3PLR – GASALIYU OLA-IYA V. ALHAJI YAKUBU LASISI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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GASALIYU OLA-IYA

V.

ALHAJI YAKUBU LASISI

IN THE COURT OF APPEAL

(AKURE JUDICIAL DIVISION)

ON WEDNESDAY, THE 10TH DAY OF JULY, 2013

SUIT NO: CA/I/87/05

LN-e-LR/2013/72

 

OTHER CITATION

(2013) LPELR-21103(CA)

BEFORE THEIR LORDSHIPS           

KUDIRAT M.O. KEKERE-EKUN, JCA

ALI ABUBAKAR B. GUMEL , JCA

CORDELIA IFEOMA JOMBO-OFO, JCA

 

BETWEEN  

GASALIYU OLA-IYA – Appellants

And

ALHAJI YAKUBU LASISI – Respondents

 

REPRESENTATION

BODE BABALOLA, ESQ with Miss A. T. SALIU – For the Appellants

1. A. SHITTU, ESQ with W. O. LATEEF, Esq. – For the Respondents

 

ORIGINATING STATE

OSUN STATE: High Court (Bada J- Presiding)

 

MAIN ISSUES

DEBTOR AAND CREDITOR:- Recovery of payments pursuant to a sale – Transaction with disputed character [Hired-purchase or Credit –sale] – Appeal arising therefrom – Where suit originated via incompetent processes – How treated

TRANSPORT AND MOTOR VEHICLE LAW:- Sale of motor vehicle for commercial transportation business – Where character of transaction is disputed as to whether it is a credit sale or a hire purchase – Whether vendor can repossess vehicle – How treated

PUBLIC LAW AND JURISPRUDENCE:- Extent to which a person could waive rights conferred upon him by law – When a right is conferred solely for the benefit of an individual – Whether there should be no problem as to the extent to which he could waive such right as he is sui juris and is under no legal disability to forego the right or in other words waive it either completely or partially, depending on his free choice – Where the statute itself forbids waiver of its statutory provisions – How treated

COMMERCIAL LAW – CONTRACT:- Sale of vehicle on a structured repayment scheme – Where contract reduced into writing but did not stipulate whether transaction was a hired purchase or a credit sale – Whether court can adjudicate same without a competent originating process

PUBLIC LAW AND JURISPRUDENCE – CASE LAW – STARE DECISIS:- Where a ratio of the Supreme Court is subsequently over-ruled – Duty of lower court to follow the latter position

ETHICS – LEGAL PRACTITIONER:- Section 24 of the Legal Practitioners Act, 1990 – Definition of ‘legal practitioner’ – Court processes signed by a law firm instead of the name of legal practitioner – Competence of – How treated

PRACTICE AND PROCEDURE – ACTIONS – PLEADINGS:- Requirements that court processes be signed by legal practitioner and not by a law firm – Basis – Provision of section 24 of the Legal Practitioners Act – Rule in Nweke vs. Okafor and Oketade vs. Adewunmi – Whether cannot be waived by parties or even by the court being mandatory as opposed to directory or discretionary

PRACTICE AND PROCEDURE – ACTIONS – PLEADINGS:- Conditions precedent to the hearing of an action initiated in court – Processes made incompetent by virtue of non-compliance with requisite statutory stipulations – Whether of the same nature as voidable processes like irregular service of valid/competent court processes which is at the discretion of the party served to pursue – Whether compliance with section 24 of the Legal Practitioners Act, 1990 is of such fundamental importance to the judicial process that it cannot be waived even by consent or by the court

PRACTICE AND PROCEDURE – ACTION – COMPETENCE OF ORIGINATING PROCESSES – WRIT OF SUMMONS:- Invalid Writ of summons – Effect on every other subsequent process or processes pursuant thereto

PRACTICE AND PROCEDURE – JURISDICTION – ISSUE OF JURISDICTION:- Rule that jurisdictional issues are threshold issues and the life wire of adjudication – Whether even at the level of the Supreme Court it could be raised for the first time

