CORAM
Danlami Zama Senchi Justice of the Court of Appeal
Ruqayat Oremei Ayoola Justice of the Court of Appeal
Polycarp Terna Kwahar Justice of the Court of Appeal
PARTIES
ALHAJI SULAIMON OBALOLA
APPELLANTS
1. HECTOR AKINWUNMI BROWN
2. CUTHBERT ENTAN BROWN
3. VICTOR OWOLABI BROWN
4. CHRISTIANA OJUOLAPE BROWN
RESPONDENTS
AREA(S) OF LAW
LEGAL PRACTITIONERS ACT, COMPETENCY OF COURT PROCESSES, PRACTICE AND PROCEDURE, SIGNING OF COURT PROCESSES, ROLL OF LEGAL PRACTITIONERS, WRIT OF SUMMONS, TRESPASS, LAND LAW, APPEAL
SUMMARY OF FACTS
The Respondents commenced Suit No. ID/795/86 by a Writ of Summons against the Appellant claiming declaration of title to land, damages for trespass, and injunction. The Appellant did not enter appearance or file any processes. The trial court took evidence and delivered judgment in favour of the Respondents. The Appellant then filed an application to set aside the judgment on grounds of lack of fair hearing, which was dismissed. The Appellant filed an appeal against the ruling and applied for stay of execution which was also dismissed. The Respondents later brought an application for consequential order for Writ of Possession arising from the judgment, which the Appellant objected to on grounds that the court lacked jurisdiction having become functus officio. The trial court dismissed both parties’ applications. The Appellant appealed this decision. At the Court of Appeal, the Appellant challenged the competency of the Writ of Summons, Statement of Claim and Amended Statement of Claim for having been signed by a law firm (B. A. Shitta-Bey & Co) rather than by a legal practitioner whose name is on the Roll of Legal Practitioners as required by the Legal Practitioners Act. The Respondents’ counsel conceded to the appeal on this basis and withdrew all processes filed by the Respondents. The Court of Appeal allowed the appeal and set aside the entire proceedings in their entirety.
HELD
1.The appeal was allowed.
2.The Court held that the requirement under Sections 2(1) and 24 of the Legal Practitioners Act is that only a person whose name is on the roll of legal practitioners in Nigeria may sign or issue legal processes intended for filing in Court.
3.The Court found that court processes signed in the name of a law firm, as opposed to a person called to the Nigerian Bar and whose name is on the roll, are incompetent and liable to be struck out.
4.The entire proceedings in Suit No. ID/795/86 were set aside and struck out in their entirety.
5.No order as to costs was made.
ISSUES
Whether the Writ of Summons, Statement of Claim and Amended Statement of Claim were competent having been signed by a law firm rather than by a legal practitioner whose name is on the Roll of Legal Practitioners?
RATIONES DECIDENDI
REQUIREMENT FOR SIGNING COURT PROCESSES – ONLY ENROLLED LEGAL PRACTITIONERS
“The law is well settled that the requirement under Sections 2(1) and 24 of the Legal Practitioners Act (LPA) is that only a person whose name is on the roll of legal practitioners in Nigeria may sign or issue legal processes intended for filing in Court.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
ENTITLEMENT TO PRACTICE – REQUIREMENT FOR NAME ON ROLL
“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.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
LEGAL PRACTITIONER – STATUTORY DEFINITION
“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 purposes of any particular office or proceedings.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
INCOMPETENCY OF PROCESSES SIGNED BY LAW FIRM
“The Supreme Court, in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521, firmly stated this legal position when it held that a Court process signed in the name of a law firm, as opposed to a person called to the Nigerian Bar and whose name is on the roll, is incompetent and liable to be struck out.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
WITHDRAWAL OF PROCESSES – EFFECT
“Acceding to this legal position and conceding to the appeal, the Respondents withdrew all their processes filed, including the Amended Respondents’ Brief of Argument, which were accordingly struck out.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
EFFECT OF INCOMPETENT ORIGINATING PROCESSES
“In light of the above, I hold that this appeal succeeds and is hereby allowed. The entire proceedings in Suit No. ID/795/86 are hereby set aside and struck out in their entirety.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
STRIKING OUT ENTIRE PROCEEDINGS – INCOMPETENT ORIGINATING PROCESS
“The entire proceedings in Suit No. ID/795/86 are hereby set aside and struck out in their entirety.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
REQUIREMENT FOR INDIVIDUAL PRACTITIONER – NOT LAW FIRM
“It was argued that the Respondents’ Writ of summons and statement of claim dated 1st September 1986, the Amended Statement of Claim and Motion on notice are signed by a B. A. Shitta-Bey & Co, who is not a legal practitioner contemplated by Section 2(1) of the Legal Practitioners Act.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
CONCESSION TO APPEAL – WITHDRAWAL OF PROCESSES
“Learned counsel for the Respondents informed this Court that the Respondents are conceding to the appeal in view of the fact that the Writ of Summons was not properly initiated having been signed by a law firm.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
COMPETENCY CHALLENGE – FUNDAMENTAL DEFECT
“The Appellant had in the Appellant’s Further Amended Brief of Argument and the Appellant’s Reply Brief, challenged the competency of the Writ of Summons, Statement of Claim and Amended Statement of Claim for having been signed by a legal practitioner whose name is not on the Roll of Legal Practitioners.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
STRIKING OUT WITHDRAWN PROCESSES
“This Court struck accordingly struck out all the processes filed by the Respondents having been withdrawn.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
STATUTORY COMPLIANCE – MANDATORY REQUIREMENT
“The law is well settled that the requirement under Sections 2(1) and 24 of the Legal Practitioners Act (LPA) is that only a person whose name is on the roll of legal practitioners in Nigeria may sign or issue legal processes intended for filing in Court.” – Per RUQAYAT OREMEI AYOOLA, J.C.A.
MERITORIOUS APPEAL – ALLOWANCE
“I have had the opportunity of reading in draft the lead judgment of my learned brother, Ruqayat Oremei Ayoola, JCA., just delivered, and I agree with the conclusion reached therein that this appeal is meritorious and it is hereby allowed.” – Per DANLAMI ZAMA SENCHI, J.C.A.
CASES CITED
STATUTES REFERRED TO
Legal Practitioners Act (Sections 2(1) and 24)
Land Use Act, 1978