IN RE: ALHAJA SAFURAT OLUFUNKE YAKUBU & ANOR
(2018)
LPELR-43678(CA)
PRACTICE AREA: PRACTICE AND PROCEDURE
INTRODUCTION
Pursuant to the provisions of Rule 10, Rules of Professional
Conduct for Legal Practitioner, 2007 and as approved by the NBA
NATIONAL EXECUTIVE COMMITTEE (NEC) meeting held on 14th November,
2014, The NBA introduced stamps for Lawyers. The use of the stamps
became mandatory from the 1st day of April, 2015 and since then,
lawyers have been required to affix their stamp on every legal
document prepared and/or endorsed in accordance with law. However,
due to some reasons, these stamps are not always available as at
when due. Consequently, there have been instances where lawyers
would have paid for but are yet to receive their stamps. In such an
instance, some lawyers have gone ahead to file their court
processes without affixing the required stamps while some file
theirs without the stamp but with evidence of their payment for the
stamp. Now, does the evidence of payment for the NBA stamp fulfill
the requirement of Rule 10 of Rules of Professional Conduct for
Legal Practitioner 2007?
This was the big question in the case at hand wherein
applicant’s counsel affixed his evidence of payment for NBA stamp,
in place of the actual NBA stamp, on his application filed at the
Court.
Ogakwu, J.C.A. in delivering the Lead Ruling, adopted the
Court’s earlier decision in TODAY’S CARS LTD vs. LASACO ASSURANCE
PLC (2016) LPELR (41260) per Ogakwu, J.C.A. where he said “Now, in
these circumstances will it be in consonance with the dictates of
justice for the Appellant’s brief to be said to infringe the
provisions of Rule 10 of the Rules of Professional Conduct for
Legal Practitioners, 2007, given the fact that the Appellant’s
counsel has done all that is required of him in order to comply
with the stipulation of the Rule. I think not.”
He went further to say that “It is my considered view that
having paid for the stamp and seal, all that remained was the
domestic affair of the Nigerian Bar Association Secretariat and
where like in this situation the Nigerian Bar Association
Secretariat is tardy, such tardiness cannot be visited on the
Appellant as all required to be done on the part of the Appellant’s
counsel has been done.” He went on to posit that “… this
application is not incompetent”.
FACTS
The facts of the substantive Appeal as contained in this Ruling
is as follows:
There had been long standing land tussle between the Respondents
and the Olalore Family. At the trial Court, the Appellant herein
(as claimant) sued the Respondents (as defendants) on the
allegation that they had encroached on the land he acquired from
the Olalore. The Respondents filed a counterclaim in which they
claimed to be entitled to expanse of land larger than the land
claimed by the Appellant and which encompassed the Applicants land.
At the end of the trial, the lower Court dismissed the Appellant’s
claim and entered judgment for the Respondents on their
counterclaim.
Consequently, the effect of the judgment of the Trial Court was
that the land which the Applicants claim they acquired from the
Olalore Family was adjudged to belong to the Respondents, without
the Applicants being parties to the action or having been given a
hearing.
In view of the consequential effect of the judgment of the trial
Court, the Applicants herein brought an application seeking leave
to appeal as persons interested in the property having acquired
their land from the Olalore Family.
The Applicants’ motion had attached to it the bank teller with
which he paid for his stamp and seal instead of the actual Stamp
and on this basis, Respondent contended that the application was
incompetent and ought to be struck out as the Applicants’ counsel
did not comply with the condition precedent contained in Rule 10 of
the Rules of Professional Conduct for Legal Practitioners 2007,
which requires that the stamp of the legal practitioner be affixed
to the motion.
ISSUE(S) FOR DETERMINATION
The sole issue for determination in this application is:
“Whether in the circumstances of this appeal, the
Applicants have shown sufficient interest that the Judgment
delivered by HON. JUSTICE B A OKE-LAWAL (MRS.) on 15th June, 2016
in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA VS OBA
MORUFU OJOOLA & ANOR affected their interest/land and the
Judgment is likely to be executed on them if they do not join this
appeal to appeal against it as persons affected as interested
parties.”
HELD
The court found the application too be meritorious and the same
was granted. It was further ordered as follows:
1. The Applicants are granted leave to appeal as persons having
an interest and affected by the Judgment delivered by HON. JUSTICE
B. A. OKE-LAWAL (MRS.) of the High Court of Lagos State on 15th
June, 2016 in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA
VS OBA MORUFU OJOOLA & ANOR.
2. The Applicants are granted extension of time within which to
appeal against the Judgment of the High Court of Lagos State
delivered by HON. JUSTICE B. A. OKELAWAL (MRS.) on 15th June, 2016
in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA VS OBA
MORUFU OJOOLA & ANOR.
3. The Notice of Appeal is to be filed in the Registry of this
Court within 21 days from the date of the judgment.
The Court also awarded costs of N100, 000.00 in favour of the
Applicants against the Respondents.
