MCVEIL INVESTMENT LIMITED & ANOR v. ABIOLA OLUFUNMILAYO OFOLUE
(2016)LCN/8296(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/L/166/2012
RATIO
PRACTICE AND PROCEDURE: WHETHER THE COURT HAS JURISDICTION TO HEAR A MATTER THAT THE STATEMENT OF CLAIM IS INCOMPETENT
Recently in the case of Hamzat & Anor v. Sanni & Ors (2015) LPELR-24302(SC) where the facts are on all fours with the present appeal (signing of the statement of claim by a law firm), the Supreme Court held that where a statement of claim is incompetent, the Court is deprived of jurisdiction to hear the matter because one of the three conditions laid down in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 is lacking. The case was not initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction. A defect in the competence of a Court process is fatal and the proceeding arising there-from is a nullity, no matter how well conducted. The issue being one of jurisdiction can be raised at any point, even in the Supreme Court after judgment had been delivered by the Court of first instance. Galadima JSC in Hamzat (supra) observed:
“The respondents are challenging the competence of the two statements of claim of the appellants on which evidence of their witnesses at the trial Court was based. It is beyond any argument that that law firm of “OLAMUYIWA OBANEWA & CO” is not a legal practitioner recognized under the law. It cannot sign any process meant for filing in the Court. The two statements of claim being legal documents ought to have been signed by the named legal practitioner on behalf of the Appellants. This Court was faced with a similar situation that came up for consideration in Okafor v. Nweke (2007) 10 NWLR (Supra) 521. In that case, the offending processes, the Motion on Notice, Notice of Cross-Appeal, and a Brief of Argument all signed by “JHC OKOLO SAN & CO” were all held to be incompetent, same having not been issued by a legal practitioner known to law, and were consequently struck out. In holding these processes incompetent this Court held at page 532 thus: “I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to correct the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our example. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exist as a guide for actions needed for the practice of the law, not to otherwise which can only best result in embarrassing the profession if encouraged.” In SLB CONSORTIUM LTD v. NNPC (Supra) this Court struck out the plaintiff’s Originating Summons and the statement of claim, both having been signed by “ADEWALE ADESOKAN & CO… who was held not to be a legal practitioner known to law. It was further held that by that error the suit at the trial Court “Was not initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” In view of our clear position in OKAFOR v. NWEKE (supra) and other similar cases, I hold that the Appellant’s statements of claim on which evidence was led, were a nullity, same having been which, is not by the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation, 1990, a person entitled to practice as a Barrister and Solicitor.”
I have taken the liberty of reproducing the above observation of the Supreme Court in extenso because it deals comprehensively with the issues raised in this appeal. It is quite obvious then that the learned trial judge misconceived the law when he attempted to distinguish this case from Okafor v. Nweke. The law affects any legal process filed in Court and not just the originating process. per. CHINWE EUGENIA IYIZOBA, J.C.A.
PRACTICE AND PROCEDURE; WHETHER AN INVALID STATEMENT OF CLAIM RENDERS AN ACTION INCOMPETENT EVEN WHERE THE WRIT OF SUMMON IS INVALID
In Hamzat (Supra), on the issue whether an invalid statement of claim renders an action incompetent even where the writ of Summons is valid, Aka’ahs JSC observed:
“…..The statement of claim upon which the evidence of the plaintiff is based is not a valid document and no evidence could be considered on a defective statement of claim. The said statement and evidence are liable to be expunged from the record. It is trite that you cannot put something on nothing and expect it to stand. See Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6. No issues could have been joined of the pleadings unless the statement of claim was valid. Although the wit of summons is valid and the suit is still legally in existence, the striking out of the statement of claim as well as the statement of Defence together with the evidence adduced on the pleadings cannot extinguish the suit. Consequently this Court cannot make an order dismissing the suit. The plaintiffs/appellants are entitled to have a second bite at the cherry if they so choose.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
PRACTICE AND PROCEDURE: WHETHER REGULARIZATION AND WAIVERS CAN BE OF ANY CONSEQUENCE WHERE AN ISSUE OF COMPETENCE OR JURISDICTION OF A COURT IS FUNDAMENTAL AND CRUCIAL
Any document filed in Court by a law firm in a proceeding in Court where the law requires such document to be signed by a legal practitioner is bound to be struck out as incompetent. Regularization and waivers do not apply here as the issue is one of jurisdiction. See Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt. 1093) 498 per Ogbuagu JSC: “Where an issue of competence or jurisdiction of a Court is fundamental and crucial, the issue of waiver cannot be of any consequence.” It is also a misconception of the law for the Respondent herein to argue and suggest that the writ of summons and the improperly signed front loaded processes should all be struck out. The writ of summons having been signed by a legal practitioner is competent and saves the suit from being struck out.
