OKEYALE & ORS v. OGUNTOWO

CITATION: (2018) LPELR-45765(CA)

In the Court of AppealIn the Ibadan Judicial Division

Holden at Ibadan

ON THURSDAY, 18TH OCTOBER, 2018Suit No: CA/IB/121/2013

Before Their Lordships:

JIMI OLUKAYODE BADA Justice, Court of AppealHARUNA SIMON TSAMMANI Justice, Court of AppealFOLASHADE OJO Justice, Court of Appeal

Between1. JIMOH OKEYALE2. MR. JIMOH EGBEYALE3. MR. ASHIRU OSENI4. MR. SABAINA OKEDIRAN MOREKE5. MR. AKANBI EGBELETI6. MR. AKANBI

- Appellant(s)

AndMR. BASHIRU OGUNTOWO - Respondent(s)

RATIO DECIDENDI

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1. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documents signed/franked by alaw firm"It is not in doubt that for a Court to hear and determine any dispute, it must have the jurisdiction to do so. Jurisdiction is the authority which a Court has todecide on matters instituted before it for adjudication or the authority to take cognizance of matters presented before it in a formal way for determination.Generally, the jurisdiction of Courts are donated by the Constitution or other Statutes or Law that established the Court. See FBN Ltd v. Abraham (2008)LPELR - 1281 (SC); Musaconi Ltd v. Aspinall (2013) 14 NWLR (pt. 1375) 435 and Aladejobi v. N.B.A. (2013) 15 NWLR (pt. 1376) 66. It has therefore been saidthat jurisdiction is the threshold issue in the judicial process, as without jurisdiction, no Court is competent to hear and determine any cause or matter. It istherefore the life blood of any litigation and so fundamental that any proceeding conducted without jurisdiction will be a nullity. SeeAkere & Ors v. Gov. ofOyo State & Ors (2012) 12 NWLR (pt. 1314) 240; Dingyadi & Anor v. INEC & Ors (2010) LPELR - 40142 (SC) and Okoro & Ors v. Egbuoh & Ors (2006) 15NWLR (pt. 1001) 1.That being so, a Court would be said to have jurisdiction to hear and determine any cause or matter where:(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising itsjurisdiction;(b) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. (c) TheCourt is properly constituted with respect to the number and qualification of its members. Those are the requirements as set out by the Supreme Court inseveral cases such as Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Mbah v. State (2014) LPELR - 22729 (SC); P.D.P & Ors v. Ezeonwuka & Anor (2017)LPELR - 42563, Sun Insurance (Nig.) Plc v. Umez Engineering Construction Co. Ltd (2015) LPELR - 24737 (SC).In the instant case, the complaint of the Appellant rests on the second element. It is therefore the case of the Appellant that, the certiorari proceeding whichgave birth to the order said to have been breached by the Appellants is a nullity as it was not instituted by due process of the law. That the exparteapplication which sought the leave of Court to institute or initiate the certiorari proceeding, the statement made in support of the application and the Motionon Notice thereof, were all signed in the name of Niyi Ogunjimi & Co, a Law Firm. That, a Law Firm is not the name of a person whose name is on the Roll ofLegal Practitioners kept in the Supreme Court registry, and therefore cannot validly and lawfully sign or initiate any Court process.The Law has long been settled by the Supreme Court, particularly in the case of Okafor & Ors v. Nweke & Ors (2007) LPELR - 2412 (SC) where the SupremeCourt held as follows:"The question that follow is whether J.H.C. OKOLO, SAN & CO., is a Legal Practitioner recognized by the Law? From the submissions of both counsel, it isvery 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 LegalPractitioner and therefore cannot practice as such by say, filling processes in the Courts of this country. It is in recognition of this fact that accounts for theargument of Learned Senior Advocate for the Applicants that to determine the actual person who signed the processes, evidence would have to be adducedwhich would necessarily establish 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 LegalPractitioner in the roll...... Since both counsel agree that J.H.C. OKOLO, SAN & CO. is not a Legal Practitioner recognized by the Law, it follows that the saidJ.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 ofCross-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."The above cited decision stirred a lot of divergent comments within the circle of Legal Practitioners in Nigeria. To that end, when the opportunity presenteditself in the case of F.B.N. Plc v. Maiwada (2013) 5 NSLR (pt. 1348) 444 at 488, the Chief Justice of Nigeria empanelled a full compliment of the SupremeCourt to resolve the issue. At page 488 paragraphs A - D, Fabiyi, JSC who prepared and delivered the lead judgment in F.B.N v. Maiwada (supra) to whichother Justices of the Supreme Court concurred held as follows: "I wish to repeat that we are interpreting a Law which seeks to make Legal Practitionersresponsible and accountable, more especially in modern times that we are presently operating. I see nothing technical in insisting that a Legal Practitionershould abide by the dictates of the Law in signing Court processes... The decision in Okafor v. Nweke is not in any respect wrong in Law and I cannotsummise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy........ The Law as enacted should be followed. I donot for one moment see any valid reason why the decision of this Court in Okafor v. Nweke should be revisited. It has come to stay and Legal Practitionersshould reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession."With the above pronouncement of the Supreme Court, the law as stated by that Court, which is the final and Supreme Court of the land, in Okafor v. Nweke(supra) has been settled. That decision has been dutifully followed by this Court, and indeed the Supreme Court itself in plethora of cases. Thus see, SLBConsortium Ltd v. N.N.P.C. (2011) 9 NWLR (pt. 1252) 317; Okwuosa v. Gomwalk & Ors (2017) LPELR - 41736 (SC); Hamzat & Anor v. Sanni & Ors (2015)LPELR - 24302 (SC); Dankwambo v. Abubakar & Ors (2015) LPELR - 25716 (SC); Okarika & Ors v. Samuel & Anor (2013) 7 NWLR (pt. 1352) 19; etc. The Lawnow, as settled by the Supreme Court is that, for any process purported to be signed by a Legal Practitioner to be valid, it must have been signed orinitiated by a person whose name is on the Roll of Legal Practitioners kept in the Supreme Court Registry. For a person to qualify as such Legal Practitioner,he must be such a person as defined in Sections 2(1) and 24 of the Legal Practitioners' Act (supra). As has been found, a Law Firm does not qualify as aLegal Practitioner within the contemplation of Sections 2(1) and 24 of the Legal Practitioners' Act. Consequently any Court Process signed or initiated in thename of a Law firm is incompetent, null and void ab initio. See Okpe v. Fan Milk Plc & Anor (2016) LPELR - 42562 (SC).The issue is therefore that of substantive Law, i.e, the Legal Practitioners' Act. That being so, a breach of such statutory provision affects the competence ofthe process, and therefore, the jurisdiction of the Court to entertain an action initiated by such invalid process. In other words, any Originating Process filedin breach of a statutory provision is null and void and cannot be relied upon in any judicial proceeding. The defect goes to the competence and thereforejurisdiction of the Court to adjudicate on the matter brought before it on that invalid process. It is settled law that, the issue of jurisdiction is veryfundamental and thus constitute the foundation of the powers of any Court to hear and determine a matter; and once there is absence of jurisdiction, theproceedings conducted by that Court and the decision or judgment consequent thereon is a nullity no matter the level of industry and brilliance exerted inconducting the proceeding. See Ukwu v. Bunge (1997) 8 NWLR (pt.5 18) 527; Nnonye v. Anyichie (2005) 2 NWLR (pt. 910) 625 and Kida v. Ogunmola (2006)60 All FWLR (pt. 327) 402 at 412. Thus, such a decision given without jurisdiction being a nullity is liable to be set aside.?In the instant case, the Originating Processes upon which the certiorari proceeding was conducted were signed or initiated by a Law Firm, to wit: NIYIOGUNJIMI & Co. No doubt, those processes are void and therefore incapable of sustaining the certiorari proceeding and the order made thereon, which isthe subject of the contempt proceeding initiated in the Court below. The result therefore is that, there is no valid order of the Court, the breach of which iscapable of being punished by committal for its contempt.Now, it is beyond dispute that an order of Court that is a nullity is as good as though it never existed. In the same vein, an order or judgment of a Court thathas been made or given without jurisdiction is null and void. It is my view therefore that such order or judgment is incapable of leading to a charge ofcontempt. See Mustapha v. Governor or Lagos State (1987) 2 NWLR (pt.58) 539; Macfoy v. U.A.C. Ltd (1961) 33 All E.R. 1169; Abubakar & Ors v. Nasamu &Ors (2012) LPELR - 7826 (SC); Menakaya v. Menakaya (2001) 16 NWLR (pt. 738) 203 and Nyesom v. Peterside & Ors (2016) LPELR - 40036 (SC). Thus inSalah v. Monguno (2003) 1 NWLR (Pt. 801) 221, Obadina, JCA said."A nullity is in law a void act, an act which has no legal consequences. In that regard, a proceeding which has been declared a nullity is void and without anylegal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not also impose any obligation or liability onany one or make any party liable to suffer penalty or disadvantage. In other words, it does not of itself without more, make the Respondent liable orcompellable to do or eschew from doing any act."I need not restate that an order that is a nullity can be set aside without much ado. See Eke v. Ogbonda (2006) 18 NWLR (pt. 1012) 506 and Bello v. INEC &Ors (2010) 8 NWLR (pt. 1196) 342. In that respect, having determined that the judgment of the Oyo State High Court, delivered by M. L. Abimbola, J (as hethen was) on the 22/2/2007 in Suit No. HER/MISC.5/2006, is a nullity, the order contained therein is incapable of sustaining any charge of contempt. Thatjudgment being a nullity, was incapable of conferring any right or benefit to the parties thereto. It was equally incapable of imposing any penalty on theparties. That being so, it is my view that the learned trial Judge erred when he assumed jurisdiction to entertain the Respondent's Application seeking thatthe Appellants be committed for contempt. Having held as above, it is my view that, it would not serve any useful purpose to proceed to determine on theother issues proposed for determination by the Appellants' in this appeal. This appeal therefore is resolved on issue one alone.On the whole therefore, on issue one alone, this appeal has merit and is accordingly allowed. Consequently, the Ruling of the Oyo State High Courtdelivered on the 6th day of February, 2013 assuming jurisdiction to entertain the contempt proceedings against the Appellants' is hereby set aside."PerTSAMMANI, J.C.A. (Pp. 8-18, Paras. D-C) - read in context