RATIO DECIDENDI
- LEGAL PRACTITIONER – STAMP/SEAL: Effect of affixing
proof of payment of NBA stamp and seal where stamp and seal are not
available
“there is the threshold issue of the competence of the
application raised by the Respondents, on the ground that the NBA
Stamp of the Applicants counsel is not affixed to the application.
Without a doubt, the NBA Stamp is not affixed. The Applicants
counsel however annexed the Access Bank teller showing that he had
duly paid for his NBA Stamp and Seal. Now, what is the effect of
this? Is the application incompetent and deserving to be struck out
as submitted by the Respondent? In YAKI vs. BAGUDU (2015) LPELR
(25721) 1 at 6-7, the apex Court held that a legal document signed
and/or filed without complying with Rule 10 (1) of the Rules of
Professional Conduct 2007 is not null and void or incompetent. The
Respondents referred to the decision of this Court in ADEWALE vs.
ADEOLA & CO (supra), it is correct that it was held therein at
page 20 that a process filed without the seal or stamp of the legal
practitioner being affixed is incompetent. However, in arriving at
this decision, the Court made it clear that the decision of apex
Court in YAKI’s case which was delivered less than a month before
its judgment in the said case, was not made available to it and the
Court could not rely on the ipse dixit of counsel as to what was
decided; to that extent therefore the decision of this Court cannot
be taken as authority that such a process is incompetent.
Definitely, the decision would have kowtowed to the position of the
apex Court, if the decision in YAKI’s case had been made available
to it. So contrary to the Respondents contention, the application
is not incompetent. What then is the effect, if any, of the
Applicants counsel having attached the bank teller to show that he
had paid for the stamp and seal but that the Nigerian Bar
Association had not issued it? Dealing with a similar situation,
this Court per Ogakwu, JCA in TODAY’S CARS LTD vs. LASACO ASSURANCE
PLC (2016) LPELR (41260) 1 at 5-7 stated as follows:
“Doubtless, there is no Nigerian Bar Association Stamp and Seal
on the Appellant’s Brief. The Appellant has however submitted that
its counsel has done all on its part to obtain the Seal and that
the failure by the Nigerian Bar Association to issue the Seal
should not be visited on the Appellant. The Appellant’s Brief was
filed on 27th April, 2016. Attached to the Appellant’s Brief is an
Access Bank deposit slip showing that the Appellant’s counsel …
paid for the Nigerian Bar Association Stamp in February 2016, a
clear two months before the Appellant’s Brief was filed. Now, in
these circumstances will it be in consonance with the dictates of
justice for the Appellant’s brief to be said to infringe the
provisions of Rule 10 of the Rules of Professional Conduct for
Legal Practitioners, 2007, given the fact that the Appellant’s
counsel has done all that is required of him in order to comply
with the stipulation of the Rule. I think not. It is my considered
view that having paid for the stamp and seal, all that remained was
the domestic affair of the Nigerian Bar Association Secretariat and
where like in this situation the Nigerian Bar Association
Secretariat is tardy, such tardiness cannot be visited on the
Appellant as all required to be done on the part of the Appellant’s
counsel has been done. See OGBUNYIYA vs. OKUDO (NO.2) (1990) 4 NWLR
(PT 146) 551 at 560B, 561H- 562A and 571E and ALAWODE vs. SEMOH
(1959) 4 FSC 27 at 29.
It is pertinent to add that the rationale behind the requirement
for affixing stamp and seal to legal documents seems to be to
checkmate quacks in the legal profession, but more importantly, to
ensure that legal practitioners fulfill their financial obligations
in that regard to the Nigerian Bar Association. The Access Bank
deposit slip attached to the Appellant’s brief shows that the
Appellant’s counsel has discharged his financial obligations to the
Nigerian Bar Association. To hearken to the 1st Respondent’s
argument and hold in the diacritical circumstances of this matter
that the Appellant’s brief was not properly filed will be turning
justice on its head, and in fact inculcate injustice.”
I still maintain the views I expressed in TODAY’S CARS LTD vs.
LASACO ASSURANCE PLC (supra) and in the light of the Supreme Court
decision in YAKI vs. BAGUDU (supra), I hold that this application
is not incompetent.”Per OGAKWU, J.C.A. (Pp. 11-15, Paras. C-A) –
read in context
- APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL:
Conditions to be satisfied by an applicant seeking for extension of
time to appeal
“The Applicants also seek extension of time to appeal against
the decision of the lower Court. Order 6 Rule 9 (1) and (2) of the
Court of Appeal Rules, 2016 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules
for the doing of anything to which these Rules apply except as it
relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to
appeal shall be supported by an affidavit setting forth good and
substantial reasons for failure to appeal within the prescribed
period, and by grounds of appeal which prima facie show good cause
why the appeal should be heard. When time is so enlarged, a copy of
the order granting such enlargement shall be annexed to the notice
of appeal.”
(Emphasis supplied) From the above provision, an applicant for
enlargement of time within which to appeal must establish two
pre-conditions before discretion can be exercised in favour of
granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the
prescribed period; and
2. Grounds of appeal which prima facie show good cause why the
appeal should be heard.
