ZENITH BANK PLC v. MRS. ELIZABETH UMOM
(2013)LCN/6474(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of October, 2013
CA/C/97/2011
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC. – Appellant(s)
AND
MRS. ELIZABETH UMOM – Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF THE COURT
As a foundation, the law is now trite that the issue of jurisdiction is a threshold one and a lifeline for the conduct of any judicial proceedings by a court of law which can be raised for the first time at any stage of the proceedings and at any level in the judicial hierarchy in the country. Because of its extrinsic nature in judicial proceedings, it can be raised by any of the parties thereto or even the court suo motu for the reason that any of such proceedings conducted without the requisite jurisdiction, would be null, void and of no legal effect whatsoever no matter how otherwise very well conducted. It is therefore never premature or too late in judicial proceedings to raise the issue of the jurisdiction of a court to adjudicate over a matter in respect of the proceedings being conducted. See State v Onagoruwa (1992) 2 SCNJ, 1; Attorney-General. Lagos State v. Dosunmu (1989) 3 NWLR (111) 552; Gombe v P.W. Niq. Ltd. (1995) 7 SCNJ, 19; Mgt. Enterprises Ltd., v Otusanya (1987) 2 NWLR (55) 179. PER GARBA, J.C.A.
WHETHER OR NOT THE ISSUE OF JURISDICTION MUST BE DETERMINED FIRST BY THE COURT BEFORE TAKING FURTHER STEPS IN THE PROCEEDINGS
The law is also settled that once it arises or was raised the issue of jurisdiction should first be determined by the court before which it arises or was raised before taking further steps in the proceedings. See State v Onagoruwa (supra); Salati v Shehu (1986) 1 NWLR (15) 198; Buhari v Obasanjo (2003) 17 NWLR (S50) 423 Galadima v Tamba (2000) 11 NWLR (677) 1; Ntoe A. Ansa v. Reg. Trustees of Presbyterian Church of Nigeria (2007) LPELR, 4636. PER GARBA, J.C.A.
DEFINITION OF A WRIT OF SUMMONS
In addition, a writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that court to seek for reliefs or remedies from the court against another on any legal ground. It is one way or mode of commencing actions in the High Court that is provided for in the Rules of that court. As an initiating or originating process for the invocation of court’s jurisdiction, a writ of summons is the foundation and the process which gives life to a valid action before a High Court without which there could be no action before the court in respect of which it can properly in law, assume jurisdiction to conduct proceedings or adjudicate. A valid writ of summons is thereof one of the due processes of the law by which jurisdiction of the court can be invoked and vested in the court to adjudicate over a matter. It is thus a sine qua non to the assumption of the requisite jurisdiction by a court to entertain or adjudicate over a matter commenced by that process. Any material and fundamental defect in a writ of summons would affect its validity and thereby be rendered legally incapable of invoking the requisite jurisdiction of the court to adjudicate over it. PER GARBA, J.C.A.
DEFINITION OF A LEGAL PRACTITIONER
The Rules did not define who a legal practitioner is for their purpose but the Legal Practitioners Act, in Section 24, its interpretation section, which was cited by both learned counsel for the parties in this appeal, defines a legal practitioner as follows:- “legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purposes of any particular office or proceedings.” In addition, the term “legal practitioner” for the purposes of the Act, has been judicially defined many years ago by the Supreme Court. In the case of Atake v Afejuku (1994) 9 NWLR (368) 379; Belgore, JSC, had defined a legal practitioner thus “It is that person that has been called to the Bar as a Barrister and Solicitor of the Supreme Court of Nigeria as provided in Section 2(1), (2), (3) and (4) of the Legal Practitioners Act.” See also First Bank Plc v Maiwado (2003) FWLR (151) 2001 at 2003. By both the statutory and judicial definitions of the term “Legal Practitioner”, it is beyond viable argument that the word, “person” used therein can only mean a natural person, who had undergone the requisite legal training and satisfied the requirements for and was in fact called to the Nigeria Bar by the Body of Benchers and his name enrolled as a Barrister and solicitor and entitled to practice as such in Nigeria. An artificial person cannot present itself for the requisite legal training, fulfill the requirements for and be called to the Bar under the Legal Practitioners Act to qualify as a legal practitioner for the purposes of the Act. PER GARBA, J.C.A.
WHETHER OR NOT A LEGAL PRACTITIONER IS THE SAME AS A LAW FIRM
In dealing with the issue of whether a legal practitioner is the same as a law firm under Sections 2(1) and 24 of the Legal Practitioners’ Act, the Supreme Court in the case of Oketade v Adewunmi (2010) 8 NWLR (1195), 63 at 74 had said that:- “There is a big legal difference between the name of a law firm of legal practitioner and the name of a legal practitioner simpliciter. While the firm has some corporate existence, the name of the legal practitioner is a name of solicitor and advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities under the Nigerian jurisprudence of parties, one cannot be a substitute for the other because they are not synonyms. The issue of who is a legal practitioner is not a mere technicality but is fundamental to the judicial process as it directly affects the legal process. Where a court process is issued in the name of a firm and not in the name of a legal practitioner, it is not a mere technicality that can be brushed aside. It is fundamental to the judicial process. Such a process is incompetent, invalid, null and void.” Again,in the case of Nigerian Romanian Wood Ind. Ltd. v Akingbulugbe (2010) LPELR 9140; Ngwuta, JCA (now JSC) had restated the established position of the law that:- “A firm is not a legal practitioner within the meaning of section 24 of the Legal Practitioner Act. Any process filed in court bearing the signature of a firm is incompetent and liable to be struck out. See First Bank Plc v Maiwada (2003) FWLR (Pt. 151) 2001 at 2003; NNB Plc v Dencing Ltd . (2005) 4 NWLR (Pt. 916) 549; Okafor v Nweke (2002) 3 SC (Pt. II) 55.” See also Okeide v Adewunmi (2010) 2 – 3 SC (Pt. 1) 1160; Ogundele v Agiri (2009) 12 SC 135 at 155, (09) 12 MJSC, 126. PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Akwa Ibom State sitting at Uyo delivered on the 20/12/2010 in suit No. HU/322/2006 by which judgment was entered in favour of the Respondent who was the plaintiff. The Respondent had taken out a writ of summons on the 18/8/2006 against the Appellant whose address for service as Defendant was given as
“Zenith Bank Plc,
Corporate Headquarters,
84, Ajose Adeogun Street,
Victoria Island, Lagos”.