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2. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Proper person to sign a legal process/effect of legal documents signed/franked by alaw firm"This appeal again brings to fore the issue of the competence of an originating process. The law is settled that for a Court to be competent to assumejurisdiction over a matter, it must have been initiated by due process of law. Where an action is not initiated by due process of law, a Court would lackjurisdiction to entertain same and any proceeding conducted thereon is a nullity.Section 2(1) of the Legal Practitioners Act provides that a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the rollof Legal Practitioners kept in the Supreme Court Registry. It has been settled by the highest Court of the land that a law firm does not qualify as a legalpractitioner within the contemplation of Section 2(1) and 24 of the Legal Practitioners Act. It is further settled that only persons who are qualified to practiceas legal practitioners and whose names have been entered in the roll at the Supreme Court are qualified to sign Court processes. ?In BRAITHWAITE VS. SKYEBANK PLC. (2012) LPELR 15532, the Supreme Court held as follows:"In my considered opinion, the words employed in drafting Section 2(1) of the Legal Practitioners Act, Laws of the Federation of Nigeria and Section 24 ofthe Legal Practitioners Act, Laws of the Federation are simple and straight forward. The literal construction of the law is that legal practitioners who areanimate personalities should sign Court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this Court" perMohammed JSC at pg. 10 - 11 Paras D - C".See also NNALIMUO & ORS. VS. ELODUMO & ORS 2018 LPELR - 43898 and OLIYIDE & SONS LTD VS. O.A.U ILE-IFE (2018) LPELR 43711.The Respondent herein vide an ex-parte application filed at the trial Court sought the leave of Court to apply for an order of certiorari to remove thejudgment and proceeding of the Grade 'C' Customary Court into the lower Court for the purpose of quashing it. The said application for leave at page 19 - 20of the Record of Appeal was signed by the law firm of Niyi Ogunjimi & Co.The Motion on Notice at Page 25 of the Record is also signed by Niyi Ogunjimi & Co. Niyi Ogunjimi & Co., is a firm of legal practitioners which is inanimate.The law firm of Niyi Ogunjimi & Co., is also not a name verifiable on the roll of legal practitioners at the registry of the Supreme Court.The said applications form the pedestal upon which the certiorari proceeding was conducted. The resultant effect is that the foundation upon which thelower Court conducted the proceeding which led to the quashing of the judgment of the Grade 'C' Customary Court was incurably bad and a nullity in law.In NZOM & ANOR. VS. JINADU (1987) LPELR E - A, the Supreme Court per Karibi-Whyte JSC held as follows:"It is now settled that where an act is void, it is void and nothing can be added to it. It is expressed in the Latin ex nihilo nihil fit. Hence if the writ ofsummons against a non-juristic person is void, it admits of no additions or accretion of other persons. As Denning L.J expressed it commenting on nullitysuccinctly in U.A.C LTD VS. MCFOY (196) 3 ALL ER. AT P.1172."If an act is void, then it is in law a nullity. It is not only bad, but incurably bad.... And every proceeding which is founded on it is also bad and incurably bad.You cannot put something on nothing and expect it to stay there. It will collapse."I agree with my learned brother that the contempt proceeding initiated to challenge the Appellants on the execution of a quashed judgment is also a nullityin law. The said contempt proceeding and the ruling emanating therefrom must collapse like a pack of cards as the pedestal on which they stand isincurably bad.It is for this reason and the more robust reasons of my learned brother in the lead judgment that I also allow this appeal and set aside the judgmentdelivered by the lower Court in SUIT NO.HER/MISC.J.2006 delivered on 22nd February, 2007 by M.L. Abimbola J."Per OJO, J.C.A. (Pp. 19-22, Paras. A-F) - readin context

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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the Ruling

of the Oyo State High Court, sitting at Eruwa delivered by

O. I. Aiki, J., on the 6th day of February, 2012 in Suit No:

HER/MISC5/2006.