It is settled law that the two conditions must co-exist; it is
not sufficient to satisfy one without the other.
See: IBODO vs. ENAROFIA (1980) 5-6 SC 42; HOLMAN BROS. (NIG.)
LTD. vs. KIGO (1980) 8-11 SC 43; KOTOYE VS SARAKI (1995) 5 NWLR (PT
395) 256,MINISTER OF PETROLEUM & MINERAL RESOURCES vs.
EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261 and
LAFFERI NIG LTD VS. NAL MERCHANT BANK (2015) LPELR (24726) 1 at
21.”Per OGAKWU, J.C.A. (Pp. 20-21, Paras. B-D)
OTHER JUDGMENNTS FROM THE COURT
ONIKOYI & ORS v. ONIKOYI & ORS (2018)
LPELR-43680(CA)
- COURT – DUTY OF COURT: Duty of Court to consider all
issues raised before it; exceptions thereto
“It is no doubt the law that when a party submits an issue to
the Court for determination, it must make a pronouncement on it, as
otherwise denial of fair hearing may ensue. But like all other
principles, this principle is also subject to at least one
exception, which is that, where one issue is subsumed in another
one on which the Court has already made pronouncement, it shall not
be necessary or obligatory for it to make separate pronouncement on
the second one: see 7UP Bottling Co. Ltd v. Abiola & Sons
Bottling Co. Ltd (2001) 6 S.C. 73 at 103, (2001) 13 NWLR (Pt. 730)
460; Adebayo v. A. G. of Ogun State (2008) LPELR – SC 186/2006 at
p. 14, (2008) 7 NWLR (Pt. 1085) 200; Etajata v. Ologbo (2007) 16
NWLR (PT 1061) 554 @ 581-582 (S.C.). It appears to me that is the
case with the issue of applicability of Sections 60, 76 and 77 of
the Bills of Exchange Act Cap B8 Laws of the Federation of Nigeria
2004 to the cross-appellants.
Those provisions absolve a banker of liability where the banker
in good faith, without negligence and in the ordinary course of
business gives value for a bill drawn on it. Here the lower found,
and it is supported by the evidence, that Union Bank not only
debited the claimant/cross-respondents’ Onikoyi Royal family
accounts to the tune of N200m in disregard of the family’s extant
mandate in its records, it had even earlier debited another N65m
from the same account at a time it had not received any change of
mandate, valid or invalid, from Onikoyi Royal Family. Such conduct
cannot by any means be described as one done in good faith, without
negligence and in the ordinary course of its banking business
within those statutory provision, the effect of which is that the
defence of Sections 60, 76 and 77 of the Bills of Exchange Act is
subsumed in the earlier findings of the learned trial on the
wrongful debiting of claimants/1st and 2nd
cross-respondents’ Onikoyi Royal Family account. To that extent,
the lower Court was not under a duty to make a separate
pronouncement on the said Sections 60, 76 and 77 of the Bills of
Exchange Act and cross-appellant was not denied fair hearing
thereby. In any event, Section 15 of the Court of Appeal Act vests
on this Court the power of rehearing the whole case. It says the
Court of Appeal ‘generally shall have full jurisdiction over the
whole proceedings as if the proceedings had been instituted in the
Court of Appeal as Court of first instance and may rehear the case
in whole or in part…..’That power certainly includes making
appropriate pronouncements even on issues that may have been
overlooked by the trial Court, more so where such issues are simply
of law or inference to be drawn from proved facts as in this case:
Etajata v. Ologbo (2007) 16 NWLR (PT 1061) 554 @ 584 paras E-G and
pg. 588 para 11- Pg 590 para G, per Tanko Mohammed J.S.C. I have in
that connection already held here that Union Bank’s conduct in the
entire saga as disclosed in the pleadings and evidence cannot be
described as one of good faith. In the event this final issue is
also resolved against her.”Per UGO, J.C.A. (Pp. 54-57, Paras.
C-A)
- EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Whether a
plaintiff must rely on the strength of his case and not the
weaknesses of defence case
“… even though the law is that a claimant for declaration must
depend on the strength of his case for his success, he can in doing
so take advantage of any part of his opponent’s case that supports
his case: see Sarhuna vs. Lagga (2002) FWLR (Pt. 126) 978 (S.C);
Chukwueke vs. Okoronkwo (1999) 1 NWLR (Pt.587) 410 (S-C); Akinola
vs. Oluwo (1962) 7 SCNLR 352.”Per UGO, J.C.A. (P. 52, Paras.
C-E)
- PRACTICE AND PROCEDURE – THIRD PARTY PROCEEDINGS:
Whether a third party proceeding makes the third party a party to
the main claim
“A third party proceeding does not make the third party a party
to the main claim; he is only a defendant as regards the defendant.
See Okafor vs. A.C.B. Ltd (1975) 9 NSCC 276 at 282 where the Apex
Court stated the position thus:
“The mere service of a third party notice does not make the
person on whom it is served a defendant to the main action but
makes him only a defendant vis-a-vis the person serving the notice.