INTERPRETATION OF STATUTE – SECTION 24 OF THE LEGAL PRACTITIONER ACT, 1990:- Interpretation of

WORDS AND PHRASES – “LEGAL PRACTITIONER”:- Definition

 

 

 

 

MAIN JUDGMENT

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the decision of BADA J, sitting at High Court No.2 of the Osun State High Court, Osogbo in his Lordship’s judgment dated 29th July, 2004. The respondent was the plaintiff while the appellant was the defendant/counter claimant at the trial court. By a writ of summons issued 12th April, 2001 and a statement of claim filed at the lower court dated 22nd August, 2001, the plaintiff claimed as follows:

1. Declaration that the hire-purchase agreement dated 1/6/96 between the plaintiff and the defendant in respect of Mercedes Benz Truck 1624 Registration No. OS 936 has been properly brought to an end.
2. Declaration that possession of the said motor vehicle Registration No. OS 936 SS is rightly vested in the plaintiff by virtue of S. 9(5) of the Hire-Purchase Act.
3. Declaration that the plaintiff is entitled to sell the said motor Vehicle and use the proceeds to recoup himself for the sum of N755, 000. 00 being the outstanding balance of the hire-purchase price of the vehicle.
4. The sum of N1 Million being special and general damages for breach of contract. (See page 5 of the record).

 

By the further Amended Statement of Defence and Counter-Claim filed pursuant to an order of court and dated 1st June 2002 the Defendant counter-claimed as follows:

(a)     Declaration that the alleged hire-purchase Agreement dated 1/6/96 in respect of Mercedes Benz Truck 1624 registration No. OS 936 SS is ineffectual, null and void for not complying with the Hire-purchase Act.

(b)     A Declaration that the transaction between the plaintiff and the Defendant is one of outright sale on credit, payable by installments (or a transaction of borrowing and lending).

(c)     A Declaration that the seizure the of Mercedes Benz registration No. OS 936 SS from the Defendant’s mechanic workshop on 4/11/2000 is unlawful and illegal.

(d)     An order on the plaintiff to return to the Defendant in good condition (as it was on 4/11/2000) the vehicle or refund to the defendant the money value of the truck, which is about N2 million.

(e)     An order on the plaintiff to pay for the loss of the use at the rate of N65, 000.00 per month to the Defendant from the date of seizure to whenever the Mercedes Benz is returned to the Defendant.

(f)      Alternatively to (d) and/or (e) above, an order of court directing the Plaintiff to pay the sum of N745, 000.00 as money had and received on a contract that had failed or had been frustrated.

(e)     General Damages of N100, 000.00 from the plaintiff.

 

On 29th July, 2004, judgment was given in favour of the respondent against the appellant granting the relief nos. (1), (2) and (3) and awarding N5, 000:00 as nominal damages under relief (4) and dismissing all the counter-claim reliefs.

 

The appellant was not satisfied with the decision, hence the appeal to this court. The appellant filed a Further Amended Notice of Appeal dated and filed 7th February, 2013 containing nine grounds of appeal.

 

The parties in compliance to the rules of this court duly filed and exchanged briefs of argument. The appellant’s Amended Brief of Argument dated 8th February, 2013 and filed 20th February, 2013 was settled by BODE BABALOLA, ESQ. The respondent’s Further Amended Respondent’s Brief dated 28th February, 2013 and filed 4th March, 2013 was settled by A. AJIBOLA, ESQ.

 

BRIEF FACTS OF THE CASE

The plaintiff is a motor-dealer. He sold a vehicle to the defendant for the sum of N1, 500,000:00. The defendant paid a deposit of N330, 000:00. The defendant was to be making N50, 000:00 installmental payments every month. The vehicle in issue was bought in Lagos by the plaintiff at the cost of N650, 000:00. The transaction between both parties was reduced into writing.

 

The defendant defaulted in some of his installmental payments consequent upon which he undertook in 2 separate Promissory Notes to be paying regularly. The 2 promissory Notes were tendered and admitted as Exhibits “P3” and “P4” respectively.

