IBRAHIM v. SHIKA & ORS
(2022)LCN/16827(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, December 14, 2022
CA/K/256/2022
Before Our Lordships:
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
HON. YUSUF IBRAHIM APPELANT(S)
And
1. ADAMU MOHAMMED SHIKA 2. ALL PROGRESSIVES CONGRESS(APC) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
WHETHER OR NOT ORIGINATING PROCESS FILED IN COURT MUST BE SIGNED BY THE LITIGANT OR HIS LEGAL REPRESENTATIVE
The law is fairly settled on the point that originating processes filed in Court must be signed by the litigant or his legal representative for them to validly activate the jurisdiction of the Court to determine them. This principle of law is re-enforced by the Rules of civil procedure of the trial Court, i.e. Order 3 Rule 12(3) cited by the 1st Respondent. The plethora of decisions of this Court and the Apex Court some of which were cited and quoted from by the 1st Respondent (supra) settled the principle of law. See also this Court’s decisions in the cases of NIGER INSURANCE PLC VS. SPDC (2022) LPELR-56875 and ADOMI & ORS VS. OKPA & ORS. (2022) LPELR- 56940 (CA).
The Appellant’s learned counsel has argued that the names of the counsel who filed the processes were written on the originating summons, suggesting that this suffices without the signature. I disagree with this contention because even the Black’s Law Dictionary definition of “signature” or “sign” that the learned counsel referred us to explained that the signature is placed on a document “to authenticate it as an act or agreement of the person identifying it”. Therefore even if it is true that names of the counsel who filed the originating summons are written, without the signature showing who among the names filed the summons, the process is not authenticated. In the case of NIGER INSURANCE PLC VS. SPDC (supra), this Court, per Ogbuinya, JCA following the decision of the Supreme Court in SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT. 1252) 317, held that:
“The law insists on presence of name and signature of a legal practitioner so as to vest validity and viability in an originating summons….” PER ALIYU, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
The law is settled beyond argument that issue of jurisdiction being fundamental to adjudication can be raised casually or orally even for the first time at the Supreme Court and it will be valid to be looked into and determined before any further steps are taken into the proceedings. See ALIOKE VS. OYE & ORS (2018) LPELR-45153 (SC), PDP VS. OKOROCHA & ORS (2012) LPELR-7822 (SC) and OJOGBEDE & ANOR VS. CAC ABUJA & ORS (2022) LPELR-57154 (CA) relied on by the 1st Respondent. On this issue alone (capturing Appellant’s issue one), this appeal is determined. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, sitting at Kaduna Judicial division (trial Court) delivered on the 21st October, 2022 by Hon. Justice H. R. Shagari in respect of Suit NO: FHC/KD/CS/66/2022. The Appellant, as the plaintiff commenced the suit vide an originating summons filed on the 3rd June, 2022 against the Respondents being the defendants by which he sought the trial Court’s determination of the following questions:
1. Whether by a construction of the combined effect inter alia of the decisions of the Supreme Court in Modibbo V. Usman (2020) 3 NWLR (PT. 1712) 470, the provision of Rule 04401 (IX) of the Kaduna State Public Service Rules and the Kaduna State Government Notice signed by the Secretary to the State Government requiring all political appointees and public servants aspiring for political offices to resign their appointment before 31st March, 2022, the 1st Defendant who is a public servant still in the employment of Nuhu Bamali Polytechnic, Zaria can validly contest the Primary Election for the 2nd Defendant to select its candidate for Giwa East Constituency of Kaduna State House of Assembly held on the 26th day of May, 2022.
2. Whether in the premise of question NO. 1 posed above the 3rd Defendant is not under a constitutional and statutory duty to reject the nomination of the 1st Defendant as the nominated candidate of the 2nd Defendant for the 2023 General Election in Giwa East Constituency of Kaduna State House of Assembly held on the 26th day of May, 2022.
ALTERNATIVELY
3. Whether in view of the clear mandatory provisions of Section 84(8) of the Electoral Act 2022 only delegates democratically elected can participate and vote at the 2nd Defendant’s Primary Election to elect its candidate for the Kaduna State House of Assembly, Giwa East Constituency at the 2023 general election.
Upon the determination of the above questions, the Appellant sought the following reliefs:
1. A DECLARATION that the 1st Defendant being a Public Servant in the employment of Nuhu Bamali Polytechnic, Zaria who has not resigned his appointment is not eligible to contest the 2nd Defendant’s Primary Election held on the 26th day of May, 2022 for the selection of its candidate for Giwa East State Constituency at the 2023 General Election.