In the main action the rights of the plaintiff and the defendant
are determined without reference to the defendant’s claim against
the third party, but when those rights have been ascertained, it is
then open to the person brought in as a third party to have all
relevant disputes determined between him and the person serving the
notice.”Per UGO, J.C.A. (Pp. 20-21, Paras. C-A) OKAM & ORS v.
IGWE & ANOR (2018) LPELR-43685(CA)
True it is, that order of injunction can always be granted as a
consequential order by a Court. However, a Court should also note
that the position of the law is that a party should never be
granted a relief which it has not asked for. It should have been
apparent to the lower Court that the only injunction the
Respondents wanted was in respect of their seventh relief and the
lower Court having refused the Respondents that relief, in my
considered view could not have properly granted the relief it had
refused under the colour of a consequential relief.”Per
LOKULO-SODIPE, J.C.A. (P. 90, Paras. B-E)
- ACTION – COUNTER-CLAIM: General principles of law with
respect to counter-claim
“The settled position of the law in relation to counter-claim
(and which does not require the citing of any authority) is that a
counter-claim is a separate action even though it is tried in the
action of the plaintiff (which is usually referred to as the main
action). Because of the manner in which a counter-claim is tried,
the law does not expect that evidence in respect of a counter-claim
should be recorded separately under the heading “counter-claim”.
Similarly, I am of the considered view that where a finding is made
in respect of an issue in the main action, there is absolutely no
need to embark on the determination of that very fact again or
afresh in a counter-claim.”Per LOKULO-SODIPE, J.C.A. (P. 92, Paras.
A-E
- APPEAL – RESPONDENTS NOTICE: Circumstance where a
respondent notice will not be required
“The proper use of a respondent’s notice has been the subject of
many decisions of the appellate Courts. See the cases of OGUMA
ASSOCIATED COMPANIES (NIGERIA) LTD V. INTERNATIONAL BANK FOR WEST
AFRICA LTD (1988) LPELR – 2318 (SC), (1988) NWLR (Pt. 73) 658; EZE
V. OBIEFUNA (1995) LPELR – 1191 (SC), (1995) 6 NWLR (Pt. 404) 639;
and BOB-MANUEL V. BRIGGS (2003) LPELR – 787 (SC), (2003) 5 NWLR
(Pt. 813) 323; amongst many others that deal with situations when a
respondent is expected to file an appeal or cross-appeal against a
decision in his favour and when he can properly file a respondent’s
notice. Suffice it to say that I am of the considered view that
inasmuch as “a” of the further orders the Respondents seek from
this Court is for the reversal of the non-granting by the lower
Court of the first of their reliefs, they cannot achieve this by
way of respondents’ notice. In the same vein as it is clear that
further orders “b” and “c” respectively, are fresh claims being
introduced into the case at this level, it becomes obvious that the
Respondents cannot achieve their desire in respect of the said
reliefs, through their respondents’ notice. May I say that even
before the lower Court they cannot introduce additional or fresh
claims into their case, willy-nilly. They would have had to come by
way of amendment of their reliefs by seeking for the addition of
the fresh or new claims which they now seek to introduce into their
case on appeal. The Respondents would appear to want to have their
claims amended surreptitiously and I don’t consider this to be
desirable and definitely cannot be given effect by this Court.
Flowing from all that has been said is that the Respondents’
notice must be dismissed and is hereby so dismissed as it is
totally lacking in merit.”Per LOKULO-SODIPE, J.C.A. (Pp. 95-96,
Paras. C-F)
- LAND LAW – TRESPASS TO LAND: Need for judge to resolve
issue of competing titles in an action for damages for trespass to
land
“The lower Court in my considered view was persuaded more by the
relationship it found to exist between the parties and its desire
for its judgment not to strain the relationship, than the law, in
granting the Respondents’ relief aside from their relief two. This
is because, the lower Court in my considered view clearly lost
sight of the fact that both parties in the case before it claimed
to be in possession of the parcels of land in dispute and that
before it could meaningfully find that the Respondents had
exclusive right of possession to any part thereof, by law, they had
to establish a better title to the portion of the said land in
respect of which they sought a declaration and over which they
claim to have possession. This is because the position of the law
is to the effect that where in an action for damages for trespass
both parties claim the right to possession by virtue of their
respective titles, the trial judge should resolve the issue of
their competing titles. See the cases of SHAIBU V. BAKARE (1984)
LPELR – 3033 (SC) and AKINTERINWA V. OLADUNJOYE (2000) LPELR – 358
(SC), (2000) 6 NWLR (Pt.659) 92. This is because it is on the basis
of the right to exclusive possession by virtue of such proven title
that such a party can maintain the action for trespass even though
trespass is basically a claim founded on physical possession.”Per
LOKULO-SODIPE, J.C.A. (Pp. 87-88, Paras. E-F)
Culled From Nairalaw.com
IN RE: ALHAJA SAFURAT OLUFUNKE YAKUBU & ANOR
(2018)
LPELR-43678(CA)
PRACTICE AREA: PRACTICE AND PROCEDURE
INTRODUCTION
Pursuant to the provisions of Rule 10, Rules of Professional
Conduct for Legal Practitioner, 2007 and as approved by the NBA
NATIONAL EXECUTIVE COMMITTEE (NEC) meeting held on 14th November,
2014, The NBA introduced stamps for Lawyers. The use of the stamps
became mandatory from the 1st day of April, 2015 and since then,
lawyers have been required to affix their stamp on every legal
document prepared and/or endorsed in accordance with law. However,
due to some reasons, these stamps are not always available as at
when due. Consequently, there have been instances where lawyers
would have paid for but are yet to receive their stamps. In such an
instance, some lawyers have gone ahead to file their court
processes without affixing the required stamps while some file
theirs without the stamp but with evidence of their payment for the
stamp. Now, does the evidence of payment for the NBA stamp fulfill
the requirement of Rule 10 of Rules of Professional Conduct for
Legal Practitioner 2007?
