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Case Title:

OKAFOR & ORS

v.

NWEKE & ORS

(2007) LPELR-2412(SC)

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OKAFOR & ORS v. NWEKE & ORS

(2007) LPELR-2412(SC)

In The Supreme Court

On Friday, March 09, 2007

SC.27/2002

Before Our Lordships

Umaru Atu Kalgo Justice of the Supreme Court of Nigeria

George Adesola Oguntade Justice of the Supreme Court of Nigeria
Aloma Mariam Mukhtar Justice of the Supreme Court of Nigeria
Walter Samuel Nkanu Onnoghen Justice of the Supreme Court of Nigeria
Christopher Mitchell Chukwuma-Eneh Justice of the Supreme Court of Nigeria

Between

1. EMMANUEL OKAFOR 2. BEN ABEZE 3. CHUMA APPELANT(S)

MODILI (Substituted For Chief Agba Udobi
Ekweozor Dibiaezue And Akpu Omuorah By Order
Of The Court Of Appeal On 6/3/2001 For
Themselves And On Behalf Of Akwa Family Of Lfite-
Dunu)

And

1. AUGUSTINE NWEKE 2. OKAKA MBADUGHA 3. RESPONDENT(S)

ANAKOR OKAFOR (Substituted For Anachuna
Okafor And Okeke Obieze By Order Of Court On
19/7/88 For Themselves And On Behalf Of The
Uruowelle Family Of Umudioka) 4. NWAFOR ETO 5.
VINCENT OKOTA (For Themselves And On Behalf Of
The Umuanugwo Family Of Lfite-Dunu)

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RATIO DECIDENDI

INTERPRETATION OF STATUTE - SECTION 2(1) OF LEGAL PRACTITIONERS ACT - Interpretation of Section 2(1) of the Legal Practitioners Act with

respect to the person who is entitled to practice as a barrister and solicitor in Nigeria
"...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 practice 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 practice 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 practice as a barrister

or as a barrister and solicitor, either generally or for the purpose of any particular office proceeding." 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."

WORDS AND PHRASES - "LEGAL PRACTITIONER" - Definition of "legal practitioner"

"...a legal practitioner is a person entitled according to the provision of Section 24 of Legal Practitioners Act, 1990 to practice as a barrister or as barrister

and solicitor either generally or for the purpose of any particular office or proceedings."

PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES) - Proper person to sign a legal process/effect of legal documents signed/franked

by a law firm
"...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 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 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."

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JUDGEMENT SUMMARY

INTRODUCTION:
This is a ruling on an application for extension of time within which to apply for leave to cross appeal.

FACTS:
On 19/12/2005, the applicants filed a motion on notice at the Supreme Court seeking an order of extension of time within which to apply for leave to cross appeal; leave

to cross appeal against the judgment of the Court of Appeal, Enugu and extension of time within which to file the applicant's notice of cross appeal. The motion was

signed by: "J.H.C. Okolo, SAN & Co. applicants' counsel 162B Zik Avenue Uwani, Enugu" as the applicants' counsel. The motion was supported by an affidavit to which was

exhibited the proposed notice of cross appeal. The notice of appeal was again signed by: J.H.C. Okolo, SAN & Co. The applicants filed a brief of argument in respect of

the application and the brief was also signed by: J.H.C. Okolo, SAN & Co. The 1st-3rd respondents filed a counter affidavit in opposition to the application. The 1st - 3rd

respondents in their brief of argument raised the issue of the competence of the applicants' motion on notice, notice of cross-appeal and the brief of argument.

ISSUES:
The Court determined the appeal on the following issue:

"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."

DECISION/HELD:
In the final analysis, the Supreme Court held that the application and the proposed notice of cross-appeal were incompetent and so the application was struck out.

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WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

(Delivering the Lead Ruling):

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

162B ZIK AVENUE

UWANI, ENUGU.

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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. In arguing the issue,

learned Senior Advocate referred the court to

Section 74(1) of the Evidence Act, Cap 112, Laws of

the Federation of Nigeria, 1990 and submitted that

by virtue of that provision this court is enjoined to

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take judicial notice of all legal practitioners

authorized by law to appear or act before it and

further submitted that "J.H.C. OKOLO SAN & CO."

is not a legal practitioner authorized by law to

appear or act before the Supreme Court of

Nigeria. Referring to and relying on Sections 2(1)

and 24 of the Legal Practitioners Act, Cap 207,

Laws of the Federation of Nigeria, 1990, learned

senior counsel submitted that the firm, J.H.C.

OKOLO, SAN & CO" not being a person whose name

is on the roll of Legal Practitioners in Nigeria was

not entitled to sign or issue the notice of motion,

notice of (CROSS) appeal and applicants' brief of

argument for extension of time in the application

and that the said documents as signed and issued

by the firm are null and void relying on the court of

Appeal decision in New Nigerian Bank Plc v. Denclag

Ltd. (2005) 4 NWLR (Pt. 916) 549 at 573.