The writ was said to have been issued by ‘Dr. Aquaowo Essien & Co, 2 Oron Road, Uyo” which was put on the signature column with the office stamp and a signature as follows:-
“Dr. Aquaowo Essien & Co,
Ikpa lsong Chambers,
No. 2, Oron Road, Uyo.”
The claim endorsed on the writ and set out in paragraph 14 of the statement of claim dated the 10/11/2006 but filed 18/12/2006, signed and stamped by “Dr. Aquaowo Essien & Co, Ikpa Isong Chambers, No. 2, Oron Road, Uyo, Akwa Ibom State”, was for the sums of N15,000,000, “being the amount in the Valuation Report and N35m (Thirty-five Million) naira being general damages for trespass to the plaintiffs land at No. 1, Iman Street, Uyo.”
After service of the writ on the Appellant, a memorandum of appearance was filed for it by Prince G. Akitoye, Esq., on the 5/9/2006. Later on the 24/5/2007, a statement of defence was filed by the same counsel for the Appellant and the matter eventually went to trial with both parties calling evidence. In his final address at the close of evidence, learned counsel for the Appellant had raised three (3) issues which he submitted for decision by the High Court. His issue No. 3 was thus:-
“3. Whether there is a competent claim before this Honourable Court, against the defendant in view of the fact that the writ of summons and the statement of claim in this case were not filed by a legal Practitioner as contained in Section 2(1) and Section 24 of the Legal Practitioners’ Act Cap 111 of the Laws of the Federal Republic of Nigeria, 2004.”
Learned counsel for the Respondent, Dr. Aquaowo Essien, Esq.,adopted the above issue in his final address.
In the judgment appealed against, the High Court dealt with the issue briefly as follows:
‘Because this last issue touches on jurisdiction I wish to take it first. Section 2(1) of the Legal Practitioners Act Cap 111 of the Laws of the Federal Republic of Nigeria 2004 provides as follows:-
“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”.
Section 24 of the Act provides-
“A person entitled in accordance with the provisions of this Act to Practice as a Barrister or as a Barrister and Solicitor either generally or for the purpose of any particular office proceeding.”
On account of the forgoing provisions of the law it was submitted that it was Dr. Aquaowo Essien and not Dr. Aquaowo Essien & Co that can perform the duties of a legal practitioner and so the Writ of summons and statement of claim having been signed by Dr. Aquaowo Essien & co were not signed by a legal practitioner, and so they were incompetent and ought to be struck out. Learned counsel relied on the cases of EMMANUEL OKAFOR v NWAFOR ELO (2007) 29 NSCQR 467 and PRINCE MANUEL OKON EKOPE v OBONG ITA BASSEY ETUK & ORS (Suit No. HU/217/2007, of 4th June, 2009.
The instant case can be distinguished from the above two cases. In the instant case, the writ of summons was filed and then the statement of claim. The defendant filed a statement of defence, the pleadings were amended by both sides and the parties went into the case and conducted the same to the end. It was only at the address stage that this issue arose. Certainly, the learned counsel for the defendant took a step in the matter and this was in condemnation of the irregularity after becoming aware of the same.
Order 5 Rule 2(1) of the High Court Civil Procedure Rules provides that-
‘An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where ff is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.’
For the above reason therefore, the defendant is taken as having waived his right to do so or acquiesced in the error.”
The High Court then after a consideration of the other 2 issues, entered judgment in favour of the Respondent, awarding her seven million naira (N7,000,000.00) as general damages against the Defendant, to assuage her for the injuries to her property.
Being dissatisfied with the judgment, Appellant caused notice of appeal to be filed on the 22/2/2010. In line with the practice in the court, the Appellant’s brief was filed on the 17/10/2012 and the Respondent’s brief filed on the 10/01/2013, was deemed on the 14/1/2013.
The briefs were adopted by the learned counsel for the parties at the hearing of the appeal on the 19/9/2013 as their submissions in support of their respective positions in the appeal.
Two issues were distilled from the 4 grounds of appeal contained on the notice of appeal for determination by the learned counsel for the appellant which were adopted in the Respondent’s brief. They are thus:-
“i) Whether the learned trial judge was right when he held that the writ of summons and the statement of claim which were filed by a non-legal practitioner as contained in section 2(1) and section 24 of the Legal Practitioners’ Act Cap 111 of the Laws of the Federal Republic of Nigeria and view same, as mere irregularity and went ahead to assume jurisdiction to entertain the suit and determine the case.
ii) Whether the learned trial judge was right when he awarded general damage to the tune of N7 million against the defendant/appellant without any concrete evidence to justify the said damage.”
I would consider the issues in the above order.