Before the Grade “C” Customary Court, Oja-Oba, Igboora,

one Adebisi Olojede (now deceased), had instituted a civil

claim for trespass to land against Mr. Kareem Ige and

Basiru Oguntowo (Respondens in this Appeal). The Trial

Customary Court, upon hearing the matter found in favour

of the Plaintiff therein – Mr. Adebisi Olojede. Being

dissatisfied with the decision of the trial Customary Court,

the duo of Kareem Ige and Basiru Oguntowo approached

the Oyo State High Court in the Ibarapa Judicial Division,

seeking inter alia, an order removing into the High Court

for the purpose of being quashed the judgment of the said

Grade “C” Customary Court, Igboora. The Trial High Court,

upon hearing the parties held as follows:

“The proceedings and the judgment based on the civil

summons No. 39/44/2006 and No. 44/2006 is hereby

quashed.

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The Plaintiff as 2nd Applicant is restrained in perpetuity

from enforcing or taking any steps toward enforcing the

judgment.”

On the 10th day of January, 2008, the Respondent herein

applied to the Registry of the Oyo State High Court for the

issuance of Forms 48 and 49 against Adebisi Olojede

(deceased) and the Appellants on record for being in

disobedience of the Court Order contained in the Ruling of

Oyo State High Court quashing the decision of the Grade

“C” Customary Court, Oke-Odo, Igboora. The Respondent

then filed separate Motions on Notice all dated and filed on

the 18/1/2008, seeking that the Appellants be committed to

prison for the contempt or disobedience of the order(s) of

the Oyo State High Court on the following Grounds:

1. The Respondent retook possession, commenced farming

activities on the said land, clearing and leasing out the

parts of land to tenants for farming purposes and enforcing

the Customary Court’s Judgment in Suit No. 39/2006 and

44/2006 which has been quashed by this Honourable Court

and on which perpetual injunction has been granted

against the Respondent in Suit No. HER/MISC5/06 dated

the 22nd February, 2007.

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2. The Respondent fails (sic) to obey the order of Perpetual

Injunction granted by this Honourable Court having been

served with a Notice in FORM 48.

The Motions for committal of the Appellants for contempt

and the Counter Affidavits of the Appellants against the

Motion for committal are contained in pages 82 – 161 of the

Record of Appeal. Each of the Appellants then filed a

separate Motion challenging the competence of the

committal application. The respective applications are

contained in pages 162 – 228 of the Records of Appeal

while the Respondent’s Counter-Affidavits in opposition to

the Appellants’ Motions are contained in pages 229 – 250 of

the Record of Appeal. Further Affidavits were filed by the

Appellants in response to the Counter-Affidavits of the

Respondent. See pages 251 – 268 of the Records. The

various applications in opposition to the Motions for

committal were consolidated by leave of counsel. Basically,

the various Motions of the Appellants prayed the Court for

an order:

“Dismissing or setting aside Forms 48 and 49 issued in this

matter together with Motion for committal for being

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incompetent, abuse of processes of Court and want of

jurisdiction.”

The Grounds upon which the application to dismiss or set

aside the Forms 48 and 49 were predicated are that:

(a) Forms 48 and 49 are not issued in accordance with

relevant rules and with necessary particulars and therefore

incompetent.

(b) The Respondent contemptnor not being party to the

action, requires to be joined for committal proceedings with

Leave of Court which leave was never sought or obtained.

(c) The application is not in accordance with due process.

(d) There is no breach of any order of Court and the

committal application is therefore an abuse of Court

processes.

Respective counsel filed and exchanged Written Addresses

and in a considered Ruling delivered on the 06/2/2012, the

learned tr ial Judge dismissed the Appel lants’

Motions/Objections and assumed jurisdiction to entertain

the applications to commit the Appellants for contempt.

Being aggrieved with the Ruling, the Appellants have filed

this Appeal.

The Original Notice of Appeal at pages 336 – 344 of the

Record of Appeal was dated the 18/2/2013 and filed on the

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19/2/2013. It consisted of thirteen (13) Grounds of Appeal.

