IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

 

BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA.

 

DATE:  26^TH OF JULY, 2024                                         SUIT NO. NICN/UY/33/2021

 

BETWEEN

MARITIME ACADEMY OF NIGERIA  -           CLAIMANT/RESPONDENT

 

AND

OKON IME EDET  -           -           -           -           DEFENDANT/APPLICANT

 

REPRESENTATION:

C. N. NWAKA for the Claimant

E. M. EKPENYONG for the Defendant                                  

 

RULING

 

This is a ruling on a Notice of Preliminary Objection (NPO) dated 23/10/23 but filed on 2/11/2023 contending that this Honourable Court lacks jurisdiction to hear and determine this suit as presently constituted and the same be struck out.

The grounds upon which the (NPO) is brought are as follows:-

 

"i.        By Sections 2(1) and 24 of the Legal Practitioners Act, only a legal practitioner whose name is on the Roll of the Supreme Court can sign Court Processes

 

ii.        E. E. Okonkwo who signed the Originating processes in this suit is not a Legal Practitioner whose name is on the Roll of the Supreme Court.

 

iii.       The display of the Supreme Court’s stamp and seal of EMEKA OKONKWO ERNEST on the Originating processes in this suit is a scam to deceive the Court to believe that EMEKA OKONKWO ERNEST is the same name as E. E. Okonkwo.

 

iv.       Names on the Supreme Court’s stamp and seal are either presented in the order of: First Name, Middle name and Surname, or Surname, first name and Middle name.

 

v.         In whatever way the name on the Supreme Court’s stamp and seal is presented, it does not rhyme with E. E. Okonkwo.

 

vi.       The name E. E. Okonkwo is conjured or simulated from Emeka Okonkwo Ernest to deceive both the Court and the defendant in the suit.

 

vii.      It is the Originating court process that confers jurisdiction on a Court and where such process is incompetent, it ousts the jurisdiction of such court to entertain the matter.

 

viii.    It is a condition precedent necessary to validate an originating process that it must contain the signature of either the claimant or the claimant's counsel.

 

ix.       Where a condition precedent for the doing of an Act has not been complied with, no act subsequent thereto can be regarded as valid.

 

x.         Jurisdiction of Court being a threshold issue can be raised for the first time at the trial court or even in the Supreme Court and it can also be raised suo motu by the Court.”

 

The Preliminary Objection is supported by 8 paragraph affidavit deposed to by one Ifreke Akpan Esq, a Legal Practitioner. A Written Address was also filed to accompany the NPO wherein counsel for the objector distilled a lone issue for determination to wit:

 

“Whether Sections 2(1) and 24 of the Legal Practitioners Act requiring that only a Legal Practitioner whose name is on the Roll of the Supreme Court signs Court Processes were not violently violated when E.E.Okonkwo,whose name is not shown to be on the Roll, not only signed the Claimant's originating processes but went further to display the Supreme Court’s stamp and seal of another name, EMEKA OKONKWO ERNEST which  name is dissimilar to his name, E. E. Okonkwo."

 

Counsel for the Defendant submitted that the issue of jurisdiction is a fundamental pre-requisite in the adjudication of any matter and the life-wire of all suits. That where a Court does not have jurisdiction to entertain a suit before it, the proceedings however well conducted, will be a nullity. Counsel cited the case of Madukolu V. Nkemdilim (1962) 2 SCNLR 241.

 

Counsel also submitted that for a Court to be clothed with jurisdiction, the suit must be commenced by a competent process, and failure to initiate a suit properly has a damaging effect on the competence of the court and consequently on the suit itself. Counsel relied on the case of Ede V CNN (2015) All FWLR (Pt. 769) 1113 at 1125 C-F.

 

Counsel also placed reliance on Section 2(1) and Section 24 of the Legal Practitioners Act that a person is only entitled to practice if his name is on the Roll.

Counsel further contended that the name E. E. Okonkwo is not the same as Emeka Okonkwo Ernest. That E. E. Okonkwo has no Supreme Court’s stamp and seal to support it. Counsel argued that in EMEKA OKONKWO ERNEST, if the name as presented shows EMEKA OKONKWO ERNEST to be first name, middle name and surname, then the abbreviation from it based on that order of presentation will be E. O. Ernest but if the name, EMEKA OKONKWO ERNEST is presented conversely, surname, first name and middle name, then the abbreviation that flows from it will be, O. E. Emeka.

 

Counsel contended that E. E. Okonkwo is not a legal practitioner whose name is on the Supreme Court Roll and cannot use the Supreme Court stamp and seal meant for EMEKA OKONKWO ERNEST to deceive the Court.

