PRINCE (DR) FRANCIS KEHINDE ODUSOTE v. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE & ORS
(2018)LCN/11728(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of June, 2018
CA/IB/388/2014
RATIO
ORIGINATING PROCESS FUNDAMENTAL TO A PROCEEDING
The validity of the Originating Process in a Proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. per HARUNA SIMON TSAMMANI, J.C.A.
ESSENCE OF JURISDICTION
The issue of jurisdiction is therefore a fundamental one. It is a threshold issue, the lifeblood and oxygen that sustains the authority and power of a Court to hear and determine a particular cause. Without it the power and authority of the Court to hear and determine the action is annihilated. That being so, once the issue of jurisdiction is raised, it must be taken and decided upon otherwise, if at the end of the proceedings, it is discovered that the Court lacks jurisdiction, it would have acted in vain per HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
PRINCE (DR) FRANCIS KEHINDE ODUSOTE Appellant(s)
AND
- ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE.
2. THE EXECUTIVE GOVERNOR, OGUN STATE.
3. THE OGUN STATE
EXECUTIVE COUNCIL.
4. THE SECRETARY, IJEBU-EAST LOCAL GOVERNMENT
COUNCIL.
5. THE EXECUTIVE CHAIRMAN, IJEBU EAST
LOCAL GOVERNMENT COUNCIL.
6. H.R.M; OBA (DR.) S.K.
ADETONA, THE AWUJALE OF IJEBU LAND.
7. CHIEF OLU OGUNJOBI
8. NAVY CAPTAIN JAIYE
BADEJOKO (RTD)
9. ALHAJI (SURV.) SUPO
ODUKOYA
10. HON. MUFUTAU ADEBAMBO
11. PRINCESS MRS. ADENIKE ADENIRAN
12. ALHAJI SULUKA ODUKOYA
13. CHIEF LASISI
GBAMUGBAMU
14. OTUNBA SEGUN ADESINA Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Ogun State High Court, Coram Catherine O. Ogunsanya, J sitting at the Ijebu Ode Judicial Division, delivered on the 26th day of January, 2010 in Suit No: HCJ/43/2007.
Upon being served the Writ of Summons and Statement of Claim, the 1st 5th and 6th 13th Defendants/Respondents filed a Joint Statement of Defence which was dated and filed on the 9th day of January, 2007, wherein they denied the Plaintiff/Appellants claims and urged the trial Court to dismiss same as being frivolous and lacking in merit. The 14th Defendant/Respondent filed a Separate Statement of Defence on the 5th day of July, 2007, also urging the Court to dismiss the Plaintiff/Appellants claims. Thereafter, the Plaintiff/Appellant amended the Statement of Claim by order of the trial Court granted on the 18th day of January, 2008. The reliefs sought in the Amended Statement of Claim filed on the 24/01/2008 read as follows:
1. A declaration that the Plaintiff is a prominent member of Sikunoye (Adefeya) Branch of Esega Ruling House of Owu-Ijebu and according to native law, custom and tradition of Owu-Ijebu is eligible to contest for the Olowu of Owu-Ijebu Stool.
2. An order that the judgment delivered by the Honourable Justice T. Ibikunle Adesalu on 8th March, 2005 operates as an estoppel per rem judicatam having not been appealed against the re-appointment of the 7th 13th Defendants is wrongful, illegal, against the native law, custom and tradition of Owu-Ijebu, unconstitutional, null, void and of no effect whatsoever.
3. A declaration that the subsequent meetings held by the 7th 13th Defendants as warrant Kingmakers on 27/05/2006 and other meetings purportedly held to select the 14th Defendant to fill the vacant Stool of the Olowu of Owu-Ijebu amounted to a willful and flagrant disobedience of the Court order of Perpetual Injunction restraining the 2nd 8th Defendants now the 7th 13th Defendants from performing the duties of warrant Kingmakers or Kingmakers by whatever name called, for the purpose of selecting, appointing or approving the nomination of the next Olowu of Owu-Ijebu.
