A Court Process or any Legal document signed by a Legal Practitioner known to law should be as clear on its face as a mathematical precision and should not be decided on inferences, presumptions and assumptions.
IN THE COURT OF APPEAL
ILORIN JUDICIAL DIVISION
ON MONDAY, 22 MARCH 2021
BEFORE THEIR LORDSHIP
UZO. I. NDUKWU-ANYANWU, (PJ) JCA
IBRAHIM SHATA BDLIYA, JCA
MISITURA. O. BOLAJI-YUSUFF, JCA
PA. AKANDE ATOYEBI & 3 Ors
CHIEF EZEKIEL AYO OYINLOYE & 1 Or
(Lead Judgement delivered by Honourable Justice Misitura. O. Bolaji-Yusuff, JCA)
Facts of the Case:
The Appellants instituted an action against the Respondent at the High Court of Kwara State. The Counsel for the Respondent was Bisi Atolagbe of Bisi Atolagbe and Co. Before the conclusion of trial, there was an application for change of Counsel filed by Abdulwahab Bamidele & Co. The said firm of Abdulwahab initiated a Preliminary Objection at the trial Court on the ground that the suit was initiated by an incurably defective Writ of Summons, and thus, the trial Court lacked the jurisdiction to have entertained the suit. The trial Court upheld the Preliminary Objection on behalf of the Respondents. Aggrieved, the Appellants lodged an appeal to the Court of Appeal.
1.Whether the “Preliminary Objection” against the competence of the suit before the trial Court by H.G. Ibn Mahmud Esq., of law firm of Abdulwahab Bamidele & Co., a completely different law firm from Bisi Atolagbe & Co., Counsel to the Respondents is due and competent when Bisi Atolagbe & Co., neither applied for leave nor was granted leave to withdraw for “special reason” from the suit as Counsel to the Respondents (Defendants).
2.Whether on a holistic reading, construction and interpretation of the entire content of the Writ of Summons, spanning 3 pages, it was issued and signed by Joseph S. Bamigboye & Co., or by Joseph S. Bamigboye Esq., who on the Writ of Summons is Counsel to the Appellants (Claimants).”
On issue 1 of both parties, the Appellants’ Counsel, J. S. Bamigboye, SAN submitted that the provisions of Order 15, rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005, makes it mandatory for a Counsel engaged by a party in any cause or matter to conduct same until final judgment unless allowed for any special reason to withdraw upon an application made either by the party or the Legal Practititoner. He argued that since Bisi Atolagbe of Bisi Atolagbe & company have not withdrawn their representation for the Respondents, H. G. Ibn Mahmud of Abdulwahab Bamidele & company had no locus to file the Preliminary Objection against the suit. It is the contention of the learned silk that where leave of Court such as prescribed by Order 15, rule 1 of the Civil Procedure Rules is required for withdrawal of a Counsel from a matter, failure to seek and obtain the required leave is not a mere irregularity which can be waived but a substantial omission which makes the appearance of a different Counsel without withdrawal incompetent as no validity or incompetence can stand on illegality or incompetence.
In response, the Respondent’s Counsel argued that the complaint of the Appellant is at best a procedural irregularity but the fact that a party approached the Court by a wrong procedure or under a wrong law will not deny him the relief he is legitimately entitled to. He referred to F.R.I.N v. Gold (2007) LPELR-1287 (SC) at 28 (B-C). He submitted that there was a substantial compliance with the provisions of Order 15(1) of the Civil Procedure Rules(supra), Bisi Atolagbe having filed Notice of Withdrawal of his representation for the Respondents and Abdulwahab Bamidele& Co. having filed an application for change of Counsel. Counsel argued that even if there is a defect in the appearance of Counsel, the Preliminary Objection remains valid since jurisdiction is not conferred or removed from the Court by the appearance or non-appearance of Counsel. He referred to Nig. Navy v. Garrick (2006) 4 NWLR (pt. 969) 69 at 109 (E-F);
On issue 2, the Learned Silk submitted that documents including Writ of Summons are read, interpreted and construed holistically and not in isolation and disjunctively.
He also submitted that once a writ is attributable to an identifiable Legal Practititoner, it is valid and its competence must be upheld. He referred to Oyama v. Aigbe (2016) All FWLR (pt. 840) 1274 at 1284; U.B.A Plc v. S.E.A Ltd. (2016) All FWLR (pt. 829) 1127 at 1157.
The Respondents’ Counsel on his part argued that the Writ of Summons in this case is fundamentally and incurably defective because if all the pages of the Writ of Summons are read together, it was signed by or in the name of Joseph S. Bamigboye & Co., and if on the other hand, the 3rd page of the writ is construed alone, then it is not signed at all by anybody and therefore the writ is null and void.