ISSUE 1
The learned counsel for the Appellant had submitted that since both the writ of summons and the statement of claim in the case were issued and signed by Dr. Aquaowo Essien & Co, they was not signed by a legal practitioner who is entitled to practice law in Nigeria under the provisions of Sections 2(1) and 24 of the Legal Practitioners Act. That the processes were for that reason incompetent and so the High Court was deprived of the jurisdiction to entertain that case thereby. According to learned counsel, the High Court erred in law to have held that because counsel had taken steps after becoming aware of the defect, the Appellant was taken to have waived his right to challenge the processes or acquiesced in the error. It was the contention of counsel that the issue raised was a challenge to the jurisdiction of the High Court to entertain the case which could be raised at any stage and that court had the duty to determine it. The cases of Akume v Alim (2008) 16 NWLR (1114), 490 at 503; Kotoye v Saraki (1994) 7 NWLR (357) 414 at 466 and Bronik Motors v Wema Bank (1983) 1 SCNLR, 295 were cited for the submission and it was further submitted that the fact that the defendant had taken steps in the case cannot be a ground for waiver of the issue challenging the jurisdiction of the High Court.
After setting out the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, learned counsel maintained that Dr. Aquaowo Essien & Co. being artificial could not practice law in Nigeria and so the processes signed and filed by it are null and void, relying on Okafor v Nwafor Eco (2007) 29 BSCQR, 467. Finally it was said that the High Court erred in law for assuming jurisdiction and entertaining the case.
On his part, the learned counsel for the Respondent had argued that the issue is challenging the filing and signing of the processes in question and that the provisions of the Legal Practitioners Act relied on by the Appellant as well as the case Okafor v Elo (supra) do not say that only a legal practitioner can file the said processes. The Act only provide for who can practice as a Barrister or/and Solicitor in Nigeria which is different from filing of court processes. In addition, that Order 6, Rule 2(2) of the High Court Civil Procedure Rules, 2009 (to be called 2009 Rules hereafter) does not grant a legal practitioner the exclusive reserve to or duty to file court processes as a party or his legal representative can present processes for filing. Learned counsel said the facts in the case of Okafor v Elo (supra) are not the same with the case before the High Court because it dealt with the issue of signing of a legal document and not with filing it. He said in that case, the court was concerned with the question whether J.H.C. Okolo & Co which signed the legal document was not a legal practitioner, unlike the Appellant’s ground which questions the filing of the Respondent’s processes. He urged us to strike out the submissions by the Appellants’ counsel on the signing of the processes as they were not supported by any ground of the appeal. Since the court has no jurisdiction to give judgment outside the grounds of appeal, citing PDP v Okorocha (2012) 15 NWLR (1323) 205 at 230 and ANPP v Argungu (2009) 17 NWLR (1171) 44s at 448.
In the alternative, learned counsel said the doubt was resolved as to whose signature appeared on the processes in the final address that it was a typographical error and that it was counsel who signed them. He said because the issue was raised at the address stage, the only option opened to the Respondent’s counsel was to put up an explanation in his final address consequent upon which all subsequent processes were corrected to read Dr. Aquaowo Essien, Esq., and not Dr. Aquaowo Essien & Co. Relying on Okafor v Nweke (2007) 10 NWLR (1043) 521 at 534, he said only a human being has a signature and an artificial person has no signature, but only “stamp” which carries its name, identity and address. The case of P.M.B. Ltd. v NDIC (2011) 12 NWLR (1281) 253 at 256 on the definition of a signature and the relevance of the identity of the person who signed a document filed in court was cited and it was argued that the processes in question carry both the, stamp of Dr. Aquaowo Essien & Co. and the signature of Dr. Aquaowo Essien, Esq., the person. He said the court in P.M.B. Ltd. v NDIC (supra) held that non-disclosure of the identity of the person who physically signed the notice of appeal on behalf of the Appellants’ counsel was not a mere irregularity but a fundamental error. In his case, he argued, the identity of the owner of the signature was sufficiently unveiled in other processes filed at the High Court citing pages 71, 73, 89, 99 and 90 of the record of appeal and so the High Court and the Appellant were in no doubt. Learned counsel said the High Court had the jurisdiction to decide the matter on the merit and urged us to hold that the appeal fails.
I intend to decide the issue before a review of the submissions and determination of issue ll. As a foundation, the law is now trite that the issue of jurisdiction is a threshold one and a lifeline for the conduct of any judicial proceedings by a court of law which can be raised for the first time at any stage of the proceedings and at any level in the judicial hierarchy in the country. Because of its extrinsic nature in judicial proceedings, it can be raised by any of the parties thereto or even the court suo motu for the reason that any of such proceedings conducted without the requisite jurisdiction, would be null, void and of no legal effect whatsoever no matter how otherwise very well conducted. It is therefore never premature or too late in judicial proceedings to raise the issue of the jurisdiction of a court to adjudicate over a matter in respect of the proceedings being conducted. See State v Onagoruwa (1992) 2 SCNJ, 1; Attorney-General. Lagos State v. Dosunmu (1989) 3 NWLR (111) 552; Gombe v P.W. Niq. Ltd. (1995) 7 SCNJ, 19; Mgt. Enterprises Ltd., v Otusanya (1987) 2 NWLR (55) 179.
The law is also settled that once it arises or was raised the issue of jurisdiction should first be determined by the court before which it arises or was raised before taking further steps in the proceedings. See State v Onagoruwa (supra); Salati v Shehu (1986) 1 NWLR (15) 198; Buhari v Obasanjo (2003) 17 NWLR (S50) 423 Galadima v Tamba (2000) 11 NWLR (677) 1; Ntoe A. Ansa v. Reg. Trustees of Presbyterian Church of Nigeria (2007) LPELR, 4636.