- A declaration that the subsequent approval granted by the 1st, 2nd and 3rd Defendants approving the appointment of the 14th Defendant in a letter of reference No. CHM/7/18/T/III dated 8th May, 2007, when this suit filed on 19th February, 2007 is still pending at the High Court No.2, Ijebu-Ode is contemptuous, illegal, wrongful, ultra-vires and void and the same be set aside on gross irregularities.
PARTICULARS
(a) The Government of Ogun State being aware of the pending suit at the High Court No.2 where it was represented by a Director in the Ministry of Justice proceeded to embark on extra-judicial activities by way of self-help to ignore the Court proceedings by issuing executive orders to approve the appointment of the 14th Defendant, thereby foist on the Court a fait accompli.
(b) The 1st, 2nd 3rd Defendants having been served with the Writ and Statement of Claim, an Injunction is one of the several reliefs in the instant action, the Government of Ogun State acted at its peril and subject to the power of this Honourable Court to restore the status quo wholly irrespective of the merits of the suit as may be ultimately decided. - An order nullifying the aforesaid appointment, the approval of appointment and installation of the 14th Defendant as the Olowu of Owu-Ijebu as same is against the history, native law and custom of Owu-Ijebu and hence wrongful, illegal, null, void, unconstitutional and of no effect whatsoever.
6. An order of mandatory Injunction restraining the 14th Defendant from parading, calling and styling himself as Olowu of Owu-Ijebu and from enjoying any salary, remuneration or perquisites appertaining to the title.
7. An order restraining the Government of 2nd Defendant from recognizing the 14th Defendant as the Olowu of Owu-Ijebu in any manner whatsoever.
Issues having been joined, the Plaintiff/Appellant, filed a Motion on Notice dated the 15th day of July, 2009 and filed on the 16th day of July, 2009. The Motion prayed for:
(A). An order to set down for hearing preliminary points of Law in terms of Paragraph 24(a)(i), (ii), (iii), (iv) and (v) of the amended Statement of Claim, praying for liberty to enter final judgment in favour of the Claimant/Applicant against the 1st 4th Defendants/Respondents on the ground that no issues remaining to be tried on the state of the pleadings and will be relying upon the documents enumerated in the SHEDULE annexed to this MOTION on NOTICE.
(B). Such Further or Other Orders as this Honourable Court may deem fit to make in the circumstances.
The Motion was initiated pursuant to Order 22 Rules 2 and 3 of the Ogun State High Court (Civil Procedure) Rules, 2008 (Order 24 Rules 2 and 3 of the Ogun State High Court (Civil Procedure) Rules, 1987. The Plaintiff/Appellant FURTHER GAVE NOTICE that he shall seek the permission of the trial Court to dispense with Affidavit evidence. Several documents including a Judgment and a Ruling of the Ogun State High Court were listed under the Schedule to the Motion as documents he would be relying on to support his Motion. The Application was also accompanied by a Written Address. Though the application was not supported by any Affidavit, the 1st to 5th and 7th to 13th Defendants/Respondents filed a Counter-Affidavit and a Written Address in opposition to the Plaintiff/Appellants Motion. The 14th Defendant/Respondent filed an Affidavit in opposition to the Motion accompanied by a Written Address. The Motion was argued on the 17/12/2009, and in a RULING delivered on the 26/01/2010, the learned trial Judge dismissed the Application and directed that the matter proceed to Pre-trial conference. Being dissatisfied with the decision, the Plaintiff/Appellant filed this appeal.
The Notice of Appeal which is in pages 485 to 490 of the Record of Appeal, was dated the 20/2/2014 and filed on 21/2/2014, by leave of this Court granted on the 17/2/2014. It consists of four (4) Grounds of Appeal. In compliance with the Rules of this Court, the parties filed and Exchanged Briefs of Arguments. The Appellants Brief of Arguments was dated the 11/8/2015 and filed on the 17/8/2015 but Deemed filed on the 04/5/2017. Two issues were distilled therein for determination as follows:
1. Whether the learned trial Judge was right in law by ignoring and dismissing admissible legal evidence on Record in refusing the reliefs sought as contained in the Claimant/Appellants Application dated 15th day of July, 2009.
