KATOL INVESTMENT LIMTED v. UACN PROPERTY DEVELOPMENT COMPANY PLC (2014)

KATOL INVESTMENT LIMTED v. UACN PROPERTY DEVELOPMENT COMPANY PLC

(2014)LCN/7175(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of May, 2014

CA/L/387/2010

RATIO

WHETHER AN ORIGINATING PROCESS SIGNED BY A LAW FIRM IS COMPETENT

DETERMINING WHEN A COURT HAS JURISDICTION

It has been stated by this Court and the Supreme Court in a plethora of cases that the issue of jurisdiction is very fundamental and central to adjudication. Jurisdiction is a crucial question of competence and a defect in it, snuffs out the competence of the Court. Where a Court lacks jurisdiction over a matter, it lacks the ‘vires’ to entertain and deliberate on it. Jurisdiction is therefore the lifeline of every judicial proceeding before any court or tribunal without which the entire proceedings, trial, findings, orders and pronouncement are rendered futile, invalid, null and void ab initio however brilliantly they may have been conducted. See the cases of Ajuwa v. SPDC (Nig) Ltd (2008) 10 NWLR (Pt. 1094) 64 at 96 paras B-G; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224.

(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Where all the three conditions listed above for the exercise of jurisdiction co-exist, a Court is said to have competence and jurisdiction. However any defect in competence would be fatal as the proceedings are a nullity however well conducted and decided. See Chevron (Nig.) Ltd. v Warri North L.G.C. (2003) 5 NWLR (Pt. 812) p. 28 at 44 paras B-E. Adigun v. Osaka (2003) 5 NWLR (Pt. 812) p. 95 at 131 paras. B-E, 134 paras B-C. Per CHINWE EUGENIA IYIZOBA, J.C.A.

Justice

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

KATOL INVESTMENT LIMTED – Appellant(s)

AND

UACN PROPERTY DEVELOPMENT COMPANY PLC – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Okuwobi J. of the High Court of Lagos State in Suit No. ID/2576/2000 delivered on the 8th day of May, 2009 granting the Respondent inter alia an Order of possession of the property located at No 1. Sobo Arobiodu Street, G.R.A. Ikeja, Lagos.

By a Writ of Summons filed on the 18th day of October, 2000 and a Further Amended Statement of Claim dated 15th of December, 2003, the Respondent claimed possession of the said property, arrears of rent and mesne profits.

The Respondent’s case is that the Appellant formerly occupied the property, the subject matter of this appeal by virtue of 3 year lease granted by the UAC of Nigeria Plc which was later extended to 10 years. The Respondent averred in its pleadings that it was the successor to the assets and liabilities of the investment properties of UAC of Nigeria Plc pursuant to a Scheme of Arrangement sanctioned by an Order of the Federal High Court dated 16th February 1998 and also a subsidiary of UACN. The Respondent further averred that the Appellant immediately developed the habit of neglecting to pay its rent after the expiration of the initial payment made by it and went ahead to sub let the property to different companies without paying the rent accruable to the Respondent. The Respondent averred that its predecessor in title, UAC of Nigeria had also instituted Suit No. ID/1268/98: UAC of Nig Plc v. Katol Invest Ltd against the Appellant for arrears of rent wherein Adeyenka J entered judgment for the Respondent. It was as a result of the Appellant’s persistent refusal to pay its rent that the Respondent authorized its Solicitors to issue necessary notices for the recovery of the premises from the Appellant.

In its Further Amended Statement of Defence and Counter-Claim dated 15th June 2006, the Appellant contended that shortly after the agreement between it and the Respondent, the Appellant realized that the property was deserving of reconstruction due to its dilapidated state and that the Appellant subsequently sought and obtained the approval of UAC of Nigeria and constructed a large storey building on the premises at the cost of N120 million. The case of the Appellant therefore is that UAC of Nigeria permitted it to expend money for the renovation of the property and rather than refund the sum or convert same to rent, the Respondent filed action to recover possession from the Appellant.

At the conclusion of the trial, the Learned Trial Judge entered judgment in favour of the Respondent in the following terms:-
i. Order of possession of the premises at No. 1 Sobo Arobiodu Street, GRA, Ikeja to the Claimant, which possession shall be yielded 60 days from the day of Judgment.
ii. Judgment in the sum of N1,620, 000.00 (One Million, Six Hundred and Twenty Thousand Naira) being arrears of rent owed to the Claimant by the Defendant from 1st June, 1998 to 31st May, 2000 with post judgment interest at the rate of 6% per annum until liquidation.
iii. Mesne profit at the rate of N810, 000.00 from 1st June, 2000 until possession is given up.
iv. Dismissal of the Counter Claim for want of proof.
v. Dismissal of the alternative claim in the Counter Claim.