 

Counsel also contended that no legal practitioner can practice with two official but dissimilar names all at the same time.

Counsel finally submitted that the Claimant’s suit is a gross violation of Section 2(1) and Section 24 of the Legal Practitioners Act, and the Originating processes have woefully failed to clothe the Court with jurisdiction.

 

Counsel urged the court to strike out the suit and asked for the sum of N5,000,000.00 as cost.

 

CLAIMANT/RESPONDENT’S RESPONSE

 

In reaction to the Notice of Preliminary Objection, Claimant's counsel filed a 6 paragraph counter-affidavit and a written address on 23/04/2024.

 

In the Written Address, C. N. Nwaka Esq, counsel to the Claimant formulated one issue for determination to wit;

 

“Whether having regards to the facts and circumstances of this case, this Notice of Preliminary Objection has any merit to warrant it being granted by this Honourable Court.”

 

Counsel submitted that the Preliminary Objection filed by the counsel to the Defendant is totally misconceived, lacking in merit and ought to be dismissed with punitive and exemplary cost.

 

Counsel also submitted that he is not unmindful of the provisions of Section 2(1) and Section 24 of the Legal Practitioners Act cited by counsel to the Defendant, but the conclusions drawn and the inferences made by the Defendant's counsel on the qualification or otherwise of the counsel to the claimant are bare and speculative assertions as there is no material before the Court to buttress the assertions.

 

It was submitted that it is trite that a Court of law cannot be called upon to speculate on probabilities and possibilities not supported by any evidence. Counsel relied on the case of Enobong V. The State (2022) SC/CR/249/2020 and further submitted that if counsel to the Defendant had diligently conducted a simple search, it will be clearly apparent that he ought not to have engaged in this fruitless and frivolous time wasting exercise.

It was submitted that it is not sufficient for an applicant to rely on mere averments in matters where proof is required by affidavit evidence. That the averments must be substantiated by exhibiting the relevant materials for the averments to be credible, to enable the Court exercise its discretion in his favour. Counsel cited Livestock Feeds Plc V. Fungus (2005) All FWLR (Pt.286) 753 CA.

 

It is the submission of counsel that this Court has unfettered powers to look into its record with a view to determining the issues in controversy between the parties. Counsel relied on the case of Salihu V Sakaba & Ors (2023) LPELR-61250 CA.

 

Counsel contended that documentary evidence which is before the Court is admissible and relevant in the determination of an issue before the Court and should not be excluded simply because it was not identified by an Exhibit number or not attached to an affidavit. Counsel relied on the case of Uzodima V. Izunaso (No. 2) (2011) 17 NWLR (Pt.1275) 30 SC and Section 122(2) (m) of the Evidence Act.

 

Counsel posited that a careful perusal of the Originating processes filed in this suit clearly shows that the Notice of Preliminary Objection was filed by E. M. Ekpenyong Esq and not the Defendant, and E. M. Ekpenyong Esq gave consent to a lawyer in his chamber to depose to all the facts in the supporting affidavit, rather than the Defendant. Counsel argued that sequel to this, E. M. Ekpenyong Esq lacks the requisite locus to file the Notice of Preliminary Objection not being a party to this proceeding. Counsel cited in aid the case of Boniface V. Anyika & Co Limited V Uzor (2016) 15 NWLR (Pt.1003) 560 SC.

 

Counsel also argued that the affidavit in support of the objection is grossly incompetent in many respects and clearly offends Section 115(3) and (4) of the Evidence Act. That the said affidavit was deposed to by counsel to the defendant who claims to have derived the right to do so from the lead counsel E. M. Ekpenyong Esq, which is a clear violation of the provisions of Rule 20 of the Rules of Professional Conduct for Legal Practitioners 2007, which prohibits a lawyer to act as a witness for a client.

 

That it is trite that a counsel is not competent to give evidence in a case he appears for a party as counsel qua advocate. Counsel relied on the cases of Boniface V. Anyika & Co Limited V. Uzor (2016) 15 NWLR (Pt.1003) 560 SC and Francis V. FRN  (2020) LPELR-52520 SC Per Ejembi Eko JSC @ pages 4-5 para D-O.

 

It is counsel's opinion that in law, the deponent to the affidavit can only depose to the facts predicated upon the information which he derived from the Defendant which he verily believes, setting out the names of the informant and sufficient particulars as to the time, date, place and circumstances as to how the said information was received by him and such affidavit must comply with the provisions of the Oath Act and Section 90 of the Evidence Act. That any defect is fatal and renders it incompetent. Counsel cited the case of Lawal Osuka V. UBA (2003) 5 NWLR (Pt.813) 316 CA.

