UMAR v. BABA (2022)

UMAR v. BABA

(2022)LCN/16577(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, May 17, 2022

CA/K/593/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

DR. MUHAMMAD SANI UMAR APPELANT(S)

And

HAJIYA AISHA MUSTAPHA BABA RESPONDENT(S)

RATIO

THE DISTINCTION BETWEEN IRREULARITY AND INCOMPETENCE

There is a distinction between irregularity and incompetence. The Court may condone irregularity, except when it is shown that a miscarriage of justice will occasion. See SAUDE Vs. ABDULLAHI (1989) NWLR (Pt 116) 387. The Court cannot however condone incompetence.
Incompetence in my view is multi-dimensional. It may be incompetence of the Court, incompetence of parties or incompetence of Court processes. Each of these will affect the jurisdiction of the Court. Once the Court is incompetent, the fact of its incompetence can be raised at any stage of the proceedings including appeal. The proceedings of an incompetent Court becomes terminally and incurably deceased. See MOBILE PROD (NIG) LTD Vs. LASEPA (2002) 18 NWLR (Pt 789) and BLUE-CHIP COMMUNICATION CO. Vs. NIGERIAN COMMUNICATION COMMISSION (2008) LPELR–3882 (CA). PER MUSALE, J.C.A.

THE POSITION OF LAW ON THE ISSUE OF INCOMPETENT COURT PROCESSES

Now, on the issue of incompetent processes. Here, the legal practitioner did not sign the originating process and the plaintiff too did not sign it. Where a counsel is required to sign a document, it is a person whose identity is ascertainable from the Roll of legal practitioners that must append his signature, UNION DICON SALT PLC Vs. NASIRU (2008) LPELR–5061 (CA). Court processes must therefore be signed by named legal practitioners. See DR AKINSANYA Vs. FEDERAL MORTGAGE FINANCE LTD (2010) LPELR–3687(CA). In this case, the legal practitioner’s name is there as counsel that issued the writ. However, his signature has not been appended there. For any Court process to be valid and proper, it must be issued and signed by the party (plaintiff, petitioner or appellant) or the legal practitioner representing him. See MOHAMMED Vs. MARTINS ELECTRONICS CO. LTD (2009) LPELR–3708 (CA).
The writ of summons was not signed by the Respondent or her counsel. This Court in SAMI Vs. APC & ORS (2019) LPELR – 48045 (CA) per Wambai, JCA inter alia held;
“The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE Vs. OKAFOR (2007) 10 NWLR (Pt. 1043) 521.”
In the case of BRAITHWAITE Vs. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) P.1 AT 15;
“The Supreme Court held that a Writ of Summons is an Originating Process by means of which action are commenced, the competence of such process is a prerequisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. The Writ of Summons in this suit not having been signed by a Legal Practitioner is void”. PER MUSALE, J.C.A.

THE RULE THAT A WRIT OF SUMMONS AND OTHER ORIGINATING PROCESS OF A COURT MUST BE ENDORSED BY THE PARTY WHO INITIATED IT

See the recent case of Nweke & Ors Vs Orji & Ors (2021) LPLER- 55507 (CA), where was held:
“Be that as it may, the law requires a writ of summons and every originating process of a Court, including Notice of Appeal, to be duly endorsed by the party that initiated it. A lawyer who issued a writ of summons is expected to sign same, on behalf of the Plaintiff, or get the Plaintiff to sign it, himself. And by signing, the law requires the signee to place his mark on the process, not just the type-written names of the Counsel or of the Plaintiffs. See the case of Ugbomah Vs Allanah & Ors 2018) LPELR-CA/B/337/2016 (CA), where this Court relied on several other authorities to the effect that: “It is also settled law that the mere typing of a person’s name on a process does not mean the process has been signed by that person. See Sunday Adeneye & Anor Vs Alhaji Buka Yaro (2013) 3 NWLR (Pt.1342) 625 at 634… a writ of summons must be signed by the legal practitioner who issued it or takes it out on behalf of a claimant… The signing of the writ of summons by the claimant or his Counsel is to authenticate the relief specified therein. Without the signature of the Claimant or his Solicitor on a writ, nobody can legally be attached with the responsibility for the claim or relief, endorsed therein. I wish to add that the duty of the Registrar of the trial Court to issue a Writ of Summons by signing it, does not include the responsibility of making claims on behalf of the litigating parties. Therefore, a writ of summons, without an authentication by the Claimant or his Counsel, is worthless and void, ab initio. It is settled law that the content of a document can only be authenticated by its maker, signing it. It is also trite that an unsigned document has no efficacy in law and it is valueless. See Ojo Vs Adejobi (1978) 11 NSCC 161, A.G. Abia State & Ors Vs Silas O. Agharanya (1999) 6 NWLR (Pt.607) 362; Omega Bank (Nig) Plc Vs O.B.C Ltd (2005) 8 NWLR (Pt.928) 547 (Per Adumien, JCA.). PER MBABA, J.C.A.