In addition, a writ of summons is an initiating legal process by which the jurisdiction of a trial High Court can properly and validly be invoked by a person or party who intends to utilize the judicial process of that court to seek for reliefs or remedies from the court against another on any legal ground. It is one way or mode of commencing actions in the High Court that is provided for in the Rules of that court. As an initiating or originating process for the invocation of court’s jurisdiction, a writ of summons is the foundation and the process which gives life to a valid action before a High Court without which there could be no action before the court in respect of which it can properly in law, assume jurisdiction to conduct proceedings or adjudicate. A valid writ of summons is thereof one of the due processes of the law by which jurisdiction of the court can be invoked and vested in the court to adjudicate over a matter. It is thus a sine qua non to the assumption of the requisite jurisdiction by a court to entertain or adjudicate over a matter commenced by that process. Any material and fundamental defect in a writ of summons would affect its validity and thereby be rendered legally incapable of invoking the requisite jurisdiction of the court to adjudicate over it.
Order 6 of the High Court’s Civil Procedure, Rules, 2009, applied in the Respondents’ case, in Rule 1 dealing with “Preparing originating process”, provides thus:-
“1.Originating process shall be prepared by a Plaintiff or claimant or his legal Practitioners and shall be clearly printed on good quality while opagne paper.”
Then Rule 2(3) requires that:-
“2(3). Each copy shall be signed and stamped by the Legal Practitioner or by the Plaintiff or claimant where he sues in person and shall be certified after verification by the Registrar being a true copy of the original process filed.”
The community requirement of the above provisions is that where a claimant or Plaintiff is represented by a legal practitioner in the initiation or commencement of an action by writ of summons; an originating process, the writ of summons shall be prepared by and each copy signed and stamped by the Legal Practitioner. Put simply, the above Rules require a writ of summons shall be prepared, signed and stamped by the legal practitioner represent ting a claimant or plaintiff in a case. The twin requirements of the provisions are:-
(1) That the writ of summons be prepared by claimant/plaintiff’s legal practitioner and
(2) That the writ of summons be signed and stamped by claimant/plaintiffs legal practitioner.
The person to prepare, sign and stamp a writ of summons under the provisions is the natural person; either the Claimant or his legal practitioner as the case may be, who has and is capable of signing a signature in law, and not an artificial person who has no signature.
These are conditions precedent to the issue of a valid writ of summons by the Registrar of the court as provided in Rule 2(1) which provides thus:-
“2(1). The Registrar shall sign and stamp every originating process where upon it shall be deemed to be issued.”
The preparation, signing and stamping of a writ of summons by a legal practitioner representing a claimant/plaintiff, are fundamental and crucial for the existence and issue of a valid writ of summons that is capable of properly invoking the jurisdiction of the High Court under the above Rules. It is only when the legal practitioner has duly and fully complied with the provisions of the Rules 1 and 2(3) that he can present a writ of summons for filing to the Registrar who would then issue it as provided by Rule 2(1) above.
Now, in the case of the writ of summons taken out by the Respondent, who was represented by a legal practitioner, as shown at the beginning of this judgment, was “issued by Dr. Aquaouzo Essien & Co” on which were an “office stamp of the company and a signature. The simple question that needs to be asked and answered is whether “Dr. Aquaowo Essien & Co”. is in law, a legal practitioner who is required by the Rules of the High Court to prepare, sign and stamp an originating process such as the writ of summons. The Rules did not define who a legal practitioner is for their purpose but the Legal Practitioners Act, in Section 24, its interpretation section, which was cited by both learned counsel for the parties in this appeal, defines a legal practitioner as follows:-
“legal practitioner” means a person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purposes of any particular office or proceedings.”
In addition, the term “legal practitioner” for the purposes of the Act, has been judicially defined many years ago by the Supreme Court. In the case of Atake v Afejuku (1994) 9 NWLR (368) 379; Belgore, JSC, had defined a legal practitioner thus “It is that person that has been called to the Bar as a Barrister and Solicitor of the Supreme Court of Nigeria as provided in Section 2(1), (2), (3) and (4) of the Legal Practitioners Act.” See also First Bank Plc v Maiwado (2003) FWLR (151) 2001 at 2003.
By both the statutory and judicial definitions of the term “Legal Practitioner”, it is beyond viable argument that the word, “person” used therein can only mean a natural person, who had undergone the requisite legal training and satisfied the requirements for and was in fact called to the Nigeria Bar by the Body of Benchers and his name enrolled as a Barrister and solicitor and entitled to practice as such in Nigeria. An artificial person cannot present itself for the requisite legal training, fulfill the requirements for and be called to the Bar under the Legal Practitioners Act to qualify as a legal practitioner for the purposes of the Act.
Without doubt, “Dr. Aquaowo Essien & Co” used on the writ of summons in issue here, is not a natural human, but an artificial person registered by legal practitioners as a Law Firm by or under which they practice as Barristers and Solicitors.
In dealing with the issue of whether a legal practitioner is the same as a law firm under Sections 2(1) and 24 of the Legal Practitioners’ Act, the Supreme Court in the case of Oketade v Adewunmi (2010) 8 NWLR (1195), 63 at 74 had said that:-
“There is a big legal difference between the name of a law firm of legal practitioner and the name of a legal practitioner simpliciter. While the firm has some corporate existence, the name of the legal practitioner is a name of solicitor and advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities under the Nigerian jurisprudence of parties, one cannot be a substitute for the other because they are not synonyms. The issue of who is a legal practitioner is not a mere technicality but is fundamental to the judicial process as it directly affects the legal process. Where a court process is issued in the name of a firm and not in the name of a legal practitioner, it is not a mere technicality that can be brushed aside. It is fundamental to the judicial process. Such a process is incompetent, invalid, null and void.”
