President, Court of Appeal, Nigeria, Justice Zainab Bulkachuwa
IN RE: ALHAJA SAFURAT OLUFUNKE YAKUBU & ANOR (2018)
PRACTICE AREA: PRACTICE AND PROCEDURE
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”.
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.”
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.
“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
“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)
“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)
“… 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)
“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)
“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
“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)
“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)