2. Whether a declarative relief was part of the reliefs sought in the Claimant/Appellants Application dated 15th day of July, 2009.
The 1st to 5th and 7th -13th Respondents Brief of Arguments was dated the 14/9/2017 and filed on the 20/9/2017 but Deemed filed on the 08/11/2017. Therein two issues were also raised for determination as follows:
1. Whether the discretion of the learned trial Judge to grant or refuse the Application of the Appellant ceased to be operative in the face of the Application filed by the Appellant in the lower Court.
2. Whether the learned trial Judge made any error in refusing the Appellants Motion after finding that declarative reliefs were the basis and foundation of the Application of the Appellant in the lower Court.
The 14th Respondents Brief of Arguments dated and filed on the 20/9/2017 was deemed filed on the 8/11/2017. The 14th Respondent distilled only one issue for determination as follows:
1. Having regard to the State of pleadings of the parties in this action, whether the Appellant is entitled to judgment on points of law alone without the resolution of the complex issues of facts relevant to this case at a full trial.
The Appellant filed Replies on points of law to the respective Briefs of the Respondents.
Now, after going through the arguments of the parties in their respective Briefs of Arguments, I noticed that the 14th Respondent raised some Preliminary issues which need be resolved first. This is because; a resolution of those issues against the Appellant may result in the determination of this Appeal in limine.
Learned Counsel for the Appellant contended first of all, that this Court lacks the jurisdiction to entertain the Appeal as the Suit was not properly commenced in the trial Court in accordance with the provisions of the law. That the Originating Processes, to wit: the Writ of Summons and Statement of Claim, both dated the 16/2/2007 and filed on the 19/2/2007 were signed in the name of Otunba Adebola Adekoya & Co. Reciting Sections 2(1) and 24 of the Legal Practitioners Act (Cap.207) Laws of the Federation, 1990, learned counsel went on to submit that there is no name on the roll of Legal Practitioners in Nigeria known as Otunba Adebola Adekoya & Co. That, the Suit was therefore commenced by a person unknown to the law. The cases of Okafor & 2 Ors v. Nweke & 4 Ors (2007) 3 S.C. (pt.II) 55 at 64 lines 2 13 and Braithwaite v. Skye Bank Plc (2012) 12 S.C. (pt.1) 1 at 18 lines 3 9 were then cited to submit that, the defect has impaired the jurisdiction of this Court to entertain this Appeal.
Learned Counsel for the 14th Respondents noted that the Appellant had filed an Amended Statement of Claim on the 24/1/2008. It was however contended that, a fundamentally defective process cannot be cured by any amendment. The cases of Nigerian Army v. Samuel (2013) 14 NWLR (pt.1375) 466 at 483 and Mcveil Investment Limited & Anor v. Abiola Olufunmilayo Ofolue (2016) LPELR 40575 (CA) were cited in support. It was therefore submitted that, there is therefore no viable Statement of Claim upon which the trial Court and the Appellant could predicate the Motion subject of this Appeal. Referring further to the cases of Alhaji Tajudeen Babatunde Hamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR 24302 (SC), learned Counsel contended that, the Appellants case in respect of the Statement of Claim cannot be distinguished from the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043). That, it is the law that, parties cannot by agreement confer jurisdiction on the Court where non exist; thus, the fact that the Respondents did not oppose the endeavor of the Appellant which resulted in the amendment to the defective Statement of Claim is of no moment. The case of Sken Consult (Nig) Ltd v. Ukey (1981) 1 S.C. 6 at 26 was cited in support. Learned Counsel for the 14th Respondent then cited the case of Akere v. Governor of Oyo State (2012) 12 NWLR (pt.1314) 240 at 267 paragraphs B C, to conclude that, the proceedings of a Court, no matter how well conducted is a nullity where the Court lacks the jurisdiction; and the entirely of the proceeding in that instance would amount to vanity. We were accordingly urged to resolve this point against the Appellant and to strike out the Appeal.
