Key Consideration to Determine Proper Signing and Endorsement of Court Process

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th day of July, 2024

Before Their Lordships

Adamu Jauro

Chidiebere Nwaoma Uwa

Obande Festus Ogbuinya

Habeeb Adewale Olumuyiwa Abiru

Mohammed Baba Idris

Justices, Supreme Court

SC/1245/2019

Between

NATHANIEL NNADUAKA & 14 ORS    APPELLANTS

 (Sued for themselves and as representing the

members of Umuji Village, Ebenebe)

                                                  And

EMMANUEL ANUNOBI & 9 ORS                          RESPONDENTS

(Suing for themselves and as representing

the other members of Umudiaba Kindred

 of Umuajana Village, Ebenebe)

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

Facts

The Respondents filed an action before the High Court of Anambra State against the Appellants claiming amongst others reliefs, a declaration that the Appellants’ alienation of the Respondents’ land without the Respondents’ authorisation constitutes acts of trespass and an order of perpetual injunction restraining the Appellants from committing further acts of trespass on the said land.

The Appellants filed their Statement of Defence as well as a Notice of Preliminary Objection praying the court to dismiss the Respondents’ claim for want of jurisdiction on the ground that it is statute barred. The Appellants argued that the action was commenced outside the statutory period of twelve years prescribed by section 22(2) and 36 of the Action Law of Anambra State, Cap 3, Laws of Anambra State 1981. The trial court upheld the Appellants’ objection and dismissed the suit on the basis that it was caught by the statutory limitation period.

Dissatisfied, the Respondents appealed to the Court of Appeal. In its judgement, the Court of Appeal held that since the Respondents relied on customary law as their root of title, section 18 of the Action Law exempted their suit from the limitation period imposed by Section 22(2) of the same Law. The Court of Appeal allowed the Respondents’ appeal and ordered that the case be remitted to the Chief Judge of Anambra State for re-assignment to another judge of the High Court of Anambra for trial on the merit.

Aggrieved, the Appellants filed an appeal before the Supreme Court. The parties filed and exchanged their respective briefs. The Respondents raised a preliminary objection against the appeal, which was argued in their brief.

Respondents’ Preliminary Objection

Counsel for the Respondents challenged the competence of ground 1 of the Appellants’ Notice of Appeal, arguing that the complaint raised therein that the Respondents’ Notice of Appeal before the Court of Appeal was incompetent, was not raised at the Court of Appeal and did not arise judgment of the Court of Appeal. Counsel urged the Court to strike out the said ground 1 and the issue distilled therefrom.

In response, counsel for the Appellants contended that the complaint in ground 1 challenged the competence of the Respondents’ Notice of Appeal at the lower court, which is a jurisdictional issue that can be raised at any time, even for the first time on appeal at the Supreme Court without leave. Counsel urged the Court to dismiss the objection.

Court’s Resolution of Preliminary Objection

The Court held that a preliminary objection is suitable only when a Respondent seeks to challenge the competence of the entire appeal; where however, the grouse of the Respondent is only against a specific ground or a defect affecting part of the appeal and not the entire appeal, such that if the objection succeeds, the appeal can still survive, a Notice of Preliminary Objection will not be the appropriate procedure for the Respondent to raise his challenge. The Apex Court held that in such a circumstance, what the Respondent ought to file is a Motion on Notice to challenge the ground or the defect, and since the Respondents challenged only ground one out of the three grounds of the Appellants’ Notice of Appeal, their use of a preliminary objection was improper. The Court held further that in any event, the issue raised in the said ground 1 was a jurisdictional issue which can be raised for the first time on appeal. Accordingly, the Court found that ground 1, being one bordering on jurisdiction, was competently raised for the first time in the Appellants’ Notice of Appeal. The Apex Court consequently dismissed the Respondents’ preliminary objection.

Issues for Determination 

In determining the appeal, the Supreme Court adopted the two issues raised by the Appellants, as follows:

i. Whether the Notice of Appeal filed in the lower court on 22nd February, 2016 and later amended on 19th December, 2016 is valid as to present a competent appeal before the Court of Appeal.  

ii. Whether the learned Justices of the Court of Appeal were not wrong in invoking the provision of Section 18 of the Action Law of Anambra State to arrive at a conclusion that the suit of the Respondents was not statute barred.

Arguments

On the 1st issue, counsel for the Appellants argued that the original Notice of Appeal and the Amended Notice of Appeal filed by the Respondents at the Court of Appeal were incompetent because they were signed “for” J. R. Nduka & Co, a law firm, which is not a person whose name is on the roll of legal practitioners in Nigeria. Counsel relying on sections 2 and 24 of the Legal Practitioners Act and Order 7 Rules 2 & 6 of the Court of Appeal Rules, 2016, submitted that the Court of Appeal ought to have declined jurisdiction to entertain the appeal for this reason. Counsel for the Appellants argued further that assuming the original Notice of Appeal and Amended Notice of Appeal were valid, the signing of the original Notice of Appeal by a lawyer other than the lawyer whose seal was affixed rendered it incompetent. Counsel submitted that the Amended Notice of Appeal thus had nothing to stand.