This matter in my humble view has long been so settled in our jurisprudence since the decision of the Supreme Court in Okafor v. Nweke (supra) that counsel ought not to waste their precious time or that of the Courts contesting the issue. No doubt this situation reminds one of the views of Nnaemeka-Agu JSC in Okafor v. Bendel Newspapers Corp. (1991) 7 NWLR (Pt.206) 651 @ 666 C-D that: “While mistakes or blunders of counsel may occur from time to time, it is wrong to deny a litigant the right to have his case decided on the merits because of the blunders, mistake or negligence of his counsel.”
This feeling as regards the signing of documents by law firms was exhibited in one of my early judgments in the Court of appeal, Akure Division: Nigerian Romanian Wood & Anor v. Akinebuluebe (2010) LPELR-9140(CA) where the Statement of claim was signed by a law firm but the issue was not raised by any of the parties. In my lead judgment, I preferred to let the matter be after a brief comment and went on to write a full judgment on the merits of the appeal. But Ngwuta JCA (as he then was) who sat in the appeal with me in his contribution rightly gave a devastating blow to my efforts in these words:
“I read in draft the lead judgment just delivered by my learned brother Iyizoba JCA. The sound reasoning in the judgment notwithstanding I am constrained to say, with profound respect, that it is a fruitless venture. The Statement of Claim in the suit from which the appeal emanated was signed by a law firm – “Fola Akinrinsola and Company.” While a process in a suit may be signed by a party to the suit or counsel representing this party, a company or even a law firm is not competent to sign such process. It is doubtful if a firm can sign a Court process in a case in which it is a party. A firm is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners 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 @ 2003; NNB Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549; Okafor v. Nweke (2002) 3 SC (pt.11) 55. per. CHINWE EUGENIA IYIZOBA, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE STATEMENT OF CLAIM WHEN FILED SUPERCEDES THE WRIT OF SUMMONS
Furthermore it is trite law that the statement of claim when filed supercedes the writ of summons. See Udechukwu v. Okwuka (1956) 1 FSC 20; Cargill v. Bower (1878) 10 CH.D 502; Nta & Ors v. Anigbo & Anor (1972) 1 All NLR (Pt. 2) 74, (1972) 16 SC 190. per. CHINWE EUGENIA IYIZOBA, J.C.A.
APPEAL: DUTY OF AN APPELLATE COURT: WHETHER AN APPELLATE COURT ALSO HAS THE DUTY TO EXAMINE THE RECORDS OF THE COURT BELOW FROMWHICH THE APPEAL IS BROUGHT
In my humble view an appellate Court has a duty not only to examine the processes in the appeal but also to examine the records of the Court below from which the appeal is brought to ensure that both the lower Court and the Appellate Court have jurisdiction in the matter. In the instant case, the Court below had no jurisdiction to determine the case and ipso facto this Court lacks jurisdiction to hear and determine the appeal on the merit. The defect in the proceedings in the Court below is an issue of law and not fact and I see no reason to invite counsel to address the issue in the peculiar circumstances. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. MCVEIL INVESTMENT LIMITED
2. MO. OMONUSI Appellant(s)
AND
ABIOLA OLUFUNMILAYO OFOLUE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against an interlocutory Ruling of Opesanwo J. of the High Court of Lagos State in Suit No. ID/776/2006 delivered on the 30th day of January, 2012. The Respondent as Claimant at the Court below initiated an action by a writ of summons dated 20th June, 2006 against the Appellants as Defendants. The said writ of summons was accompanied (in compliance with Order 3 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 with requisite frontloaded documents, to wit, the statement of claim, list of witnesses and list of exhibits.
The writ of summons was prepared and signed by one Ogundiji Osazee Melody, Esq., a Legal Practitioner in the law firm of Messrs Enitan Associates but the Statement of claim and other front loaded documents were signed by the law firm ‘Enitan Associates’.