The Appellant, dissatisfied with the Judgment, appealed to this Court on 7 grounds. Learned Counsel for the Appellant in his brief of argument distilled 4 Issues for Determination from the 7 grounds of appeal as follows:
i. Having regard to the provisions of Sections 22, 26 of the Land Use Act and the effect of the transfer of properties done pursuant to Section 591 of Companies and Allied Matters Act, whether the Lower Court was not wrong in holding that the Respondent has the standing to initiate this suit.
ii. Considering the fact that the lower court held that the Respondent derived a valid title from the Scheme of Arrangement between the Respondent and UAC Nigeria Plc sometime in 1998 and the issuance and service of the Notices to quit and of Owner’s Intention to recover possession in 1999 and 2000 respectively by UAC Nigeria Plc, whether the Lower Court was not wrong in holding that the statutory notices were validly issued and subsequently making an order of possession in favour of the Respondent.
iii. Having regard to the peculiar circumstances of this case, whether the Lower Court was not wrong to have made an order of mesne profit in favour of the Respondent.
iv. Considering the Appellant’s counter Claim and the evidence before the lower court whether or not the Lower Court was not wrong in dismissing the Counter Claim.

The Respondent on its own part identified the following 5 issues:-
i. Whether the Lower Court had jurisdiction to entertain the suit of the Respondent.
ii. Whether the Respondent has the necessary locus to institute this action at the Lower Court having regard to the provisions of Sections 22 and 26 of the Land Use Act and the effect of Section 591 of Companies and Allied Matters Act.
iii. Whether the Lower Court was right in holding that the Respondent is entitled to possession of the property the subject matter of this suit, having regard to the evidence before the court.
iv. Whether the Lower Court was right in granting the Respondent’s reliefs for arrears of rent and mesne profit against the Appellant.
v. Whether the Lower Court was wrong or right in dismissing the Counter Claim of the Appellant having regard to the pleadings and evidence before the Court.

Learned counsel for the Appellant in his brief raised and argued the issue of jurisdiction as a preliminary point before going on to his arguments on the issues he formulated. This is a correct approach. Jurisdiction is a threshold issue. If there is no jurisdiction, then there is no basis for any further action. The issue of the jurisdiction of the lower court to entertain the suit will consequently be taken first before going on to the other issues, if necessary.

Whether the Lower Court had jurisdiction to entertain the suit of the Respondent
Learned Counsel for the Appellant in his brief drew the attention of the Court to the originating processes filed by the Respondent before the lower court. Counsel submitted that the Further Amended Statement of Claim at pages 77-79 of the Record and the Further Amended Reply and Defence to Counter-claim at pages 323 – 324 of the Record were signed by Wuyi Ogunyika & Co, a law firm contrary to the requirements of Order 6 Rule (2) (3) of the High Court of Lagos State (Civil Procedure) Rules 2004. Counsel submitted that since the said processes did not comply, with the condition precedent to the commencement of an action, the Lower Court had no jurisdiction to entertain the suit and the judgment of the Lower Court is consequently a nullity. Learned Counsel relied on the following cases: Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 270 @ 279; Sule v. Nig. Cotton Board (1985) 2 NWLR (Pt. 5) 17, Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 119) 552; Awoyemi v. Fasuan (2006) 13 NWLR (Pt. 996) 86 at 107 para A-B. Learned counsel further submitted relying on Okafor v. Nweke (2007) 10 NWLR (Pt. 1042) 521 and N.N.B. Plc. v. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549 at 502-3? Para F-B that only a registered Legal Practitioner can sign processes before a Court of law pursuant to Section 24 Legal Practitioners Act 2004. Learned counsel urged us to hold that the processes signed by the law firm of Wuyi Ogunyika & Co are incompetent and liable to be struck out.