Again,in the case of Nigerian Romanian Wood Ind. Ltd. v Akingbulugbe (2010) LPELR 9140; Ngwuta, JCA (now JSC) had restated the established position of the law that:-
“A firm is not a legal practitioner within the meaning of section 24 of the Legal Practitioner Act. Any process filed in court bearing the signature of a firm is incompetent and liable to be struck out. See First Bank Plc v Maiwada (2003) FWLR (Pt. 151) 2001 at 2003; NNB Plc v Dencing Ltd . (2005) 4 NWLR (Pt. 916) 549; Okafor v Nweke (2002) 3 SC (Pt. II) 55.”
See also Okeide v Adewunmi (2010) 2 – 3 SC (Pt. 1) 1160; Ogundele v Agiri (2009) 12 SC 135 at 155, (09) 12 MJSC, 126.
In the more recent case of SLB Consortium v NNPC (2011) 3 & 4 MJSC, 145, the originating summons and the amended statement of claim were both signed by “Adewale Adesokan & Co”, after reference to the provisions of Section 24 of the Legal Practitioners Act, the Supreme Court upholding the objection that the processes were incompetent because they were not signed by a legal practitioner, held that:-
“this case is caught by one of the principles enunciated in the case of Madukolu v Nkemdilim (1962) 2 NSCC 374, on the competence of a court, which borders on jurisdiction.”
The principle as stated in the case is as follows:
“The case coming up before the court was initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” See page 163.
Rhodes-Vivour, JSC then stated at pp. 166 -7:-
“What then is so important about the way counsel chooses to sign processes. 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 represent.
Fourthly, name and address of the Legal Firm.”
Again, this court had in the case of Bikay Engineering Ltd. v Governor. Ondo State (2010) LPELR, 3877 emphasized that:-
“It is now settled law that court processes requiring the signature of a legal practitioner cannot be signed by a law firm as such law firm does not qualify as a person entitled to practice as a Barrister and Solicitor. The person must be a natural person whose name must be on the roll of the Legal Practitioners authorized by law to practice as Advocate in the Supreme Court of Nigeria. A firm of Legal Practitioners is in my humble view outside the contemplation and intendment of section 24 of the Legal Practitioners Act.’
The above restated position of the law on whether a law firm or firm of legal practitioners qualifies as a legal practitioner under the Legal Practitioners Act who can validly sign and file a court process in Nigeria has put to rest, the tenuous and verbose argument of the learned counsel for the Respondent in the attempt to save a process that is incurably bad because it contravenes the provisions of the Legal Practitioners Act. Learned counsel had argued that only a natural person has and can sign a signature and that there is a signature on the stamp of the firm of “Dr. Aquaowo Essien & Co.” on the processes which was signed by him as a legal practitioner. However, he did not say that his name by which he was enrolled at the Bar as a Barrister and Solicitor to practice law as a legal practitioner was on any of the processes as the person who signed them or whose signature was scribbled on the office stamp of the firm of “Dr. Aquaowo Essien & Co.” The writ of summons was issued by the firm as demonstrated at the beginning of this judgment, and the stamp of that firm contains an indication of a signature by no named person and so it could have been the signature of any person in the firm of “Aquaowo Essien & Co.” for instance; a secretary, clerk Or even a messenger or cleaner.
Although any document from the office of the firm for other purposes may and can properly be signed by any member of the staff of the firm authorized to do so, even though he is not a legal practitioner, by the requirements of Order 6, Rule 1 of the High Court Rules and Sections 2(1) and 24 of the Legal Practitioners Act, a writ of summons and other processes to be filed before that court shall be signed by a legal practitioner representing a Plaintiff or Claimant. Any writ of summons or other process that does not comply with the provisions by their operation, would be invalid for not being in accordance with due process of the law by which the requisite jurisdiction of the High court could properly be invoked to adjudicate over a matter. My learned brother, Iyizoba, JCA, in the case of Nigerian Romanian Wood Ind. Ltd. v Akingbuluobe (supra) had cautioned that:-
“It is however not in doubt that a law firm or business name is not and can never qualify as a legal practitioner within the meaning of section 24 of the Legal Practitioners Act and there is no reason why counsel cannot adhere to the provisions of the laws of the land especially with the plethora of decided cases on the issue. Lawyers are supposed to know the law and to comply with it. As state by Oguntade, JSC (Rtd.) in Okafor v Nweke (supra)- “the argument that it is over adherence to technicality to annul the process improperly signed and filed … seems to overlook the good sense in ensuring that our laws are strictly enforced and observed. It would have been another matter if what is in issue is a mere compliance with court rules”.”
I would only add the counsel by the Supreme Court in the case. Adewunmi v Plastex Ltd. (1986) 3 NWLR (33) 767 where it said:-
“Where counsel confronted with an inescapable sustainable legal position, the proper course for him to adopt in the discharge of his duty to his client and to uphold the dignity and integrity of his office as an officer of the court is to submit to judgment in accordance with the law.”
In the premises of the law enunciated in the cases above, the High Court was clearly wrong in law to have considered the signing of the writ of summons and even the statement of claim in the Respondent’s case by or in the name of a law firm of “Dr. Aquaowo Essien & Co” as a mere irregularity cured by its Rules in the sense that Appellant was deemed to have waived or acquiesced to it. The defect in the initiating process of the case, as demonstrated by the extant authorities of the law, is more serious as it goes to and affects the jurisdiction of that court to entertain or adjudicate over the case. Defect in the competence of a court of law to adjudicate over a matter is fatal and cannot be waived because the law is that the parties cannot confer or vest jurisdiction in a court by consent or acquiescence where it clearly lacks it under the law. See Onyeama v Oputa (1987) 6 SCNJ, 176; Onwudiwe v F.R.N. (2006) ALL FWLR (319) 774; Nyame v FRN (2010) 7 NWLR (1193) 344.
