IBADAN NORTH EAST LOCAL GOVERNMENT & ANOR v. ALHAJI A. O. MAKINDE
(2018)LCN/11851(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/IB/109/2010
RATIO
JURISDICTION: WHETHER JURISDICTION IS THE FOUNDATION OF ANY SUIT
“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.”” PER HARUNA SIMON TSAMMANI, J.C.A.
COURT AND PROCEDURE: THAT THE LEGAL PRACTITIONER MUST SIGN COURT PROCESS
“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.” 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
1. IBADAN NORTH-EAST LOCAL GOVERNMENT
2. OPEYEMI AZEEZ Appellant(s)
AND
ALHAJI A. O. MAKINDE Respondent(s)
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Oyo State High Court of Justice delivered by A. A. Aderemi, J on the 8th day of January, 2008 in Suit No: I/1254/94.
The Respondent initiated the Suit in the Court below, by a Writ of Summons and Statement of Claim dated and filed on the 17/07/95. The Statement of Claim was subsequently amended and the suit was heard on the Further Amended Statement of Claim dated and filed on the 11/3/2009. By paragraph 21 of the Further Amended Statement of Claim, the Plaintiff/Respondent sought the following reliefs:
1. DECLARATION that the purported revocation of the grant of the three plots Ak1/12 ? 14 to the Plaintiffs is unlawful, null and void and it is of no effect.
2. AN ORDER of Injunction restraining the Defendant whether by itself, its servants, agents, privies and/or anyone claiming through it from disturbing the possession of the Plaintiffs.
2(a). AN ORDER of Court setting aside the allocations of Block AK1 plot 13 and Block AK1 plot 14 to Messrs Opeyemi Azeez and Taofiki Adigun respectively.
3. ALTERNATIVELY, the Plaintiffs claim for special (sic: specific) performance of the contract between the Plaintiffs and the Defendant vide letters of payment of ground rents vide Receipts dated 28-1-94 and 24 January, 1994 respectively.
The Defendants, now Appellants, opposed the suit by filing a Further Amended Statement of Defence dated the 19/10/2006 and filed on the 20/10/2006.
The Plaintiff/Respondent’s case is that, he was allocated Shop 13 at Block AK1 at Araromi Market, Agodi Gate, Ibadan by the 1st Defendant/Appellant. That he paid the sum of N550.00 as requested by the 1st Appellant failed but the 1st Appellant failed or refused to give him physical possession of the shop. That when he demanded that he be put in possession, the 1st Appellant asked him to tarry while pending resolution of a dispute with the people who were on the land. That, however, the 1st Appellant allocated the said Plot to the 2nd Appellant.
The response of the 1st Appellant is that it had revoked the revocation of the plot to the Respondent due to the failure of the Respondent to comply with the terms of the contract as to payment of ground rent timeously.
At the trial, the parties called a witness each. Several documents were tendered and admitted in evidence as Exhibits ‘A’ – ‘F2′ respectively, and at the conclusion of evidence, respectively counsel filed and served Written Addresses. Thus, in a considered judgment delivered on the 8/9/2008, the learned trial Judge gave judgment in favour of the Plaintiff/Respondent. Being dissatisfied by the decision, the Appellants filed this appeal.
The Notice of Appeal consisting of three Grounds of Appeal was dated and filed on the 28/11/2008. In obedience to the Rules of this Court, the parties filed and served Briefs of Arguments. The Appellants’ Brief is the Further Amended Appellants’ Brief of Arguments dated the 4/11/2014 and filed on the 5/11/2014. The Appellants distilled four issues for determination as follows:
1. Whether the learned trial Judge was right by holding that the act of making payment of N550.00 is indicative of the acceptance of the terms and condition of the contract on the part of the Respondent Clause 7 of Exhibit ‘A’ is not ambiguous at all and therefore a valid contract exist between the Respondent and the 1st Appellant as revealed in Exhibits ‘A’ and ‘B’.
2. Whether the trial Judge was right to hold that until the 1st Appellant gives physical possession to the Respondent, the Respondent cannot be accused of breaching the provisions of Clause IV of the Agreement.
3. Whether the learned trial Judge was right to hold that the 1st Appellant having failed to prove service of the letter of revocation on the Respondent failed to prove that it did revoke the said allocation, i.e. Exhibit ‘A’
4. Whether or not the lower Court has jurisdiction to entertain the action.
The Respondent’s Brief of Arguments was dated and filed on the 31/12/2012. Three issues were distilled therein for determination as follows:
1. Whether 1st Appellant had not waived the terms of the contract.
2. Whether the learned trial Judge was not right to have held that until physical possession to the Respondent is given, the Respondent cannot be accused of breaching the provisions of Clause IV of the agreement.