Learned Counsel for the Respondent in reply submitted that the Appellant’s contention that the Statement of Claim is an Originating Process for initiating civil proceedings in a High Court is misconceived. Counsel referred us to the provision of Order 1 Rule 2 (3) of the High Court of Lagos (Civil Procedure) Rules 2004 which defines Originating Process as “any court process by which a suit is initiated”. Counsel argued that the challenge of the jurisdiction of the Lower Court based on the alleged irregularity in the Further Amended Statement of Claim of the Respondent is misconceived as the court processes used in initiating a suit in the High Court are Writ of Summons, Originating Summons, Petitions and Originating Motions. Learned Counsel submitted that the Writ of Summons is the Originating Process and initiating process which confers the High Court with jurisdiction to entertain civil proceedings once its filing complies with due process of the law and not the accompanying processes like the Statement of Claim which Order 3 Rule 2 (1) of the High Court of Logos (Civil Procedure) Rules 2004 states are to accompany the Writ of Summons. Counsel submitted further that the Writ of Summons dated the 16th day of October, 2000 and filed on the 18th day of October 2000 was duly signed by Adewale Adesokan, Esq., a Legal Practitioner of Wuyi Ogunyinka & Co. Counsel submitted that the Respondent’s Further Amended Statement of Claim is part and parcel of a competent civil proceeding initiated by Adewale Adesokun Esq., a Legal Practitioner known to law and cannot be isolated from the proceeding. Counsel also pointed out that the Respondent’s Writ of Summons was issued under the High Court of Lagos (Civil Procedure) Rules 1994, which by Order 6 Rule 7 allowed a Writ of Summons to be filed separately from other processes. Counsel submitted that the case of Okafor v. Nweke (Supra) referred to by the Appellant is distinguishable from the facts of the present case and the reasons for the decision of the Supreme Court in that case are not applicable to the instant case. The issue before the court in that case was whether the Notice of Motion, the Notice of Appeal and the brief of Argument were competent having been issued by a Law Firm and not a Legal Practitioner whose name is on the roll. Counsel submitted that the Supreme Court rendered the said processes incompetent because the Originating Processes namely the Notice of Motion and the Notice of Cross Appeal were not issued by a Legal Practitioner but in the name of a Law Firm. Counsel submitted that once the Claimant’s Originating Process has complied with the law by being duly signed by a Legal Practitioner, the Legal Practitioner’s inadvertence of omitting to sign a process accompanying the Writ of Summons does not erode the jurisdiction of the court or affect the merit of the court’s decision to warrant setting aside the judgment but will only amount to a procedural irregularity. It is Counsel’s position that the Appellant has waived its right to complain of the said irregularity having taken part in the proceedings for ten years without complaining of the said non compliance. On this point, Counsel referred the court to Kossen (Nig) Lit v. Savannah Bank (Nig) Ltd 1995 9 NWLR (Pt. 420) 439 at 451-452 where the Supreme Court held that:
“It is trite that non compliance with the rules of court will not necessarily result in the judgment given in the case being set aside. It is also clear that once a step is taken in the proceedings by a party complaining about a breach of the rules of court he is said to have waived the breach…”

Counsel further submitted that the Appellant’s argument that the judgment should be declared a nullity based on the failure of a Legal Practitioner to sign the Statement of Claim after a protracted litigation battle of over ten years is an invitation to the court to fall into the trap of technicality. On this Counsel cited the case of INEC v. Oshiomhole 2009 4 NWLR (Pt. 1132) 607 at 637 paras A-C and urged the court to dismiss the challenge on jurisdiction.

In his reply brief, learned counsel for the Appellant submitted that the Appellant’s challenge to the jurisdiction of the Lower Court was informed by the fact that there were series of amendments to the Statement of Claim and that the position of the Law is that a Statement of Claim supersedes the Writ of Summons. Counsel however referred the Court to pages 2 and 3 of the Record, particularly page 3 where the writ of summons was signed by Wuyi Ogunyika & Co. contrary to Respondent’s submission that the Writ was properly signed and issued.

I have considered carefully the submissions of counsel on the issue of the jurisdiction of the trial court to entertain the suit in the first instance.
It has been stated by this Court and the Supreme Court in a plethora of cases that the issue of jurisdiction is very fundamental and central to adjudication. Jurisdiction is a crucial question of competence and a defect in it, snuffs out the competence of the Court. Where a Court lacks jurisdiction over a matter, it lacks the ‘vires’ to entertain and deliberate on it. Jurisdiction is therefore the lifeline of every judicial proceeding before any court or tribunal without which the entire proceedings, trial, findings, orders and pronouncement are rendered futile, invalid, null and void ab initio however brilliantly they may have been conducted. See the cases of Ajuwa v. SPDC (Nig) Ltd (2008) 10 NWLR (Pt. 1094) 64 at 96 paras B-G; Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224.