2. AN ORDER disqualifying the 1st Defendant from contesting the 2023 General Election as the candidate of the 2nd Defendant for Giwa East State Constituency.
3. IN THE PREMISE of the foregoing, an order of perpetual injunction restraining the 2nd and 3rd Defendants from recognizing and or giving effect to the 1st Defendant’s nomination as the candidate of the 2nd Defendant for Giwa East State Constituency at the Primary Election held on 26th May, 2022 for the 2023 General Election.
4. AN ORDER directing the 3rd Defendant to recognize the Plaintiff who came second at the 2nd Defendant’s Primary Election held on the 26th May, 2022 to nominate its candidate for Giwa East State Constituency as the duly nominated candidate of the 2nd Defendant at the 2023 General Election for Giwa East State Constituency as the duly nominated candidate of the 2nd Defendant at the 2023 General Election for Giwa East State Constituency.
5. ALTERNATIVELY, an order directing the 2nd Defendant to forthwith conduct a fresh primary Election excluding the 1st Defendant for the nomination of its candidate for Giwa East State Constituency of Kaduna State by democratically elected delegates.
6. For further or other relief(s) as this Honourable Court may deem fit and just to make in the circumstance.
The originating summons was supported by affidavit sworn by the Appellant stating the facts that gave rise to the suit. He and the 1st Respondent both members of the 2nd Respondent were aspirants in the Party’s primary election held on the 26th May, 2022 for selection of the Party’s candidate to contest the 2023 general election for Giwa East Kaduna State Constituency. The 1st Respondent was declared winner of the primaries, while the Appellant came second. The Appellant’s case was that the 1st Respondent was not qualified to contest the primaries election because he was still a public servant in the employment of Nuhu Bamali Polytechnic Zaria and also a Special Adviser to the Chairman of Giwa Local Government Council as at the time the primaries election was conducted. He asserted that the 1st Respondent did not resign his public service employments as demanded by the Kaduna State Public Service Rules and in line with the Supreme Court’s decision in the case of MODIBBO V. ADAMU (2020) 3 NWLR (PT. 1712). The Appellant stated that he knew that the 1st Respondent did not resign from the said public service employments because he continued to draw salaries from the two employments and this prompted the Nuhu Bamali Polytechnic to write him a letter requesting him to make refunds of the unearned salary to the School, which the 1st respondent partly complied with by refunding his January and February salaries to the Polytechnic.
The Appellant also complained that democratically elected delegates did not vote at the 2nd Defendant’s primary election for the selection of its candidate for Giwa East State Constituency and he made a written complaint on that to the 2nd Respondent’s State Assembly Primary Election Committee, as the runner up of the said primary election.
The Respondents opposed the suit through their respective counter-affidavits and written addresses. In his written address, the 1st Respondent challenged the competence of the originating summons on the ground that it was not signed by the Appellant or his counsel and therefore incompetent and the trial Court lacked jurisdiction to entertain the matter. After considering the processes, the learned trial Judge delivered the Court’s judgment and found that indeed the originating summons was not signed by the Appellant nor his legal practitioner as mandatorily required by the provisions of Order 3 Rule 9 and 12(3) of the Federal High Court Civil Procedure Rules 2019. The learned trial Judge for that reason declined jurisdiction to entertain the suit and dismissed it for being incompetent.
The Appellant felt aggrieved and filed his notice of appeal on the 3rd November, 2022 relying on four grounds of appeal to pray this Court to set aside the judgment of the trial Court and to invoke our powers under Section 15 of the Court of Appeal Act to determine the suit on the merits.
Upon the transmission of the record of appeal, the Appellant filed his brief of argument settled by DR. A. A. ADEWOLE ESQ. on the 15th November, 2022 wherein he raised three issues for the determination of the appeal thus:
1. Whether the Court below was right and acted in the interest of justice in dismissing this suit on the ground that the originating summons was not signed either by an Appellant and or his counsel on his behalf. (Grounds one and four).
2. Whether the Court below being a trial Court was right in not proceeding to pronounce on the merit of the substantive suit having found that it has no jurisdiction to entertain the suit. (Ground three).