 

The vehicle was involved in an accident and taken to a mechanic workshop by the defendant. Plaintiff repossessed the vehicle from the mechanic workshop. At the time of seizure, defendant had paid N745, 000.00 leaving a balance of N755, 000.00

 

The plaintiff brought an action for a declaration that the transaction between him and the defendant is a hire-purchase transaction and that the seizure effectively terminated the Hire purchase under the Hire Purchase Act 1990.

 

The following four issues were distilled from the 9 grounds of appeal by the appellant for determination of the appeal. They are:

1. Whether the learned trial Judge had jurisdiction to hear the plaintiff’s case on the face of the WRIT OF SUMMONS which was not signed by the plaintiff or by a Legal Practitioner.
2. Whether the learned trial Judge adequately evaluated the evidence before holding that the transaction on the pleadings and evidence is more consistent with Hire-Purchase, not credit sale (and whether same has not occasioned a miscarriage of justice.)
3. Whether the learned trail Judge was not wrong in law when he held that the seizure of the vehicle is lawful (without first making a finding as to whether the alleged transaction complied with the Hire-Purchase Act, 1990.
4. Whether the learned trial Judge was not wrong in law when he dismissed the defendant’s counter-claim without first evaluating same.

 

On the part of the respondent, he formulated four issues as well and the issues read:

1. Whether the court will not prefer to do substantial justice by deciding the substance and merit of this case instead of the issue of the counsel adding “& Co.” after his name on his process, in the particular circumstance of this case where the complaining party’s counsel never objected and also endorsed his own process, viz “Memorandum of Appearance”, with G. A. ADESINA & CO.?
2. Whether the finding/holding by the learned trial Judge, that the transaction was consistent with Hire-Purchase and not credit sale, was not supported by or justified by evidence?
3. Whether the finding/holding by the learned trial Judge, that the seizure of the vehicle was lawful, was not supported by or justified by evidence?
4. Whether the Counter-Claim was not rightly dismissed by the learned trial Judge?

 

Because the issues as formulated by either party contain the same material substance I shall determine this appeal based on the four issues formulated by the appellant.

 

ISSUE 1

In arguing the foregoing issue, the learned counsel for the appellant proceeded by stating the obvious which is that a court can only exercise jurisdiction where the case comes before it initiated by due process and upon fulfillment of any condition precedent to the exercise of jurisdiction. He relied on the cases of Madukolu v. Nkemdilim & Ors. (1962) 1 All NLR 587; and Alao v. ACB Ltd. (2000) 6 SC. (Pt. 1) 27 at 38 or (2002) 2 SCNQR 1067. Learned Counsel drew attention to the respondent’s writ of summons dated 12/04/01 issued by A. Ajibola & Co. and signed by Yemi Ajibola & Co. See page 3 of the record. He argued that neither Yemi Ajibola & Co. and/or A. Ajibola & Co. is a legal practitioner known to law. He referred to the case of SLB Consortium v. NNPC (2011) 3-4 MJSC 145, where the Supreme Court upheld the preliminary objection that Originating Process signed by Adewale Adesokan & Co. is incompetent and that the trial court had no jurisdiction to hear the case. See also the cases of Okafor vs. Nweke (2007) 10 NWLR (Pt. 1043) 52; and Oketade vs. Adewunmi (2010) (pt. 11) MJSC 31 at 36-37 consequent upon which he submitted that the trial court had no jurisdiction to adjudicate upon the plaintiff’s writ of summons. With further reliance on the authority of Omega Bank Nig. Plc. v. OBC Ltd. (2005) All FWLR (Pt. 249) 1964 where the Supreme Court also held that an unsigned document was inadmissible and was thus a worthless document, the learned counsel for the appellant urged the court to set aside both the writ and the judgment based on the said writ and then decide this case on the counter-claim which in law is a separate action.