To determine whether a Court has jurisdiction the Courts have always applied the golden rule as encapsulated in the time-honoured dictum in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to the effect that a court is competent when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Where all the three conditions listed above for the exercise of jurisdiction co-exist, a Court is said to have competence and jurisdiction. However any defect in competence would be fatal as the proceedings are a nullity however well conducted and decided. See Chevron (Nig.) Ltd. v Warri North L.G.C. (2003) 5 NWLR (Pt. 812) p. 28 at 44 paras B-E. Adigun v. Osaka (2003) 5 NWLR (Pt. 812) p. 95 at 131 paras. B-E, 134 paras B-C.

It is trite law now and no longer a matter of dispute that any originating process signed by a law firm is incompetent. This is because Section 24 of the Legal Practitioners Act defines a legal practitioner as “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.” By Section 2(1) of the Legal Practitioners Act a person shall be entitled to practice as a barrister and solicitor, if and only if his name is on the roll. Thus, a law firm whether an incorporated entity or not is not a legal practitioner within the contemplation of the Legal Practitioners Act and is incompetent to sign legal processes. Okafor v. Nweke (2007) 10 NWLR (Pt. 1042) 521 and N.N.B. Plc. v Denclag Ltd (2005) 4 NWLR (Pt. 916) 549 @ 502-3 F-B; Oketade v. Adewunmi (2010) 2-3 SC (Pt. 1) 140; Ogundele v. Agiri (2009) 12 SC (Pt. 1) 135 @ 165; Bikay Engineering Ltd v. Governor Ondo State (2010) LPELR-3877 (CA).
Further, Order 6 Rule (2 (3) of the High Court of Lagos State (Civil Procedure) Rules 2004 makes it mandatory for every Originating Process to be signed by a Legal Practitioner or the Claimant
The said Order 6 Rule 2 (3) states as follows:
1. “Originating Process shall be prepared by a Claimant or his Legal Practitioner, and shall be clearly printed on opaque A4 paper of good quality;
2…………………
3. Each copy shall be signed by the Legal Practitioner or by a Claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed”.

In the instant case the contention of Learned Counsel for the Appellant is that the Originating Processes not having complied with Order 6 Rule (2) (3) of the High Court of Lagos State (Civil Procedure) Rules; 2004 failed to comply with a condition precedent to the commencement of the action, therefore the Lower Court is divested of jurisdiction to entertain the suit and as a corollary; the judgment of the Lower Court is rendered a nullity. In the case of Okafor v. Nweke (Supra) cited by both parties in their briefs, the Applicants filed a motion on notice for extension of time within which to apply for leave to cross appeal, leave to cross appeal against the judgment of the Court of Appeal and extension of time within which to file the Appellant’s notice of cross appeal. The motion, supporting affidavit and brief of argument in support were all signed by JHC Okolo SAN & Co. The Respondents filed a Counter Affidavit in opposition to the application raising the issue of competence of the Applicant’s motion, notice of cross appeal and applicant’s brief of argument in support. The Supreme Court in a considered judgment held inter alia:
“Since both Counsel agree that JHC Okolo is not a legal practitioner recognized by law, it follows that the said JHC Okolo SAN & Co. cannot legally sign and/or file any process in the courts and as such the Motion on notice filed on 19th December, 2005, notice of cross appeal and applicant’s brief of argument in support of the said motion all signed by the firm known and called JHC Okolo SAN & Co. are incompetent in law particularly as the said firm of JHC Okolo SAN & Co. is not a registered Legal Practitioner. Page 531-532 paras H-A.

The Apex Court held further that:
“Legal Practitioners have formed the habit of signing court processes in their partnership or firm’s name without indicating the name of the practitioner signing the process. Such documents are incompetent and are liable to be struck out. In the instant case, the processes filed in the application, particularly the motion on notice filed on 19/5/05, the proposed notice of cross appeal and the applicant’s brief of argument in support of the motion were incompetent in that they were not issued by a legal practitioner known to law. P. 533 paras B, G-H.

