 19/5/05, the proposed notice of cross-appeal in the applicant’s brief of argument in support of the motion were incompetent in that they were not issued by a legal practitioner known to law.”
Time cannot be more auspicious than now to see to it that the standard of practice in the legal practice is well maintained. It must not be allowed to ebb to an abysmal and embarrassing level. We must ensure that in preparing and filing Court processes due diligence and regards must be had to Sections 2(1) and 24 of the Legal Practitioners Act (supra). I do not agree with the learned counsel for the Appellant when he submitted that it was an over adherence to technicality to annul the
process improperly filed. It is not. With due respect, the learned counsel must not overlook the sense in ensuring that the laws guiding the legal practice are properly observed. This enforcement must begin from here, the Apex Court. It has been doing so. Wary about this embarrassing practice in 2012, in the case of FBN PLC v. MAIWADA (2013) 5 NWLR (pt. 1348) 444, this Court, in determining the appeals Nos. 204/2002 and SC.269/2005, considered the provisions of Sections 2(1) and 24 of the Legal Practitioners Act 1962 (as amended) and some enactments and empanelled a full Court.
The Court also invited a host of amici curiae to address it on the issue of competence of the notice of appeal SC. No. 444/2002 appeals signed by the appellants’ counsel as “David M. Mando & Co.” The Respondent raised a preliminary objection challenging the competence of the appeal. In another appeal in SC.269/2005 the notice of appeal was signed in the name of “O.E. Abang & Co. the objection was raised when the appeal was heard. This Court ordered that the outcome of the decision in the Appeal No. SC.204/2012 should bind the parties in Appeal No. SC.269/2005 as the
issues for resolution in both appeals were the same. To put the issue to rest the Court held, inter alia at pp.488 – 489 as follow:
“A Court process signed in the name of a law firm without indicating the name of the particular legal practitioner who issued and signed the process is incompetent and is liable to be struck out. The effect of such a ruling is not to shut out the litigant but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of “anything goes”. Therefore, no injustice is done to the litigant since the result of the irregularity is an order striking out the suit or process which leaves the real legal practitioner with an opportunity to come back to Court to lift his veil and file a proper process as the legal practitioner whose name is on the roll of the Supreme Court. The Court should consider such an application on its merits. Such will enhance good practice culture amongst legal practitioners.”
I am done. However, I must say that it is not possible to embark on “activism” in interpreting
the clear provisions of Section 2(1) and 24 of the Act, so as to nail down the decision in OKAFOR v. NWEKE (supra) as similarly urged by the learned counsel for the Appellant in MAIWADA’S case. In interpreting the law, the Court is to embark upon positive interpretation. A negative interpretation of the law should be avoided as such is against the canon of interpretation of law.
The purpose of Sections 2(1) and 24 of the Act is to ensure sanity and responsibility and accountability on the part of a legal practitioner who signs Court processes. How else do you separate chaff from the grain – the indolent fake legal practitioners from the genuine, diligent and serious minded legal practitioners
In employing purposive interpretation of Sections 2(1) and 24 of the Act will lead to the obvious conclusion that the notice of Appeal filed on the 15th day of June, 2005 is fundamentally defective and incompetent. This Court lacks the required jurisdiction to hear this appeal which was not initiated with due process of the law. See MADUKOLU V. NKEMDILI (1962) 2 SC NLR 341. The Appeal is hereby struck out. I make no order as to costs.