Section 2(1) and 24 of the Legal Practitioners Act: Whether Substantive or Merely Procedural
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 3rd day of June, 2022
Before Their Lordships
Chima Centus Nweze
Helen Moronkeji Ogunwumiju
Ibrahim Mohammed Musa Saulawa
Emmanuel Akomaye Agim
Justices, Supreme Court
SC./205/2007
Between
Network Securities Limited Appellant And
1. Alhaji Umaru Dahiru
2. The Hon. Minister, Federal Capital Territory Respondents
3. The Federal Capital Development Authority [FCDA]
(Lead Judgement delivered by Honourable Amina Adamu Augie, JSC)
Facts
The 1st Respondent, as Plaintiff, instituted an action that culminated in this appeal, at the Federal High Court, wherein he claimed, inter alia, a declaration that he is entitled to the Statutory Right of Occupancy over Plot 109, located at Area A8, Wuse II District, Abuja. Initially, there were only two Defendants; by an order of the trial court, however, a certain “Nanfa Ponfa”, who was allocated the said Plot of land during the pendency of the suit, was joined as the 3rd Defendant. The 3rd Defendant, who was served, chose not to file processes or defend the action at the trial court. He was not a party in the Appeal filed at the Court of Appeal, and he is also not a party to the further appeal to the Supreme Court. The Appellant, who bought the said plot of land from Nanfa Ponfa, was joined on its own motion as 4th Defendant by order of court.
The trial court gave judgement in favour of the Plaintiff. The Appellant filed an Appeal to the Court of Appeal, which appeal failed. Still aggrieved, the Appellant appealed to the Supreme Court.
Issue for Determination
The following sole issue was considered and determined by the court:
“Whether the trial court, at the time it heard the matter, had jurisdiction to hear and determine the matter brought before it”
Arguments
On the sole issue, counsel for the Appellant submitted that the Writ of Summons and the Statement of Claim which accompanied it, were both signed in the name of a law firm, which is not a legal practitioner on the Register/Roll of legal practitioners. Therefore, the suit was dead on arrival, because the Writ and Statement of Claim were not signed by a legal practitioner; and that the non-signing of the processes by a known legal practitioner, renders the Writ and the Statement of Claim incurably defective, invalid, null and void. Counsel relied on the provisions of Section 2(1) and 24 of the Legal Practitioners Act and case law of – SLB CONSORTIUM LTD v NNPC (2011)9 NWLR (Pt. 1252) 312. He argued further that an improperly signed court process is void ab initio; that it bears no good fruits, and nothing good can emerge out of it because it remains void; nothing can be put or super imposed on such process – E.B.N. LTD v HALILCO (NIG.) LTD (2006) 7 NWLR (Pt. 980) 568. Counsel urged the court, to set aside the decision of the Court of Appeal.
Counsel for the Respondents did not address this issue in their Briefs of Argument. The court, therefore, decided this issue solely on the argument of the Appellant’s counsel’s.
Court’s Judgement and Rationale
In deciding the sole issue, the Supreme Court held that the Appellant stated the correct position of the law on this issue, when he cited Section 2(1) of the Legal Practitioners Act and Section 24 which is the interpretation section of the said Act. In the case of OKAFOR v NWEKE (2007) 10 NWLR (Pt. 1043) 521, the Supreme Court maintained its position that “a law firm cannot legally sign and/or file any process in the courts. And that, any process signed by a law firm is incompetent in law”. Their Lordships held that the decision in OKAFOR v NWEKE is here to stay; that is the message entrenched in the decisions of this court thereafter. In this case, the application for issue of Writ of Summons and the Statement of Claim was signed by A.A. Gulak and Company – the Plaintiff’s Solicitor. The originating processes were, therefore, not signed by a legal practitioner, which means that the Appellant is right, that the said suit was dead on arrival. In FBN v MAIWADA, the Apex Court reiterated the position of law that the provisions of Section 2(1) and 24 of the Legal Practitioners Act, which are unambiguous, affect the jurisdiction of the court as a matter of substantive law, and not as a matter of procedural law; therefore, they cannot be waived. These sections mandatorily prescribed that all court processes must be signed by an identified legal practitioner, therefore, the non-signing of the writ of summons and statement of claim by a known legal practitioner in the law firm of A.A. Gulak & Company, renders the Writ and Statement of Claim incurably defective, invalid, null and void. Simply put, the processes filed by the law firm were dead at the point of filing, and in the eyes of the law, they are defective and legally non-existent. The said processes are incompetent; and so, the judgements of the two lower courts are nullities.