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Kano State, delivered by N. S. Umar, J on 30th November, 2018. In the judgment, the learned trial Judge found the Appellant liable to the Respondent in the sum of N66,800,000.00 (Sixty-Six Million, Eight Hundred Thousand Naira Only) being the sum of money owed by the Appellant.

Briefly, in 2017, the Respondent with others invested their capital in the Appellant’s profitable business. They agreed to invest part of their capital into Appellant’s private business school, called Pyramid College of Health Science and Technology, Kano. The Appellant agreed, that between March 2017 to February, 2018, the business capital and profit rose to N64,800,000.00 (Sixty-Four Million and Eight Hundred Thousand Naira) and undertook to pay the said amount to the Respondent. The Appellant also acknowledged the receipt of N2,000,000 (Two Million Naira), through his sister Jamila, from the Respondent. The Respondent demanded the Appellant to pay her N66,800,000 (Sixty-Six Million and Eight Hundred Thousand Naira). Consequently, the Appellant made two different undertakings to pay per Exhibits “A” and “B” (at pages 16 and 17) of the record of appeal). The Appellant failed to pay.

Invoking Order 11 Rules 1-5 of the Kano State High Court Rules 2014, the Respondent approached the lower Court to recover the amount. The lower Court after considering the matter before it, entered summary judgment (on the undefended list procedure) for the Respondent, (see pages 222–223 of the record) as follows;
“… Although the defendant was served with the writ of summons and all other Court processes he has not filed his statement of defence, deposition of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgment.
Moving the motion of summary judgment Ahmad Muhammad of counsel urged this Court to enter judgment accordingly.
Be that as it is, the defendant who is also present in Court has also conceded to the application for summary judgment.
Therefore, and without further ado, judgment is hereby entered in favour of the plaintiff against the defendant for the sum of N66,800,000.00 (Sixty-Six Million, Eight Hundred Thousand Naira Only) per the provisions of Order 11 Rule 5 (2) and Order 19 Rule 2 of the Kano State High Court Rules 2014.
An Order is further granted ordering the defendant to pay the sum of N40,000.000 on 16th of November, 2018 and N26,800,000 to be paid on or before the 30th of November, 2018.
An Order is further granted directing the defendant to pay the whole judgment sum of N66,800,000 to this Hon. Court or counsel to the applicant Ahmad Muhammad Esq.”

The Appellant dissatisfied with the decision of the Court below, approached this Court via his Notice of Appeal filed on 21/02/2019.

The appeal is predicated on five (5) grounds contained in the Amended Notice of Appeal, filed on 19/07/2021. The grounds are;
1. The learned trial Judge erred in law when he entered judgment against the defendant/appellant based on the unsigned writ of summons which activates the jurisdiction of the lower Court.
2. The trial Judge erred in law when he granted the application of the plaintiff for summary judgment having regards to the affidavit evidence and documents exhibited before the lower Court.

3. The learned trial Judge erred in law when he proceeded and determine the suit despite the glaring failure to comply with the statutory and mandatory prescribed filing fees as a condition precedent to the activation of the jurisdiction of the lower Court.

4. The learned trial Judge erred in law when it failed, refused or neglected to accord the appellant fair hearing contrary to Section 36(1) of the 1999 Nigerian Constitution thereby occasion the miscarriage of justice to the Appellant.
5. That the entire judgment of the Kano State High Court No. 1 in Suit No. K/514/18 delivered on the 30th November 2018 is against the weight of evidence.

Each of the grounds except the last were provided with particulars.

The learned counsel to the Appellant, U. M. Baba Esq filed the Amended Appellant’s Brief of Argument on the 19/07/2021 and Appellant’s Reply to the Amended Respondent’s Brief of Argument on 27/09/2021.

The learned counsel to the Respondent, A. Muhammad Esq filed the Amended Respondent’s Brief of Argument with Preliminary Objection on 13/09/2021.

On behalf of the Appellant, two issues were distilled for the determination of the appeal viz;
“1. Whether the Respondent’s originating process before the trial Court was incompetent? (from Ground 1).
2. Whether the trial Court was right in granting the Respondent’s application for summary judgment as per the claim on the fact of her originating processes without given due regard to the right of the Appellant to fair hearing. (from Grounds 2, 4 and 5).

The learned counsel to the Respondent reframed the two issues for determination raised by the Appellant’s counsel as follows:
1. Whether the Respondent’s suit before the lower Court was competent having regard to the originating process.
2. Whether the lower Court was right to enter summary Judgment against the Appellant when the Appellant admitted the claim on the originating processes.