I have carefully examined the Writ of Summons and all the processes accompanying the said Writ of Summons to wit, the Further Amended Statement of Claim, the Further Amended Reply and Defence to Counter-claim. They were all signed by the firm of Wuyi Ogunyika & Co and not by a Legal Practitioner. Learned Counsel for the Respondent in his brief had submitted that once the Claimant’s Originating Process has complied with the law by being duly signed by a Legal Practitioner, the Legal Practitioner’s inadvertence of omitting to sign a process accompanying the Writ of Summons does not erode the jurisdiction of the court or affect the merit of the court’s decision to warrant setting aside the judgment but will only amount to a procedural irregularity. Counsel submitted that the Supreme Court rendered the processes in Okafor v Nweke (supra) incompetent because the Originating Processes namely the Notice of Motion and the Notice of Cross Appeal were not issued by a Legal Practitioner but in the name of a Law Firm. Though this line of argument has been rendered futile because the Writ of Summons was also signed by the Law Firm of Wuyi Ogunyika & Co, I wish to observe that the Supreme Court did not render the Processes in Okafor v. Nweke (Supra) incompetent only because the Originating Processes were signed by a Law Firm. The Supreme Court considered and held that “Such documents are incompetent and are liable to be struck out”, referring to all the documents concerned. That Court did not differentiate between any of the documents. It follows that any process that is not filed by a Legal Practitioner is incompetent and liable to be struck out.

I quite appreciate the reasoning in the argument of Learned Counsel for the Respondent that the Appellant waived its right to complain of the irregularity in the accompanying processes having taken part in the proceedings for ten years without complaining of the said non compliance.

There may have been merit in that line of argument if the Writ of Summons as the originating process was properly signed by a Legal Practitioner. Unfortunately this is not the case. On the authority of Okafor v. Nweke (Supra) therefore, Wuyi Ogunyika & Co. is not a legal practitioner capable of signing originating processes. The Writ of Summons, Further Amended Statement of Claim and the Further Amended Reply and Defence to Counter-claim signed by the firm of Wuyi Ogunyika & Co. are incompetent.

Clause C as enunciated in Madukolu v. Nkemdilim (Supra) to the effect that a case must come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction is lacking in the instant case. I agree with Learned Counsel for the Appellant that since the Originating Process did not comply with the condition precedent to the commencement of this action, the Lower Court had no jurisdiction to entertain the suit and as a corollary; the judgment of the Lower Court is rendered a nullity. See Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 279 where the Court stated thus:
“Where a condition precedent for the exercise of the court’s jurisdiction has not been fulfilled, such a court lack the requisite jurisdiction or competence to adjudicate in the matter or suit, and where a court lacks jurisdiction to adjudicate in a proceedings, such proceedings when conducted is or amounts to a nullity however well or beautifully conducted it might have been”.

This defect in competence is fatal. The Lower Court lacked the necessary jurisdiction to entertain this suit. In the case of Alawiye v. Ogunsanya (2012) LPELR-19661 (SC), the Supreme Court per Chukwuma-Eneh, JSC observed:
“I have to advert to the manner of wrongfully signing and issuing the said writ of summons, statement of claim and the notice of cross-appeal i.e. initiating processes by a non-cognizable Legal Practitioner of the Law Firm of “Chief Afe Babalola, SAN & Co” and to hold that they are therefore nullities and void ab initio resulting in the action itself being also a nullity all the same again as its foundation has been fatally eroded……… It is clear that the jurisdiction of the trial unquestionably has been clearly rendered unequivocally of no effect by the nullities of the initiating processes in this matter ab initio and so also its decision and the decision of the lower court on the appeal therefrom and that they (i.e. the two lower courts) each of them, if I may repeat, have no jurisdiction to entertain the matter. In short the action has not been initiated by due process of law nor have the necessary conditions to enable the two lower courts invoke their jurisdiction to deal with the matter fulfilled and consequently the action is a nullity and must be voided. And I so hold.”

The apex Court of the land has spoken! The decision is binding on all courts. I have no doubt that learned counsel for the Respondent cannot now complain seeing that the writ of summons which he thought was signed by Adewale Adesokan, Esq., was not after all signed by the legal practitioner. At page 3 of the Record, it is shown that the writ was signed by an unidentifiable signature for “Wuyi Ogunyinka & Co. as Plaintiff’s Legal Practitioners. It is unfortunate but that is where we find ourselves today. The fact that the appellant took part in the proceedings at the lower court for 10 years without raising the issue is of no moment for it touches on the jurisdiction of the court. In Alawiye v. Ogunsanya (Supra), the case had gone through the trial court, Court of Appeal and was actually at the Supreme Court when it was declared a nullity. The importance of jurisdiction as the life wire of a case is the reason why it can be raised at any stage – trial Court, Appeal Court or the Supreme Court. It can even be raised by the Court suo motu. No Court can entertain a matter when it lacks jurisdiction. That is why it is always advisable to raise the issue of jurisdiction timeously to save time and cost and to avoid a situation where after conclusion of hearing and judgment the entire proceeding is declared a nullity. See PetroJessica Enterprises Ltd & Anor v. Leventis Technical Coy Ltd (1992) 5 NWLR (Pt. 244) 675; Adegoke v. Adibi & Anor (1992) 5 NWLR (Pt. 242) 410; Gbileve & Anor v. Addingi & Anor (2014) LPELR-2214 (SC)