For the foregoing reasons, t resolve the issue 1 in favour of the Appellant.
Ordinarily, having found that the Respondents’ initiating writ of summons and the statement of claim were incompetent and the High Court tacks the requisite jurisdiction to adjudicate over the case, that would have ended the appeal. However, always mindful of the fact and law that being an intermediate appellate court whose decision is subject to a further appeal to the apex court of the land, I would consider the issue II in the appeal. The Supreme Court has repeatedly implored this court to consider and make pronouncement on all the issues placed before it by the parties even in appeals such as the present one where the court resolves an issue that the trial lower court lacks the requisite jurisdiction to adjudicate over the case on appeal. See Wilson v Oshin (2000) 9 NWLR (613) 442; Adah v NNSC (2004) ALL FWLR (223) 1850; Alao v Akano (2005) ALL FWLR (264) 799 at 807; Fed. Min. of Health v CSA Ltd. (2009) 9 NWLR (1145) 193 at 220 – 1. I have the duty to do so in this appeal.
ISSUE II
The submissions by the learned counsel for the Appellant on the issue are that the Respondent who bears the burden of proof of her case on the balance of probabilities, did not call sufficient evidence to prove the claim for the damages awarded by the High court. The cases of Oladipo v Moba LGA (2010) 5 NWLR (1186) 117 at 125 and Ojoh v Kanalu (2005) 12 SCNJ, 236 (05) 18 NWLR (958) 523 were cited on the burden of proof and it was argued that although the Respondent claimed for damages to her property purportedly caused by the Appellant, a structural Engineer or any other professional was not called to confirm that damages were caused by water from the Appellants’ site, and so such evidence was withheld, relying on section 167(d) of the Evidence Act 2011 and Jallco Ltd. v Owoniboys Tech. Serv. Ltd. (1995) 4m NWLR (391) 534 at 546. It was said that even though the Respondent had testified that the Appellant had used an equipment in sinking a borehole which caused cracks in her building, DW2, under cross-examination said he drilled the borehole manually and did not use any equipment. That it was the heavy equipment roller caterpillar used by the State Ministry of Works on the Etuk Street that caused the cracks and it was submitted that the evidence was not challenged. It was the further argument of counsel that the High court erred in law to have awarded N7 million as damages on the ground that the concertina wire on the fence of the Appellant extended to that of the Respondent without evidence of any injury caused. Learned counsel said the evidence of PW5, who testified as a valuer, was hearsay since he has no professional qualification as a valuer and Estate surveyor, citing J.A.M.B. v Orji (2008) NWLR (1012) 552 at 556. In further argument, he said the fact that DW2 said he went to buy PVC pipes to convey water from the Respondent’s compound on one occasion is not sufficient evidence that the Appellant damaged the Respondent’s watls without the evidence of a structural engineer. Iyere v Bendel Feeds & Flour Mills Ltd. (2008) 18 NWLR (1119) 300 at 347 and Domsalla v Barr (2009) 1 WLR, 630 were referred to. General damages were said by counsel to be implied and assessed with a degree of accuracy with the aim of putting the injured person in the same position as he would have been had he not been wronged and not to punish the defendant.
Lastly, learned counsel said that the damages awarded by the High Court was arrived at on wrong principle as there was no tangible evidence to justify it. He had earlier referred to the cases of Usuan v Abubakar (2001) 12 NWLR (728) 685 at 708 – 9 and Mutual Aids Society Ltd. v Akerele (1996) NWLR 527 on when an appellate court would interfere with the award of damages by a trial court. We were finally urged by him to allow the appeal and set aside the judgment of the High Court.
For the Respondent, it was submitted on the issue that the Respondent had given unchallenged evidence to prove that the Appellant had channeled water from its premises to flow to her compound and that her buildings were damaged as a result. The evidence of PW1 PW2 at page 100 and 121 respectively of the record of appeal as well as the evidence of DW2 under cross-examination at pages 133-4 and 139, was referred by learned counsel who said that after a visit to the locus inquo; the High Court had made physical observations as follows;
a) There were multiple cracks on the walls of the Plaintiffs property.
b) These cracks occurred both on the fence and main building of the plaintiff.
c) The fence of the Defendant and the fence of the Plaintiff stood together with no gap in between them at the backside of the two properties.
d) The concertina wire of the defendant extended across a portion of the plaintiff’s boys quarters roof.
e) The gutters led directly to the wall of the plaintiff.
According to learned counsel, the evidence of the Respondent was strong, reliable and consistent while that of the Appellant could not survive the cross examination by him and so there was enough evidence to justify the damages awarded by the High court. The case of S.P.D.C. v Farah (1995) 3 NWLR (352) 48 on the purpose of the award of damages and peter v A.I.G. (Zone 6, Calabar) FWLR (49) 1449 at 1401 (wrong citation) on when an appellate court would be justified in interfering with the award of damages by a lower court, were cited and it was argued that it was not necessary for the Respondent to call a structural engineer or other professional to confirm that the water which flowed from the Appellant’s premises caused the damages complained of by the Respondent. Learned Counsel then said the case of Jallco Ltd. v. Owoniboys Tech. Serv. Ltd. (supra) and others cited by the learned counsel for the Appellant are not applicable and ought to be discountenanced. Although he said the cases are distinguishable, he did not mention the distinguishing facts and circumstances. We were finally urged to dismiss the appeal and affirm the judgment of the lower court.