This was the big question in the case at hand wherein
applicant’s counsel affixed his evidence of payment for NBA stamp,
in place of the actual NBA stamp, on his application filed at the
Court.
Ogakwu, J.C.A. in delivering the Lead Ruling, adopted the
Court’s earlier decision in TODAY’S CARS LTD vs. LASACO ASSURANCE
PLC (2016) LPELR (41260) per Ogakwu, J.C.A. where he said “Now, in
these circumstances will it be in consonance with the dictates of
justice for the Appellant’s brief to be said to infringe the
provisions of Rule 10 of the Rules of Professional Conduct for
Legal Practitioners, 2007, given the fact that the Appellant’s
counsel has done all that is required of him in order to comply
with the stipulation of the Rule. I think not.”
He went further to say that “It is my considered view that
having paid for the stamp and seal, all that remained was the
domestic affair of the Nigerian Bar Association Secretariat and
where like in this situation the Nigerian Bar Association
Secretariat is tardy, such tardiness cannot be visited on the
Appellant as all required to be done on the part of the Appellant’s
counsel has been done.” He went on to posit that “… this
application is not incompetent”.
FACTS
The facts of the substantive Appeal as contained in this Ruling
is as follows:
There had been long standing land tussle between the Respondents
and the Olalore Family. At the trial Court, the Appellant herein
(as claimant) sued the Respondents (as defendants) on the
allegation that they had encroached on the land he acquired from
the Olalore. The Respondents filed a counterclaim in which they
claimed to be entitled to expanse of land larger than the land
claimed by the Appellant and which encompassed the Applicants land.
At the end of the trial, the lower Court dismissed the Appellant’s
claim and entered judgment for the Respondents on their
counterclaim.
Consequently, the effect of the judgment of the Trial Court was
that the land which the Applicants claim they acquired from the
Olalore Family was adjudged to belong to the Respondents, without
the Applicants being parties to the action or having been given a
hearing.
In view of the consequential effect of the judgment of the trial
Court, the Applicants herein brought an application seeking leave
to appeal as persons interested in the property having acquired
their land from the Olalore Family.
The Applicants’ motion had attached to it the bank teller with
which he paid for his stamp and seal instead of the actual Stamp
and on this basis, Respondent contended that the application was
incompetent and ought to be struck out as the Applicants’ counsel
did not comply with the condition precedent contained in Rule 10 of
the Rules of Professional Conduct for Legal Practitioners 2007,
which requires that the stamp of the legal practitioner be affixed
to the motion.
ISSUE(S) FOR DETERMINATION
The sole issue for determination in this application is:
“Whether in the circumstances of this appeal, the
Applicants have shown sufficient interest that the Judgment
delivered by HON. JUSTICE B A OKE-LAWAL (MRS.) on 15th June, 2016
in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA VS OBA
MORUFU OJOOLA & ANOR affected their interest/land and the
Judgment is likely to be executed on them if they do not join this
appeal to appeal against it as persons affected as interested
parties.”
HELD
The court found the application too be meritorious and the same
was granted. It was further ordered as follows:
1. The Applicants are granted leave to appeal as persons having
an interest and affected by the Judgment delivered by HON. JUSTICE
B. A. OKE-LAWAL (MRS.) of the High Court of Lagos State on 15th
June, 2016 in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA
VS OBA MORUFU OJOOLA & ANOR.
2. The Applicants are granted extension of time within which to
appeal against the Judgment of the High Court of Lagos State
delivered by HON. JUSTICE B. A. OKELAWAL (MRS.) on 15th June, 2016
in SUIT NO. ID/1416/2005 between GABRIEL OLATAYO ODUKOYA VS OBA
MORUFU OJOOLA & ANOR.
3. The Notice of Appeal is to be filed in the Registry of this
Court within 21 days from the date of the judgment.
The Court also awarded costs of N100, 000.00 in favour of the
Applicants against the Respondents.