In response, counsel for the Respondents submitted that the important consideration is whether the Notices of Appeal were signed by a legal practitioner and this was evident as the name of J. R. Nduka, Esq. was clearly written under the signature column of both Notices of Appeal, with his seal attached.  Counsel argued further that even though the original Notice of Appeal was signed by D. C. Ani, Esq for J. R. Nduka Esq, this did not render it incompetent because both persons are legal practitioners, particularly as the other processes show that D. C. Ani, Esq who signed the original Notice of Appeal and J. R. Nduka whose seal was affixed thereto are legal practitioners who practice at the same chambers of J. R. Nduka & Co. Counsel relied on GTB v INNOSON NIGERIA LTD (2017) LPELR – 42368 (SC) and OGUNPEHIN v NUCLEUS VENTURE (2019) LPELR – 48772 (SC).

Arguing the 2nd issue, counsel for the Appellants submitted that the Court of Appeal wrongly applied Section 18 of the Action Law of Anambra State to find that the case of the Respondents was not caught by the statute of limitation. Counsel argued that the Respondents did not seek declaration of title to the land in dispute, but were complaining that the Appellants were disposing of part of the land in dispute and that the mere mention of the words ‘inheritance’ or ‘tradition’ was not sufficient to bring the Respondents’ case within the contemplation of Section 18 of the Action Law.

In response, counsel for the Respondents submitted that so far as the Respondents’ root of title as pleaded is derived from customary law, their action was exempted from the limitation period under Section 18 of the Action Law. Counsel argued that contrary to the Appellants’ argument, title to land was in issue between the Appellants and the Respondents. 

Court’s Judgement and Rationale

In resolving issue 1, the Supreme Court emphasised that indeed one of the conditions for the competence of an originating process is that it must be signed by the Plaintiff or Appellant as the case may be, or his legal representative who must be a person qualified to practice as a legal practitioner in Nigeria whose name is on the roll of legal practitioners. The Apex Court also re-affirmed the position of the law that a court process signed by an unknown person or signed for a legal practitioner by an unknown proxy or a person whose status as a legal practitioner is impossible to determine is incompetent. 

The Supreme Court held that in determining whether a process is signed by a legal practitioner, what the law requires is that court processes must, on their faces, be seen to be signed by legal practitioners. The Apex Court held as inelegant as the original Notice of Appeal was, it was evident that it was ex facie signed by a legal practitioner in the person of D. C. Ani Esq whose name was indicated in bracket and whose identity as a legal practitioner was not contested by the Appellants, on behalf of another legal practitioner (J. R. Nduka, Esq.), thus, it was competent. The Court agreed with the submission of the Respondents’ counsel that a court process signed for a Lawyer by another Lawyer whose identity is disclosed, is not incompetent.

The Apex Court further held that the other limb of the Appellants’ complaint that the Original and Amended Notices of Appeal were incompetent because they were signed for a law firm – “For” J. R. Nduka, Esq, was unfounded. Their Lordships held that it was clear that the Notices of Appeal were signed by legal practitioners whose names were indicated thereafter, and the indication of “For: J. R. Nduka & Co.” under the name of Counsel was merely an indication of the law firm of the Counsel who signed. 

On the contention of the Counsel for the Appellants that the original Notice of Appeal was incompetent because the seal of a Lawyer different from the signatory was affixed, the Court held that that the non-affixation of the NBA seal of the Lawyer who signed a court process, or the affixation of the seal of a Lawyer different from the Lawyer who signed a court process are irregularities that do not affect the validity or competence of the court process, hence, such complaints cannot nullify a court process. The Court found that the original and Amended Notices of Appeal filed before the Court of Appeal were competent and the Appellate Court rightly assumed jurisdiction to entertain the appeal before it.

In resolving 2nd issue, the Supreme Court held that in determining whether an action is statute barred, a court is only to consider the originating processes and the reliefs sought therein. The Court considered Section 22 of the Action Law of Anambra State which prescribed a limitation period of twelve years for any action bordering on recovery of land vis-à-vis the Section 18 of the same law which excludes claims for recovery of land brought by a person who derived his title exclusively under customary law from the application of the limitation bar. 

The Supreme Court held that it was evident on the face of the Respondents’ Statement of Claim, that the Respondents predicated their root of title solely on inheritance under customary law; and that being the case, their claim was clearly exempted from the limitation period of 12 years contained in Section 22(2) of the Action Law of Anambra State. The Supreme Court held that the Court of Appeal was thus, right, to hold that the Respondents’ action was not statute barred.

Appeal Dismissed. Judgement of the Court of Appeal remitting the Respondents’ suit to the Chief Judge of Anambra State for re-assignment to another Judge affirmed. Accelerated hearing also ordered.

Representation 

G. U. Moneke, for the Appellants.

Dr R. E. Nduka, for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)