Before going into the issues to determine the appeal, let’s first raise the objection of the respondent. The grounds of objection are;
a. The appeal is incompetent.
b. The appeal was filed without constitutional requirement of leave to appeal as the appeal is against the consent judgment.
c. That failure to obtain leave has divested this Honourable Court of its jurisdiction to entertain this appeal.

Both the Appellant and the Respondent in my view raised similar issues but each to his benefit. The objection raised by the Respondent if successful will leave the decision of the lower Court extant to her benefit. On the other hand, if the issue raised by the Appellant on the writ succeeds will vitiate the decision of the lower Court, to the benefit of the Appellant. Both issues are very important. I will however start with the issue of jurisdiction of the lower Court before coming to that of competence of the grounds of appeal before this Court raised by the Respondent.

On issue 1, the Appellant’s counsel among others submitted that the writ of summons must be signed by the Respondent or her legal practitioner. That unsigned document including a writ of summons is invalid, incompetent, worthless, useless and otiose, OLABODE Vs. KILA (2010) 48 WRN 24; AUMAN NIG. LTD Vs. LEVENTIS MOTORS NIG. LTD (1990) 5 NWLR (Pt. 131) 458 AT 588.

The counsel further contended that the incompetent writ of summons invalidates jurisdiction and where there is absence of jurisdiction the entire proceedings, findings, order and pronouncement of the lower Court became nullity. That lack of jurisdiction cannot be waived by the parties, OKOLO Vs. UNION BANK OF NIG LTD (2004) 3 NWLR (Pt. 839) 87 AT 108. That incompetent writ cannot be validated, OWNERS M/V BACO LINER Vs. ADENIJI (1993) 2 NWLR (Pt. 274) 203.

Counsel further submitted that the writ of summons did not comply with Order 4 Rule 1 of the Kano State High Court Rules, 2014. He urged the Court to hold that the entire suit before the lower Court was incompetent, invalid, null and void ab initio.

In his response, the learned counsel to the Respondent submitted that their originating process was competent. That the suit was filed under Order 11 Rule 1 of the Rules of the lower Court and that they have complied with the requirement. He referred to pages 3–20 of the record of the Court. That the originating process was duly signed as required by Order 4 Rule 6(2) of the Kano State High Court Rules, 2014 he referred to pages 6, 9, 10, 11 and 20 of the record of appeal.

Now, the writ of summons is on pages 3–4 of the record. On page 4, it says;

“This writ was issued by Ahmed Mohammed Esq. whose address is R. M AHMAD & CO, Yankaba Quarters, Kano Legal Practitioner to the plaintiff who reside in Kano within the jurisdiction of this Court.”

I am not surprised that the learned counsel to the Respondent did not refer to page 4 of the record and that is where issue is.

Let me start from Order 6, headed as;
ISSUE OF ORIGINATING PROCESS.
Order 6 Rule 1 provides;
Originating process shall be prepared by a plaintiff or his Legal practitioner, and shall be clearly printed on A4 opaque size paper of good quality.
2. (2) A plaintiff or his legal practitioner shall, on presenting any originating process for sealing, leave with the Registrar as many copies of the process as there are Defendants to be served and one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the legal practitioner or the plaintiff where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.

The issue before the Court has to do with the competence of the writ of summons, found on page 4 of the record. The writ of summons dated 12th day of November, 2018 has the signature of Registrar. That was all.

There is a distinction between irregularity and incompetence. The Court may condone irregularity, except when it is shown that a miscarriage of justice will occasion. See SAUDE Vs. ABDULLAHI (1989) NWLR (Pt 116) 387. The Court cannot however condone incompetence.
Incompetence in my view is multi-dimensional. It may be incompetence of the Court, incompetence of parties or incompetence of Court processes. Each of these will affect the jurisdiction of the Court. Once the Court is incompetent, the fact of its incompetence can be raised at any stage of the proceedings including appeal. The proceedings of an incompetent Court becomes terminally and incurably deceased. See MOBILE PROD (NIG) LTD Vs. LASEPA (2002) 18 NWLR (Pt 789) and BLUE-CHIP COMMUNICATION CO. Vs. NIGERIAN COMMUNICATION COMMISSION (2008) LPELR–3882 (CA).

Where a plaintiff or petitioner is bereft of locus standi to institute an action or a petition, such a matter becomes incompetent and the Court will be disrobed of the jurisdiction to entertain the matter, AMOSUN Vs. INEC (2009) 4 WRN 32 AT 82.