This Appeal was however heard on the Amended Notice of

Appeal dated the 13/12/2016 and filed on the 14/12/2016

when this Court granted leave to the Appellants to raise

and argue fresh issue of jurisdiction. The Amended Notice

of Appeal therefore consists of 14 Grounds of Appeal.

The Appellants’ Brief of Arguments was filed on the

29/12/2016 but deemed filed on the 04/5/2017. Thus, from

the 14 Grounds of Appeal, four (4) issues were distilled for

the determination of this Court as follows:

1. Whether the Learned Trial Judge was not in error and

acted without jurisdiction, when he assumed jurisdiction to

try Appellants for contempt of order that is a nullity, having

been predicated on Originating Process for certiorari which

was not in accordance with due process, not having been

signed by legal practitioner in accordance with provisions

of Sections 2(1) and 24 of the Legal Practitioners’ Act, Cap.

L11, 2004 Laws of the Federation of Nigeria.

[Distilled from Ground 14].

2. Whether the learned trial Judge at the Court below was

not wrong in assuming jurisdiction

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to try Appellants for purported breach of order that is a

nullity having been made without or in excess of

jurisdiction.

[Distilled from Grounds 2, 3, 4, 6, 7 and 13].

3. Whether the learned trial Judge of the lower Court was

not wrong in overruling the appellants’ objection to the

competence of the committal application, when Appellants

are not in breach of any order of Court to warrant their

trial for committal.

[Distilled from Grounds 1, 5 and 11].

4. Whether the decision of the learned trial Judge assuming

jurisdiction to try Appellants for committal for breach of

order of Perpetual Injunction is not erroneous and unjust

when the decision was reached in breach of Appellants’

Constitutional Rights to Fair Hearing, in gross abuse of

judicial process and engendering serious miscarriage of

justice. [Distilled from Grounds 8, 9, 10 and 12].

Despite being served the Appellants’ Brief of arguments,

the Respondent did not file any Brief of Arguments. Thus,

by order of this Court granted on the 16/1/2018, the Appeal

was set down for hearing on the Appellants’ Brief alone.

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This Appeal was therefore heard on the 18/9/18 without the

Respondent’s Brief of Arguments in accordance with Order

19 Rule 9(4) of the Court of Appeal Rules, 2016.

After a careful perusal of the four issues formulated by the

Appellant, I propose to consider the issues seriatim,

beginning with issue one 1.

Arguing issue one (1), Alhaji A. Lasun Sanusi, SAN for the

Appellant drew our attention to the application for

certiorari at pages 1 – 3 of the Record of Appeal and the

Statement made in Support thereof at pages 19 – 23 and 41

– 42 of the Record of Appeal to contend that the two

processes were without any doubt signed by “NIYI

OGUNJIMI & Co” and that there is no legal practitioner

registered as Niyi Ogunjimi & Co. Referring to Section 2(1)

and 24 of the Legal Practitioners’ Act, Cap. L.11, Laws of

the Federation, 2004, Learned Senior Counsel submitted

that, for a Court to possess the jurisdiction in a case, the

case must have been initiated in accordance with due

process. That the Court process must have been initiated

by a Legal Practitioner known to law. The cases of

Madukolu v. Nkemdilim (1962) All N.L.R.

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(reprint) (pt. 2) 581 at 589 – 590; Okafor v. Nweke

(2007) 10 NWLR (pt. 1043) 521; Ministry of Works &

Transport, Adamawa State v. Yakubu (2013) 6 NWLR

(pt. 1351) 481 at 495 – 496 and Nwachukwu v.

Ekpiken (2015) All FWLR (pt. 788) 958 at 969 were

cited in support.

Learned Senior Counsel for the Appellant went on to

submit that since the Originating Process are incompetent

and therefore nullity, the order of certiorari quashing the

judgment of the Customary Court is also a nullity and

therefore cannot confer any right or benefit. We were

urged to set same aside as having been made without

jurisdiction and that there cannot be a breach of a null

order.

It is not in doubt that for a Court to hear and determine any

dispute, it must have the jurisdiction to do so. Jurisdiction

is the authority which a Court has to decide on matters

instituted before it for adjudication or the authority to take

cognizance of matters presented before it in a formal way

for determination. Generally, the jurisdiction of Courts are

donated by the Constitution or other Statutes or Law that

established the Court. See FBN Ltd v. Abraham (2008)

LPELR – 1281

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(SC); Musaconi Ltd v. Aspinall (2013) 14 NWLR (pt.

1375) 435 and Aladejobi v. N.B.A. (2013) 15 NWLR

(pt. 1376) 66. It has therefore been said that jurisdiction

is the threshold issue in the judicial process, as without

jurisdiction, no Court is competent to hear and determine

any cause or matter. It is therefore the life blood of any

litigation and so fundamental that any proceeding

conducted without jurisdiction will be a nullity. SeeAkere

& Ors v. Gov. of Oyo State & Ors (2012) 12 NWLR (pt.