 

Counsel urged the Court to dismiss the application with punitive and exemplary cost against E. M. Ekpenyong Esq as it is so glaring and apparent that having regards to all the facts and circumstances of this case, he knew or ought to know that he ought not to have filed this application but did so ostensibly to cause undue delay to the annoyance of the Claimant and as well waste the precious judicial time of this Honourable Court.

 

DEFENDANT'S FURTHER AFFIDAVIT AND WRITTEN ADDRESS TO THE CLAIMANT’S COUNTER-AFFIDAVIT

 

Defendant's counsel filed an 11- paragraph Further Affidavit and a written address on the 20/05/2024 and attached four Exhibits, (Exhibits EME1, EME2, EME3 and EME4). In the Written Address, counsel again formulated three issues for determination to wit;

 

"1.      Whether court processes originated and franked by a person having three different names  and holding two different NBA seals and stamps are not incompetent, null and void having regard to  Rule 10(1),(2),(3) of the Rules of Professional Conduct for Legal Practitioners 2007 and Sections 2(1) and 24 of the Legal Practitioners Act Amended in 2014.

 

2.        Whether it is not a violation of Section 573 of the Companies and Allied Matters Act 1990 for E. E. Okonkwo to carry on legal practice with unregistered firm, CHIMBELE, ENYI, OKONKWO & CO.

 

3.        Whether the use of an unregistered firm, CHIMBELE, ENYI, OKONKWO & CO to earn professional fee from Maritime Academy of Nigeria, Oron, does not constitute tax fraud/evasion on account of violation of Schedule of Companies Income Tax etc of Tax Deduction at Source (withholding Tax) Regulations."

 

Counsel for the Defendant submitted that by virtue of Rule 10 of the Rules of Professional Conduct for Legal Practitioners Act 2007, affixing of Nigerian Bar Association (NBA) stamp and seal on legal documents filed by counsel is a condition precedent to make such legal documents competent as to confer jurisdiction on the Court to hear and determine the case. Counsel relied on the case of Olajoke V. Gov. Kwara State (2024) 3 NWLR (Pt. 1925) Pg. 199.

 

Counsel maintained that E. E. OKONKWO is not the same person as EMEKA OKONKWO ERNEST, and he referred the Court to the defendant’s affidavit in support of the Preliminary Objection.

 

Counsel contended that E. E. Okonkwo in 2021 filed the instant suit with two names by two different persons. He affixed to the Court processes a 2021 NBA stamp and seal belonging to EMEKA OKONKWO ERNEST. But that E. E. Okonkwo proceeded to launch a new 2024 NBA stamp and seal for a new name OKONKWO ERNEST EMEKA, with the same Supreme Court Roll Call No.10537 which is the same number for EMEKA OKONKWO ERNEST in 2021 NBA stamp and seal.

 

That by doing this, he fraudulently removed the original name of EMEKA OKONKWO ERNEST and substituted the new name of OKONKWO ERNEST EMEKA in the NBA Data Base.

 

It is the submission of counsel that court processes filed by a person with three different names and two different NBA stamps and seals violate Rule 10(1),(2) and (3) of the Rules of Professional Conduct for Legal Practitioners 2007 and also Sections 2(1) and 24 of Legal Practitioners Act, 2014 which stipulate that only a lawyer whose name is on the Supreme Court Roll Call can file legal document in court and maintained that E.E.OKONKWO has three different names and two different NBA stamps and seals. It is immaterial that he has tampered with the original name in 2021 NBA stamp and seal which name he claimed to be his own but is no more found in the NBA Data Base platform.

 

On the second issue, counsel submitted that Section 573(1) of the Companies and Allied Matters Act 1990 stipulates that “Every individual, firm or corporation having a place of business in Nigeria and carrying on business under a business name shall be registered...”

 

It was averred in the Further Affidavit that E. E. OKONKWO uses CHIMBELE, ENYI, OKONKWO & CO which is not registered with the Corporate Affairs Commission for his private practice and solicitor to Maritime Academy of Nigeria, Oron and by so doing, he indulges in illegal law practice.

 

It is also the averment of the Defendant that E. E. OKONKWO indulges in tax fraud/evasion, and submitted that under the schedule to Companies Income Tax, lawyer's professional services are taxed by the establishment to which the services are rendered.

 

Counsel contended that the Claimant’s counter affidavit is bereft of leave of Court which the claimant failed to seek and obtain thereby rendering same incompetent.

Counsel urged the court to uphold the Defendant’s Preliminary Objection.

