Areas Of Law
APPEAL, CIVIL LAW AND PROCEDURE, LAW OF EVIDENCE, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE, UNDEFENDED LIST
Summary Of Facts
The Plaintiff/Respondent filed an action at the Rivers State High Court claiming against the Defendant/Appellant the payment of N7, 021,938.00(Seven Million Twenty-One Thousand, Nine Hundred and Thirty-Eight Naira) as liquidated sum under the undefended list. The Defendant/Appellant having been duly served with the Plaintiff/Respondent’s action failed to file his notice of intention to defend within the time prescribed by law, hence he sought before the court an extension of time within which to file and serve his notice of intention to defend the suit together with the supporting affidavit. After hearing arguments from both parties, the trial court in its considered ruling came to the conclusion that the Defendant/Appellant’s affidavit did not disclosed any defence on merit and judgment was therefore entered in favour of the Plaintiff/Respondent. Dissatisfied with the decision, the Defendant/Appellant appealed to the Court of Appeal which court also affirmed the decision of the trial court. Still aggrieved with the decision, the Defendant/Appellant has further appealed to the Supreme Court wherein he filed his appeal out of time and the notice of Appeal was signed by the Firm of Defendant/Appellant’s counsel.
Issues For Determination
➢ 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?”
NOTICE OF APPEAL – MEANING OF A NOTICE OF APPEAL – EFFECT OF A DEFECTIVE NOTICE OF APPEAL
“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) 4SC (Pt 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.” PER S.GALADIMA, J.S.C.
SIGNING COURT PROCESSES – IMPROPRIETY OF LEGAL PRACTITIONERS SIGNING COURT PROCESSES IN PARTNERSHIP OR FIRM’S NAME
“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 V DECLAG (supra) in Okafor V Nweke (supra) etc., but inter alia made some far-reaching pronouncement 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.”
–PER S. GALADIMA, J.S.C.
LEGAL PRACTICE – DUTY OF LEGAL PRACTITIONERS TO MAINTAIN THE STANDARD OF PRACTICE IN THE LEGAL PROFESSION – SECTION 2(1) AND 24 OF THE LEGAL PRACTITIONERS ACT
“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.” PER S. GALADIMA, J.S.C.
LEGAL PRACTITIONERS ACT – PURPOSE OF SECTIONS 2(1) AND 24 OF THE LEGAL PRACTITIONERS ACT
“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?” PER S. GALADIMA, J.S.C.
SIGNING OF LEGAL DOCUMENT- STATUS OF LEGAL DOCUMENTS NOT SIGNED BY A LEGAL PRACTITIONER
“Any legal document which is to be signed by a legal practitioner, but is signed by any other person, is incompetent and must be discountenanced and struck out. See N. N. B. PLC V. Denclag Ltd (2005) 4 NWLR (pt. 916) 549 at 583, Okafor V. Nweke (2007) ALL FWLR (pt. 368) 1016 at 1018 – 1018, (2007) 10 NWLR (pt 1043) 521 at 523.” PER J. I. OKORO, J.S.C
COMPETENCE OF AN APPEAL- REQUIREMENT FOR A COMPETENT APPEAL
“A notice of appeal being the foundation or substratum of every appeal must be competent before an appeal itself can be competent. Any fundamental defect in a notice of appeal also affects the competence of the appeal.” PER J. I. OKORO, J.S.C
Statutes Referred To:
Court of Appeal Rules
Evidence Act 2011(As Amended)
Legal Practitioners Act 1962(as amended)
Legal Practitioners Act Cap L, II, Laws of the Federation of Nigeria 2004.
Supreme Court Rules
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