OSUN STATE PROPERTY DEVELOPMENT CORPORATION V. CHIEF DAVID IYIOLA

OSUN STATE PROPERTY DEVELOPMENT CORPORATION V. CHIEF DAVID IYIOLA

 final
In The Court of Appeal
Akure Judicial Division
On Thursday, the 14th day of April, 2011
Suit No: CA/I/236/2006
 
Before Their Lordships
 
NWALI SYLVESTER NGWUTA    ……. Justice, Court of Appeal
CHINWE EUGENIA IYIZOBA    ……. Justice, Court of Appeal
MOORE A. A. ADUMEIN    ……. Justice, Court of Appeal
    
 
 Between
OSUN STATE PROPERTY DEVELOPMENT CORPORATION    Appellant
            
 
      And
                   
CHIEF DAVID IYIOLA    Respondent
        
 

 

 


                  
COUNSEL:
                              
Chief Adeniran Adetoye    For the Appellant

                              
Miss Adefunmilola Fajemisin    For the Respondent

 

 

JUDGMENT:          
          

        
NWALI SYLVESTER NGWUTA, J.C.A.:
(Delivering the Lead Ruling): The notice of appeal dated and filed on 8/8/06 was settled and signed by "Chief Adeniran Adetoye & Co. counsel to the Defendant/Appellant Plot 4, Agodi G.R.A. (American Qtrs) Yidi (Opp. NLC state Secretariat) Ibadan."

In the application dated and filed on, 31/3/10 the applicant seeks the following relief in a bid to show that he is a sole practitioner and that the Corporate name of Chief Adeniran Adetoye & Co refers exclusively to him and to no other person:

"… For an order that:

1. Grants the appellant/Applicant leave to file the business name registration documents of the sole proprietorships of its Counsel Chief Adeniran Adetoye & Co.

2. Deeming as properly filed:

The business name registration documents of the sole proprietorship of the appellant/applicant's counsel-chief Adeniran Adetoye (trading as Chief Adeniran Adetoye & Co. and filed on 31st day of March, 2010.

3. And for such other or further order(s) as His Honourable court may deem fit to make in the circumstances of this suit." In support of the application is an 8 paragraph affidavit and annexed thereto are documents marked Exhibit OSPDC 1(a) – (c).

In the counter-affidavit dated 31st March, 2010 and filed on 21/6/10 the Respondent swore that the notice of appeal is defective and incompetent as it was not signed by a legal practitioner, and that the registration documents sought to be filed are not necessary. At the hearing of the application learned counsel for the applicant relied on Augusta Cole v. Olatunji Martins & Anor. (1968) 1 All NLR 161 SC. Bello Ogundele v. Shittu Agiri (2009) 11-12 (pt.1 SCM 95. 117 (A – G) ad. The registered Trustees of Apostolic Church Lagos Area v. Rahman Akindele (1967) NMLR 263 to show that the notice of appeal signed in his registered business name was in compliance with the rules.

Learned counsel for the Respondent, on the other hand argued strenuously that the entity that signed the notice of appeal is not known to law and consequently the notice of appeal is invalid. Learned counsel relied on Ashco (Nig) Ltd. v. ward and Green (2010) 3 NWLR. Emmanuel Okafor v. Nweke (2007) 3 NWLR and NNB Plc v. Denclag Ltd. (2005) 4 NWLR Learned counsel urged the Court to dismiss the application.

A company or a firm of legal practitioners and though composed of legal practitioners is not a legal practitioner within the contemplation of Order 1 Rule 5 of the Court of Appeal Rules 2007 and cannot therefore sign processes for filing in Court. See Oke and Tade v. Dewunmi & 4 ors (2010) 2 – 3 SC (Pt. 1) 40; Ogundele v. Agri (2009)12 SC (Pt.1) 135 at 165 (cited by the applicant) NNB Plc. V. Denclag Ltd. (2005) 4 NWLR (Pt. 916) 549 at 582 Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 52.

See also ord. 1 r. 5 of the Court of Appeal Rules 2007 First Bank Plc v. Maiwada (2003) FWLR (Pt. 157) 2001 at 2003.

The authorities relied on by the Respondent are to the effect that a law firm can not sign process to be filed in Court as the firm is not a legal practitioner within the legal practitioners Act and the Rules of Court. However the Supreme Court case relied on by the applicant authorise the signing of Court processes by a firm or a company provided that it is shown that the lawyer who runs the company or firm is the sole proprietor. It is on these authorities that the applicant seeks to file his registration forms to show that its counsel is the sole practitioner and sole proprietor of his law company.

I have examined the Registration papers of the applicant's counsel. Exh. OSPDC-1 (a) i.e. forms 2 BN No 025575 and form 3 Exh. OSPDC 1(c) of 2nd March, 1993 each bears the address of the principal place of business as "Chief Adeniran Adetoye & Co. Solicitors, Advocates & Consultants' Arimo Chambers Idi-Are Area P.O. Box 4624 Ibadan Oyo State". By his own showing through Exhs OSPDc -1(a) and OSPDC – 1(c) learned counsel for the appellant has disproved his own claim that he is a sole proprietor of Chief Adeniran Adetoye & Co. The exhibits show that the law firm of Chief Adeniran Adetoye is not a sole proprietorship as claimed in the application. From exhibits OSPDC – 1(a) and OSPDC 1(c) the law firm of Chief Adeniran Adetoye & Co. is made up of solicitors and advocates and consultants, other than Chief Adeniran Adetoye himself. The law firm of Chief Adeniran Adetoye & Co. is different from Chief Adeniran Adetoye and the other Solicitors and Advocates and Consultants that constitute it. While learned counsel for the applicant, Chief Adeniran Adetoye is a legal practitioner within the legal practitioner's Act his law firm made up other solicitors Advocates and consultants is not and cannot sign processes for filing in the Court. I agree with learned counsel for the Respondent Miss Adefunmilola Fajemisin that the application ought to be dismissed. The documents sought to be filed are in direct conflict with the purpose for which the applicant sought to file and rely on them. The application is dismissed. Applicant is pay costs assessed at N20, 000.00 to the Respondent.

 

CHINWE E. IYIZOBA, J.C.A.: I read before now, the ruling just delivered by my learned brother' Nwali Sylvester Ngwuta, JCA. I agree with the conclusions arrived thereat. I abide by the consequential orders made in the ruling.

 

MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading the draft of the ruling just delivered by my learned brother, NGWUTA, JCA.

I agree with His Lordship that this application ought to be dismissed for the elaborate reasons in the lead ruling.

The application is hereby dismissed.

I abide by the order as to costs in the lead ruling.