 

COURT’S DECISION

 

Having carefully studied all the processes filed by the parties and their respective submissions and arguments as well as the issues raised. The issue that I think is apt is; whether this Court has jurisdiction to entertain this case, by reason of the fact that sections 2(1) and 24 of the Legal Practitioners Act were not complied with?

 

Before going in to the substance of the matter, counsel for the objector contended that Claimant’s counter affidavit is incompetent because it was filed out of time and the claimant failed to obtain leave of court to regularise same.

 

I wish to observe that on the 27/6/2024 when the claimant's counsel argued and adopted his counter affidavit, there was no objection from the side of the objector. However the objector even filed a further affidavit in response to the Claimant's counter affidavit.

 

By virtue of Order 5 of the Rules of this Court, failure to comply with any of these rules may be treated as an irregularity and the Court may give any direction as it thinks fit. Meanwhile Rule 2(1) of the same order says that; An application to set aside for irregularity any step taken in the course of any proceedings, may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

 

In the light of the above therefore, having the Defendant/Objector taken steps by filing a further affidavit after becoming aware of the irregular process of the claimant, then the objector would not be taken seriously on his objection but would only be taken to have waived the said irregularity. As a consequence, I therefore dismiss the Defendant/objector's contention on the issue of the purported failure of the claimant to obtain leave to file its counter affidavit.

 

In any event, the Claimant’s Counsel even filed his application to regularize his counter affidavit on 28/6/2024 and there was no objection filed by the Defendant's Counsel. I will deem the Claimant’s application for extention to file his counter affidavit as deemed moved and granted in the interest of justice and inaccordance with the provisions of our Rules of Court.

 

Turning to the substance of the matter, let me refer to sections 2 and 24 of the Legal Practitioners Act.

 

“2(1) subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the Roll.”

 

“24. In this Act, unless the context otherwise requires, the following expressions have the meaning assigned to them respectively, that is to say;

 

“Legal practitioner “means a person entitled in accordance with the provisions of this Act to practice as a barrister or solicitor, either generally or for the purpose of any particular office or proceedings.” See also F. O. M. Take V Chief Nelson (1994) 9 NWLR (Pt. 368) 379. (1994) LPELR-585(SC).

 

The law is settled that the practice of law in Nigeria is the exclusive preserve of legal practitioners that have formally qualified to practice law in the country and by the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, they are persons whose names are listed on the Roll of Barristers and Solicitors of the Supreme Court. The Supreme Court in interpreting the provisions of Sections 2(1) and 24 of the Legal Practitioners Act in a long line of cases, stated this fact and has opined that since the practice of law includes the drafting and signing of court processes, only the persons so listed on the Roll of Barristers and Solicitors can sign Court Processes for filing in our courts, and that the only exception is where processes are signed by a litigant who chooses to represent himself. See Chief Osmond Ugbor V. Mr Stephen C Mador & Anor (2018) LPELR-2095 45626 (CA).

 

It was stated in paragraph 5 (a)–(d) of the claimant's counter-affidavit that all lawyers enrolled by the Supreme Court usually pay their annual practicing fee and pay for stamp and seal for any given year through the lawyer's local branch of the Nigerian Bar Association. That pursuant to the foregoing, Claimant’s Lawyer paid his said annual and branch dues as well as applied for stamp and seal for the year 2022. That it is not the duty of the lawyer to print and issue the stamp and seal for any particular year for himself but it is the Nigerian Bar Association acting in collaboration with the Supreme Court that does so. That, it was as a result of the above, that the Claimant’s lawyer was issued his stamp and seal for the relevant year with his supreme court enrolment number clearly visible.

 

I observe that the Defendant's objection is mainly focused on the arrangement of the name of learned counsel for the Claimant as reflected on the processes of court as well as the name enrolled in the Roll of Lawyers at the Supreme Court. Defendant argued that the suit of the claimant is incompetent on the ground that the learned counsel to the Claimant signed the processes in this suit as E. E. OKONKWO whose initials do not rhyme with the name EMEKA OKONKWO ERNEST on the NBA stamp and seal. That the names on the NBA stamp and seal are either presented in the order of first name, middle name and surname name or surname name, first name and middle name.

 

It can be observed that there is nothing in Sections 2(1) of the Legal Practitioners Act that prohibits the use of an abbreviation on one’s name or initials in signing documents and or conducting proceedings in any court of law in Nigeria. To me, strict interpretation of Section 2(1) of the Legal Practitioners Act would be inconsistent with its intention to protect the legal profession from imposters. Such an interpretation would amount to sacrificing substance on the altar of technicalities and would certainly lead to a miscarriage of justice.