Because the pith of the complaint in the issue is one of proof, the law is now common place that in civil actions, the initial burden of proof is on the person who asserts and against whom judgment would be given if no evidence at all was adduced on either side. The burden lies on whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, to prove that those facts exist. See Sections 131, 132 and 133(1) of the Evidence Act 2011 (as amended). By the provisions of Section 134 of the Act, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings. See Okobule v Oyagbola (1990) 21 NSCC (Pt. 3) 193; Opeola v Falade (1991) 2 NWLR (173) 303; Daodu v NNPC (1998) 2 NWLR (538) 355; Itauma v Akpe-Ime (2000) 7 SC (Pt. II) 24.
In the case of Kala v Potiskum (1998) 3 NWLR (540) 1 at page 17, the Supreme Court had defined the phrase “burden of proof” as follows:-
“The phrase “burden of proof” has three meanings, namely:-
a) The persuasive burden. This is the burden of proof as a matter of law and pleadings; the burden of establishing a case whether by preponderance of evidence or beyond reasonable doubt. This is also referred to as the legal burden of proof.
b) The evidential burden. This is burden of proof in the sense of adducing evidence.
c) The burden of establishing the admissibility of evidence.
See also Nwavu v Okoye (2008) 18 NWLR (1118) 29 at 64-5; Ajide v Kelani (1985) 3 NWLR (12) 248; Olusesi v Oyelusi (1986) 3 NWLR (31) 634.
The law is also settled that in civil cases although the burden of proof is not static, the onus of initial proof of an assertion is always on the plaintiff and does not shift until he has proved his assertion or claim on the balance of probability or preponderance of evidence. It is only after the satisfactory proof as required by law that the burden of proof would then shift and continues to do so depending on the state of the facts asserted in the pleadings of the parties. Where a party fails to discharge the burden in accordance with the law, his opponent bears no burden to prove any fact and his case would be dismissed for failure of proof. See Ebong v Omo-Bare (1982) 5 SC, 25; Ebong v Eke (2002) 17 NWLR (797) 504; Iman v. Sheriff (2005) 4 NWLR (914) 80.
In the present issue, the complaint by the Appellant is that the Respondent as plaintiff in the High Court, did not discharge the burden of proving the fact that her property was damaged by the Appellant and there was no evidence to justify the award of damages made by that court. Let me restate that the onus on the Respondent was to adduce sufficient and credible evidence to satisfy the High Court that there was damage to the property in question and that it was caused by the acts of the Appellants. This is because, the award by the High Court was for general damages which are in law presumed to flow naturally from wrongful acts complained of by a party. In the case of Smithline Beecham Plc v Farmex Ltd. (2010) 1 NWLR (1175) 825 at 306, it was stated that.-
“General damages are always presumed by law to be the direct natural probable consequence of the act complained of, and the onus is on the party claiming to prove that he is entitled to them'”
See also U.A.C. Nig. Plc v Madam Irole (2002) FWLR (113) 357 at 362; Usman v Owoeye (2003) WLR (152) 38 at 51.
In its judgment, the High Court had inter alia held that the Respondent had proved that the Appellant had trespassed on her property on the ground that during the visit to the locus in quo it had observed that:-
“That the fence of the defendant and the fence of the plaintiff stood together with no gap in-between them at the backside of the two properties. It was also observed that the concertina wire of the defendant extended across a portion of the plaintiffs boys’ quarters roof.”
See page 79 of the record of appeal.
Then at page 80 of the record of appeal after defining “trespass” that court held that:-
“It smacks of callousness to assert as was asserted by DW2 that there was no need to seek for permission before putting on the concertina wire.”
In addition, that the DW2 had admitted under cross-examination that the gutters led directly to the wall of the Respondent and that he had bought PVC pipes to convey water from the Respondent’s compound. As a result, the court found that the Appellant had trespassed on the Respondent’s property causing damage which was said to have been admitted in paragraph 6 of the Appellant’s further amended statement of defence.
I have read the pleadings by the parties and the evidence of especially PW1 and PW2 for the Respondent and that of DW1 and DW2 under cross-examination both before and after the visit by the High Court to the locus in quo and I agree with the High Court that there was trespass by the Appellant on the property of the Respondent. As a reminder, trespass to land or landed property is slightest unauthorized disturbance to exclusive possession by a person who does not have a better title. It is the wrongful interference or invasion of the private and exclusive possession of landed property of another person without a lawful excuse or consent and the party in possession on can maintain an action in trespass against the whole world except a person with a better title. This is because exclusive possession which founds the tort of trespass gives a person the right to undisturbed and peaceful enjoyment of the property against all people without a better title to it. See Imona-Russel v Niger Const. Ltd. (1987) 3 NWLR (60) 298; Ogunbiyi v Adewunmi (1988) 5 NWLR (93), 215 Adegbite v Ogunfaolu (1990) 4 NWLR (146) 578; Agu v Nnadi (1999) 2 NWLR (594) 154.
The law is also that trespass is actionable per se and once proved, a plaintiff is entitled to damages even without the proof of actual injury resulting from the wrongful act/s constituting the trespass. See Okhuarobo v Aighe (2002) 9 NWLR (771) 29; Okunrimeta v Agitan (2002) FWLR (100) 1377 at 1391; Ajayi v Idaosho (2004) 3 NWLR (856) 89; Foreign Finance Ltd. L.S.D.P.C. (1991) 5 SCNJ 52 at 74. A party who proves trespass is entitled without more to general damages which as I stated earlier, is presumed by law to flow naturally and as a direct consequence of the wrongful interference with exclusive possession complained of by him in the action.