 

In reaction on the issue the learned counsel for the respondent in a rather copious argument which bordered more on sentiment than on law argued that in the particular circumstances of this case that the court should be fair to both parties by deciding the substance and merit of the case in order to do substantial justice instead of dwelling on the issue of “& Co.” added after the counsel’s name on the process. He pointed out that the former counsel for the appellant even endorsed his process titled, “Memorandum of Appearance” with G. A. ADESINA & CO. See page 3 of the record. Counsel argued that the Memorandum of Appearance is the very first process filed by the complaining party’s counsel in the suit and it is also the “formal step” under the Rules of Court indicating that the defendant was submitting or has submitted to the jurisdiction of the court. Upon this backdrop, learned counsel for the respondent raised the question whether the complaining party, in equity can be heard to object to the validity of the writ of summons endorsed with “Yemi Ajibola & Co.” when the said appellant counsel’s predecessor endorsed his own Memorandum of Appearance with “G. A. ADESINA & CO.” Counsel replied to his said question in the negative. Learned respondent’s counsel opined that this court will be fair and will not approve of such conduct upon the principles of equity which says that he who comes to equity must come with clean hands and he who wants equity must do equity. He said that the hands of the appellant are not equally clean.

 

Further in his contention, the learned counsel for the respondent said that the objection of the appellant’s counsel is in bad faith and should be rejected. Counsel asked, if the objection is not in bad faith why was it not raised when the writ was issued and served in 2001 i.e. 12 years ago and after an un-conditional Memorandum of Appearance was filed with G. A. ADESINA & CO. endorsed on it, an act which he is now complaining about. Counsel submitted that the facts of Okafor v. Nweke and the rest of them are distinguishable from the facts of the present case, because according to him in those cases, the complaining parties did not also endorse their processes with “& Co.” as in the present case. He urged the court to do substantial justice rather than dwell on technicalities. To this end he cited the authorities of Amaechi v. INEC (2008) 33 NSCQR 332 at 424-425; Engineering Enterprise vs. Att-Gen. Kaduna State (1987) 1 NSCC. 601 at 613 per Eso JSC; Associated Discount House Ltd. (2006) 26 NSCQR 1240, 1251. He also relied on Fatoki v. Baruwa, Appeal No. CA/I/90/06 (unreported decision of this Division) delivered on 2nd February, 2012 wherein Kekere-Ekun, JCA following the Supreme Court’s decision in Ogundele vs. Agiri (2009) 40 NSCQR 427 at 460-461 had made bold to dispense with the issue of “& Co.” and went ahead to determine the substance and merit of the case.

 

Finally in his submission on this issue the learned counsel for the respondent tried to draw a distinction between waiver of a statutory provision in relation to section 24 of the Legal Practitioners Act on one part and waiver of a jurisdictional matter per se on the other hand. He asked the question whether section 24 of the Legal Practitioners Act as a statutory provision can be waived, which question he answered in the positive. Counsel relied on Ariori vs. Elemo (1983) 1 SCNLR 1 at 13; Odua Inv. v. Talabi (1997) 7 SCNJ 600 at 652; and Adegoke Motors vs. Adesanya (1989) 5 SCNJ 80 at 88-92. He urged that this issue be resolved in favour of the respondent.

 

RESOLUTION OF ISSUE 1

I have carefully considered the submission of both counsel on this issue and I think it is pertinent to state that jurisdiction is the fulcrum upon which judicial powers are exercised by courts. A court would really be said to have the competence or jurisdiction to adjudicate over a lis when the following conditions are conjunctively in place:

1. It is properly constituted as regards numbers and qualifications of members of the bench and no member is disqualified for one reason or another;
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

 

Reference is made to the cases of Madukolu v. Nkemdilim & Ors. (supra); and Alao v. ACB Ltd. (supra).

 

A look at the plaintiff’s (respondent) writ dated 12/04/2001 shows that it was issued by “A. AJIBOLA & CO.” and signed by “YEMI AJIBOLA & CO.” See page 3 of the record. Without beating about the bush neither Yemi Ajibola & Co. and/nor A. Ajibola & Co. is a legal practitioner as envisaged by the provision of the Legal Practitioners Act, 1990. Rather it seems to me to be a firm of legal practitioners licensed to practice law or a specialized branch of law as the case may be. Section 24 of the Legal Practitioners Act, 1990, defines a legal practitioner to be

“a person entitled in accordance with the provisions of this Act to practice as a Barrister and Solicitor either generally or for the purpose of any particular office or proceedings.”