In reaction to the above, learned Senior Advocate

for the applicants J.H.C. OKOLO, SAN filed

applicants reply to respondents' brief on application

for extension of time on the 19th day of January

2007, in which counsel submitted that the

argument of his learned friend betrays a

misconception in the interpretation placed both on

the motion paper and the applicants' brief of

argument; that a casual look at the documents

confirms that each of them was signed by the party

issuing same as the counsel in the proceeding; that

it is not the argument of counsel for the

respondents that the signature on either document

was not that of a legal practitioner; that provisions

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in all rules of court merely require a legal

practitioner representing a party in any proceeding

to sign any process and that the issue as raised is

one in which it will be necessary to canvass vital

evidence of who signed the documents before

arriving at a proper determination. For the above

submission learned senior counsel cited and relied

upon the decision in the case of Izuogu v. Emuwa

(1991) 4 NWLR (Pt.183) 78 at 85 - 86; Banjo v.

Eternal Sacred Orders of Cherubim and Seraphim

(1975) 3 SC 37 at 44.

It is also the submission of

learned senior counsel for the applicants that a

signature on any document is the attribute that

authenticates the document for which counsel

referred to Blacks Law Dictionary (Special Deluxe

Fifth Edition) at page 1239; that the documents in

issue were duly signed by "J.H.C. OKOLO (SAN)," a

registered Legal Practitioner shown on the rolls of

the Supreme court as No. 1265 and on the rolls of

Senior Advocates of Nigeria as No. 76; that the

addition of the words "& CO." not in the signature

authenticating the process but in the further

description of that known identity is a mere

surplusage which cannot take the place or displace

the signature, for which counsel cited and relied on

the views of Oputa, JSC in Atuyeye v. Ashamu

(1987) 1 NWLR (Pt.49) 267 at 281; that the

decision of the Court of Appeal in the case of New

Nigerian Bank Plc v. Denclag Ltd. supra is only

persuasive and is distinguishable in that the facts

are different and that the other two justices who

heard the case did not express an opinion on the

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issue. Learned Senior Advocate then cited and

relied on the case of Reg.Trustees of Apostolic

Church Lagos Area v. Akindele (1967) 1 All NLR

110 and urged the court to overrule the objection.

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

Izugu v. Emuwa supra and

Banjo v. Eternal Sacred Orders of Cherubim

& 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 practice 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 practice 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 practice as a barrister or as a barrister and

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solicitor, either generally or for the purpose of any

particular office proceeding." 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.

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 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 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 &

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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 tuned to

serve whatever purpose, legitimate or otherwise

which can only but result in embarrassing the

profession if encouraged. It is rather unfortunate

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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

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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 N1,000.00

costs in favour of the respondents.

UMARU ATU KALGO, J.S.C.: I have had the privilege of

reading before now, the ruling just delivered by my

learned brother, Onnoghen, JSC. I entirely agree

with his reasoning and conclusions. I therefore find

that the application is incompetent and I accordingly

strike it out. I abide by the order of costs made
in the leading ruling.

GEORGE ADESOLA OGUNTADE, J.S.C.:

I have had the advantage of reading in draft a

copy of the lead ruling by my learned brother,
Onnoghen, JSC and I agree with his reasoning
and conclusion. The issue under consideration is
whether or not it is permissible for a legal practitioner
to sign court processes in a partnership name without an
additional indication on the process of the name of

the practitioner who is a member of the partnership

or firm handling the matter. The motion under

consideration in this ruling was signed by "J.H.C.

OKOLO & CO., APPLICANT'S COUNSEL,162B

ZIK AVENUE, UWANI, ENUGU" I am not unaware

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that legal practitioners have formed the habit of

signing court processes in their partnership or firm

names without indicating the name of the

practitioner signing the process. I have had cause

to deal with such processes in my career on the

Bench. I do not however remember a particular

occasion when an issue has been made of the

propriety of such practice as has been done in this

application by senior counsel for the respondent

G.R.I. Egonu Esq.,SAN.

It is no justification or an acceptable excuse that

because the practice has been followed for a long

time for this court not to respond appropriately to

Mr. Egonu's objection. The practice is either right

and acceptable or wrong and unacceptable. Mr.

Egonu SAN has submitted that under Sections 2(1)

and 24 of the Legal Practitioners Act, Cap. 207,

Laws of the Federation, 1990, a firm of legal

practitioners 'J .H.C. OKOLO SAN & CO.' not being a

person whose name appears on the role of Legal

practitioner, was not entitled to sign or issue the

notice of motion before this court. Counsel relied

on New Nigerian Bank Plc. v. Denclag Ltd . (2005) 4

NWLR (Pt.916) 549 at 573, a decision of the Court

of Appeal.

Now Section 2(1) of the Legal

Practitioners Act, Cap 207 of the Laws of the

Federation, 1990 provides:

"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." And Section 24

of the same Act provides:-

"a person entitled in accordance with the provisions

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of this Act to practice as a barrister or as a barrister

and solicitor, either generally or for the purpose of

any particular office proceeding."

The simple question that arises, in view of the

clear provisions of Cap. 207 reproduced above is whether
or not J.H.C. OKOLO & CO. SAN' is a person entitled to
practice as a barrister and solicitor.