General damages in law, do not need to be pleaded and proved in an action for trespass since it is not based on any accurate basis but usually objective test of what is reasonable in the peculiar circumstances of the case as disclosed by the facts. The duty to assess the quantum of general damages is entirely that of the court guided by the facts and circumstances of a case as well as established principles of law for the award. See Osuji v Isiocha (1989) 3 NWLR (111) 623; Laja v Isiba (1979) 7 CA,1; Garba v Kur (2003) FWLR (148) 1297 – 1290. See also Nzeribe v Dav Eng. Co. Ltd. (1994) 8 NWLR (361) 124; Incar v Benson Transp. Co. Ltd. (1975) 3 SC, 117; Rockonoh Prop. Co. Ltd. v Nitel (2001) 14 NWLR (733) 468.
The Supreme Court had stated the law in the case of Acume Builders Ltd. v Kaduna State Water Board (1999) NWLR (590), 288 at 305 that:-
“General damages are those damages which the land presumes or implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s acts and its quantum need not be pleaded or proved as it is generally presumed by law. The manner in which general damages is quantified is by relying on what would be the opinion and judgment of reasonable person in the circumstances of the case.”
In addition, the learned counsel for the parties are right that the primary purpose or aim of the award of damages is to compensate the plaintiff for the wrong committed by the defendant against him. This was how the Supreme Court had put the position in the case of Ijebu Ode LGA v Balogun (1991) 1 SCNJ 1:-
“The purpose of awarding damages to the aggrieved is to restore him to the situation, as far as money can do so, he would have been if there had not been such a breach.”
Similarly in Adeniran v Alao (1992) 2 NWLR (223) 350 at 372, it was held that:-
“Damages are a form of financial reward for a plaintiff who has suffered a wrong caused or precipated by the wrongful act or conduct of a defendant.”
See Odumosu v A.C.B. (1976) 11 SC, 55; SPDC v Farah (supra).
Since the Respondent had proved trespass on her property by the Appellant, she is entitled to damages even if she did not plead and provide evidence of actual injury, suffered as a result of the wrongful acts or conduct of the Appellant which constituted the trespass.
From the submissions by the learned counsel for the Appellant on the issue, he is not complaining about the assessment of the quantum of damages awarded by the High court but that there was no evidence that justify the damages. In the premises of the law enunciated above, the Respondent was only required to prove that the Appellant had wrongfully acted or by conduct, interfered with the exclusive possession, the quiet and peaceful enjoyment of her property which acts or conduct amounted to the tort of trespass. The law does not impose any legal duty on the Respondent after proving the tort of trespass on the balance of probability or preponderance of evidence against the Appellant to in addition, prove any actual loss or damage resulting from the trespass. I have stated earlier that the evidence of PW1 and PW2 and that of DW1 and especially DW2 the person who constructed the Appellant’s branch in the process of which the acts complained of by the Respondent happened, was credible and sufficient evidence to prove trespass on the Respondent’s property. Ipso facto, the Respondent is entitled to the general damages presumed by law to have flowed naturally and directly from the unwarranted and wrongful acts of the Appellant without the need to prove that she had suffered actual injury or damages therefrom. That is the indisputable position of the law of trespass.
Because the Appellant is not complaining about the assessment or the quantum of the damages awarded by the High Court, there is no need for me to go into and consider whether the High Court had properly and rightly assessed the amount of damages in line with the established principles of law and in the peculiar circumstances of the case. However, learned counsel is right that the law is that an appellate court would not ordinarily be justified in interfering with an award of damages by a trial court simply because it would have awarded a different figure, sum or amount, if it had tried the case at first instance. See Supreme Group of Co. Ltd. v Bendel Newspapers Ltd. (2002) FWLR (93) 1929 at 1939; NIDB Ltd. v Advance Beverage Ind. Ltd. (2002) FWLR (106) 1124 at 1143; International Messengers Nig. Ltd. v Pegofor Ind. Ltd. (2005) 5 SL (Pt.1) 38. Before and to justify an interference with the award of damages by a trial court, the Appellate court must be satisfied that the trial court in the award, acted on wrong principles of law, took into account irrelevant factors or left out relevant ones or that the amount awarded was extremely low or too high as to make it an entirely erroneous estimate in the circumstances of the case. The tests is an objective one. See SPDC v Tiebo VII (1996) 4 NWLR (445) 657; Uwa Printers Nigeria Ltd. v Investment Trust Co. Ltd. (1988) 12 SC (Pt. II) 31 at43; A.C.B. Ltd. v Apugo (2001) 2 SC 215 at 22- 9; Okoko v Dakolo (2006) ALL FWLR (06) ALL FWLR (336) 201.
In the result, I find no merit in the Appellant’s submissions on the issue and no reason to disturb or interfere with the award of damages by the High Court to the Respondent for trespass. The issue is accordingly resolved against the Appellant.
In the final result, because of my finding on the Appellants’ issue 1 that the Respondent’s initiating processes; the writ of summons and the statement of claim were signed by “Dr. Aquaowo Essien & Co.” and not by a legal practitioner and so were incompetent, the order that has to be made is to allow the appeal and strike out the said processes. I do.
Parties shall bear their respective costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA.
I agree with his reasoning and final conclusions. I have nothing more to add.
ONYEKACHI A. OTISI, J.C.A.: I have read, in draft form, the Judgment just delivered by my learned Brother, Mohammed Lawal Garba JCA. The issues raised in this appeal have been completely addressed by my learned brother: and, I am in agreement with his reasoning and conclusion.
I abide by the Orders made in the lead Judgment.
Appearances
G. Akitoye, Esq.,For Appellant
AND
I.J. Ekpo, Esq.,For Respondent
