CHIEF JOHN FRANCIS UDOEBOI & ORS v. MR. MICHAEL AKPAN UDOUSUA
(2016)LCN/8469(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/C/231/2014
RATIO
INTERPRETATION: ATTITUDE OF THE COURT TOWARDS LITERAL RULE OF INTERPRETATION
Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK v. MAIWADA (2012) 51 NSCQR 155 at 172. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
COURT PROCESS: WHO CAN VALIDLY SIGN A COURT PROCESS
For a proper appreciation of the legal requirements applicable to writs of summons under the High Courts of Akwa Ibom State (Civil Procedure) Rules, 2009, it seems to me that a community reading of Orders 3 and 6 must be embarked upon. If such a community reading is done, it would become evident that under the said Rules, a writ of summons may be commenced in person by the litigant or by his legal practitioner. Where he acts through a legal practitioner, the said legal practitioner must be disclosed and he is to sign and seal such a writ of summons.
It is not contested that the writ of summons here on pages 1-3 of the record of appeal as well as the amended writ of summons on pages 44-46 of the record of appeal were ex facie not signed nor sealed by any legal practitioner.
The respondent in this case did not act personally but the legal practitioner through whom he purportedly acted failed to authenticate the writ of summons originating his action.
Sections 2 (1) and 24 of the Legal Practitioners Act, 1975 provide as follows:
2. Entitlement to practise
(1) Subject to the provisions of this Act, a person shall be entitled to practise as a Barrister and solicitor if, and only if, his name is on the roll.
Section 24:
“legal practitioner means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings;
The writ of summons here was not signed by anyone thereby rendering it worthless. The question here is not novel and had attracted the attention of the highest Court in the land as far back as 1967 in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMAN AKINDE (1967) NMLR 263 and the position taken was that such document was a nullity.
The said issue was extensively considered by the Supreme Court in the notorious case of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521, (2007) 3 where the earlier position was reiterated and affirmed.
An unsuccessful attempt was made to move the apex Court to depart from the position in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMAN AKINDE (supra) and OKAFOR v. NWEKE (supra) which necessitated the sitting of a full panel of the said Court at which eminent legal practitioners in the country were invited as amici curie. This was in FIRST BANK OF NIGERIA LTD & ANOR v. MAIWADA & ORS (2012) 51 NSCQR 155 and FRAPHINO PHARMACEUTICALS LTD & ANOR v. JAWA INTERNATIONAL LTD & ORS (2012) 51 NSCQR 219.
This legal position was further reiterated and reinforced by the apex Court in SLB CONSORTIUM LTD v. NNPC (2012) 52 NSCQR 269.
The writ of summons here which initiated the appellant’s case as well as the amended writ of summons were not signed and accordingly not shown to have been prepared by a legal practitioner known to law, the issue is not a mere irregularity pursuant to the 2009 Rules of the High Court of Akwa Ibom State but an issue of substantive law pursuant to the Legal Practitioners Act. See OKAFOR v. NWEKE (supra) at 534.
In the circumstances, the writ of summons and the amended writ of summons here were fundamentally defective and could be appropriately described as worthless pieces of paper incapable of invoking the jurisdiction of the Court. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
COURT: JURISDICTION; WHEN WILL A COURT BE COMPETENT TO ASSUME JURISDICTION OVER A MATTER
The valid exercise of jurisdiction by a Court is based on certain conditions precedent carefully laid out by the Supreme Court. A Court is accordingly competent when:
1. It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and
2. 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
3. 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 MADUKOLU v. NKEMDILIM (1962) 2 NSCC 374 at 379- 380. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JOHN FRANCIS UDOEBOI
2. ELDER FRANCIS UMOREN EKOTT
3. MR. UDOM AKPAN UDOHAYA
4. MR. UBONG SAM UDOFA
5. MR. SUNDAY INYANG UDO – Appellant(s)
AND
MR. MICHAEL AKPAN UDOUSUA – Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment):This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division delivered on the 19th May, 2014 by Stephen E. Okon J.
The respondent as Claimant had taken out a writ of summons against the appellants who had without his consent created an access road across his land. His reliefs as contained in the amended writ of summons dated 14th January, 2013 on pages 44-46 of the record of appear were as follows:
1. A declaration that the acts of the Defendants in entering upon the land of the claimant without his consent and permission and destroying his cultivated crops is unlawful.