3. Whether the Appellant proved that the purported letter of revocation was served on the Respondent.
The Appellants then filed an Appellants? Reply to the Respondent’s Brief of Arguments on points of law. It was dated and filed on the 18/10/2010 but Deemed filed on the 10/5/2018.
Now, the Appellants had raised the issue of jurisdiction as their issue 4. Their contention is that, the Statement of Claim and the Further Amendment thereto, were signed in the name of a Law Firm, thus robbing the Court of jurisdiction to hear and determine the matter. The Respondent’s reaction to same was to raise an objection to the issue of jurisdiction raised by the Appellants.
The Respondent therefore argued that, the issue of jurisdiction raised by the Appellants is not competent because this issue was not canvassed by the parties before the lower Court. It was contended that the issue is not covered by any of the Grounds of Appeal. Learned Counsel contended that, an Appellate Court deals with or hears complaints against the decision of Courts below it with a view to correcting any errors that might have been committed by the lower Court. While conceding that issues of jurisdiction can be raised at any stage, but submitted that leave of the trial Court or the Appellate Court must be first sought and obtained.
The cases of Wahab Alamu Sapo & Anor v. Alhaja Bintu Sunmonu (2010) All FWLR (pt.531) 1408 at 1420 and J. O. Osidele & 2 Ors v. Moses O. Sokunbi (2012) All FWLR (pt.645) 196 at 220 were cited in support. It was then contended that, in the instant case, the Appellants did not raise the issue of jurisdiction at the Court below nor did they obtain leave of this Court to raise same. The Appellants did not make any response to the objection raised by the Respondent to the issue of jurisdiction raised.
Now, an appeal is generally a continuation of the hearing from the trial Court. An appeal is therefore an invitation to the Appellate Court to determine whether the decision of the trial Court was right. Ndukwe v. State (2009) 7 NWLR (pt.1139) 43; Sabru Motors Ltd v. Rajab Ent. (Nig.) Ltd (2002) 7 NWLR (pt.1247) 23. An appeal is therefore the judicial examination by a Higher Court of the decision of a Lower Court, so as to find out whether on the facts before it, and the applicable law thereto, the Lower Court came to a right or wrong decision.
The appeal is generally initiated by a Notice of Appeal containing the Grounds for the Appeal. The Ground or Grounds of Appeal are the reasons why the decision of the Lower Court is complained against. In that respect, the Grounds of Appeal must take their root from the issues determined by the Lower Court. An Appeal therefore questions the reason(s) for the decision of the Lower Court. It is usually a complaint against the ratio decidendi of the case. See Omisore & Anor v. Aregbesola & Ors (2015) LPELR ? 24803 (SC); Achiakpa & Anor v. Nduka & Ors (2001) 14 NWLR (pt.734) 623 and Eyigebe v. Iyaji (2013) LPELR ? 20522 (SC). In Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR ? 41822 (SC), Muhammad, J.S.C. said:
”… it is a corollary principle that an appeal properly so called can only be in relation to issues submitted to and determined by the Court against which decision the appeal lies. Accordingly, where no such issue is submitted to and determined by the Lower Court, there cannot be basis for any Ground of Appeal against non-existing decision or an issue for determination therefrom for the Appellate Court’s consideration. It must therefore; be stressed that there can hardly be a competent Ground of Appeal, except with leave of Court, in respect of any issue that never was in controversy between the parties for only a determination arising from such a dispute entitles the aggrieved to invoke the judicial powers vested in the Appellate Court by the Constitution and the law. Put differently, only an issue pronounced upon by a Lower Court is subject of a competent appeal
It therefore follows that, issues to be distilled for determination in an appeal, must flow from or be formulated distilled from the Ground of Appeal. In other words, issues for determination must flow from the Grounds of Appeal filed. See A.G; Federation v. Guardian Newspapers Ltd & Ors (1999) 9 NWLR (pt.618) 187; Akinlagun & Ors v. Oshoboja & Anor (2006) 12 NWLR (pt.993) 60 and Ndulue & Anor v. Ojiakor & Ors (2013) 8 NWLR (pt.1356) 311. See also Unilag & Anor v. Olaniyan & Ors (1985) 1 NWLR (pt.1) 156. Thus, in Yadis (Nig.) Ltd v. Great Nigeria Insurance Co. Ltd (2007) 14 NWLR (pt.1055) 584, Onnoghen, JSC (as he then was) said:
”It is settled law that an issue or issue, formulated for the determination of an appeal must arise from the Ground(s) of Appeal filed in the appeal, which Ground(s) must attack the ratio decidencdi of the judgment of the Lower Court.”