1314) 240; Dingyadi & Anor v. INEC & Ors (2010)

LPELR – 40142 (SC) and Okoro & Ors v. Egbuoh & Ors

(2006) 15 NWLR (pt. 1001) 1.

That being so, a Court would be said to have jurisdiction to

hear and determine any cause or matter where:

(a) The subject matter of the case is within the jurisdiction

of the Court and there is no feature in the case which

prevents the Court from exercising its jurisdiction;

(b) The case comes before the Court initiated by due

process of law and upon fulfillment of any condition

precedent to the exercise of jurisdiction.

(c) The Court is properly constituted with respect to the

number and qualification of its members.

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Those are the requirements as set out by the Supreme

Court in several cases such as Madukolu v. Nkemdilim

(1962) 2 SCNLR 341; Mbah v. State (2014) LPELR –

22729 (SC); P.D.P & Ors v. Ezeonwuka & Anor (2017)

LPELR – 42563, Sun Insurance (Nig.) Plc v. Umez

Engineering Construction Co. Ltd (2015) LPELR –

24737 (SC).

In the instant case, the complaint of the Appellant rests on

the second element. It is therefore the case of the Appellant

that, the certiorari proceeding which gave birth to the

order said to have been breached by the Appellants is a

nullity as it was not instituted by due process of the law.

That the exparte application which sought the leave of

Court to institute or initiate the certiorari proceeding, the

statement made in support of the application and the

Motion on Notice thereof, were all signed in the name of

Niyi Ogunjimi & Co, a Law Firm. That, a Law Firm is not

the name of a person whose name is on the Roll of Legal

Practitioners kept in the Supreme Court registry, and

therefore cannot validly and lawfully sign or initiate any

Court process.

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The Law has long been settled by the Supreme Court,

particularly in the case of Okafor & Ors v. Nweke & Ors

(2007) LPELR – 2412 (SC) where the Supreme Court

held as follows:

“The question that follow is whether J.H.C. OKOLO, SAN &

CO., is a Legal Practitioner recognized by the Law? From

the submissions of both counsel, 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, filling 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 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……

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

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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.”

The above cited decision stirred a lot of divergent

comments within the circle of Legal Practitioners in

Nigeria. To that end, when the opportunity presented itself

in the case of F.B.N. Plc v. Maiwada (2013) 5 NSLR (pt.

1348) 444 at 488, the Chief Justice of Nigeria empanelled

a full compliment of the Supreme Court to resolve the

issue. At page 488 paragraphs A – D, Fabiyi, JSC who

prepared and delivered the lead judgment in F.B.N v.

Maiwada (supra) to which other Justices of the Supreme

Court concurred held as follows:

“I wish to repeat that we are interpreting a Law which

seeks to make Legal Practitioners responsible and

accountable, more especially in modern times that we are

presently operating. I see nothing technical in

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insisting that a Legal Practitioner should abide by the

dictates of the Law in signing Court processes… The

decision in Okafor v. Nweke is not in any respect wrong in

Law and I cannot summise a real likelihood of injustice

perpetrated. I cannot trace the issue to the domain of

public policy…….. The Law as enacted should be followed. I

do not for one moment see any valid reason why the

decision of this Court in Okafor v. Nweke should be

revisited. It has come to stay and Legal Practitioners should

reframe their minds to live by it for due accountability and

responsibility on their part and for the due protection of

our profession.”

With the above pronouncement of the Supreme Court, the

law as stated by that Court, which is the final and Supreme

Court of the land, in Okafor v. Nweke (supra) has been

settled. That decision has been dutifully followed by this

Court, and indeed the Supreme Court itself in plethora of

cases. Thus see, SLB Consortium Ltd v. N.N.P.C. (2011)

9 NWLR (pt. 1252) 317; Okwuosa v. Gomwalk & Ors

(2017) LPELR – 41736 (SC); Hamzat & Anor v. Sanni

& Ors (2015) LPELR – 24302 (SC);

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Dankwambo v. Abubakar & Ors (2015) LPELR – 25716

(SC); Okarika & Ors v. Samuel & Anor (2013) 7 NWLR

(pt. 1352) 19; etc. The Law now, as settled by the

Supreme Court is that, for any process purported to be

signed by a Legal Practitioner to be valid, it must have

been signed or initiated by a person whose name is on the

Roll of Legal Practitioners kept in the Supreme Court

Registry. For a person to qualify as such Legal Practitioner,

he must be such a person as defined in Sections 2(1) and

24 of the Legal Practitioners’ Act (supra). As has been

found, a Law Firm does not qualify as a Legal Practitioner

within the contemplation of Sections 2(1) and 24 of the

Legal Practitioners’ Act. Consequently any Court Process

signed or initiated in the name of a Law firm is

incompetent, null and void ab initio. See Okpe v. Fan Milk

Plc & Anor (2016) LPELR – 42562 (SC).