RATIO DECIDENDI
- LEGAL PRACTITIONER – STAMP/SEAL: Effect of affixing
proof of payment of NBA stamp and seal where stamp and seal are not
available
“there is the threshold issue of the competence of the
application raised by the Respondents, on the ground that the NBA
Stamp of the Applicants counsel is not affixed to the application.
Without a doubt, the NBA Stamp is not affixed. The Applicants
counsel however annexed the Access Bank teller showing that he had
duly paid for his NBA Stamp and Seal. Now, what is the effect of
this? Is the application incompetent and deserving to be struck out
as submitted by the Respondent? In YAKI vs. BAGUDU (2015) LPELR
(25721) 1 at 6-7, the apex Court held that a legal document signed
and/or filed without complying with Rule 10 (1) of the Rules of
Professional Conduct 2007 is not null and void or incompetent. The
Respondents referred to the decision of this Court in ADEWALE vs.
ADEOLA & CO (supra), it is correct that it was held therein at
page 20 that a process filed without the seal or stamp of the legal
practitioner being affixed is incompetent. However, in arriving at
this decision, the Court made it clear that the decision of apex
Court in YAKI’s case which was delivered less than a month before
its judgment in the said case, was not made available to it and the
Court could not rely on the ipse dixit of counsel as to what was
decided; to that extent therefore the decision of this Court cannot
be taken as authority that such a process is incompetent.
Definitely, the decision would have kowtowed to the position of the
apex Court, if the decision in YAKI’s case had been made available
to it. So contrary to the Respondents contention, the application
is not incompetent. What then is the effect, if any, of the
Applicants counsel having attached the bank teller to show that he
had paid for the stamp and seal but that the Nigerian Bar
Association had not issued it? Dealing with a similar situation,
this Court per Ogakwu, JCA in TODAY’S CARS LTD vs. LASACO ASSURANCE
PLC (2016) LPELR (41260) 1 at 5-7 stated as follows:
“Doubtless, there is no Nigerian Bar Association Stamp and Seal
on the Appellant’s Brief. The Appellant has however submitted that
its counsel has done all on its part to obtain the Seal and that
the failure by the Nigerian Bar Association to issue the Seal
should not be visited on the Appellant. The Appellant’s Brief was
filed on 27th April, 2016. Attached to the Appellant’s Brief is an
Access Bank deposit slip showing that the Appellant’s counsel …
paid for the Nigerian Bar Association Stamp in February 2016, a
clear two months before the Appellant’s Brief was filed. Now, in
these circumstances will it be in consonance with the dictates of
justice for the Appellant’s brief to be said to infringe the
provisions of Rule 10 of the Rules of Professional Conduct for
Legal Practitioners, 2007, given the fact that the Appellant’s
counsel has done all that is required of him in order to comply
with the stipulation of the Rule. I think not. It is my considered
view that having paid for the stamp and seal, all that remained was
the domestic affair of the Nigerian Bar Association Secretariat and
where like in this situation the Nigerian Bar Association
Secretariat is tardy, such tardiness cannot be visited on the
Appellant as all required to be done on the part of the Appellant’s
counsel has been done. See OGBUNYIYA vs. OKUDO (NO.2) (1990) 4 NWLR
(PT 146) 551 at 560B, 561H- 562A and 571E and ALAWODE vs. SEMOH
(1959) 4 FSC 27 at 29.
It is pertinent to add that the rationale behind the requirement
for affixing stamp and seal to legal documents seems to be to
checkmate quacks in the legal profession, but more importantly, to
ensure that legal practitioners fulfill their financial obligations
in that regard to the Nigerian Bar Association. The Access Bank
deposit slip attached to the Appellant’s brief shows that the
Appellant’s counsel has discharged his financial obligations to the
Nigerian Bar Association. To hearken to the 1st Respondent’s
argument and hold in the diacritical circumstances of this matter
that the Appellant’s brief was not properly filed will be turning
justice on its head, and in fact inculcate injustice.”
I still maintain the views I expressed in TODAY’S CARS LTD vs.
LASACO ASSURANCE PLC (supra) and in the light of the Supreme Court
decision in YAKI vs. BAGUDU (supra), I hold that this application
is not incompetent.”Per OGAKWU, J.C.A. (Pp. 11-15, Paras. C-A) –
read in context
- APPEAL – EXTENSION/ENLARGEMENT OF TIME TO APPEAL:
Conditions to be satisfied by an applicant seeking for extension of
time to appeal
“The Applicants also seek extension of time to appeal against
the decision of the lower Court. Order 6 Rule 9 (1) and (2) of the
Court of Appeal Rules, 2016 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules
for the doing of anything to which these Rules apply except as it
relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to
appeal shall be supported by an affidavit setting forth good and
substantial reasons for failure to appeal within the prescribed
period, and by grounds of appeal which prima facie show good cause
why the appeal should be heard. When time is so enlarged, a copy of
the order granting such enlargement shall be annexed to the notice
of appeal.”
