Court process is incompetent if signed in a firm’s name – SC

  On Friday, the 9th day of March 2007 S.C. 27/2002 Before Their Lordships Umaru Atu Kalgo….. Justice, Supreme Court (JSC) George Adesola Oguntade….JSC Aloma Mariam Mukhtar…JSC Walter Samuel Nkanu Onnoghen…JSC Christopher Mitchell Chukwuma Eneh..JSC Between Emmanuel Okafor..Plaintiffs/Respondents  And  Augustine Nweke ……Defendants/Applicants And Nwafor Eto (For themselves and on behalf of the Umuanugwo Family of […]

  On Friday, the 9th day of March 2007

S.C. 27/2002

Before Their Lordships

Umaru Atu Kalgo….. Justice, Supreme Court (JSC)

George Adesola Oguntade….JSC

Aloma Mariam Mukhtar…JSC

Walter Samuel Nkanu Onnoghen…JSC

Christopher Mitchell Chukwuma Eneh..JSC

Between

Emmanuel Okafor..Plaintiffs/Respondents

 And

 Augustine Nweke ……Defendants/Applicants

And

Nwafor Eto (For themselves and on behalf of the Umuanugwo Family of Ifite Dunu) ……. Defendants

Ruling of the Court

Delivered by

Walter Samuel Nkanu Onnoghen,J.S.C

On the 19th day of December 2005, the applicants filed a motion before this Court praying for the following orders:-

“(i)       An order for extension of time within which to apply for Leave to (Cross) Appeal in this suit.

(ii)        Leave to (Cross) Appeal against the judgment of the Court of Appeal, Enugu, delivered on 25/1/01.

(iii)       Extension of time within which to file the applicants Notice and Grounds in the said (Cross) Appeal

(iv)       An order deeming the said Notice and Grounds of Appeal herein exhibited as properly filed and served, subject to the payment of the requisite court fees thereon.

(v)        An order for leave to file and argue the grounds of mixed law and facts contained in the said Notice and Grounds of Appeal at the hearing.”

The motion was signed by:

J.H.C. Okolo, SAN & Co

Applicant’s Counsel

162bzik Avenue, Uwani

Enugu

There is an affidavit of 22 paragraphs in support of the said motion to which has been exhibited a Notice of (Cross) Appeal (Proposed) which applicants want deemed properly filed and served upon payment of requisite filing fees.

The said Notice of Cross Appeal is again signed by J.H.C. Okolo, SAN & Co and it is Exhibit A attached to the said affidavit.

Finally, the applicants also filed a brief of argument in respect of the application as required by the rules of this Court on the 19th day of December, 2005.  Like the previous two documents, the brief was signed by J.H.C. Okolo. SAN & Co.

On the 6th day of March, 2005 the respondents filed a Counter Affidavit in opposition to the application while learned Senior Counsel for the respondents, G.R.I. Egonu SAN, filed the Plaintiffs’ – Respondents’ Brief of Argument in which he raised the issue, inter alia:

“(1)      Whether the Notice of Motion, Notice of (CROSS) Appeal and the Applicants’ Brief of Argument for extension of time in this application are null and void.”

The above issue and the argument thereon contained in the said brief were adopted and relied upon by learned senior counsel for the respondents during the oral hearing or argument of the motion on 30th day of January, 2007.

It is very important to note that the reply brief was signed by J.H.C. Okolo SAN not J.H.C. Okolo SAN & Co. There is no doubt whatsoever that the motion paper giving rise to the objection as well as the proposed Notice of Cross Appeal and appellants’ brief in support of the said motion were all signed: J.H.C. Okolo SAN & Co.  Learned Senior Counsel for the appellants does not dispute this but stated that since there is a signature on top of J.H.C. Okolo SAN & Co it is necessary to call evidence to establish the identity of the person who signed the documents for which counsel relied on Izuogu vs Emuwa supra and Banjo vs Eternal Sacred Orders of Cherubian & Seraphim, also supra.

However section 2(1) of the Legal Practitioners Act, Cap 207 of the Laws of the Federation of Nigeria 1990 provides thus:-

“Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.”

From the above provision, it is clear that the person who is entitled to practise as a legal practitioner must have had his name on the roll. It does not say that his signature must be on the roll but his name.

Section 24 of the Legal Practitioners Act defines a “legal practitioner” to be:

“A person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular office or proceeding.”

The combined effect of the above provisions is that for a person to be qualified to practise as a legal practitioner he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J.H.C. Okolo SAN & Co is a legal practitioner recognized by the law?

From the submissions of both counsels, it is very clear that the answer to that question is in the negative. In other words both senior counsels 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 courts of this country. It is in recognition of this fact that accounts for the argument of learned Senior Advocate for the applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C.  Okolo SAN & Co actually belongs to J.H.C. Okolo SAN who is a legal practitioner in the roll.  I had earlier stated that the law does not say that what should be in the roll should be the signature of the legal practitioner but his name.  That apart it is very clear that by looking at the documents, the signature which learned Senior Advocate claims to be his really belongs to J.H.C. Okolo SAN & Co or was appended on its behalf since it was signed on top of that name. Since both counsel agree that J.H.C. Okolo SAN & Co is not a legal practitioner recognized by the law, it follows that the said J.H.C. Okolo SAN & Co cannot legally sign and/or file any process in the courts and as such the Motion on Notice filed on 19th December 2005, Notice of Cross Appeal and Applicants brief of argument in support of the said motion all signed and issued by the firm known and called J.H.C. Okolo SAN & Co are incompetent in law particularly as the said firm of J.H.C. Okolo SAN & Co is not a registered legal practitioner.

In arriving at the above conclusion, which is very obvious having regard to the law, I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to arrest the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples.  We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.  The law exists as a guide for actions needed for the practice of the law, not to be twisted and turned to serve whatever purpose, legitimate or otherwise which can only but result in embarrassing the profession if encouraged.

It is rather unfortunate that the offending processes originated from the hallowed chambers of a learned Senior Advocate of Nigeria who did not even see them as improper and unacceptable but went on and on to argue that the documents, which in law are supposed to speak for themselves, actually told a lie as to their authentication.  It should however be mentioned that learned Senior Advocate for the applicants in filing a reply brief in reaction to the submission of his learned friend silk, signed the said reply brief in the proper way, as follows:-

J.H.C. Okolo SAN.

J.H.C. Okolo SAN & Co.

Applicants Counsel.

162 Zik Avenue.

Uwani, Enugu.

On the other side of the judicial scale in the balancing act, is the issue of substantial justice which I said had been adequately taken into consideration in this ruling.  The conclusion that must be reached in this matter is that the documents are incompetent and are struck out leaving the applicants with the opportunity to present a proper application for consideration by this Court.  The effect of the ruling is not to shut out the applicants 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.

In conclusion I agree with the submission of learned Senior Advocate of Nigeria for the respondents that the processes filed in this application particularly the motion on notice filed on 19/ 12/05, the proposed Notice of Cross appeal and Applicants’ brief of argument in support of the said motion on notice are incompetent in that they were not issued by a legal practitioner known to law and are consequently struck out with N10, 000.00 costs in favour of the respondents.

Editors Note

 Justices Aloma Mariam  Mukhtar and Christopher Mitchell Chukwuma Eneh  concurred in this judgement

 Counsel

 J.H.C. Okolo SAN

Anali Chude…..For the Applicants

 G.R.I. Egonu SAN

J.V.C. Okoli……For the Respondent