The Appellants entered appearance and filed their statement of defense and counter-claim. Trial subsequently commenced. After the Respondent closed her case, the Appellants filed an application challenging the competence of the statement of claim and other front
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loaded documents and praying the Court to strike out the suit on the ground that the documents were not signed by a Legal Practitioner known to law. The Respondent also filed an application seeking to amend the front-loaded documents by replacing or substituting the signatory in the aforesaid processes “Enitan Associates” with “Ogundiji Osaze Melody” who also endorsed the writ of summons.
The learned Trial Judge heard arguments in respect of the two applications together and delivered a ruling granting the application of the Respondent to amend the processes and dismissing the Appellant’s application. The Appellants being dissatisfied with the ruling of the learned trial Judge appealed against it by Notice of Appeal containing three grounds of appeal.
The 1st Appellant did not file any brief of argument. During the hearing, J. O. Wewe (Miss) holding the brief of Martins Oyigbo for the 1st Appellant indicated that they are aligning with the argument of the 2nd Appellant in his brief of argument.
?The brief of argument of the 2nd Appellant was settled by M. O. Omonusi Esq. Out of the three grounds of appeal, he distilled the following three
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issues for determination:
a. Whether the statement of claim, the list of witnesses and list of exhibits with which this suit was commenced are competent?
b. If the answer to the above is in the affirmative, whether the suit ID/776/2006 commenced with only a valid Writ of summons under the High Court of Lagos State Civil Procedure Rules of 2004 is competent?
c. If the answer to the above, is in the affirmative, whether the incompetency of the aforesaid originating processes can be cured by way of replacing the signatory of the processes through an application for amendment of the processes?
The Respondent’s brief of argument was settled by Olukayode Enitan, Omoyemi Olusunmade (Mrs.) and Olajide Kazeem all of the law firm of Enitan Associates.
They formulated a single issue for determination to wit:
”Whether by the combined provisions of Order 3 Rules 1 and 2, and Order 6 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 an originating process includes anything other than a writ of summons? If the answer is in the negative, whether the lower Court was right when it granted the respondent’s application for
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amendment on the ground that the omission/failure to indorse/state the name of the legal practitioner on the statement of claim and other accompanying documents is an irregularity?
APPELLANTS ARGUMENTS:
On issue 1, learned counsel referred to ORDER 3 Rule 2(1) of the High Court of Lagos State Civil Procedure Rules, ORDER 6 Rule 1 and Rule 2 Sub rule (2), Sections 2(1) and 24 of the Legal Practitioners Act 1990 and submitted that the combined effect of these provisions is that ‘Enitan Associates’ is a law firm and its name is not on the roll of persons called to the Nigerian bar and therefore, cannot legally sign and or file any process in the Court. Counsel submitted that the statement of claim, list of witnesses and list of exhibits signed by the law firm ‘Enitan Associates’ are incompetent, null and void. He relied on OKAFOR & ORS v. NWEKE & ANOR (2007) 3 SC Pt 11 page 57.
Counsel further submitted that the trial Judge erred in interpreting the relevant laws to confine an originating process to the writ of summons only. He opined that it covers also the statement of claim, list of witnesses and exhibits front loaded with the writ
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as defined in the Interpretation clauses in Order 1 of the High Court of Lagos State Civil Procedure Rules. Counsel urged the Court to strike out the incompetent processes.
On the second issue, whether the suit ID/776/2006 commenced with only a valid Writ of summons under the High Court of Lagos State Civil Procedure Rules of 2004 is competent, counsel referred to Order 3 Rule 2 titled “Mode of beginning civil proceeding” and submitted that by Sub rule (1) all civil proceeding commenced by writ of summons shall be accompanied by: Statement of Claim, List of Witnesses to be called at the trial, written statements on oath of the witnesses, copies of every document to be relied on at the trial; and Sub rule (2) “Where a claimant fails to comply with Rule 2(1) above, his originating processes shall not be accepted for filing by the registry”. Counsel further submitted that the Interpretation Clause in Order 1 Rule 3 of the High Court Civil Procedure Rules defines “originating process” as ‘any Court process by which a suit is initiated’. He contended that the literal interpretation of these provision show that a suit cannot be commenced with a writ of
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summons alone without other originating Court processes accompanying the writ. Indeed by Sub rule (2) the originating processes shall not be accepted for filing without the front-loaded processes. Counsel submitted that if the processes signed by the law firm are struck out for being incompetent, the suit itself will be incompetent as the writ of summons alone cannot sustain the proceeding. He urged us to strike out the entire suit.