(Emphasis supplied) From the above provision, an applicant for
enlargement of time within which to appeal must establish two
pre-conditions before discretion can be exercised in favour of
granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the
prescribed period; and
2. Grounds of appeal which prima facie show good cause why the
appeal should be heard.
It is settled law that the two conditions must co-exist; it is
not sufficient to satisfy one without the other.
See: IBODO vs. ENAROFIA (1980) 5-6 SC 42; HOLMAN BROS. (NIG.)
LTD. vs. KIGO (1980) 8-11 SC 43; KOTOYE VS SARAKI (1995) 5 NWLR (PT
395) 256,MINISTER OF PETROLEUM & MINERAL RESOURCES vs.
EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261 and
LAFFERI NIG LTD VS. NAL MERCHANT BANK (2015) LPELR (24726) 1 at
21.”Per OGAKWU, J.C.A. (Pp. 20-21, Paras. B-D)
OTHER JUDGMENNTS FROM THE COURT
ONIKOYI & ORS v. ONIKOYI & ORS (2018)
LPELR-43680(CA)
- COURT – DUTY OF COURT: Duty of Court to consider all
issues raised before it; exceptions thereto
“It is no doubt the law that when a party submits an issue to
the Court for determination, it must make a pronouncement on it, as
otherwise denial of fair hearing may ensue. But like all other
principles, this principle is also subject to at least one
exception, which is that, where one issue is subsumed in another
one on which the Court has already made pronouncement, it shall not
be necessary or obligatory for it to make separate pronouncement on
the second one: see 7UP Bottling Co. Ltd v. Abiola & Sons
Bottling Co. Ltd (2001) 6 S.C. 73 at 103, (2001) 13 NWLR (Pt. 730)
460; Adebayo v. A. G. of Ogun State (2008) LPELR – SC 186/2006 at
p. 14, (2008) 7 NWLR (Pt. 1085) 200; Etajata v. Ologbo (2007) 16
NWLR (PT 1061) 554 @ 581-582 (S.C.). It appears to me that is the
case with the issue of applicability of Sections 60, 76 and 77 of
the Bills of Exchange Act Cap B8 Laws of the Federation of Nigeria
2004 to the cross-appellants.
Those provisions absolve a banker of liability where the banker
in good faith, without negligence and in the ordinary course of
business gives value for a bill drawn on it. Here the lower found,
and it is supported by the evidence, that Union Bank not only
debited the claimant/cross-respondents’ Onikoyi Royal family
accounts to the tune of N200m in disregard of the family’s extant
mandate in its records, it had even earlier debited another N65m
from the same account at a time it had not received any change of
mandate, valid or invalid, from Onikoyi Royal Family. Such conduct
cannot by any means be described as one done in good faith, without
negligence and in the ordinary course of its banking business
within those statutory provision, the effect of which is that the
defence of Sections 60, 76 and 77 of the Bills of Exchange Act is
subsumed in the earlier findings of the learned trial on the
wrongful debiting of claimants/1st and 2nd
cross-respondents’ Onikoyi Royal Family account. To that extent,
the lower Court was not under a duty to make a separate
pronouncement on the said Sections 60, 76 and 77 of the Bills of
Exchange Act and cross-appellant was not denied fair hearing
thereby. In any event, Section 15 of the Court of Appeal Act vests
on this Court the power of rehearing the whole case. It says the
Court of Appeal ‘generally shall have full jurisdiction over the
whole proceedings as if the proceedings had been instituted in the
Court of Appeal as Court of first instance and may rehear the case
in whole or in part…..’That power certainly includes making
appropriate pronouncements even on issues that may have been
overlooked by the trial Court, more so where such issues are simply
of law or inference to be drawn from proved facts as in this case:
Etajata v. Ologbo (2007) 16 NWLR (PT 1061) 554 @ 584 paras E-G and
pg. 588 para 11- Pg 590 para G, per Tanko Mohammed J.S.C. I have in
that connection already held here that Union Bank’s conduct in the
entire saga as disclosed in the pleadings and evidence cannot be
described as one of good faith. In the event this final issue is
also resolved against her.”Per UGO, J.C.A. (Pp. 54-57, Paras.
C-A)
- EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Whether a
plaintiff must rely on the strength of his case and not the
weaknesses of defence case
“… even though the law is that a claimant for declaration must
depend on the strength of his case for his success, he can in doing
so take advantage of any part of his opponent’s case that supports
his case: see Sarhuna vs. Lagga (2002) FWLR (Pt. 126) 978 (S.C);
Chukwueke vs. Okoronkwo (1999) 1 NWLR (Pt.587) 410 (S-C); Akinola
vs. Oluwo (1962) 7 SCNLR 352.”Per UGO, J.C.A. (P. 52, Paras.
C-E)
- PRACTICE AND PROCEDURE – THIRD PARTY PROCEEDINGS:
Whether a third party proceeding makes the third party a party to
the main claim
“A third party proceeding does not make the third party a party
to the main claim; he is only a defendant as regards the defendant.