Decision of the court and reason:
The Court held that, the right of a Counsel to withdraw his appearance or representation from a matter before the Court is not the same as the constitutional right of a party to engage a Counsel of his choice. The purpose of Order 15 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005, is for the protection of litigant. It is to ensure that a Counsel who has been properly briefed to conduct a case on behalf of a litigant does not abandon the litigant midway by simply withdrawing his appearance from the case without any cogent reason. Their lordships relied on Omale v. Federal Min. of Lands, Housing And Urban Development & Ors. (2015) LPELR-25906 (CA). However, where a party decides to change Counsel, leave of Court is not necessary.
By Order 15, rule 2, the procedure to be followed in notifying the Court of withdrawal by Counsel or change of Counsel by a party is the same. However, Counsel who intends to withdraw his appearance must show a special reason for his withdrawal. A party who voluntarily changes his Counsel need not give any special reason or any reason at all. The duty to seek leave to withdraw from a matter for special reason(s) is that of a Counsel not the litigant.
Their lordships held that, Bisi Atolagbe ought to be in Court to formally withdraw his appearance pursuant to his Notice of Withdrawal. However, his omission or decision not to do so can only amount to an irregularity and a breach of professional duty. A litigant cannot be sanctioned or penalised for breach of professional duty or ethical/procedural mistake committed by his Counsel. Once the former Counsel filed his Notice of Withdrawal and stated the reasons for his withdrawal, the Respondents’ were entitled and in fact duty bound to exercise their constitutional right to engage another Counsel of their choice. Since the Respondents exercised their constitutional right to engage a Counsel of their choice after the filing of the Notice of Withdrawal by their former Counsel, Rule 29(2) of the Rules of Professional Conduct for Legal Practitioners, 2007 imposes a professional duty on both the former and the new Counsel to give notice of the change to the Court. Reliance was placed on Agoro v. Aromolaran & Anor. (2011) LPELR-8906 (CA) at 20 (B-E).
It was held that, the Court below was right to treat the failure of Bisi Atolagbe or any Counsel in the law firm to appear before the Court in person and formally obtain leave to withdraw their appearance and representation for the Respondents as an irregularity. At least, he filed a notice to withdraw his appearance and representation wherein he stated the reasons for his withdrawal.
On issue 2, the court reiterated that, the law is settled that in view of the clear provisions of Sections 2(1) and 24 of Legal Practitioners Act (supra), only a person entitled to practice as a barrister and solicitor of the Supreme Court of Nigeria is entitled to sign a Court process as a Legal Practitioner. Since a person is entitled to practice as barrister and solicitor if, and only if his name is on the roll, a law firm or partnership not being a human being called to the bar and enrolled to practice law cannot legally sign or file a Court process. Any process signed in the name of a law firm is incompetent and liable to be struck out.
It is clear from Order 2, rules 1 and 3, Order 5, rule 6(2) and Order 6, rules 1 and 2 of Court that where a Claimant sues through a Legal Practitioner each copy of the Writ of Summons must be signed by the Legal Practitioner. In SLB Consortium Ltd v. NNPC (supra), (2011) 9 NWLR (pt. 1252) 317 at 337 – 338, the Supreme Court held that “Once it cannot be said who signed a process, it is incurably bad, and the rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act.)”
In the instant case, the signature on the Writ of Summons is on page 2 thereof. Immediately under the signature is the name “Joseph S. Bamigboye & Co. No name of any individual or natural person appeared under the signature. Thus, contrary to the manner of signing a Court process as laid down in SLB Consortium Ltd v. NNPC (supra), the name of the person who signed the writ is not stated.
The fact that a Court process or any legal document is signed by a Legal Practitioner known to law should be as clear on its face as a mathematical precision. It is not a fact that can or should be decided on inferences, presumptions and assumptions. The court relied on Ibeke v. Nzegwu & Ors. (2017) LPELR-43056 (CA) at 8-9 (C-A); Arueze & Ors. v. Nwaukoni (2018) LPELR-46352 (SC) at 8-10 (C-B).
It was further held that, the argument of the learned silk insinuating that the error in signing the Writ of Summons in the name of a firm is a technicality is contrary to the firm pronouncement of the Supreme Court that signing of Court Process, in this case an Originating Process in the name of a firm, is not a technical error but a fundamental defect which renders the process incompetent and robs the Court of the jurisdiction to entertain the suit. The Court relied on Okafor v. Nweke & Ors. (2007) LPELR-2412 (SC); Oliyide & Sons Ltd v. OAU, Ile-Ife (2018) LPELR-43711 (SC) at 30-31 (D-F); First Bank of Nig. v. Maiwada (2012) 5 SC (pt. 3) 1 at 28-29; Salami v. Muse (2019) LPELR-47038 (SC) at 8-19 (B).
Alamoyo Sulaiman – for the Appellant
Olukayode Oloyede – for the Respondent
Reported in (2021) Modern Weekly Law Report (MWLR) pt 18 P. 1535-1571
(Modern Weekly Law Report (MWLR) is a publication of Doyen Law Publishers Limited)