On the third issue, whether the claimant can amend her incompetent statement of claim and other processes with which this suit was commenced, counsel submitted relying on Mobil Producing Nig. Unltd v. Lasepa 2003 (Pt.137) F.W.L.R. Pg. 1035; Vodokanal Project (Nig) Ltd v. Oladele (Pt.239) 2004 F.W.L.R. Pg. 887 Paragraph 6 & 7; NDIKA & ORS v. CHIEJINA (2002) FWLR 9 (PT.117) 1178 @ 1193 CA; Akintunde v. Dr. Ojo (2002) FWLR (PT.99) 118 @ 1173 CA; MKPAT ENIN LG v. PIKK (NIG) LTD 2004 ALL FWLR PT 236 @ 303-5: City engineering HD v. NAA 2001 FWLR at page 505 that a distinction must be made between non-compliance with the rules of Court which is merely an irregularity which can be cured and non compliance with a
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statutory provision, that only legal practitioners can sign or initiate an action in a law Court. Counsel urged the Court to strike out the suit for lack of competence of the originating processes which automatically robs the Court of jurisdiction to adjudicate on it.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent in his brief submitted that the originating process for initiating this suit at the lower Court was the Writ of Summons and that the said Writ of Summons was issued and signed by one Ogundijie Osazee Melody Esq. a legal Practitioner (in the Law Firm of Enitan Associates). Counsel submitted that learned counsel for the Appellant misconceived the provisions of Order 3 and 6 of the High Court of Lagos State (Civil Procedure) Rules. He opined that both Order 3 and 6 recognize a writ of summons as a mode of initiating or commencing an action; and that the said Orders do not recognize a statement of claim, list of witnesses or list of documents as a mode of commencing or initiating a civil suit. In other words, the originating process contemplated by the provisions of Order 3 and 6 is “a writ of summons”. He argued that this view is
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further supported by Order 6 Rule 2 of the Lagos Rule which requires the Registrar of the Court to seal every originating process whereupon it shall be deemed to be issued. Counsel argued that the writ of summons was the only document sealed in the registry of the Court below. He further argued that the statement of claim, list of witnesses and list of documents were not sealed because they are not originating processes within the contemplation of Order 6 Rule 2. Counsel submitted that as the originating process is the writ of summons and is competent, the lower Court had the requisite jurisdiction to entertain the matter. He submitted that the failure to indorse the name of the legal Practitioner on the statement of claim and other accompanying documents based on the peculiar facts and circumstances of this case amounts to a mere irregularity which is curable through an amendment.
Learned counsel submitted that this case is distinguishable from the case of Okafor v. Nweke (supra) and urged us to so hold. He finally urged the Court to resolve the sole issue formulated by Respondent in their favour.
RESOLUTION:
The issue in this appeal has
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long been settled in a plethora of authorities in both this Court and the apex Court. Recently in the case of Hamzat & Anor v. Sanni & Ors (2015) LPELR-24302(SC) where the facts are on all fours with the present appeal (signing of the statement of claim by a law firm), the Supreme Court held that where a statement of claim is incompetent, the Court is deprived of jurisdiction to hear the matter because one of the three conditions laid down in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 is lacking. The case was not initiated by due process of law and upon fulfillment of all conditions precedent to the exercise of jurisdiction.
A defect in the competence of a Court process is fatal and the proceeding arising there-from is a nullity, no matter how well conducted. The issue being one of jurisdiction can be raised at any point, even in the Supreme Court after judgment had been delivered by the Court of first instance.
