Legalpedia Citation: (2014) Legalpedia (CA) 11532
In the Court of Appeal
HOLDEN AT KADUNA
Wed Sep 17, 2014
Suit Number: CA/K/175/2013
CORAM
PARTIES
1. KLM ROYAL DUTCH AIRLINES
2. MR. STEPHEN
APPELLANTS
1. CHIEF YAKUBU TOBA
2. MRS. C. P. TOBA
3. MR. OLUWAFEMI TOBA
4. MISS OMOLARA TOBA
5. MISS TITILAYO TOBA
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This action was commenced by the Respondents at the High Court of Kano state against the Appellants 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, the Appellants also called four witnesses in proof of their defence. At the conclusion of trial, 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. Dissatisfied, the Appellants approached the Court of Appeal by a motion on notice praying for extension of time within which to appeal against the judgment which application was granted by the Court and consequent on which the Appellants filed a Notice of Appeal against the said judgment ant 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 and same was granted. The Appellants’ brief of arguments was served on the Respondents and they failed and/or neglected to file any response brief of arguments and were also absent from court when the appeal came up for hearing. The Appellants were granted leave to argue the appeal on their brief of arguments alone.
HELD
Appeal Allowed
ISSUES
1. 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.?
2. 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.?
3. Whether the learned trial Judge was right to award the Respondents the special damages and costs that he did.
RATIONES DECIDENDI
ISSUE OF JURISDICTION – NEED FOR THE COURT TO HEAR AND DECIDE A CHALLENGE ON THE JURISDICTION OF COURT FIRST BEFORE PROCEEDING TO CONSIDER THE MERITS OF THE MATTER
“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”. –
SIGNING OF COURT PROCESSES – STATUS OF COURT PROCESSES SIGNED IN THE NAME OF A LAW FIRM
“The Supreme Court has, in interpreting the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act in a long line of cases, settled the question of the competence of court processes signed in the name of a law firm. The Supreme court opined in the cases that by the provisions of the Legal Practitioners Act only persons whose names are listed on the Roll of Barristers and Solicitors in Nigeria can practice law in this country and, that since the practice of law includes the drafting and signing of court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign court processes for filing in our courts, and the only exception is where processes are signed by a litigant who chooses to represent himself. The present position of the law as settled by the Supreme Court is that all court processes signed in the name of a law firm without specifically stating thereon the name of the individual legal practitioner who appended the signature on behalf of the law firm are null and void because a law firm is not one of the persons listed on the Roll of Barristers and Solicitors in Nigeria.-
SIGNING OF COURT PROCESS – WHETHER THE SIGNING OF COURT PROCESS IN THE NAME OF A LAW FIRM CAN BE OVERLOOKED BY THE COURTS UNDER THE DOCTRINE OF “DOING SUBSTANTIAL JUSTICE”
“There the Court process in question is a statement of claim, as in the instant case, it cannot sustain a cause of action and a judgment predicated on such a statement of claim must be set aside. The Supreme Court maintained in all the cases that the requirement of having a court process signed by only a person listed on the Roll of Barristers and Solicitors, rather than in the name of a law firm, was one of substantive law, and not of procedural law, and it thus cannot be waived and that it is irrelevant that the party complaining did not show that it suffered a miscarriage of justice or prejudice by the signing of the court process in the name of a law firm. The Supreme Court also stated in the cases that the signing of a court process in the name of law firm is not an issue that can be overlooked by the Courts under the doctrine of “doing substantial justice” or “interest of justice” and that it is one that touches on the vires of the Court to entertain the matter and can be raised for the first time even at the Supreme Court – Okafor Vs Nweke (2007) 10 NWLR (Pt.1043) 521, Oketade Vs Adewunmi (2010) 8 NWLR (Pt.1195) 63, SLB Consortium Ltd Vs NNPC (2011) 9 NWLR (Pt.1252) 317, Braithwaite vs Skye Bank Plc (2013) 5 NWLR (Pt 1346) 1, First Bank of Nigeria Plc Vs Maiwada &Ors (2013) 5 NWLR (Pt.1348) 444, Alawiye vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570, Minister of Works and Transport, Adamawa State Vs Yakubu (2013) 6 NWLR (Pt 1351) 481 and Okarika Vs Samuel (2013) 7 NWLR (Pt.1352) 19. –
AMENDMENT OF COURT PROCESS – WHETHER A COURT PROCESS SIGNED IN THE NAME OF A LAW FIRM CAN BE AMENDED
“The only way the Respondents could have saved and rescued the proceedings taken before the lower Court was perhaps if their Counsel had taken advantage, before this Court, of the decision of the Supreme Court in Unity Bank Plc Vs Denclag Ltd (2012) 18 NWLR (Pt.1332) 293 which states that court processes signed in the name of a law firm can be rectified and amended to add the name of the individual legal practitioner who appended the signature thereon and also of the long line of decisions in cases such as Amadi Vs Thomas Aplin& Co Ltd (1972) 1 All NLR (Pt.1) 409, Okafor vs Ikeanyi (1979) 3 & 4 SC 99 and Bankole vs Dada (2003) 11 NWLR (Pt.830) 174, that say that pleadings of parties can be amended, even at the appellate Court, if it can be done without injustice to the other side. Counsel did not do so and the amended joint statement of claim of the Respondents is a nullity and it is void ab initio. –
COURT OF APPEAL – DUTY ON THE COURT OF APPEAL TO CONSIDER ALL ISSUES RAISED BY PARTIES IN AN APPEAL
“Ordinarily, a Court of Appeal should not conclude its deliberations on an appeal simply because it resolves that the lower Court had no jurisdiction to entertain the matter, if there are other issues submitted by the parties for its resolution in the appeal. This is because not being the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on issue jurisdiction is wrong – Katto vs Central Bank of Nigeria (1991) 9 NWLR (Pt. 214) 126, Adah Vs National Youth Service Corps (2004) 13 NWLR (Pt.891) 639 and Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423. It is, however, the view of this court that this advise is apposite only where there is a difference of opinion between the trial court and the appellate court on the issue of jurisdiction of the lower court to hear the matter and the position of the law on the subject upon which the issue of jurisdiction is predicated is still in a flux and there are differing opinions of the Supreme court thereon. Where there are no differing opinions of the Supreme Court on the subject upon which the issue of jurisdiction is predicated and the position of the law on it has been settled beyond peradventure and resolved with finality by the Supreme Court, the Court of Appeal going ahead to consider the other issues submitted by the parties will amount to an academic exercise. Courts are enjoined not to engage in academic exercises – Uduaghan vs Ogboru (2012) 1 NWLR (Pt.1282) 521, and Madueke vs Madueke (2012) 4 NWLR (Pt.1289) 77.-
SIGNING OF COURT PROCESS – EFFECT OF A COURT PROCESS SIGNED IN THE NAME OF A LAW FIRM RATHER THAN IN THE NAME OF A LEGAL PRACTITIONER
“The propriety of signing a court process in the name of a law firm, as in the instant appeal rather than in the name of the individual legal practitioner has long been settled by the Supreme Court in the case of Okafor vs. Nweke (2007) 10 NWLR (Pt.1043) 527, that such a process not signed by individual lawyer concerned is incompetent and liable to be struck out. The lower Court is therefore robbed of jurisdiction to hear and determine the matter. See Madukolu vs. Nkemdilim (1962) 1 All NLR 587.-
CASES CITED
Not Available