2. The sum of N730,000 special damages for the crops destroyed on the land.
Particulars of Special Damages
a. 50 stands of plantain at N2,000.00 – N100,000.00
b. 65 stands of banana at N2,000.00 – N130,000.00
c. 200 stands of yam at N1,000.00 – N200,000.00
d. 200 stands of fluted pumpkin at N1,000.00 – 200,000.00
e. 200 stands of potatoes at N500.00 – N100,000.00
N730,000.00
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3. N900,000.00 general damages for trespass to Claimant’s land.
4. An order of injunction restraining the defendants by themselves, their agents, servants, workman and or privies from committing further acts of trespass onto the claimant’s land, subject-matter of this suit.
On being served, the appellants as defendants joined issues with the respondent/claimant via their joint statement of defence filed on 26th January, 2012. They then counter-claimed and sought the following reliefs:
(a) An Order of Court directing the Claimant to apologize in writing to each of the Defendant and a public apology in one of the daily newspapers for fabricating falsehood against the defendant both to the Court and to the police.
(b) An Order of Court directing the Claimant to restore and repair the access road as created by the village Project committee in line with the village constitution in force in the village of Abiakpo Ikot Essien.
?(c) The sum of Eight Hundred Thousand Naira only (N800,000.00) as general damages for discomfort, inconvenience and physical/mentor torture suffered by the Defendants as a result of falsehood fabricated by the
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claimant to both the Court and the police and which has resulted in the following suits:
(i) Suit No. HT/83/2011 filed by the Claimant on 11/10/2011.
(ii) Suit No. HT/83/2011 filed by the Claimant on 25/11/2011.
(iii) Suit No. HT/129/2011 arranged or facilitated by the Claimant on 20/12/2011.
(iv) Charge No. MIK/165c/2011 facilitated by the Claimant on 23/12/2011, 29/12/2011 and 30/12/2011.
(d) Interest on the judgment sum at the rate of 10% from date of judgment till date of final liquidation.
At the end of the trial and final addresses of the respective learned counsel, the learned trial Judge found in favour of the respondent/claimant and dismissed the counter-claim of the appellants/defendants.
Dissatisfied, the appellants filed a notice of appeal on 2nd June, 2014 containing 4 grounds.
At the hearing of the appeal, Mr. Udo the learned counsel for the appellants adopted the appellants’ brief filed on 14th July, 2014 as well as the appellants’ reply brief filed on 17th October, 2014 as the arguments of the appellants in furtherance of the appeal.
?
Mr. Usoro the learned counsel for the respondent who
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had settled his brief was absent at the hearing of the appeal upon which the respondent’s brief filed on the 9th October, 2014 was deemed adopted pursuant to Order 18 Rule (9) (4) of the Rules of this Court.
Each of the two counsels formulated and argued 4 issues for determination in their respective briefs essentially similar in substance. I shall accordingly for the purposes of this judgment adopt the issues as formulated by the appellants.
The said issues are as follows:
1. Whether the trial Court in assuming jurisdiction to hear and determine the matter on the basis of the void originating process.
2. Whether the trial Court was right to admit and ascribed probative value to o document (Exhibit A) that is inadmissible in law.
3. Whether the lower Court was right in awarding the claims of the respondent against 2nd, 3rd, and 5th appellants when the respondent never proved his case against them.
4. Whether the uncontroverted facts in the statement of defence were not reliable enough for the lower Court to act upon.
The appropriate take off therefore is the first issue which challenges the jurisdiction of the trial
4
Court and thereby touches the fundamental basis of the entire action.
Arguing this issue, Mr. Udo submitted that the writ of summons originating the case inclusive of the amended writ of summons were not signed and stamped by counsel as demanded by Order 6 Rule 2 (3) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 thereby depriving the trial Court of the jurisdiction to adjudicate thereon. He referred to SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (Pt. 1252) 317 at 322, BRAITEWAITE v. SKYE BANK (2013) 5 NWLR (Pt. 1346) 1 at 9, ABUBAKAR v. NASAMU No. 2 (2012) 17 NWLR (Pt. 1330) 523 at 546 and DINGYADI v. INEC (2011) ALL FWLR (Pt. 591) 1426 at 1433.
Learned counsel further submitted that the case of the parties was conducted on the basis of a void originating process and urged the Court to allow the appeal.