3. Whether the Court below was right in raising suo motu the issue of affixing the NBA stamp on the originating process and dismissing the Appellant’s suit thereon without affording the Appellant an opportunity of addressing it on the point. (Ground two).
In response to the appeal, the 1st Respondent filed his brief of argument on the 1st December, 2022, settled by ABUBAKAR ATIKU ESQ. and he adopted the three issues that the Appellant proposed for the determination of this appeal. The 2nd and 3rd Respondents did not file briefs of argument.
PARTY’S SUBMISSIONS
The Appellant’s learned counsel argued the three issues together, and he started by quoting and relying on the provisions of Order 3 Rule 12(1) and (3) of the trial Court’s 2019 Rules of Civil Procedure, which he argued did not define the word “sign”. He then referred to the definition of “sign” given in the Black’s Law Dictionary that defined “sign” as “a means of a signature or mark or other symbol with intent to authenticate it as an act or agreement of the person identifying it”. He also placed reliance on the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH, LAGOS AREA VS. RAHMAN A. AKINDELE (1967) A. N. L. R. 118 at 120 which he argued is in harmony with the definition of “sign” and “signature” in Black’s Law Dictionary because the Apex Court held in that case that the legal practitioner writing his own name in which he was registered as a legal practitioner will not invalidate his signature on the Court’s process “if a signature in a business name was not permitted”. He submitted that in this case, the originating summons was “signed” on behalf of the Appellant by his counsel “writing their names thereon” and this is in tandem with the Supreme Court’s decision in the case cited supra. He also argued that the affidavit in support of the originating summons is part of the originating summons and it was signed by the Appellant. That under the trial Court’s Rules, the originating summons constitutes a whole bundle of documents that are part of the originating process, especially since an originating summons cannot be properly filed without a written address. He argued that since counsel of the Appellant duly signed the written address in support of the originating summons, with a valid NBA stamp affixed thereon, the learned trial Judge ought not adopt a very narrow and restrictive approach in determination of whether or not the originating summons was signed. That the learned trial Judge ought to have extended his searchlight to other documents which constituted part of the originating process before reaching the decision one way or the other as to whether the originating summons was signed or not.
This is particularly so since the learned trial Judge found in page 26 of the judgment that an unsigned document can be voidable and the trial Court could have allowed the Appellant regularize the unsigned originating summons with a motion on notice praying for that order. He relied on Order 51 Rule 1(1) of the trial Court’s Rules 2019 to argue that, had the trial Court averted its mind to the said Order 51 Rule 1(1), he would have reached a decision that the non-signing of the originating summons was a mere irregularity which will not vitiate the proceedings. He cited the cases of AKANDE VS. JEGEDE (2022) 14 NWLR (PT. 1849) 125, PANACHE COMMUNICATIONS LTD VS. AIKHOMU (1994) 2 NWLR (PT. 327) 420 at 431 to support his submissions on the admonition of the Apex Court against slavish interpretation and application of rules of Court at the expense of substantial justice.
On the issue of affixing NBA stamp, it was the contention of the Appellant that the learned trial Judge suo motu raised same and did not afford him the opportunity to address on it before reaching its decision against him. He submitted that the decision is perverse, especially so because none of the parties raised it before the trial Court. He cited the cases of AMASIKE VS. REGISTRAR-GENERAL, CAS & ANOR (2006) 3 NWLR (PT. 968) 462 at 488-489 A-D and KANKARA VS. C.O.P. (2002) 13 NWLR (PT. 785) 596 in support of his submissions.
The Appellant further argued that the 1st Respondent did not raise the issue of non-signing of the originating summons through a preliminary objection, rather he “casually raised the issue in his written address” and this according to him, is contrary to the provisions of Order 51 Rule 2(1) of the trial Court’s Rules which requires that an application to set aside a process for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step in the proceedings. That the action of the 1st Respondent cannot be accommodated within the provisions of the Paragraph 7(3) of the Federal High Court of Nigeria (Pre-Election) Practice Directions, 2022 because the issue was not raised as a preliminary objection to warrant a ruling on it.