 

It cannot be the essence of the Act to punish a legal practitioner who has genuinely been called to Bar simply because he signs processes and conducts proceedings using an abbreviation of his name as it appears on the Roll. See Alhaji Ibrahim Hassan Dankwambo V. Jafar Abubakar & Ors (2015) LPELR-25716 (SC), where HIS LORDSHIP OKORO (JSC) states thus;

 

“There is nowhere in the Legal Practitioners Act which says that the names enrolled in the Roll of Legal Practitioners cannot be abbreviated or initialled. It is a cardinal principle of law that what is not expressly forbidden, is permitted”

 

In other words, an abbreviated name is legal and permissible and does not cease to be a person's name or render it loose its juristic personality. An abbreviation of the name of any person whose name is on the Roll of Legal Practitioners does not render the abbreviated name to become unregistered or unknown to law. See Amos V. Olayinka (2010) NWLR (Pt. 1195) 63.

 

Furthermore, in the same Dankwambo's case His LORDSHIP GALADIMA (JSC) had this to say at pages 42-44 paras. F-E:-

 

"Courts do not give a restrictive and punitive interpretation to a statute where there is leeway that will avert such adverse consequences. I set out quite extensively the judgment of the Court below the possibility of such adverse effect, when it held at pages 35-36 as follows: It is restrictive and punitive interpretation of Section 2 of the Legal Practitioners Act to hold that the only person whose appearance can be countenanced by court must be the same person who signed processes and whose name appear on the Roll as Samuel Peter Kargbo, and that the contemplation of the Legal Practitioners Act is that counsel must only file processes and announce appearance only as exactly as their names appear on the Roll leaving no room for abbreviation of such a name. The argument of learned 1^st Respondent’s Counsel that if Sam Kargbo is allowed to practice law every Nigerian Lawyer called to the Bar will be allowed to jettison his name on the Roll of Lawyers and use different names as alias in different processes and proceedings is disingenuous at best. The traditional, the Bar and Bench cannot be swept off so lightly. Most lawyers drop their full names and use abbreviations of initials to announce their appearance and sign Court processes. That has always been acceptable so long as they are juristic persons who had been called to Bar. This had been settled beyond doubt by Hamzat V. Sani (2015) LPELR-2402 delivered by the Supreme Court. See Okafor V. Nweke (2007) 10 NWLR (Pt.1043) Pg. 521. The present legal names of most women lawyers who married after call to Bar are on the Roll of Legal Practitioners. Their married name is their legal name. Now. If argument were allowed to hold, eighty percent of processes in law courts today all over the country will be rendered incompetent. I cannot fathom how and why the tribunal can countenance the argument of the respondents given the nature and circumstances of this case being an election petition. It is a preposterous enthronement of technicality over substantive justice. The purpose of Section 2 and Section 24 of the Legal Practitioners Act is not to exclude anyone from practicing as a Barrister and Solicitor duly enrolled to practice law before the Courts in Nigeria."

 

I have looked at the Originating processes filed on the 02/11/2023. I find that the processes carry the NBA stamp and seal of EMEKA OKONKWO ERNEST. The processes were all signed and the name E. E. OKONKWO Esq was placed side by side to the name on the NBA stamp and seal bearing the name EMEKA OKONKWO ERNEST. In all the processes filed by the Claimant's counsel, the Supreme Court enrollment number is the same.

 

In the light of the above, the contention of the Defendant’s counsel that E. E. Okonkwo who signed the Originating processes in this suit is not a Legal Practitioner whose name is on the Roll of the Supreme Court, and that E. E. Okonkwo is not the same person as Emeka Okonkwo Ernest on the NBA stamp and seal is of no moment. The allegation is frivolous, annoying and unsubstantiated. The most important point is that it is presumed that it is the same person that was called to Bar and there is nothing before the court to contradict that presumption.

 

Having resolved the issue formulated in favour of the claimant, there would be no need to address the other ancillary issues raised as they are appendages to the main issue. It is the law that an accessory thing goes with the principal to which it is incidental to. See Tukur V. Govt. of Gongola State (1989) 4 NWLR (PT117) 517. The issue of fraud and evasion of tax raised by the Defendant’s Counsel are grievous and have to be proved with credible evidence. They appear speculative and unsubstantiated as there is no material before the Court to buttress the assertions.

 

Accordingly, I resolve the issue formulated in favour of the Claimant with ?20,000 cost awarded in favour of the claimant against the Defendant's counsel.

 

Ruling is entered accordingly.

 

 

 

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)