See Okafor vs. A.C.B. Ltd (1975) 9 NSCC 276 at 282 where the Apex
Court stated the position thus:
“The mere service of a third party notice does not make the
person on whom it is served a defendant to the main action but
makes him only a defendant vis-a-vis the person serving the notice.
In the main action the rights of the plaintiff and the defendant
are determined without reference to the defendant’s claim against
the third party, but when those rights have been ascertained, it is
then open to the person brought in as a third party to have all
relevant disputes determined between him and the person serving the
notice.”Per UGO, J.C.A. (Pp. 20-21, Paras. C-A) OKAM & ORS v.
IGWE & ANOR (2018) LPELR-43685(CA)
True it is, that order of injunction can always be granted as a
consequential order by a Court. However, a Court should also note
that the position of the law is that a party should never be
granted a relief which it has not asked for. It should have been
apparent to the lower Court that the only injunction the
Respondents wanted was in respect of their seventh relief and the
lower Court having refused the Respondents that relief, in my
considered view could not have properly granted the relief it had
refused under the colour of a consequential relief.”Per
LOKULO-SODIPE, J.C.A. (P. 90, Paras. B-E)
- ACTION – COUNTER-CLAIM: General principles of law with
respect to counter-claim
“The settled position of the law in relation to counter-claim
(and which does not require the citing of any authority) is that a
counter-claim is a separate action even though it is tried in the
action of the plaintiff (which is usually referred to as the main
action). Because of the manner in which a counter-claim is tried,
the law does not expect that evidence in respect of a counter-claim
should be recorded separately under the heading “counter-claim”.
Similarly, I am of the considered view that where a finding is made
in respect of an issue in the main action, there is absolutely no
need to embark on the determination of that very fact again or
afresh in a counter-claim.”Per LOKULO-SODIPE, J.C.A. (P. 92, Paras.
A-E
- APPEAL – RESPONDENTS NOTICE: Circumstance where a
respondent notice will not be required
“The proper use of a respondent’s notice has been the subject of
many decisions of the appellate Courts. See the cases of OGUMA
ASSOCIATED COMPANIES (NIGERIA) LTD V. INTERNATIONAL BANK FOR WEST
AFRICA LTD (1988) LPELR – 2318 (SC), (1988) NWLR (Pt. 73) 658; EZE
V. OBIEFUNA (1995) LPELR – 1191 (SC), (1995) 6 NWLR (Pt. 404) 639;
and BOB-MANUEL V. BRIGGS (2003) LPELR – 787 (SC), (2003) 5 NWLR
(Pt. 813) 323; amongst many others that deal with situations when a
respondent is expected to file an appeal or cross-appeal against a
decision in his favour and when he can properly file a respondent’s
notice. Suffice it to say that I am of the considered view that
inasmuch as “a” of the further orders the Respondents seek from
this Court is for the reversal of the non-granting by the lower
Court of the first of their reliefs, they cannot achieve this by
way of respondents’ notice. In the same vein as it is clear that
further orders “b” and “c” respectively, are fresh claims being
introduced into the case at this level, it becomes obvious that the
Respondents cannot achieve their desire in respect of the said
reliefs, through their respondents’ notice. May I say that even
before the lower Court they cannot introduce additional or fresh
claims into their case, willy-nilly. They would have had to come by
way of amendment of their reliefs by seeking for the addition of
the fresh or new claims which they now seek to introduce into their
case on appeal. The Respondents would appear to want to have their
claims amended surreptitiously and I don’t consider this to be
desirable and definitely cannot be given effect by this Court.
Flowing from all that has been said is that the Respondents’
notice must be dismissed and is hereby so dismissed as it is
totally lacking in merit.”Per LOKULO-SODIPE, J.C.A. (Pp. 95-96,
Paras. C-F)
- LAND LAW – TRESPASS TO LAND: Need for judge to resolve
issue of competing titles in an action for damages for trespass to
land
“The lower Court in my considered view was persuaded more by the
relationship it found to exist between the parties and its desire
for its judgment not to strain the relationship, than the law, in
granting the Respondents’ relief aside from their relief two. This
is because, the lower Court in my considered view clearly lost
sight of the fact that both parties in the case before it claimed
to be in possession of the parcels of land in dispute and that
before it could meaningfully find that the Respondents had
exclusive right of possession to any part thereof, by law, they had
to establish a better title to the portion of the said land in
respect of which they sought a declaration and over which they
claim to have possession. This is because the position of the law
is to the effect that where in an action for damages for trespass
both parties claim the right to possession by virtue of their
respective titles, the trial judge should resolve the issue of
their competing titles. See the cases of SHAIBU V. BAKARE (1984)
LPELR – 3033 (SC) and AKINTERINWA V. OLADUNJOYE (2000) LPELR – 358
(SC), (2000) 6 NWLR (Pt.659) 92. This is because it is on the basis
of the right to exclusive possession by virtue of such proven title
that such a party can maintain the action for trespass even though
trespass is basically a claim founded on physical possession.”Per
LOKULO-SODIPE, J.C.A. (Pp. 87-88, Paras. E-F)
Culled From Nairalaw.com