In response, learned counsel for the Appellant also cited the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) and the provisions of Sections 2(1) and 24 of the Legal Practitioners Act (supra), to contend that, a calm reading or perusal of the Writ of Summons dated 16/2/2007 would reveal that one Adebola Adekoya; Esq issued the said Writ and also signed the Statement of Claim. That it is not in doubt, as decided in the cases of Okafor v. Nweke (supra); FBN Plc v. Maiwada (2013) 5 NWLR (pt.1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (pt.1348) 570; Nigerian Army v. Sunday (2013) 14 NWLR (pt.1375) 466, etc, that Court processes must be signed and issued by a Legal Practitioner who must be a person enrolled to practice law as Legal Practitioner recognized under the Legal Practitioners Act. However, that in the instant case, there is no controversy as regards the identity of the Counsel who prepared the Writ of Summons dated 16/2/2007 and the Statement of Claim also dated 16/2/2017. That those processes manifestly establish the signature(s) of Adebola Adekoya; Esq.
Learned Counsel for the Appellant went on to submit that, once it cannot be ascertained who signed the process, it is incurably bad. That Section 122(2)(j) of the Evidence Act, 2011 provide that the Court should take judicial notice of the fact that the Adebola Adekoya; Esq signed both the Writ of Summons and the Statement of Claim. Furthermore, that the identity of the Legal Practitioner that signed the Appellants Statement of Claim is not in doubt. The cases of Omoju v. FRN (2008) 7 NWLR (pt.1085) 38 and Chinwendu v. Mbamali (1980) 12 NSCC 127 at 150, etc, were cited to urge us to hold that the Statement of Claim dated 16/2/2007 signed by Adebola Adekoya; Esq is competent. It was then submitted that; the Court should not sacrifice justice on the altar of technicalities; but that the substance of the matter should be examined so as to do substantial justice.
Now, it is settled law that jurisdiction is the foundation of any suit or action. Jurisdiction is therefore the power or authority a Court has to hear and determine matters that are brought before it for adjudication. Generally, jurisdiction of a Court is conferred or donated by either the Constitution or the Statute that created it. See Musaconi Ltd v. Aspinall (2013) 14 NWLR (pt.1375) 435 and Aladejobi v. NBA (2013) 15 NWLR (pt.1376) 66. Thus, in the case of Aladejobi v. N.B.A. (supra), Fabiyi, JSC said:
What then is jurisdiction It is said to be the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.
Such authority of the Court is controlled or circumscribed by a condition precedent created by a legislation which must be fulfilled before the Court can entertain the suit. It is the power and authority of a Court to hear and determine a judicial proceeding and power to render particular judgment in a cause of action. See: Dingyadi v. INEC & Ors (2011) 10 NWLR (pt.1255) 347 at 390.
The issue of jurisdiction is therefore a fundamental one. It is a threshold issue, the lifeblood and oxygen that sustains the authority and power of a Court to hear and determine a particular cause. Without it the power and authority of the Court to hear and determine the action is annihilated. That being so, once the issue of jurisdiction is raised, it must be taken and decided upon otherwise, if at the end of the proceedings, it is discovered that the Court lacks jurisdiction, it would have acted in vain. See Egharevba v. Eribo (2010) 9 NWLR (pt.1199) 411; Olutola v. Unilorin (2004) 18 NWLR (pt.905) 416; Azubuogu v. Oranezi & Ors (2017) LPELR 42669 (SC); A.G; Federation v. A.G; Lagos State (2017) LPELR 42769 (SC) and Nnonye v. Anyichie (2005) 2 NWLR (pt.910) 623.