The issue is therefore that of substantive Law, i.e, the Legal

Practitioners’ Act. That being so, a breach of such statutory

provision affects the competence of the process, and

therefore, the jurisdiction of the Court to entertain an

action initiated by such

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invalid process. In other words, any Originating Process

filed in breach of a statutory provision is null and void and

cannot be relied upon in any judicial proceeding. The defect

goes to the competence and therefore jurisdiction of the

Court to adjudicate on the matter brought before it on that

invalid process. It is settled law that, the issue of

jurisdiction is very fundamental and thus constitute the

foundation of the powers of any Court to hear and

determine a matter; and once there is absence of

jurisdiction, the proceedings conducted by that Court and

the decision or judgment consequent thereon is a nullity no

matter the level of industry and brilliance exerted in

conducting the proceeding. See Ukwu v. Bunge (1997) 8

NWLR (pt.5 18) 527; Nnonye v. Anyichie (2005) 2

NWLR (pt. 910) 625 and Kida v. Ogunmola (2006) 60

All FWLR (pt. 327) 402 at 412. Thus, such a decision

given without jurisdiction being a nullity is liable to be set

aside.

In the instant case, the Originating Processes upon which

the certiorari proceeding was conducted were signed or

initiated by a Law Firm, to wit: NIYI OGUNJIMI & Co. No

doubt, those processes are void and therefore

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incapable of sustaining the certiorari proceeding and the

order made thereon, which is the subject of the contempt

proceeding initiated in the Court below. The result

therefore is that, there is no valid order of the Court, the

breach of which is capable of being punished by committal

for its contempt.

Now, it is beyond dispute that an order of Court that is a

nullity is as good as though it never existed. In the same

vein, an order or judgment of a Court that has been made

or given without jurisdiction is null and void. It is my view

therefore that such order or judgment is incapable of

leading to a charge of contempt. See Mustapha v.

Governor or Lagos State (1987) 2 NWLR (pt.58) 539;

Macfoy v. U.A.C. Ltd (1961) 33 All E.R. 1169;

Abubakar & Ors v. Nasamu & Ors (2012) LPELR –

7826 (SC); Menakaya v. Menakaya (2001) 16 NWLR

(pt. 738) 203 and Nyesom v. Peterside & Ors (2016)

LPELR – 40036 (SC). Thus in Saleh v. Monguno (2003)

1 NWLR (Pt. 801) 221, Obadina, JCA said.

“A nullity is in law a void act, an act which has no legal

consequences. In that regard, a proceeding which has been

declared a nullity is void and without any

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legal effect or consequence whatsoever. Just as it does not

confer any legal rights or title whatsoever, it does not also

impose any obligation or liability on any one or make any

party liable to suffer penalty or disadvantage. In other

words, it does not of itself without more, make the

Respondent liable or compellable to do or eschew from

doing any act.”

I need not restate that an order that is a nullity can be set

aside without much ado. See Eke v. Ogbonda (2006) 18

NWLR (pt. 1012) 506 and Bello v. INEC & Ors (2010)

8 NWLR (pt. 1196) 342. In that respect, having

determined that the judgment of the Oyo State High Court,

delivered by M. L. Abimbola, J (as he then was) on the

22/2/2007 in Suit No. HER/MISC.5/2006, is a nullity, the

order contained therein is incapable of sustaining any

charge of contempt. That judgment being a nullity, was

incapable of conferring any right or benefit to the parties

thereto. It was equally incapable of imposing any penalty

on the parties. That being so, it is my view that the learned

trial Judge erred when he assumed jurisdiction to entertain

the Respondent’s Application seeking that the Appellants

be committed for contempt.

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Having held as above, it is my view that, it would not serve

any useful purpose to proceed to determine on the other

issues proposed for determination by the Appellants’ in this

appeal. This appeal therefore is resolved on issue one

alone.

On the whole therefore, on issue one alone, this appeal has

merit and is accordingly allowed. Consequently, the Ruling

of the Oyo State High Court delivered on the 6th day of

February, 2013 assuming jurisdiction to entertain the

contempt proceedings against the Appellants’ is hereby set

aside.