Galadima JSC in Hamzat (supra) observed:
“The respondents are challenging the competence of the two statements of claim of the appellants on which evidence of their witnesses at the trial Court was based. It is beyond any argument that that
9
law firm of “OLAMUYIWA OBANEWA & CO” is not a legal practitioner recognized under the law. It cannot sign any process meant for filing in the Court. The two statements of claim being legal documents ought to have been signed by the named legal practitioner on behalf of the Appellants. This Court was faced with a similar situation that came up for consideration in Okafor v. Nweke (2007) 10 NWLR (Supra) 521. In that case, the offending processes, the Motion on Notice, Notice of Cross-Appeal, and a Brief of Argument all signed by “JHC OKOLO SAN & CO” were all held to be incompetent, same having not been issued by a legal practitioner known to law, and were consequently struck out. In holding these processes incompetent this Court held at page 532 thus: “I have taken into consideration the issue of substantial justice which is balanced on the other side of the scale of justice with the need to correct the current embarrassing trend in legal practice where authentication or franking of legal documents, particularly processes for filing in the Courts have not been receiving the serious attention they deserve from some legal practitioners. Legal practice is a
10
very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our example. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country. The law exist as a guide for actions needed for the practice of the law, not to otherwise which can only best result in embarrassing the profession if encouraged.” In SLB CONSORTIUM LTD v. NNPC (Supra) this Court struck out the plaintiff’s Originating Summons and the statement of claim, both having been signed by “ADEWALE ADESOKAN & CO… who was held not to be a legal practitioner known to law. It was further held that by that error the suit at the trial Court “Was not initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.” In view of our clear position in OKAFOR v. NWEKE (supra) and other similar cases, I hold that the Appellant’s statements of claim on which evidence was led, were a nullity, same having been which, is not by the provisions of Sections 2 (1) and 24 of the Legal
11
Practitioners Act, Cap 207 Laws of the Federation, 1990, a person entitled to practice as a Barrister and Solicitor.”
I have taken the liberty of reproducing the above observation of the Supreme Court in extenso because it deals comprehensively with the issues raised in this appeal. It is quite obvious then that the learned trial judge misconceived the law when he attempted to distinguish this case from Okafor v. Nweke. The law affects any legal process filed in Court and not just the originating process.
If the originating process such as the writ of summons is properly signed as happened in the instant case, it saves the suit from being thrown out but all other processes signed by the law firm must be struck out and the litigant, if he desires must file fresh processes in accordance with the law. Amendment of the process as ordered by the trial judge in this appeal is out of the question. The process is void, ab initio and cannot be amended.
In Hamzat (Supra), on the issue whether an invalid statement of claim renders an action incompetent even where the writ of Summons is valid, Aka’ahs JSC observed:
“…..The statement of claim upon which the
12
evidence of the plaintiff is based is not a valid document and no evidence could be considered on a defective statement of claim. The said statement and evidence are liable to be expunged from the record. It is trite that you cannot put something on nothing and expect it to stand. See Skenconsult (Nig) Ltd v. Ukey (1981) 1 SC 6. No issues could have been joined of the pleadings unless the statement of claim was valid. Although the wit of summons is valid and the suit is still legally in existence, the striking out of the statement of claim as well as the statement of Defence together with the evidence adduced on the pleadings cannot extinguish the suit. Consequently this Court cannot make an order dismissing the suit. The plaintiffs/appellants are entitled to have a second bite at the cherry if they so choose.”
All the factors taken into consideration by the learned trial judge in the attempt to save and regularize the front loaded processes filed along with the writ of summons are in the circumstances non sequitur. The relevant laws that require franking of processes by a legal practitioner is not confined to originating processes. It applies to all
13
processes for filing in Court proceedings including motions. Any document filed in Court by a law firm in a proceeding in Court where the law requires such document to be signed by a legal practitioner is bound to be struck out as incompetent. Regularization and waivers do not apply here as the issue is one of jurisdiction. See Nigercare Dev. Co. Ltd v. A.S.W.B (2008) 9 NWLR (Pt. 1093) 498 per Ogbuagu JSC: “Where an issue of competence or jurisdiction of a Court is fundamental and crucial, the issue of waiver cannot be of any consequence.” It is also a misconception of the law for the Respondent herein to argue and suggest that the writ of summons and the improperly signed front loaded processes should all be struck out. The writ of summons having been signed by a legal practitioner is competent and saves the suit from being struck out.
This matter in my humble view has long been so settled in our jurisprudence since the decision of the Supreme Court in Okafor v. Nweke (supra) that counsel ought not to waste their precious time or that of the Courts contesting the issue. No doubt this situation reminds one of the views of Nnaemeka-Agu JSC in Okafor v.
14
Bendel Newspapers Corp. (1991) 7 NWLR (Pt.206) 651 @ 666 C-D that:
“While mistakes or blunders of counsel may occur from time to time, it is wrong to deny a litigant the right to have his case decided on the merits because of the blunders, mistake or negligence of his counsel.”