 

1. Ajibola & Co. and/or Yemi Ajibola & Co. not being a person within the contemplation of the foregoing Act can neither sign nor endorse the writ filed in the instant suit. See in support the cases of New Nigerian Bank vs. Declang Ltd. & Anor. (2005) 4 NWLR (Pt. 916) 573 at 582-583; and Okafor vs. Nweke (supra) where it was held inter alia:

“Since both counsel agree that JHC OKOLO SAN & CO. is not a legal practitioner recognized by the law, it follows that J.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 of cross appeal and applicant’s 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 is not a registered legal practitioner.”

 

In my view, the reference point is the name of the legal practitioner as it appears on the roll of Legal Practitioners at the Supreme Court.

 

Counsel on both sides in this appeal are ad idem that there are no such names as (YEMI AJIBOLA & CO”, or “A. AJIBOLA & CO” and or “G. A. ADESINA & CO.” on the Roll of Legal Practitioners at the Supreme Court. None of those is a legal practitioner recognized by law. Consequently, none of them can legally sign or file any process in court as they have done with respect to the WRIT OF SUMMONS and MEMORANDUM OF APPEARANCE respectively. This is so because under sections 2(1) and 24 of the Legal Practitioners Act, the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner. Not being a person or persons enrolled in the register of the Supreme Court to practice law in Nigeria, “YEMI AJIBOLA & CO.” or “A. AJIBOLA & CO.” or “G. A. ADESINA & CO.” lacks the competence to sign or file any process in court. Thus any process so signed or filed by it is at best a worthless piece of paper.

 

The learned counsel for the respondent had tried to whip up sentiment by invoking equity and fairness to both parties having asked the court to overlook the defect and according to him decide the substance and merit of the case in order to do substantial justice.

 

Aside from the fact that the court should not and will not be stirred by such sentiment, equity does not thrive in illegality as what is legal is legal and what is equitable is equitable. The defect herein is of such a fundamental nature that it cannot take shield under technicality or substantial justice. It affects the very foundation and existence of the suit.

 

I view it as rather unfortunate that the writ of summons on whose back the suit was brought to court became is so incapacitated and disabled. It also rather unfortunate that the appellant’s former counsel, notwithstanding the invalidity apparent on the face of the writ of summons advertently or inadvertently chose to commit the same error of endorsing on his Memorandum of Appearance “G. A. ADESINA & CO.” See page 3 of the record. That both counsel committed same error on their respective processes is no excuse for the court to overlook the anomaly. Two wrongs are not known to make a right.

 

Undeniably, the learned counsel for the appellant had gone through the whole hog of submitting to trial under invalid processes i.e. writ of summons and memo of appearance respectively and has now turned around 12 years after to complain about their invalidity as is being argued by the learned counsel for the respondent. Suffice it to bring to the fore again the fact that jurisdictional issues are threshold issues and the life wire of adjudication. Thus even at the level of the apex court it could be raised for the first time what more at the level of the Court of Appeal. The truth of the matter is that jurisdictional issue is bound to rear its head at some point in the journey of the case through the hierarchy of the courts. Raising the objection at this stage and before this court is therefore not an objection raised in bad faith.

 

Contrary to the submission of the learned counsel for the appellant, the facts of Okafor vs. Nweke (supra) and Oketade vs. Adewunmi (supra) are not distinguishable from the circumstances of the instant appeal. In spite of the fact that in those two cases the complaining parties did not endorse their processes or some of their processes with “& CO.” the ratio decidendi in them are duly applicable to the present scenario. Again the fact that this court in Fatoki vs. Baruwa Appeal nos. CA/I/90/06 an unreported decision of this court, followed the Supreme Court’s decision in Ogundele vs. Agiri to dispense with the issue of “& Co.” and went ahead to determine the substance and merit of the case, holds no water here and now. This is because the same Supreme Court in its undisputed wisdom has since reversed itself in Nweke vs. Okafor (supra) and Oketade vs. Adewunmi (supra). We are therefore in this court bound by the superior authority i.e. stare decisis to make a full reversal and remain guided by them.