In National Union of Road Transport Workers & 5 Ors v. Road Transport Employers Association of Nigeria (2012) LPELR 7840 (SC), Fabiyi, JSC held that:
It has been pronounced by this Court several times that jurisdiction is very fundamental. It is the life wire of a case which should be determined at the earliest opportunity. If a Court has no jurisdiction to determine a case, the proceedings remain nullity ab initio, no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic but extrinsic to the entire process of adjudication
To determine whether or not a Court has jurisdiction, the Court should look for the following elements:
(a) Whether 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;
(b) Whether the case was initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction; and
(c) Whether the action is properly constituted as regards the numbers and qualification of the members of the bench; and no member is disqualified for one reason or another.
All the above stated elements must co-exist before the jurisdiction of the Court can be sustained. Accordingly, where any of the stated elements is missing, the Court would be robbed of the jurisdiction to adjudicate and decide on the matter. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; State v. Onagoruwa (1992) 2 NWLR (pt.221) 33 at 59; Society BIC S.A. & Ors v. Charzin Ind. Ltd. (2014) 4 NWLR (pt.1398) 497; Obiuweubi v. C.B.N. (2011) 7 NWLR (pt.1247) 465 and N.N.P.C & Anor v. Orhiowasele & Ors (2013) 13 NWLR (pt.1371) 211.
The complaint of the 14th Respondent falls under the element (b). It is contended by the 14th Respondent herein, that the suit was not initiated at the trial Court by the due process of law and upon the fulfillment of a condition precedent to the initiation of the action. It is contended that, the Originating Processes, particularly the Statement of Claim was signed by a Law Firm and therefore not a personality recognized as a Barrister and Solicitor permitted to practice law in Nigeria. In other words that the Writ of Summons and Statement having been signed by Otunba Adebola Adekoya & Co are incompetent, null and void, having not been signed by a Legal Practitioner as known by Section 24 of the Legal Practitioners Act.
Now, this point or issue has been the subject of determination by the Supreme Court and dutifully followed by this Court in several cases. Thus in the case of Okafor & Ors v. Nweke & Ors (2007) 10 NWLR (pt.1043) 521, the Supreme Court held that by virtue of Section 2(1) of the Legal Practitioners Act, a person is only entitled to practice as a Barrister and Solicitor in Nigeria, if and only if, his name is on the roll. In that case, the Applicants therein, filed a Motion on Notice seeking for, inter alia, extension of time to seek leave to Cross-Appeal. The Motion on Notice, and exhibited Notice of Cross-Appeal were both signed by J.H.C. Okolo, SAN. A brief was also filed in respect of the application, also signed by J.H.C. Okolo, SAN & Co. Relying on Sections 2(1) and 24 of the Legal Practitioners Act, Cap.207, Laws of the Federation of Nigeria, 1990, Supreme Court held, per Onnoghen, JSC (as he then was) at pages 531 532 paragraphs A of the Report that The combined effect of the above provisions is that for a person to be qualified to practice as a Legal Practitioner, he must have his name in the roll otherwise he cannot engage in any form of legal practice in Nigeria. The question that follows is whether J.H.C. Okolo, SAN & Co. is a Legal Practitioner recognized by the law. From the submissions of both counsels, it is very clear that the answer to that question is in the negative. In other words, both senior counsels agree that J.H.C. Okolo SAN & Co. is not a legal practitioner and therefore cannot practice as such by say, filing processes in the Courts of this Country. It is in recognition of this fact that accounts for the argument of Learned Senior Advocate for the Applicants that to determine the actual person who signed the processes evidence would have to be adduced which would necessarily establish the fact that the signature on top of the inscription J.H.C. Okolo SAN & Co. actually belongs to J.H.C. Okolo SAN who is a Legal Practitioner in the roll. I had earlier stated that the law does not say that what should be in the roll should be the signature of the Legal Practitioner but his name. That apart, it is very clear that by looking at the documents, the signature which Learned Senior Advocate claims to be his really belongs to J.H.C. Okolo SAN & Co. or was appended on its behalf since it was signed on top of that name
The decision of the Supreme Court in Okafor v. Nweke (supra) cited above, generated a lot of furor within the Community of Legal Practitioners in Nigeria. The result was that the Chief Justice of Nigeria in the case of First Bank of Nigeria Plc v. Maiwada(2013) 5 NWLR (pt.1348) 444 constituted a full panel of the Supreme Court to consider the issue. Various amici curiae were invited to address the Court on the issue. The Supreme Court considered Okafor v. Nweke (supra) and held that the decision therein is good law. Sections 2(1) and 24 of the Legal Practitioners Act (supra) were also revisited. My Lord, Fabiyi, JSC who delivered the lead judgment held at page 483 paragraphs F to G of the Report that:
In my considered opinion, the words employed in drafting Sections 2(1) and 24 of the Act are simple and straightforward. The literal construction of the Law is that Legal Practitioners who are animate personalities should sign Court processes and not a firm of Legal Practitioners which is inanimate and cannot be found in the roll of this Court.