I have read the Grounds of Appeal filed in this Appeal. I cannot however find where the issue of jurisdiction raised by the Appellant was raised. There is therefore no Ground of Appeal upon which to predicate the issue of jurisdiction raised by the Appellant. It is the law that an issue which does not flow from a Ground of Appeal is incompetent and therefore liable to be struck out. See Afolabi v. State (2016) LPELR 40300 (SC); Akere & Ors v. Governor; Oyo State & Ors (2012) 12 NWLR (pt.1314) 240; Sogunro & Ors v. Yeku & Ors (2017) LPELR 41905 (SC) and Victino Fixed Odds Ltd v. Ojo & Ors (2010) 8 NWLR (pt.1197) 486.
However, where an Appellant seeks to raise and argue an issue which was neither raised nor determined by the Lower Court, he must first of all seek and obtain the leave of Court to do so. See Lagos State Bulk Purchase Corporation v. Purification Techniques (Nig.) Ltd (2012) (2013) 7 NWLR (pt.1352) 82; Osidele & Ors v. Sokunbi (2012) 15 NWLR (pt. 1324) 470 and N.D.I.C v. Okem Enterprise Ltd & Anor (2004) 10 NWLR (pt.880) 107.
Consequently where such new or fresh issue is raised on appeal without the leave of Court having been first sought and obtained, such fresh issue formulated will be incompetent and liable to be struck out. See Yusuf v. Union Bank of Nigeria Ltd (2004) 10 NWLR (pt.880) 107; Ogba & Ors v. Onwuzo & Anor (2005) 14 NWLR (pt.945) 331 and Nidocco Ltd v. Gbajabiamila (2013) 14 NWLR (pt.1374) 350.
Now, it is obvious that the issue of jurisdiction subject of issue four (4) raised by the Appellant was never pronounced upon by the trial Court. However, it is the law that, though a fresh issue can only be raised on Appeal by leave of Court, there is an exception to the effect that, due to the fundamental nature of jurisdiction, it can be raised at any time, even for the first time on appeal without the need to solicit the leave of Court. In other words, an Appellant is allowed to raise the question of jurisdiction on Appeal without the leave of Court.
See Agbiti v. Nigerian Navy (2011) LPELR 2944 (SC); A.P.C. v. Nduul & Ors (2017) LPELR 42415 (SC); A.G; Kwara State & Anor v. Adeyemo & Ors (2016) LPELR 41147 (SC); Wema Securities & Finance Plc v. Nigeria Agricultural Insurance Corp. (2015) LPELR 24833 (SC) and Oni v. Cadbury (Nig.) Plc (2016) LPELR 26061 (SC). Thus in NNPC & Anor v. Orhiowasele & Ors (2013) 13 NWLR (pt. 1371) 211, Rhodes Vivour, JSC said:
”An Appellant seeking to raise the issue of jurisdiction before this Court for the first time does not need to ask for leave. All that he needs to do is to raise the issue of jurisdiction in his Brief, thereby giving the Respondent enough time to respond. The issue of jurisdiction raised by the Appellant for the first time before this Court is very much in order.”
On this note, there is no need in further dissipating energy on the point. I therefore hold that the issue of jurisdiction raised by the Appellant in this appeal is competent and therefore in order. The objection raised thereon by the Respondent is accordingly discountenanced. Now, since
Courts, including this Court, have been enjoined to first determine issues of jurisdiction, I propose to determine same anon, before I proceed on the substantive issues in the appeal, if there will be the need to do so.
In arguing this issue, learned Counsel for the Appellant contended that the Statement of Claim, Amended Statement of Claim and the Further Amended Statement of Claim were signed in the name of Oladiti Akande & Co; and therefore there was no proper process before the Court. He relied on Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation, 2001 to submit that a person is not qualified to practice as a Barrister and Solicitor in Nigeria unless his name is on the roll. Learned Counsel then cited the case of Okafor v. Nweke (2007) 10 NWLR (pt.1043) 521 at pp.531, 533 and 534 in support.
The case of SLB Consortium v. NNPC (2001) 4 S.C. (pt.1) at pp.97, 100 and 107 was further cited to submit that, therein, the Supreme Court held that a Court Process Signed in the name of a Law Firm is incompetent. That such process is fundamentally defective and therefore cannot give the Court seised of the matter the jurisdiction to adjudicate thereon. That in the instant case, the Statement of Claim, Amended Statement of Claim and Further Amended State of Claim are incurably bad and therefore void. It was accordingly submitted that the entire proceeding of the Court below including the evidence led on those incompetent processes cannot be acted upon, as one cannot put something on nothing and expect it to stay. Several other decisions, such as Ogundele & Ors v. Agiri (2009) 12 S.C. (pt.1) 135 and some unreported decisions of this Court were cited and relied upon.