The Appellant further argued that the learned trial Judge was wrong not to pronounce on the merit of the suit based on time honoured position of the law that a trial Court must pronounce on both the preliminary objection and the substantive suit in order to afford the appellate Court the opportunity of pronouncing on the merits of the substantive suit in the event that it finds that the trial Court had jurisdiction to entertain the suit. He relied on the cases of MAIKULUMI VS. GASHIGAR (2011) ALL FWLR (PT. 597) 668 at 683 and BABALOLA VS. A. G. FEDERATION & ANOR. (2018) LPELR-43808 (CA) for support and to urge us to invoke the provisions of Section 15 of the Court of Appeal Act to pronounce on the substantive suit in the event that we find that the action of the trial Court in declining jurisdiction was made in error. Conclusively, the Appellant urged us to resolve all the three issues in his favour and allow this appeal.
In response to the submissions of the Appellant, the 1st Respondent relied on the cases of O’BAU ENGINEERING LTD VS. ALMASOL (NIG.) LTD (2022) LPELR-57985 (SC), ADOMI & ORS VS. OKPA & ORS. (2022) LPELR-56940 (CA), UGBOMAH VS. ALLANAH & ORS (2018) LPELR-44832 (CA), KIDA VS. OGUNMOLA (2006) 6 LPELR-1690 (SC), KENTE VS. ISHAKU (2019) ALL FWLR (PT. 973) 477 and others to submit that the law is trite that an unsigned originating process robs the Court of jurisdiction to entertain the suit. That for a suit to be competent, it must be commenced with a valid originating process and this is fundamental since it goes to the root of the case being an issue that borders on jurisdiction and the competence of the Court to adjudicate on the matter.
The 1st Respondent also placed reliance on the provisions of Order 3 Rule 12(3) of the trial Court’s Rules that provides; “each copy (of the originating summons) shall be signed by the legal practitioner or the Plaintiff”, to point out that a good look at the originating summons commencing this case would reveal that neither the Appellant nor his counsel signed it. He cited the cases of GWAGWALADA SPECIALIST HOSPITAL VS. KWADO (2022) LPELR-57618 (CA) and UBA VS. OJO (2021) LPELR-56357 where this Court interpreted Order 4 Rule 4(3) of the National Industrial Court Rules which are inparimateria with Order 3 Rule 12(3) of the trial Court’s 2019 Rules and held that an unsigned originating process is void and raises a fundamental question which impacts on the competence of the action and the jurisdiction of the Court to entertain the action. The defect was held to be incurable and all other processes that swivel on the originating process are correspondingly affected by the same virus and consequently rendered incompetent. In response to the Appellant’s reliance on the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH, LAGOS AREA VS. AKINDELE (SUPRA), the learned 1st Respondent’s counsel submitted that the Appellant missed the point of that decision, because the issue in contention in that case was whether Mr. Cole signed the originating process in his name or in the name of his registered law firm of J.A. Cole & Co. That the matter of how an originating process shall be signed was settled by the Apex Court in O’Bau Engr. Ltd VS. ALMASOL (NIG.) LTD (supra) where it was stated that all processes filed in Court are to be signed with the signature and name of counsel who represents the party. In this case, there is no signature of any contraption on the originating summons and he submitted that this is fatal to the jurisdiction of the trial Court.
On the argument of the Appellant that since the affidavit and the counsel written address in support of the originating summons were signed, and they are part of the originating summons, the trial Court ought to have taken that into consideration, the 1st Respondent submitted that by the provisions of Order 3 Rule 9(2) of the trial Court’s 2019 Rules, an originating summons is a distinct process from the accompanying affidavit, exhibits and written address. That in the light of that rule, it will be incorrect to treat an originating summons with the accompanying processes as one and the same. That these are all processes that require signing to activate the jurisdiction of Court. Learned counsel relied on and quoted extensively from this Court’s decision in the case of JUMBO & ANOR VS. JUBO & ORS (2021) LPELR-54775 (CA) holding inter alia that a Court’s process without signature is incompetent and must be struck out because it is a requirement of law that cannot be waived.
On the complaint of the Appellant that the trial Court raised suo motu the issue of affixing NBA stamp and it did not afford the Appellant the opportunity of addressing it on the point; the 1st Respondent while agreeing with the Appellant on the general principle of law, but submitted that an established principle of law is not to be applied blindly in every case, only with reference to the peculiar facts and circumstances of the case in issue. He argued that where the facts and circumstances of a particular case warrant a departure from the general principle, the exception will apply relying on the cases of EZEONWUKA VS. IGWEBUIKE &ORS. (2015) LPELR-40715 (CA), MMA INC. & ANOR VS. NMA and IN COREN VS. REGD TRUSTEES OF LECAN & ORS (2022) LPELR-56795 (CA), EFFIOM & ORS VS. CROSIEC & ANOR. (2010) LPELR-1027 (SC) and others to the effect that issues touching on or strictly relating to issues of jurisdiction can be raised suo motu and be determined by the Court without calling on parties to address on it. He submitted that the finding and holding of the trial Court on the NBA stamp was hinged to its jurisdiction and therefore needed not call for address of the parties. Further argued that the Appellant did not show this Court that the trial Court’s raising and determination of the issue of affixing NBA stamp suo motu adversely affected him to warrant the setting aside of its decision.