The Supreme Court then held that, the issue is not a matter of procedure but that of substantive law which cannot be waived. It should be noted that the Supreme Court did not make any distinction between an Originating Process and any other Court Process signed or purportedly signed by a Legal Practitioner. This is because, the matter is one of substantive Law, i.e. the Legal Practitioners Act (Supra) and not one guided by procedure such that it can be waived. Once it is a matter of Law, it cannot be waived. The decision in F.B.N. Plc v. Maiwada (supra), being that of the full panel of the Supreme Court therefore remains the law on the issue. The principles as enunciated in that case, has been followed and applied by this Court in plethora of cases. See for example; Okpe v. FAN Milk Plc & Anor (2016) LPELR 42562 (SC); Oshoko v. Akinrinade (2016) LPELR 41948 (CA); Okarika & Ors v. Samuel & Anor (2013) 7 NWLR (pt.1352) 19; Okwuosa v. Gomwalk & Ors (2017) LPELR 41736 (SC) and SLB Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (pt.1252) 317. The settled law therefore is that, a Court Process purported to be signed by a Legal Practitioner must be signed in the name of an identified person whose name is in the roll of Legal Practitioners domiciled in the Supreme Court Registry. As stated by the Supreme Court in Okafor v. Nweke (supra) what is demanded is the name of the legal practitioner and not his signature. This is because it is the name and not the signature of the legal practitioner that is in the roll.
In the instant case, the Writ of Summons indicate that it was issued or signed by Adebola Adekoya who is described as the Plaintiffs Solicitor of Otunba Adebola Adekoya & Co. The signature and name of Adebola Adekoya are legibly inscribed on top of Plaintiffs Solicitor; Otunba Adebola Adekoya & Co. The Writ of Summons is therefore competent, having been signed by an identified legal practitioner, to wit: Adebola Adekoya. The same cannot however be said of the Statement of Claim dated the 16/2/2007 and filed on the 19/2/07. What appears on top of Plaintiffs Solicitor; Adebola Adekoya & Co. is a bare signature without the name of the legal practitioner. Thus in the case of Hamzat & Anor v. Sanni & Ors (2015) 5 NWLR (pt.1453) 486 at 505, Peter-Odili, JSC said:
From what is put across by learned counsel for the Respondent to which learned counsel for the Appellant merely glossed over and in doing that failed to appreciate the danger their processes and competence were in. I find it easy to go along with the contention of the Respondent that the Appellants Statement of Claim by which evidence was led is a nullity having not been signed by a Legal Practitioner as known by the definition of Section 24 of the Legal Practitioners Act and so the Statement of Claim has to be struck out as a nullity and of course along with the striking out would be the evidence hanging on the purported pleading.
See also the opinion of Ariwoola, JSC in the case of Hamzat & Anor v. Sanni & Ors (supra). Akaahs, JSC in the same case of Hamzat & Anor v. Sanni & Ors said
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) 1SC 6. No issues could have been joined in the pleadings unless the Statement of Claim was valid. Although the Writ of Summons is valid and the suit itself is 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.