Responding, Mr. Usoro submitted that the nature and constituent of writ of summons under the Akwa Ibom State High Court (civil procedure) Rules, 2009 are guided by Order 3 Rules 1-3 thereof and that the writ of summons must be in compliance with Form 1 which does not require the signature and stamp of legal practitioners
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while the provisions of Order 6 Rules 1 and 2 relate to other originating processes accompanying the writ of summons. He therefore urged the Court to hold that the writ of summons here was not defective and that the learned trial Judge rightly assumed jurisdiction thereon.
Making his final input on this issue, Mr. Udo pointed out that an unsigned document is totally worthless and referred to F.R.N. v. BANKOLE (2014) 11 NWLR (Pt. 1418) 37 at 343, BUHARI v. ADEBAYO (2014) 10 NWLR (Pt. 1416) 560, ICAN v. UNEGBU (2012) 2 NWLR (Pt. 1284) 216 at 223 and GARUBA v. KIC LTD (2005) 5 NWLR (Pt. 512) 160 at 166.
He reiterated the applicability of Order 6 Rule 2 (3) to writs of summons and added that the requirement of signing emanates from Section 2 (1) of the Legal Practitioners Act which has overriding application in the circumstances. He referred to F.B.N. PLC v. MAIWADA (2013) 5 NWLR (Pt. 1348) 444 at 453 and ALAWIYE v. OGUNSANYA (2013) 5 NWLR (Pt. 1348) 570 at 582.
Both counsel made copious references to Orders 3 Rules 1-3 and 6 Rules 1-2 of the High Court of Akwa Ibom State (Civil Procedure) Rules, 2009. It is therefore apposite to set out
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the relevant provisions thereof as follows:
Order 3, Rules 1-3
1. Subject to the provisions of these Rules or any applicable law requiring any proceedings to be begun by originating summons, originating motion or petition, a writ of summons shall be the form of commencing all proceedings:
a) Where a plaintiff or claimant claims:
(i) Any relief or remedy for any civil wrong or
(ii) Damages for breach of duty, whether contractual, statutory or otherwise, or
(iii) Damages for personal injuries to or wrongful death of any person, or in respect of damage or injury to any person, or property.
(b) Where the claim is based on or includes an allegation of fraud, or
(c) Where an interested person claims a declaration.
2. (1) All civil proceedings commenced by writ of summons shall be accompanied by:
(a) Statement of claim.
(b) List of witnesses to be called at trial.
(c) Written statements on oath of the witnesses, and
(d) Copies of every document to be relied on at the trial.
(2) Where a claimant fails to comply with Rule 2(1) above, his originating process shall not be accepted for filing by the
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Registry.
3. Except in the cases in which different forms are provided in this Rules, the writ of summons shall be as in Form 1 with such modifications or variations as circumstances may require.
Order 6, Rules 1-2.
1. Originating process shall be prepared by a plaintiff or Claimant or his legal practitioner, and shall be clearly printed on good quality opaque paper.
2. (1) The Registrar shall sign and stamp every originating process whereupon it shall be deemed to be issued.
(2) A plaintiff or Claimant or his Legal Practitioner shall, on presenting any originating process for signing and stamping, leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed and stamped by the Legal Practitioner or by the plaintiff or a claimant who sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
Generally, where the words of a statute are clear and unambiguous, the Court should give same its ordinary literal interpretation. This is often
8
referred to as the literal rule. It is the most elementary rule of construction. See FIRST BANK v. MAIWADA (2012) 51 NSCQR 155 at 172.
The words used in the 2009 Civil Procedure Rules of the High Court of Akwa Ibom State outlined above are totally clear and unambiguous and should be given their simple ordinary meanings. Mr. Usoro in his brief conceded that a writ of summons is primus inter pares within the group of originating processes but attempted to exempt the application of Order 6 Rules 1-3 to writs of summons.
I find it difficult to agree with him. For a proper appreciation of the legal requirements applicable to writs of summons under the High Courts of Akwa Ibom State (Civil Procedure) Rules, 2009, it seems to me that a community reading of Orders 3 and 6 must be embarked upon. If such a community reading is done, it would become evident that under the said Rules, a writ of summons may be commenced in person by the litigant or by his legal practitioner. Where he acts through a legal practitioner, the said legal practitioner must be disclosed and he is to sign and seal such a writ of summons.