This feeling as regards the signing of documents by law firms was exhibited in one of my early judgments in the Court of appeal, Akure Division: Nigerian Romanian Wood & Anor v. Akinebuluebe (2010) LPELR-9140(CA) where the Statement of claim was signed by a law firm but the issue was not raised by any of the parties. In my lead judgment, I preferred to let the matter be after a brief comment and went on to write a full judgment on the merits of the appeal. But Ngwuta JCA (as he then was) who sat in the appeal with me in his contribution rightly gave a devastating blow to my efforts in these words:
“I read in draft the lead judgment just delivered by my learned brother Iyizoba JCA. The sound reasoning in the judgment notwithstanding I am constrained to say, with profound respect, that it is a fruitless venture. The Statement of Claim in the suit from which the appeal
15
emanated was signed by a law firm – “Fola Akinrinsola and Company.” While a process in a suit may be signed by a party to the suit or counsel representing this party, a company or even a law firm is not competent to sign such process. It is doubtful if a firm can sign a Court process in a case in which it is a party. A firm is not a legal practitioner within the meaning of Section 24 of the Legal Practitioners 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 @ 2003; NNB Plc v. Denclag Ltd (2005) 4 NWLR (Pt.916) 549; Okafor v. Nweke (2002) 3 SC (pt.11) 55. It follows that all processes subsequent to and based on the statement of claim including the purported amended statement of claim are incompetent. Furthermore it is trite law that the statement of claim when filed supercedes the writ of summons. See Udechukwu v. Okwuka (1956) 1 FSC 20; Cargill v. Bower (1878) 10 CH.D 502; Nta & Ors v. Anigbo & Anor (1972) 1 All NLR (Pt. 2) 74, (1972) 16 SC 190. In my humble view an appellate Court has a duty not only to examine the processes in the
16
appeal but also to examine the records of the Court below from which the appeal is brought to ensure that both the lower Court and the Appellate Court have jurisdiction in the matter. In the instant case, the Court below had no jurisdiction to determine the case and ipso facto this Court lacks jurisdiction to hear and determine the appeal on the merit. The defect in the proceedings in the Court below is an issue of law and not fact and I see no reason to invite counsel to address the issue in the peculiar circumstances.
The proceeding in the Court below is a nullity and this Court has no jurisdiction to determine the merit of the appeal based on the void proceedings…”
The slip on the part of counsel in allowing a process to be signed by his law firm is a serious one and a matter of law so that even where none of the parties raised it in the case, the Court once aware of it should take it up and have the suit or the particular process struck out. This appeal consequently has merit. It is allowed. The Ruling of the lower Court is hereby set aside. In its place, the statement of claim dated 20/6/06 at page 5 of the Record, the list of witness at Page
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9 of the Record and the list of exhibits at Page 10 of the Record all signed by the law firm “ENITAN ASSOCIATES” are hereby struck out as incompetent. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba, JCA, and I agree with her opinion and the conclusions arrived at that this appeal consequently has merit. And it is also allowed by me.
I abide by all the consequential orders made that the statement of claim dated 20/6/06 at page 5 of the Record, the list of witness at Page 9 of the Record and the list of exhibits at Page 10 of the Record all signed by the law firm ‘ENITAN ASSOCCIATES” are also hereby struck out as incompetent. I too make no order as to costs.
TIJJANI ABUBAKAR, J.C.A.: I read before now, the lead Judgment prepared and rendered by my learned brother Chinwe Eugenia Iyizoba, JCA, I am in complete agreement with the reasoning and conclusion. I adopt the Judgment as mine. I have nothing to add.
I also abide by all consequential orders including order on costs.
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Appearances:
J.O. Wewe (Miss) holding the brief of Martins Oyigbo for 1st Appellant
M. O. Omonusi, Esq. for 2nd AppellantFor Appellant(s)
Olukayode Enitan, Esq. with him, O. Olusunmade (Mrs) and O. Dina, Esq.For Respondent(s)
Appearances
J.O. Wewe (Miss) holding the brief of Martins Oyigbo for 1st Appellant
M. O. Omonusi, Esq. for 2nd AppellantFor Appellant
AND
Olukayode Enitan, Esq. with him, O. Olusunmade (Mrs) and O. Dina, Esq.For Respondent