Finally, on the submission of the Appellant that the trial Court ought to have determined the merits of the suit, the 1st Respondent submitted that since the trial Court found and held that it lacked jurisdiction to hear the matter, it could not have been seen or heard determining the action on the merits in futility. He relied on the case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH LAGOS AREA VS. AKINDELE (supra) where it was held that every Court has a right to decline to adjudicate in proceedings that were not properly instituted. He urged us to hold that it will be an action in futility to go into a matter which originating process is neither signed by the Appellant nor his counsel and to resolve all the issues in favour of the 1st Respondent.
It is important to state here that the Appellant’s reply brief was only in respect of the 2nd Respondent’s brief which was withdrawn and struck out having been filed out of time.
RESOLUTION
The parties to this appeal are in agreement on the issues arising from the grounds of appeal for determination and I have no reason to disagree with them. I adopt the Appellant’s three issues for my determination of the appeal and they will be determined together. I will begin with the originating summons, the originator of the Appellant’s suit at the trial Court and by extension of this appeal. It is pertinent to state here that the Appellant did not dispute the fact that neither he nor his counsel signed the originating summons before filing it in Court. This is in line with the learned trial Judge’s findings in page 504 (page 26 of the judgment) of the record of appeal, that indeed the originating summons was not so signed.
The law is fairly settled on the point that originating processes filed in Court must be signed by the litigant or his legal representative for them to validly activate the jurisdiction of the Court to determine them. This principle of law is re-enforced by the Rules of civil procedure of the trial Court, i.e. Order 3 Rule 12(3) cited by the 1st Respondent. The plethora of decisions of this Court and the Apex Court some of which were cited and quoted from by the 1st Respondent (supra) settled the principle of law. See also this Court’s decisions in the cases of NIGER INSURANCE PLC VS. SPDC (2022) LPELR-56875 and ADOMI & ORS VS. OKPA & ORS. (2022) LPELR- 56940 (CA).
The Appellant’s learned counsel has argued that the names of the counsel who filed the processes were written on the originating summons, suggesting that this suffices without the signature. I disagree with this contention because even the Black’s Law Dictionary definition of “signature” or “sign” that the learned counsel referred us to explained that the signature is placed on a document “to authenticate it as an act or agreement of the person identifying it”. Therefore even if it is true that names of the counsel who filed the originating summons are written, without the signature showing who among the names filed the summons, the process is not authenticated. In the case of NIGER INSURANCE PLC VS. SPDC (supra), this Court, per Ogbuinya, JCA following the decision of the Supreme Court in SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT. 1252) 317, held that:
“The law insists on presence of name and signature of a legal practitioner so as to vest validity and viability in an originating summons….”
The case of REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH LAGOS AREA VS. AKINDELE (supra) on which the Appellant placed heavy reliance is not helpful to him in any way because it did not establish the principle of law that an unsigned originating process can activate jurisdiction of the Court to determine the reliefs sought therein. In fact, there was a signature on the processes in that case, which is not the same as in the present case that the originating summons was not signed at all.
On the contention that the bundles of documents accompanying the originating summons having been signed could save the unsigned originating summons, I agree with the 1st Respondent and uphold his argument that it is the originating summons which contained the questions for determination and reliefs sought by the Appellant and therefore a kick starter of the adjudicatory powers of the Court. Since it is unsigned, it failed to activate the jurisdiction of the Court to determine whatever reliefs are sought therein. See O’BAU ENGR. LTD VS. ALMASOL (NIG.) LTD (supra), UBA VS. OJO (supra) and GWAGWALADA SPECIALIST HOSPITAL VS. KWADO (supra) cited by the 1st Respondent’s learned counsel. It is my view that the signing of the accompanying affidavit in support and the counsel written address cannot save the originating summons which was not signed and authenticated by the Appellant or his counsel. The non-signing of the originating summons is a fundamental defect that cannot be regularized by an amendment or even by Rules of Court i.e. Order 51 of the trial Court Rules that the Appellant referred to. It is beyond irregularity, but fundamental going deep into the root of the jurisdictional powers of the trial Court.