?It is not contested
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that the writ of summons here on pages 1-3 of the record of appeal as well as the amended writ of summons on pages 44-46 of the record of appeal were ex facie not signed nor sealed by any legal practitioner.
The respondent in this case did not act personally but the legal practitioner through whom he purportedly acted failed to authenticate the writ of summons originating his action.
Sections 2 (1) and 24 of the Legal Practitioners Act, 1975 provide as follows:
2. Entitlement to practise
(1) Subject to the provisions of this Act, a person shall be entitled to practise as a
Barrister and solicitor if, and only if, his name is on the roll.
Section 24:
“legal practitioner means a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings;
The writ of summons here was not signed by anyone thereby rendering it worthless. The question here is not novel and had attracted the attention of the highest Court in the land as far back as 1967 in REGISTERED TRUSTEES OF APOSTOLIC
10
CHURCH, LAGOS AREA v. RAHMAN AKINDE (1967) NMLR 263 and the position taken was that such document was a nullity.
The said issue was extensively considered by the Supreme Court in the notorious case of OKAFOR v. NWEKE (2007) 10 NWLR (Pt. 1043) 521, (2007) 3 where the earlier position was reiterated and affirmed.
An unsuccessful attempt was made to move the apex Court to depart from the position in REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA v. RAHMAN AKINDE (supra) and OKAFOR v. NWEKE (supra) which necessitated the sitting of a full panel of the said Court at which eminent legal practitioners in the country were invited as amici curie. This was in FIRST BANK OF NIGERIA LTD & ANOR v. MAIWADA & ORS (2012) 51 NSCQR 155 and FRAPHINO PHARMACEUTICALS LTD & ANOR v. JAWA INTERNATIONAL LTD & ORS (2012) 51 NSCQR 219.
This legal position was further reiterated and reinforced by the apex Court in SLB CONSORTIUM LTD v. NNPC (2012) 52 NSCQR 269.
The writ of summons here which initiated the appellant’s case as well as the amended writ of summons were not signed and accordingly not shown to have been prepared by a legal
11
practitioner known to law, the issue is not a mere irregularity pursuant to the 2009 Rules of the High Court of Akwa Ibom State but an issue of substantive law pursuant to the Legal Practitioners Act. See OKAFOR v. NWEKE (supra) at 534.
In the circumstances, the writ of summons and the amended writ of summons here were fundamentally defective and could be appropriately described as worthless pieces of paper incapable of invoking the jurisdiction of the Court.
The valid exercise of jurisdiction by a Court is based on certain conditions precedent carefully laid out by the Supreme Court. A Court is accordingly competent when:
1. It is properly constituted as regards the number and qualifications of its members of the bench, and no member is disqualified for one reason or another; and
2. 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
3. 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 MADUKOLU v. NKEMDILIM
12
(1962) 2 NSCC 374 at 379- 380. The jurisdiction in this case was improperly exercised as Suit No. HT/121/2011 was not duly initiated according to law and was accordingly void, incapable of conferring any regal benefit or imposing any legal obligation.
This issue is accordingly resolved in favor of the appellant and with it the entire appeal succeeds as the remaining issues have become academic in the circumstances.
This appeal is accordingly allowed.
The Judgment of the learned trial Court delivered in Suit No. HT/121/2011 on 19th May, 2014 is hereby set aside while the said Suit No. HT/121/2011 is struck out.
Parties shall bear their respective costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:
I agree.
CHIOMA NWOSU-IHEME, J.C.A.: My learned brother, J. O. K. OYEWOLE, JCA, afforded me the opportunity of reading before now the judgment just delivered. His Lordship has meticulously considered and comprehensively resolved the issue of jurisdiction before us. I am in agreement with his reasoning and conclusion that the circumstances of this appeal justify
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that the appeal succeeds.
Having resolved the issue of jurisdiction in favour of the Appellants and against the Respondent, I agree that jurisdiction in this case was improperly exercised in suit No. HT/121/2011 since it was not duly initiated according to law and consequently void.
I agree that since jurisdiction was improperly exercised, that Suit No. HT/121/2011 be struck out.
?
I abide by the order as to costs made by OYEWOLE, JCA in the lead judgment.
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Appearances
Mr. D. C. Udo, Esq.For Appellant
AND
UnrepresentedFor Respondent