Dissenting Opinion of Honourable Emmanuel Akomaye Agim, JSC
His Lordship prefaced his opinion, by observing that the Apex Court is once more, faced with a situation where a Plaintiff’s 25 year pursuit of justice with concurrent decisions of the two lower courts in his favour declaring the revocation of his statutory right of occupancy illegal, is sought to be nullified by an objection raised for the first time at the Supreme Court on the sole ground that an unnamed legal practitioner in a firm of legal practitioners signed the application to issue the Writ of Summons, when it is not disputed that the Writ of Summons was regularly issued by the competent authority of court in accordance with the Federal Capital Territory High Court (Civil Procedure) Rules and when, at the date the Writ of Summons was filed, the prevailing legal regime established then by the decisions of this court in COLE v MARTINS & ANOR (1968) 5 NSCC 120 and BUHARI v YABO (2006) 17 NWLR (Pt. 1007) 162 at178-181 permitted the signing of court processes in that manner. His Lordship expressed further that he had in previous decisions of the court highlighted the undesirability of this kind of objection, the injustice that will certainly result from upholding it, and stated that the objection is against the procedure employed in filing the suit and is not in pursuit of justice in this case – SOLUMADE & ORS v KUTI & ORS (SC/327/2010).
The fact that legal practitioners practice law by their firm name, that the firm is one consisting of only Lawyers is common knowledge in Nigeria, is not reasonably open to question, and does not require proof by virtue of Section 124 of the Evidence Act. The notion disregards the provisions of Section 573 of the Companies and Allied Matters Act (CAMA). There is no doubt that A.A. Gulak is a legal practitioner, and he practices under the firm name of A.A. Gulak and Company, in keeping with Section 573 CAMA. It does not help the substantial justice of the case to ignore all other records and processes in the case that clearly identify the name of the legal practitioner in the law firm of A.A. Gulak and Company that signed the Writ of Summons and Statement of Claim, and look at only the lack of name of the particular legal practitioner in the law firm that made the signature over the name of the law firm in the Writ and Statement of Claim.
The decision in BUHARI v YABO was overruled by this court in OKAFOR v NWEKE on the ground that, without the name, the signatory has not held himself out as practicing under the said firm name. With the greatest respect, that decision and similar decisions should be departed from and return to BUHARI v YABO, because grave injustice will continue to result from following the judicial precedent in OKAFOR v NWEKE and similar cases. His Lordship referred to VEEPEE INDUSTRIES LTD v COCOA INDUSTRIES LTD (2008) 4-5 SC (Pt.1) 16 where the Supreme Court held that it could depart from its previous decision, if continuous adherence to it will occasion injustice on the principle that it is better to admit an error than to persevere in error. A situation where a Defendant, who concurrent decisions have held not to have a deference to a Plaintiff’s claim, can in this case use this kind of objection to nullify the proceedings and processes, including the judgements against him, after litigation that has lasted for many years, wreak grave injustice on the Plaintiff and results in a complete destruction of his right of access to court and right to have his claim determined within a reasonable time.
A court should be interested in searching for the truth of the matter, and consider the totality of the records before it in determining any issue in the case. Such an isolated consideration of the writ of summons and statement of claim in the midst of abundant records providing answers to the question, amounts to fault finding and not pursuit of justice. The notion that non-signing or irregular signing of an application for the issue of the writ or other originating process is a jurisdictional issue and not a procedural one that must be raised timeously before taking further step at the trial proceedings,h is not correct. Even in cases where the signature required to issue the process is absent, this court has held that it is a procedural requirement that will not vitiate the process.
Appeal Allowed on a Ratio of 4:1.
Representation
Abimbola Kayode for the Appellant
Christopher Okeke with Cynthia Ogbodu for the 1st Respondent.
Dr. James Agbonhese for the 2nd & 3rd Respondents.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)