 

Since we are convinced that the writ of summons upon which the instant case was initiated for trial and upon which every other subsequent process or processes came to be was invalidated ab initio, anything placed on it cannot stand. There is no question of waiver of jurisdiction here as is being urged by the learned counsel for the respondent if at all there is any condition under which jurisdictional matter can be waived by parties. Against the backdrop of waiver, the learned respondent’s counsel has argued that section 24 of the Legal Practitioner’s Act (supra) is a “directory” statutory provision and can be waived. He relied on the cases of Odua Inv. v. Talabi (1997) 7 SCNJ 600 at 652-654; and Ariori vs. Elemo (1983) 1 SCNLR 1 at 13 paras, D-F where Kayode Eso, JSC had this to say:

“The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forego the right or in other words waive it either completely or partially, depending on his free choice… A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.”

 

Notwithstanding the foregoing holdings, the provision of section 24 (supra) as construed in the decisions of Nweke vs. Okafor (supra) and Oketade vs. Adewunmi (supra) cannot in my estimation be waived by parties or even by the court. The provisions therein are shown to be mandatory as opposed to directory or discretionary as wrongly conceived by the learned counsel for the respondent. A party who is a beneficiary under a contract as has played out in Ariori vs. Elemo (supra) can waive or forego his right therein. Thus it cannot be viewed in the same light as where one is bound to the fulfillment of certain conditions precedent to the hearing of an action initiated by him in court. Similarly in Odua Investment vs. Talabi (supra) the bone of contention was the irregular service of the writ of summons as opposed to the validity or otherwise of the writ of summons itself as is the case in the instant appeal. Where the service of a writ of summons is found to be irregular or even where there was an absence of service of the said writ, for as long as the defendant becomes seised of the suit pending against him and thereby appears in court, he reserves the option of raising the issue of non service or irregular service of the process as the case may be. This is to say that he has the discretionary right to waive or forego his right of service to the process. See further the cases of Nwabueze vs. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664; and The Administrators/Executors of the Estate of Gen. Sani Abacha (Deceased) v. Samuel David Eke-Spiff & Ors (2009) 2-3 SC. (Pt. 1139) or (2009) 7 NWLR 97 SC.

 

The compliance to section 24 of the Legal Practitioners Act, 1990 is of such fundamental importance to the judicial process. This is because it has a direct effect on the legal processes that see the suit through trial. Unfortunately the trial of the instant case at the trial court has been on a dysfunctional pedestal. Just like in the cases of MacFoy v. U.A.C. (2006) 16 WRN 185; N.N.B. Plc. vs. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549 at 573; and Madukolu vs. Nkemdilim (supra), you cannot put something on nothing and expect it to stand.

It follows from all that I have said above, that the trial Judge who conducted the trial and gave a judgment based on a worthless and invalid writ of summons acted without jurisdiction. The trial was therefore an exercise in futility.

 

Having come to the conclusion that the trial Judge had no jurisdiction to hear the plaintiff’s case it follows that there is no basis for this court to proceed to determine the remaining issues 2, 3 and 4. To delve into the said issues 2, 3 and 4 would amount to academic exercise.

 

The appeal is hereby allowed. The judgment of the High Court of Osun State sitting at Osogbo in suit nos. HOS/68/2001 delivered on 29th July, 2004 is dismissed for being incompetent.

 

No order for cost is made.

 

 

PRONOUNCEMENT BY ALI ABUBAKAR B. GUMEL, J.C.A.:

My learned brother Kekere-Ekun, JCA (as he then was) presided over the panel that heard this appeal. He also presided over and participated at the Conference leading to the judgment just delivered. He agrees that this appeal be allowed and abide by all the consequential orders of Jombo-Ofo, JCA.

 

ALI ABUBAKAR B. GUMEL, J.C.A.:

I have had a preview of the judgment just delivered by my learned brother Jombo-Ofo, JCA. I agree that this appeal be allowed. I abide by all the consequential orders.