It seems to me that only human beings actually

called to the Bar could practice or practice by

signing documents as a motion Paper. The

argument that it is an over adherence to

technicality to annul the process improperly signed

and filed by J.H.C. OKOLO & CO. SAN' fails to

overlook the good sense in ensuring that our laws

are strictly enforced and observed. It would have

been quite another matter if what is in issue is a

mere compliance with court rules.

In conclusion, I uphold the

objection of Mr. G.R.I. EGONU, SAN and

agree with the views of my brother, Onnoghen,

JSC. I would uphold the conclusion that the

processes filed in the application, particularly the

motion on notice filed on 19/12/05 and the

proposed notice of cross appeal are incompetent. I

accordingly strike them out with N1,000.00 costs in

favour of the respondents.

ALOMA MARIAM MUKHTAR, J.S.C.:

I have read in advance

the lead ruling delivered by my learned brother,

Onnoghen, JSC. I am in full agreement with the

ruling that the application is incompetent and so is

the proposed notice of cross-appeal.

I also strike out the application.

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CHRSTOPHER MITCHELL CHUKWUMA-ENEH, J.S.C.:

I have read in

draft the ruling just delivered in this matter by my

learned brother, Onnoghen, JSC, and I am in

complete agreement with the conclusions reached

in the said ruling and endorse the order of striking

out the said processes as incompetent.

In this matter of an application for extension of time the

three processes filed by the applicants to wit: the

notice of motion filed on 19/12/2005, the proposed

notice of (cross) appeal exhibited to the supporting

affidavit to the above-mentioned and marked

exhibit 'A' and the brief of argument filed on

19/12/2005 have been respectively signed by

J.H.C. Okolo, SAN & Co.- thus purporting the

processes to have been signed and also

authenticated by a legal practitioner in his own

right. However, it has been conceded that J.H.C.

Okolo, SAN & Co. is not in any sense of the term a

registered legal practitioner vis-a-vis the provisions

of Sections 2 & 24 of the Legal Practitioners Act,

1990 .

This is even more so as J.H.C. Okolo, SAN &

Co. is nowhere denoted on the Rolls of Legal

Practitioners i.e. as enrolled at the Supreme Court

of Nigeria as Legal Practitioner to practice as such

in this county. It, therefore, follows willy-nilly that

in the circumstances the aforesaid processes cannot

be signed nor remotely be authenticated as

competent processes notwithstanding that the

signature that has been appended on top of J.H.C.

Okolo SAN & Co. might otherwise come to be the

signature of a duly Registered Legal Practitioner

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(in being) recognized to practice as such under the

Legal Practitioners Act, 1990. However, a legal

practitioner is a person entitled according to the

provision of

Section 24 of Legal Practitioners Act, 1990

to practice as a barrister or as barrister and

solicitor either generally or for the purpose of any

particular office or proceedings. The signature that

has been appended on top of J.H.C Okolo SAN &

Co. with regard to these processes is the signature

of J.H.C. Okolo SAN & Co. and so it is a futile

venture to seek to drive a wedge between the said

signature and J.H.C Okolo SAN & Co. They are

inseparable in the context.

I hold the view, in this regard therefore that it is

completely out of the question for applicants' counsel
to canvass of the necessity firstly of calling evidence
to unveil" whose signature has been so appended on top
of J.H.C Okolo SAN & Co. before the processes are
otherwise dumped as the Rules of Court have

merely required no more than that a legal

practitioner do sign and so authenticate processes

(as the aforesaid ones) as emanating from him on

behalf of his client. In this regard the cases of

Izuogu v. Emuwa (1991) NWLR (Pt. 183) 78 at

85-86; and Banjo v. Eternal Sacred Orders of

Cherubim & Seraphim (1975) 3 SC 26 relied upon

for the proposition are not on all fours in view of

the peculiar facts and circumstances of the instant

matter.

Further more, the applicants' stance in this matter

has been faulted by the applicants' reply brief

which has been filed by the applicants in response

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to the respondents' brief of argument in the said

application for extension of time. It has made a

significant difference as it has been properly signed

by J.H.C. Okolo SAN without as submitted by

applicants' counsel the surplusage, i.e. "& Co". So

far, the said reply brief has not been challenged on

the grounds by which the aforesaid processes are

confronted here. One is minded in this regard to

chalk it up to the experience which the applicants'

have rightly gained from the challenge stoutly

mounted against the three aforesaid processes in

this matter. In this vein therefore, applicants'

counsel in all righteousness ought to have

withdrawn these processes to come back properly

without any quibble.

For all this and much fuller reasons given in the

ruling of my learned brother, Onnoghen, JSC, I

endorse the order that the said processes being

incompetent should be struck out. I abide by the

order on cost therein contained.

Application struck out.

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Appearances:

J.H.C. Okolo, SAN (with him, Anali Chude Esq) For Appellant(s)

G.R.I. Egonu, SAN (with him, J.V.C. Okoli, Esq.) For Respondent(s)

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