In my view, and in the absence of the name of the legal practitioner, the Statement of Claim has been rendered incompetent. A condition precedent to filing of the Statement of Claim has therefore not been met. The effect is that the trial Court could not have the jurisdiction to proceed on that incompetent Statement of Claim. Accordingly, any proceeding predicated on that inchoate Court Process would be incompetent ab initio. The defect is fundamental, such that it cannot and could not be cured by an amendment. See NWBHC v. Denclag Ltd. (2005) 4 NWLR (pt.431) 843; Oketade v. Adewunmi (2010) All FWLR (pt.526) 511 and Ministry of Works & Transport, Adamawa State & Ors v. Yakubu (2013) 1 SCNJ 269. Thus, in the case of Kida v. Ogunmola (2006) All FWLR (pt.327) 402 at 412, it was held that:
The validity of the Originating Process in a Proceeding before a Court is fundamental as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceeding with valid Writ of Summons goes to the root of the case and any order emanating from such proceeding is liable to be set aside as incompetent and nullity.
It is not in doubt that the proceeding which generated the Ruling subject of this Appeal was predicted on the incompetent Statement of Claim. Though there was an amendment to the Statement of Claim, such amendment was of no moment, as it could not save the incurably defective Statement of Claim. The Original Statement of Claim being a nullity, no proceeding could be hinged thereon. It therefore means that the proceedings leading to the Ruling subject of this Appeal, and the Ruling delivered thereon on the 26/01/2010 was a nullity. It was conducted without jurisdiction.
On this ground alone, the Preliminary Objection raised by the 14th Respondent is hereby sustained. Consequently, the Statement of Claim dated the 16/2/2007 and filed on the 19/2/2007 being a nullity ab-initio; and the entire proceedings including the Ruling of the Court below delivered on the 26th day of January, 2010 are hereby set aside. The Writ of Summons also dated the 16/2/2007 and file on the 19/2/2007 is however valid and competent.
Having held as above, there is no jurisdiction on this Court to proceed to a determination of the issues in this Appeal. Consequently, this Appeal is hereby struck out. The matter is hereby remitted to the Chief Judge Ogun State to be heard de novo by another Judge other than C.O. Ogunsanya, J based on the Writ of Summons already filed.
The parties are to bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA. I agree with his reasoning and conclusions.
Learned counsel for the Appellant agreed in principle with the decision of the Supreme Court in OKAFOR V NWEKE and also agreed with the import of Sections 2(1) and 24 of the Legal Practitioners Act. His contention however is that there was no controversy as regards the identity of counsel who prepared the writ and the Statement of Claim; and that the processes establish the signature of Adebola Adekoya as the author of the documents. As most ably clarified in the lead judgment and in the case of OKAFOR V NWEKEwhat is important is the name of the legal Practitioner and not his signature. What appeared on top of the Plaintiff’s Solicitor” in the Statement of Claim dated 16/02/07 and filed on 19/02/07 is Adebola Adekoya & Co with a signature and no name of any legal practitioner. One cannot relate the signature in the Statement of Claim to the name and signature in the properly executed writ of summons. Each process must stand or fall on its own.
As usual my learned brother has dealt lucidly with the appeal analyzing in detail the relevant authorities. I abide by the orders in the lead judgment
NONYEREM OKORONKWO, J.C.A.: I have read the judgment of my Lord H.S. Tsammani J.C.A. wherein the Preliminary Objection against the Statement of Claim was sustained.
I agree with the decision and will also strike out the appeal.
I abide by the orders made therein.
Appearances
- J. Odesola; Esq.For Appellant
AND
- O. Osanyin; Esq (Prin. State Counsel, Ogun State Mins. of Justice)- for 1st -5th & 7th -13th Respondents.
A.A. Isiolaotan; Esq.- for 14th Respondent.For Respondent