JIMI OLUKAYODE BADA, J.C.A.: I read in draft the

Judgment just delivered by my learned brother Haruna

Simon Tsammani JCA, just delivered. It represents my view

and stance in this appeal.

I too allow the appeal and I abide by the consequential

order that the Ruling of the Oyo State High Court delivered

on the 6th day of February, 2013 assuming jurisdiction to

entertain the contempt proceeding against the Appellants

be set aside.

FOLASHADE AYODEJI OJO, J.C.A.: I have had the

privilege of reading in advance the lead

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judgment of my learned brother Haruna Simon Tsammani

JCA and I agree with the reasoning and conclusions

therein.

This appeal again brings to fore the issue of the

competence of an originating process. The law is settled

that for a Court to be competent to assume jurisdiction over

a matter, it must have been initiated by due process of law.

Where an action is not initiated by due process of law, a

Court would lack jurisdiction to entertain same and any

proceeding conducted thereon is a nullity.

Section 2(1) of the Legal Practitioners Act provides that a

person shall be entitled to practice as a barrister and

solicitor if and only if his name is on the roll of Legal

Practitioners kept in the Supreme Court Registry. It has

been settled by the highest Court of the land that a law firm

does not qualify as a legal practitioner within the

contemplation of Section 2(1) and 24 of the Legal

Practitioners Act. It is further settled that only persons who

are qualified to practice as legal practitioners and whose

names have been entered in the roll at the Supreme Court

are qualified to sign Court processes.

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In BRAITHWAITE VS. SKYE BANK PLC. (2012) LPELR

15532, the Supreme Court held as follows:

“In my considered opinion, the words employed in drafting

Section 2(1) of the Legal Practitioners Act, Laws of the

Federation of Nigeria and Section 24 of the Legal

Practitioners Act, Laws of the Federation are simple and

straight forward. The literal construction of the law is that

legal practitioners who are animate personalities should

sign Court processes and not a firm of legal practitioners

which is inanimate and cannot be found in the roll of this

Court” per Mohammed JSC at pg. 10 — 11 Paras D -

C”.

See also NNALIMUO & ORS. VS. ELODUMO & ORS

2018 LPELR - 43898 and OLIYIDE & SONS LTD VS.

O.A.U ILE-IFE (2018) LPELR 43711.

The Respondent herein vide an ex-parte application filed at

the trial Court sought the leave of Court to apply for an

order of certiorari to remove the judgment and proceeding

of the Grade ‘C’ Customary Court into the lower Court for

the purpose of quashing it. The said application for leave at

page 19 - 20 of the Record of Appeal was signed by the law

firm of Niyi Ogunjimi & Co.

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The Motion on Notice at Page 25 of the Record is also

signed by Niyi Ogunjimi & Co. Niyi Ogunjimi & Co., is a

firm of legal practitioners which is inanimate. The law firm

of Niyi Ogunjimi & Co., is also not a name verifiable on the

roll of legal practitioners at the registry of the Supreme

Court.

The said applications form the pedestal upon which the

certiorari proceeding was conducted. The resultant effect is

that the foundation upon which the lower Court conducted

the proceeding which led to the quashing of the judgment

of the Grade ‘C’ Customary Court was incurably bad and a

nullity in law.

In NZOM & ANOR. VS. JINADU (1987) LPELR-2143 E -

A, the Supreme Court per Karibi-Whyte JSC held as

follows:

“It is now settled that where an act is void, it is void and

nothing can be added to it. It is expressed in the Latin ex

nihilo nihil fit. Hence if the writ of summons against a non-

juristic person is void, it admits of no additions or accretion

of other persons. As Denning L.J expressed it commenting

on nullity succinctly in U.A.C LTD VS. MCFOY (196) 3

ALL ER. AT P.1172.

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“If an act is void, then it is in law a nullity. It is not only

bad, but incurably bad.... And every proceeding which is

founded on it is also bad and incurably bad. You cannot put

something on nothing and expect it to stay there. It will

collapse.”

I agree with my learned brother that the contempt

proceeding initiated to challenge the Appellants on the

execution of a quashed judgment is also a nullity in law.

The said contempt proceeding and the ruling emanating

therefrom must collapse like a pack of cards as the pedestal

on which they stand is incurably bad.

It is for this reason and the more robust reasons of my

learned brother in the lead judgment that I also allow this

appeal and set aside the judgment delivered by the lower

Court in SUIT NO.HER/MISC.J.2006 delivered on 22nd

February, 2007 by M.L. Abimbola J.

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Appearances:

Alhaji Lasun Sanusi SAN with Chinedu Ugwu, Esqand Vanessa N. Ahile, Esq For Appellant(s)

Respondent is absent. For Respondent(s)

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