ADEWUMI RICHARD FATUNDE & ANOR V. FAN MILK PLC (2022)

Background

This appeal arose from a dispute between Adewumi Richard Fatunde, a legal practitioner, and Fan Milk Plc concerning professional fees and an allegedly defamatory letter. The first appellant had been retained by Fan Milk Plc to represent it in several matters, including fraud-related suits handled between 1995 and 1998. A disagreement later developed over the professional fees billed by the appellants, which Fan Milk considered excessive and sought to have reviewed.

During the negotiations, the first appellant wrote a letter accusing Fan Milk’s Managing Director of having an illicit relationship with his wife. Fan Milk became apprehensive about continuing to entrust its legal matters to the appellants and subsequently instructed another law firm. In a letter dated 6 January 1999, Fan Milk explained that it would be unwise to leave its matters with the appellants. The first appellant alleged that the contents of this letter were libellous and damaging to his trade, business and reputation. The appellants consequently commenced an action at the trial court.

The trial court awarded the appellants N500,000 in damages for libel and ordered Fan Milk to tender an apology. Fan Milk appealed, while the appellants filed a cross-appeal. On 29 November 2005, the Court of Appeal allowed Fan Milk’s appeal and dismissed the appellants’ cross-appeal, thereby setting aside the trial court’s judgment.

Procedural History and Issues

The appellants applied for leave to appeal to the Supreme Court on 19 January 2006. Leave was granted on 16 February 2006, with an order that the appeal be filed within three months from the date of judgment. The notice of appeal was filed on 13 April 2006. The parties raised several questions concerning the lower court’s evaluation of evidence, the defence of justification, re-evaluation of facts, the cross-appeal and fair hearing. However, the Supreme Court reduced the controversy principally to whether Fan Milk’s further amended statement of defence, signed in the name of “S.P.A. Ajibade & Co.”, was competent, and whether the Court of Appeal could rely on it.

Ratio Decidendi

By a majority of four Justices to one, the Supreme Court held that a law firm is not a juristic person and cannot validly sign a court process in its own name. Sections 2(1) and 24 of the Legal Practitioners Act require a court process to be signed by an identifiable legal practitioner entitled to practise law. A process signed merely in the name of a law firm is therefore incompetent in law.

The Court rejected the respondent’s argument that the defect was a mere irregularity because the statement of defence was not an originating process. The Court held that the defect affected the competence of the defence itself. It further applied the principle that an amendment takes effect from the date of the original document amended. Once an amendment is granted, the earlier document is no longer material, and the case proceeds as if the amendment had been incorporated from the beginning. Accordingly, the invalid signature on the further amended statement of defence rendered the respondent’s defence incompetent throughout the proceedings.

Court Findings

The majority relied substantially on Okafor v. Nweke, Hamzat v. Sanni, Registered Trustees of the Airline Operators of Nigeria v. NAMA and Arueze v. Nwaukoni. The Court reasoned that proceedings founded on an incompetent pleading cannot stand. Since the respondent had no valid defence before the trial court, the subsequent proceedings and judgment were declared a nullity and set aside. The Supreme Court considered it unnecessary, and indeed beyond its jurisdiction in the circumstances, to determine the remaining substantive issues concerning libel, justification and the evaluation of evidence.

The judgment also contains a dissent by Agim, J.S.C. His Lordship took the view that the appeal itself was incompetent because the notice of appeal was filed outside the three-month period prescribed by section 27(1) and (2)(a) of the Supreme Court Act 2004. On that basis, he would have struck out the appeal without considering the competence of the statement of defence.

Conclusion

The appeal was allowed by the majority. The decision of the Court of Appeal was set aside, and the proceedings founded on Fan Milk’s improperly signed further amended statement of defence were declared a nullity. The parties were ordered to bear their own costs. The dissenting Justice would instead have struck out the appeal as filed out of time.

Significance

Fatunde v. Fan Milk Plc reaffirms the strict Nigerian procedural rule that court processes must be signed by a named and qualified legal practitioner, not by a law firm. It also confirms that an amendment relates back to the original process and does not preserve an otherwise incompetent pleading. The decision demonstrates that a defect in the formal validity of pleadings may deprive the court of a proper foundation for adjudication, even where the parties have participated in extensive proceedings. It is therefore important for litigants and counsel to verify both the identity of the person signing a process and compliance with statutory time limits for appeals.