The Appellant also complained that the 1st Respondent failed to raise objection to the competence of the originating summons by a notice of preliminary objection, rather he “casually raised the issue in his written address”. The law is settled beyond argument that issue of jurisdiction being fundamental to adjudication can be raised casually or orally even for the first time at the Supreme Court and it will be valid to be looked into and determined before any further steps are taken into the proceedings. See ALIOKE VS. OYE & ORS (2018) LPELR-45153 (SC), PDP VS. OKOROCHA & ORS (2012) LPELR-7822 (SC) and OJOGBEDE & ANOR VS. CAC ABUJA & ORS (2022) LPELR-57154 (CA) relied on by the 1st Respondent. On this issue alone (capturing Appellant’s issue one), this appeal is determined.
However, for the sake of completeness, I will consider the complaint of the Appellant on the trial Court’s raising the issue of affixing NBA stamp on the originating summons and resolving it without calling on the parties to address on it. I examined the record and found at page 504, (page 26 of the judgment), the learned trial Judge found thus:
“In the cause (sic) of writing this judgment and in perusing and reviewing the written submission of the 1st Defendant who argued that the Plaintiff’s originating process was neither signed by the Plaintiff nor the Plaintiff’s counsel which the Court flipped back to see the originating process filed and dated 3rd day of June, 2022 and to the Court’s greatest surprise the said process was not signed by the Plaintiff or the Plaintiff’s Counsel. The Honourable Court also flipped through the whole case file to see if the Plaintiff have (sic) filed an application to regularize their process but none was found. The unsigned document can be voidable and the Honourable Court would have graciously allowed the Plaintiff to regularize in the overall interest of justice where there was an application via Motion on Notice to regularize but in the absence of any Application before the Honourable Court to regularize the Plaintiff’s originating process and the one filed in the case file was not signed, neither was the Counsel’s stamp nor seal affixed to the process. The Court at this juncture lacks the requisite jurisdiction to continue with the instant suit of the Plaintiff/Applicant…. (Underlining supplied).
The underlined portion of the above finding is the source of the Appellant’s complaint in his issue two, that the trial Judge raised the issue of affixing NBA stamp suo motu and decided on it. With due respect, there was no issue of stamp of NBA mentioned by the learned trial Judge. He was simply stating his observation of the originating processes in the course of determining the objection of the 1st Respondent that the originating summons was not signed and his lordship found that indeed “neither was Counsel’s Stamp nor seal affixed to the process”. How does this finding and observation from the process mean raising the affixing of NBA stamp is not shown especially as the learned trial judge did not even mention “NBA”. The contention of the Appellant is therefore not supported by the record of appeal and it is discountenanced.
On the Appellant’s complaint that the trial Judge ought to have determined the merits of the suit in the event that it is found on appeal that he had jurisdiction. Well we find that he was right not to proceed with the case because of the fundamental defect of the originating summons. I am in agreement with the learned 1st Respondent’s counsel that the trial Court having found the fundamental defect on the originating process had the right to decline proceeding to the merits. This is not one of those cases where the merits of the case can be determined, because the suit was clearly not before the Court by due process of law.
Finally, all the three issues are hereby resolved against the Appellant to the effect that this appeal is totally lacking in merit. Frankly, I am surprised that the learned counsel for the Appellant could really file this kind of appeal that is clearly vexations and amounted to a total waste of precious time. I dismiss it and I affirm the judgment of the Federal High Court sitting at Kaduna delivered on the 21st October, 2022 by Hon. Justice H. R. Shagari in respect of Suit No: FHC/KD/CS/66/2022. Cost of N200,000 awarded to the 1st Respondent.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the leading judgment just delivered by my learned brother, BALKISU BELLO ALIYU, JCA and I totally endorse the reasoning and conclusions therein.
An unsigned document is a worthless piece of document incapable of conferring any legal benefits. See SLB CONSORTIUM LTD VS NNPC (2011) 9 NWLR (PT. 1252) 317.
I equally find no merit in the appeal. It is accordingly dismissed.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment just delivered by my learned brother, BALKISU BELLO ALIYU, JCA.
