➥ CASE SUMMARY OF:
First Bank Nigeria Limited & Anor. V. Alhaji Salman Maiwada & Ors. (2012) – SC.269/2005
by Branham Chima (SAL).
First Bank Nigeria Limited & Anor
Alhaji Salman Maiwada
Jawa International Ltd.
Deputy Sheriff High Court of Lagos State
Supreme Court – SC.269/2005
➥ JUDGEMENT DELIVERED ON:
Friday, May 25, 2012
➥ THIS CASE IS AUTHORITY FOR:
⦿ LITERAL RULE OF CONSTRUCTION
Generally, where the words of a statute are clear and unambiguous, the court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. Literal construction has been defined as the interpretation of a document or statute according to the words alone. A literal construction adheres closely to the words employed without making differences for extrinsic circumstances. See: Blacks Law Dictionary sixth Edition, Page 993. — J.A. Fabiyi, JSC.
⦿ DUTY OF JUDGE TO INTERPRETE THE LAW
I agree that a judge should be firm and pungent in the interpretation of the law but such should be short of a judge being a legislator. This is because it is the duty of the legislature to make the law and it is the assigned duty of the judge to interpret the law as it is; not as it ought to be. That will be flouting the rule of division of labour as set out by the Constitution of the Federal Republic of Nigeria, 1999. The provisions of sections 2(1) and 24 of the Act as reproduced above remain the law and shall continue to be so until when same is repealed or amended. For now, I see nothing amiss about the law. — J.A. Fabiyi, JSC.
⦿ PROCESS SIGNED BY A FIRM OF LEGAL PRACTITIONERS IS NOT VALID IN LAW
The said section 573(1) of Companies and Allied Matters Act Provides as follows:- ‘Every individual firm or corporation having a place of business in Nigeria and carrying on business under a business name shall be registered in the manner provided in this part of this Act The above is not an authority that can be relied upon to uphold the view that a process signed and filed by a firm of legal practitioners which has no live is valid in law. The general provision of the law as in section 573(1) of Companies and Allied Matters Act is subject to the specific provisions of section 2(1) and 24 of the Legal Practitioners Act. See: FMBN v. Olloh (2002) 4 SC (Pt. 11) 177 at 122-123; Kraps Thompson Org.v. NIPSS (2004) 5 SC (Pt.1) 16 at 20-21. — J.A. Fabiyi, JSC.
⦿ TECHNICAL VS SUBSTANTIVE JUSTICE
There is also the view of some counsel that the decision in Okafor v. Nweke had to do with technical justice. I agree that the age of technical justice is gone. The current vogue is substantial justice. See: Dada v. Dosumu (2006) 12 PNJSC 115. But substantial justice can only be attained not by bending the law but by applying it as it is; not as it ought to be. There is nothing technical in applying the provisions of sections 2(1) and 24 of the Legal Practitioners Act as it is drafted by the Legislature. The law should not be bent to suit the whims and caprices of the parties/counsel. One should not talk of technicality when a substantive provision of the law is rightly invoked. — J.A. Fabiyi, JSC.
⦿ EFFECT OF REGISTERING A BUSINESS NAME
The case of Cole v. Martins (1968) All NLR 16 was determined in 1968 by this court. This court held that the effect of registering a business name under the registration of Business Names Act, 1961 is that where only one person constitutes that business it is correct to describe that person as in the terms of the registered business name. In other words, Lardner &. Co. here referred solely to Mr. H.A. Lardner. That having regard to the context of rule 4 of the registration of titles (appeals) rule, purpose of which on this rule, is to ensure that the name of the legal practitioners giving notice of appeal and representing the appellant is clearly known, then it is a sufficient compliance with the requirement for a legal practitioner to sign and give his name, under which he is registered as a business name, as this can only refer and apply to the legal practitioner who so hold himself out as practicing under the business name. No possible doubt or confusion can therefore arise in these circumstances. — J.A. Fabiyi, JSC.