Now, on the issue of incompetent processes. Here, the legal practitioner did not sign the originating process and the plaintiff too did not sign it. Where a counsel is required to sign a document, it is a person whose identity is ascertainable from the Roll of legal practitioners that must append his signature, UNION DICON SALT PLC Vs. NASIRU (2008) LPELR–5061 (CA). Court processes must therefore be signed by named legal practitioners. See DR AKINSANYA Vs. FEDERAL MORTGAGE FINANCE LTD (2010) LPELR–3687(CA). In this case, the legal practitioner’s name is there as counsel that issued the writ. However, his signature has not been appended there. For any Court process to be valid and proper, it must be issued and signed by the party (plaintiff, petitioner or appellant) or the legal practitioner representing him. See MOHAMMED Vs. MARTINS ELECTRONICS CO. LTD (2009) LPELR–3708 (CA).
The writ of summons was not signed by the Respondent or her counsel. This Court in SAMI Vs. APC & ORS (2019) LPELR – 48045 (CA) per Wambai, JCA inter alia held;
“The Supreme Court has in a long line of cases held that a suit commenced by a Writ of Summons in which the Writ of Summons is not signed by a Legal Practitioner is incompetent. See NWEKE Vs. OKAFOR (2007) 10 NWLR (Pt. 1043) 521.”
In the case of BRAITHWAITE Vs. SKYE BANK PLC. (2013) 5 NWLR (Pt. 1346) P.1 AT 15;
“The Supreme Court held that a Writ of Summons is an Originating Process by means of which action are commenced, the competence of such process is a prerequisite for a valid and subsisting claim. When the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction. The Writ of Summons in this suit not having been signed by a Legal Practitioner is void”.
I also hold that the writ of summons in Suit No. K/514/2018 is void. Reason being, as originating process, it is the foundation of the case. It ignites the action that gives jurisdiction to the Court. An unsigned document is worthless and void. See FASEHUN Vs. A G FEDERATION (2006) 6 NWLR (Pt 975) 141 and Section 83(4) of the Evidence Act. Since unsigned documents are void, then in law it is non-existent. Therefore, nothing can resuscitate it, certainly not even amendment.
Flowing from above, because the writ of summons was not signed by counsel, it is fundamentally defective and divest the Court of jurisdiction, consequently, the claim before the trial Court must be struck out for lack of jurisdiction. Having struck out Suit No. K/514/2018, the preliminary objection of the Respondent cannot be considered. See also UDO Vs. ADUA & ORS (2019) LPELR–47091 (CA).

The appeal therefore succeeds and it is allowed. This is however without prejudice to the rights of the Respondent to initiate another process to pursue her claims.
No order as to cost.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, U.A. Musale JCA, in the lead judgment, that the unfortunate error of Counsel for the Respondent to sign the Writ of Summons, showing the claims of the Plaintiff, voided the suit at the lower Court and same was liable to be struck out.
See the recent case of Nweke & Ors Vs Orji & Ors (2021) LPLER- 55507 (CA), where was held:
“Be that as it may, the law requires a writ of summons and every originating process of a Court, including Notice of Appeal, to be duly endorsed by the party that initiated it. A lawyer who issued a writ of summons is expected to sign same, on behalf of the Plaintiff, or get the Plaintiff to sign it, himself. And by signing, the law requires the signee to place his mark on the process, not just the type-written names of the Counsel or of the Plaintiffs. See the case of Ugbomah Vs Allanah & Ors 2018) LPELR-CA/B/337/2016 (CA), where this Court relied on several other authorities to the effect that: “It is also settled law that the mere typing of a person’s name on a process does not mean the process has been signed by that person. See Sunday Adeneye & Anor Vs Alhaji Buka Yaro (2013) 3 NWLR (Pt.1342) 625 at 634… a writ of summons must be signed by the legal practitioner who issued it or takes it out on behalf of a claimant… The signing of the writ of summons by the claimant or his Counsel is to authenticate the relief specified therein. Without the signature of the Claimant or his Solicitor on a writ, nobody can legally be attached with the responsibility for the claim or relief, endorsed therein. I wish to add that the duty of the Registrar of the trial Court to issue a Writ of Summons by signing it, does not include the responsibility of making claims on behalf of the litigating parties. Therefore, a writ of summons, without an authentication by the Claimant or his Counsel, is worthless and void, ab initio. It is settled law that the content of a document can only be authenticated by its maker, signing it. It is also trite that an unsigned document has no efficacy in law and it is valueless. See Ojo Vs Adejobi (1978) 11 NSCC 161, A.G. Abia State & Ors Vs Silas O. Agharanya (1999) 6 NWLR (Pt.607) 362; Omega Bank (Nig) Plc Vs O.B.C Ltd (2005) 8 NWLR (Pt.928) 547 (Per Adumien, JCA.).

The appeal is allowed, but without prejudice to the Respondent’s right to initiate a competent process to pursue her said claims.

I too allow the appeal and abide by the consequential orders in the lead judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, USMAN ALHAJI MUSALE, JCA, and I am in agreement with the reasoning and conclusion reached therein that the appeal is meritorious and ought to be allowed. I too allow the appeal and set aside the decision of the trial Court. I also abide by all other consequential orders in the lead judgment including order as to cost.