Learned Counsel for the Appellant went on to submit that, in law, the issue of jurisdiction is so fundamental and crucial that it goes to the root of the matter; as any proceeding no matter how well conducted is a nullity in the absence of jurisdiction. That jurisdiction is so fundamental that it can even be raised for the first time on Appeal. The cases of Katto v. CBN (1991) 11 ? 12 S.C. 176 at 195; Umanah v. Attah & 4 Ors (2006) 9. S.C. 151 – 173 and Elabanjo & Anor v. Dawodu (2006) 6 ? 7 S.C. 24 at 35 were then cited to further submit that, lack of jurisdiction is therefore fatal to the entire proceedings. That, the fact that evidence was led in the proceedings is of no consequence because such proceeding was conducted without jurisdiction, and therefore was merely an exercise in futility. The cases of Kalu Mark & Anor v. Gabriel Eke (2004) 1 S.C. (pt. II) 1 at 26 and Aremo II v. Adekanye (2004) 7 S.C. (pt.II) 28 at 36 – 37 were also cited in support. We were accordingly urged to strike out the Statement of Claim, Amended Statement of Claim and the Further Amended Statement of Claim for being null and void, thus depriving the Court of the jurisdiction to have heard and determine the matter.
The Respondent did not respond to the submissions of learned Counsel for the Appellants on this issue. His response was to raise an objection to the competence of this issue. As it is, the decision of this Court did not favour him. This Court is therefore competent to pronounce on the issue of jurisdiction as raised by the Appellants.
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 a 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 Appellants falls under the element (b). It is contended by the Appellants, 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 and Further Amended Statement of Claim were 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 Statement of Claim and Amended Statement of Claim having been signed by Oladiti Akande & 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 counsel, it is very clear that the answer to that question is in the negative. In other words both senior counsel 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
[Underlined by me for emphasis].
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 ? G of the Report that:
”n 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 Statement of Claim, Amended Statement of Claim and Further Amended Statement of Claim were issued or signed by Oladiti Akande & Co., a Firm of Legal Practitioners. I also notice that the Statement of Defence filed on the 5/2/96 was signed by Adeniyi Akintola & Co, also a Law Firm. The Statement of Defence filed on the 6/5/2002 was signed by R. A. Ogunwole & Co., also a Law Firm, so also the Further Amended Statement of Defence filed on the 19/10/2006. 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). Aka?ahs, 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 Statements of Claim and Statements of Defence have been rendered incompetent. A condition precedent to filing of those processes has therefore not been met. The effect is that the trial Court could not have the jurisdiction to proceed on those incompetent processes. Accordingly, any proceeding predicated on those inchoate Court Processes 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.”
Having held as above, I am of the view that on issue four (4) alone, the judgment of the Court below cannot be sustained. Consequently, the Statement of Claim and the subsequent amendments; and the Statement of Defence including the amendments thereto are hereby struck out as being incompetent, null and void. The entire proceedings and judgment delivered on those incompetent processes is hereby set aside. However, the Writ of Summons was duly issued by Chief Oladiti Akande, a Legal Practitioner. It is therefore competent and valid.
On that note, it is my view, which I hold, that this appeal has succeeded on issue 4 raised by the Appellants. It therefore means that, there is no jurisdiction in this Court to proceed to a determination on the remaining issues in this appeal. Consequently, this Appeal is hereby struck out. The matter is hereby remitted to the Chief Judge of Oyo State to be heard de novo by another Judge other than A. A. Aderemi, J; 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. Once again, the vexed question of signing of Court processes by a non legal practitioner – a law firm. The suit was filed in 1994 long before OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521. All legal practitioners have by now learnt that this is a closed matter. Any such error will surely result in the striking out of the offending process. There is no saving grace. The Statement of Claim, Amended Statement of claim and the Further Amended Statement of Claim having all been signed by Oladiti Akonde & Co are incompetent and bound to be struck out being all null and void. I also allow the appeal and set aside the entire proceedings and judgment delivered on those incompetent processes. I abide by the consequential orders in the lead judgment.
NONYEREM OKORONKWO, J.C.A.: I have been privileged to read in draft the judgment in this appeal delivered by my learned brother Haruna Simon Tsammani JCA.
I agree that the appeal be struck out as the fundamental processes by which the case was done at the High Court namely, the pleadings on both sides, were signed by unauthorized entities not being legal practitioners envisaged under the Legal practitioners Act.
Appearances:
For Appellant(s)
For Respondent(s)