In the final result, the preliminary point on jurisdiction raised by the appellant is upheld. The proceedings and judgment of the trial court presided over by Okuwobi J. in the High Court of Lagos State in Suit No.ID/2576/2000 are a nullity. This issue having disposed of the matter, it is needless going into the merits of the appeal. I make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in complete agreement with the judgment prepared by my learned brother, Chinwe Eugenia lyizoba, J.C.A., which I had the benefit of reading in draft.

I wish to add, by way of emphasis, that the incurable flaw that afflicted the originating processes at the court below struck at the jurisdiction of the said Court to entertain the action. Being an issue of jurisdiction, it cannot be waived, acquiesced in, or compromised by the parties. Also, an issue of jurisdiction can be raised at any stage of the proceedings, even for the first time on appeal. See The Nigerian Army v. Samuel and Ors. (2013) 14 NWLR (pt. 1375) 466 at 483 following Oketade v. Adewunmi (2010) 8 NWLR (pt. 1195) 63, C.G.G. (Nigeria) Limited V. Ogu (2005) 8 NWLR (Pt. 927) 366 at 385 per Akintan, J.S.C., (as he was), SLB Consortium v. N. N. P.C. (2011) 9 NWLR (Pt. 1252) 317.

For the reason given above and for the incisive reasons contained in the lead judgment, I too find substance in the appeal and hereby allow it and abide by the consequential orders embodied in the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the lead judgment just delivered by my learned brother, C. E. Iyizoba J.C.A., and I agree that the preliminary point raised by the Respondent is justified and should be upheld.

The present state of the law regarding the signing of processes by a legal practitioner has been established since the case of OKAFOR VS NWEKE (2007) 10 NWLR (PT 1043) 521 and the Supreme Court restated the law in OKARIKA vs SAMUEL (2013) 7 NWLR (PT. 1352) 19 at 24 where I. T. Mohammed JSC held that:-
“It is improper where a law firm is consulted for legal services to indicate on the initiating process, that such a process is signed by the law firm. The law firm is incapable of signing a process. It is incapable of pursuing the appeal to its logical conclusion as it lacks these human qualities; it has to act through a human being. Once an initiating process be it writ of summons on notice of appeal is not signed or authenticated either by the litigating party, or the legal practitioner on his behalf, then the process is invalid and the jurisdiction of the court is ousted. The defect is taken as incurable, and the process signed in the name of the legal firm would not suffice”.
In FBN PLC VS MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 456, the Supreme Court while declining an invitation to revisit the decision in OKAFOR VS NWEKE supra re-emphasized its stance on the issue wherein it held per Fabiyi JSC as follows:-
“It is my view, that if the decision in OKAFOR VS NWEKE is revisited as urged, more confusion will be created. The decision in OKAFOR VS NWEKE is not in any respect wrong in law and I cannot surmise a real likelihood of injustice perpetrated. I cannot trace the issue to the domain of public policy. The convenience of counsel should have no preeminence over the dictate of law. The law enacted should be followed. I do not for one moment see any valid reason why the decision of the court in OKAFOR VS NWEKE should be revisited, it has come to stay and legal practitioner should reframe their minds to live by it for due accountability and responsibility on their part and for due protection of our profession…”.

In the instant case, having been revealed that the writ of summons and the statement of claim which constitute the originating processes in the suit were signed by “Wuyi Ogunyinka & Co.” It renders the processes invalid and incurable and consequently ousts the jurisdiction of the court to entertain the suit.

Accordingly, the preliminary point has merit and it is hereby upheld and the entire proceedings in the lower court including the judgment delivered on 8-5-2009 is hereby set aside for being abinitio a nullity.

I abide by the consequential orders contained in the lead judgment including that of costs.

Appearances

N. K. Oragwu Esq., with E. MajemiteFor Appellant

AND

N. Alaaya Esq., with A. AdegbolaFor Respondent