The opinions expressed and conclusions reached on the issues raised in this appeal accord with mine, and I give my concurrence to it.
Whereas Order 12 Rule 3 of the Federal High Court (Civil Procedure) Rules 2019 provides that “each copy [of an originating process] shall be signed by a legal practitioner or by 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”, there is no gainsaying that the Originating Summons that purportedly initiated the suit from which this appeal stems was not signed either by a legal practitioner of the plaintiff. At page 3 of the records, it is merely stated that: “This summons was taken out by SAMUEL ATUNG, SAN, MERCY UMAR, ESQ., EUNICE ABEL, ESQ., ZACHAEUS Z. ADAMU, ESQ., H. E. YARO, ESQ., Y. B. GALADIMA, ESQ., VICTORIA R. BULUS, ESQ., F. J. HABILA, ESQ., and NAFISAT MUSA, ESQ. Solicitors for the above named HON. YUSUF IBRAHIM as Plaintiff” without the signature of any of the legal practitioners listed therein.
“Signing” is a crucial component of the document-making process: it is the means by which the maker authenticates the document as having been made by him. Binding case law donates the proposition that it is not enough to merely state the name of the lawyer(s) issuing especially an originating process and/or the name of his law firm without appending a signature thereon. In SLB CONSORTIUM LIMITED v NNPC [2011] 9 NWLR (PT. 1252) 317 at 337 – 338, Rhodes-Vivour, JSC (whilst concurring with the leading judgment delivered by Onnoghen, JSC as he then was) posed the rhetoric question – What then is so important about the way counsel chooses to sign processes? – and proceeded to opine that:
“Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioners Act). All processes filed in Court are to be signed as follows:
First, the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written. Thirdly, who counsel represents.
Fourthly, name and address of Legal Firm.”
In AISIEN v AKINNULI & ANOR (2012) LPELR-9700(CA), this Court (per Ogunwumiju, JCA as he then was) relying on SLB CONSORTIUM LIMITED v NNPC supra held that:
“There is no doubt that it is settled by all the authorities cited by the learned Appellant’s counsel particularly in SLB Consortium vs. NNPC supra that a process prepared and filed in act of law by a legal practitioner must be signed by the legal practitioner and not by an unknown person in the name of a firm of legal practitioners. Such process not signed by a legal practitioner registered to practice law in Nigeria is a defective process and the vice inherent in the process is fundamental and sufficient to make the process incompetent and invalid. Any judicial activity based on such an incompetent process has to be set aside as null and void.”
The case of REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v AKINDELE (1967) ALL NLR 118 upon which the Appellant has heavily relied is unavailing. In that case, the Supreme Court held that it is sufficient signature if a legal practitioner simply writes his own name over and above the name of the law firm in which he carries on legal practice. That is to say, the name of a known legal practitioner written in long hand atop the name of his law firm constitutes sufficient signature. See also WILLIAMS v ADOLD/STAMM INT’L (NIG) LTD (2017) LPELR- 41559 (SC) 1 at 15 -17. But the scenario in the case at hand where the names of several legal practitioners are listed as having issued the summons but with no contraption or name written in long hand is markedly different, and the conclusion ought also to be different
A Court process, and in particular an originating process, that is not signed is incurable defective and lacks the required potency to activate the jurisdiction of the Court. The Court below cannot be faulted for taking cognisance of the incompetence of the originating summons and striking out the suit on that score.
I accordingly join forces with my learned brother in dismissing this appeal for being bereft of merit, and affirm the judgment of the Federal High Court holden at Kaduna (coram: Shagari, J.) in Suit No. FHC/KD/CS/66/2022 delivered on 21/10/22. I equally abide by the order on costs.
Appearances:
DR. A. A. ADEWOLE. For Appellant(s)
ABDULRAUF ATIKU, ESQ. WITH HIM, KHONI BOBAI, ESQ. FOR THE 1ST RESPONDENT.
AYOTUNDE OGUNLEYE, ESQ. WITH HIM, ADENIKE ODUNTAN, ESQ. UTIBEABASI J. ATAN, ESQ. ABUBAKAR KHALIFA MUSA, ESQ. AND AKINOLA AKIN-ADUBI, ESQ. FOR THE 2ND RESPONDENT.
S.M. DANBABA, ESQ. FOR DANBABA, ESQ. FOR 3RD RESPONDENT For Respondent(s)