⦿ CONVENIENCE OF COUNSEL SHOULD HAVE NO PREEMINENCE OVER THE DICTATE OF THE LAW
The convenience of counsel should have no pre-eminence over the dictate of the law. The law as enacted should be followed. I do not for one moment see any valid reason why the decision of this court in Okafor v. Nweke should be revisited. It has come to stay and legal practitioners should reframe their minds to live by it for due accountability and responsibility on their part and for the due protection of our profession. — J.A. Fabiyi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
J.A. Fabiyi, J.S.C.
⦿ FOR THE APPELLANT
Mr. David Mando.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The plaintiff at the trial court sought declaratory reliefs in respect of landed property in Jos; setting aside of warrant of possession and damages in the sum of N1,000,000:00 against the defendants for trespass.
By way of preliminary objection the appellants urged Uloko, CJ to dismiss the plaintiffs claim on the ground that issues between them had been determined to finality by Oyetunde, J in Suit No. PLD/J/51/1994 when the plaintiffs suit was dismissed in its entirety. Uloko, CJ was duly addressed on the point.
At the end of the day, Uloko, CJ refused the application because there was a pending appeal at the Supreme Court against certain aspects of the decision in PLD/J/1994 and that the suit being touted as res judicata, to that extent, could not have been determined to finality.
The defendants felt dissatisfied and appealed to the court below. Thereat, learned counsel for the respondent raised preliminary objection. Paragraph (a) of the preliminary objection which is of moment at this point reads as follows: ‘(a) The appeal of the appellants is incompetent in that the Notice of Appeal was neither signed by the Appellants nor by a Legal Practitioner acting on their behalf.’
On this point, the court below upheld the aspect of the preliminary objection and struck out the notice of appeal. The appellants felt dissatisfied and have appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL STRUCK OUT]
I. Whether a court process not personally signed by a legal practitioner duly registered in the roll of this court as dictated by the applicable provisions of the Legal Practitioners Act is valid or competent?
RULING: IN RESPONDENT’S FAVOUR.
A. COURT PROCESS SHOULD BE DULY SIGNED BY A LEGAL PRACTITIONER
[‘It is not in doubt that in deserving situations, purposive interpretation should be employed by the court. The purpose of legislation is of paramount factor. The purpose of sections 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession. This, in my considered opinion, accords with the sacred canon of interpretation of law. See: Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 513; U.A. Ventures v. FCNB (1998) 4 NWLR (Pt.547) 546; IBWA v. IMANO (Nig.) Ltd. & Anr. (1988) 2 NSCC 245.’
‘In my considered opinion, the words employed in drafting sections 2(1) and 24 of the Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this court.’]
‘With all the above, I feel I am done. I come to the conclusion that the appeal which was not initiated with due process of the law is incompetent. See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. It is hereby struck out. I make no order as to costs.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Sections 2(1) and 24 of the Legal practitioners Act, Laws of the Federation of Nigeria 2004;
➥ REFERENCED (CASE)
⦿ IT IS THE FUNCTION OF JUDGES TO KEEP THE LAW ALIVE
In Transbridge Co. Ltd. v. Survey International Ltd this court per Eso, JSC pronounced as follows: ‘I believe it is the function of judges to keep the law alive, in motion and to make it progressive for the purposes of arriving at the end of justice, without being inhibited by technicalities, to find every conceivable but accepted way of avoiding narrowness that would spell injustice, short of a judge being a legislator, a judge to my mind, must a possess an aggressive stance in interpreting the law.’
⦿ COURT SHOULD AVOID CONSTRUCTION THAT WILL CAUSE CHAOS
In Okotie Eboh v. Manager (supra) Pats-Acholonu, JSC (of blessed memory) pronounced as follows: ‘An interpretation that seeks to emasculate should be avoided as it would do disservice to the citizenry and confine everyone into a legal container or labyrinth from which this court may not easily extricate itself ——– I believe that though justice is blind, it is nevertheless rooted in the nature of society and therefore the court should avoid constructions that could cause chaos and disenchantment. Justice must be applied in a way that it embraces and optimizes social engineering that is for the welfare of society. Enlightened society should expect a highly refined and civilized justice that reflects the tune of the time.’
➥ REFERENCED (OTHERS)