EFFIONG IBANGA UDO v. DAVID EDET JIMMY
(2018)LCN/11941(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/C/137/2015
RATIO
COURT AND PROCEDURE: VALIDITY OF ORIGINATING PROCESS
“The law is settled now that the validity of originating processes in a proceeding, like the originating summons, writ of summons or notice of appeal, is the sine qua non for the competence of the proceeding that follows or that is initiated by such process. See MADUKOLU VS. NKEMDILIM (1964) 3 NSCC 374 @ 379 – 380; KENTE VS. ISHAKU & ORS. (2017) LPELR 42077 (SC); BRAITHWAITE VS. SKYE BANK PLC (2012) LPELR 15532 (SC); OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) 19 @ 37; – where the Supreme Court re-affirmed that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute between them.” PER STEPHEN JONAH ADAH, J.C.A.
JURISDICTION: FUNDAMENTALS OF JURISDICTION
“Over the years our judicial landscape is laid with emphatic pronouncements of the Supreme Court about the fundamentality of jurisdiction and the need for it to be addressed early if raised. In the case of ATTORNEY GENERAL OF KWARA STATE & ANOR. VS. ALHAJI SAKA ADEYEMO & ORS. (2016) LPELR 41147 (SC), Rhodes-Vivour, JSC held: ‘Jurisdiction is the authority, given to the Court by the Constitution, legislation to decide matters that come before it. Jurisdiction is a threshold issue. So once raised it must be resolved quickly. It is so fundamental in that if a Court hears a case in which it has no jurisdiction, no matter how well the case was conducted and decided, it would be declared a nullity. See MADUKOLU VS. NKEMDILIM (1962) 2 NSCC PAGE 374; A. G. LAGOS STATE VS. HON. JUSTICE L. J. DOSUNMU (1989) 3 NWLR (PT. 111) PAGE 552; DANGANA & ANOR. VS. USMAN & 4 ORS. (2012) 2 SC (PT.111) PAGE 103; NURTW & ANOR. VS. RTEAN & 5 ORS. (2012) 1 SC (P7 11) PAGE 119. Jurisdiction is so fundamental and so it may be raised in the trial Court or Court of Appeal or in the Supreme Court for the first time. See USMAN DAN FODIO UNIVERSITY VS. KRAUS THOMPSON ORGANIZATION LTD. (2001) 15 NWLR (PT. 736) PAGE 305’.” PER STEPHEN JONAH ADAH, 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
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
EFFIONG IBANGA UDO – Appellant(s)
AND
DAVID EDET JIMMY – Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Akwa Ibom State in Suit No. HU/205/2010 delivered on 13th day of May, 2015 by E. H. Isangedighi, J.
The facts briefly are that pursuant to Order 3 Rule 2(1) of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State, the Respondent took out a writ of summons as Plaintiff against the Appellant, claiming a declaratory relief, an injunctive order and damages for trespass. On 19th January, 2011 the Respondent filed an amended writ of summons claiming the same reliefs as in the original writ.
The Appellant entered a conditional appearance and thereafter raised in the suit a preliminary objection challenging the jurisdiction of the trial Court to hear the suit. The objection was overruled by the trial Court and it proceeded to hear the claim. The Court at the end delivered its judgment on the 13th day of May, 2015 and granted all the reliefs of the Respondent.
Aggrieved by the decision, the Appellant filed his notice of appeal on 12th day of June, 2015.
The record of appeal was compiled and transmitted on 3rd August, 2015. The Appellant filed its brief on 8th February, 2016 but was deemed properly filed and served on 29th September, 2016. The Respondent’s brief was filed on 15th November, 2016.
The Appellant raised three (3) issues for determination namely:
ISSUE NO. 1
Whether the trial Court was right to assume jurisdiction over the suit despite the fact that the Respondent nor his Legal Practitioner did not sign the amended writ of summons. Formulated from ground 1.
ISSUE NO. 2
Whether the trial Court was right to enter a declaratory judgment in favour of the Respondent when he did not state by any slighted evidence how his father acquired the land in dispute. Formulated from ground 2.
ISSUE NO. 3
Whether the trial Court had jurisdiction to entertain the suit when on its totality the suit was statute-barred. Formulated from ground 3.
The Respondent in his own brief raised also three (3) issues which are differently worded but the same content. These issues are:
(a) Is the amended writ of summons on record incompetent or invalid regard being had to Order 6 Rules 1 and 2(3) of the High Court (Civil Procedure) Rules, 2009 of Akwa Ibom State?
(b) Did the Respondent prove his case in the lower Court to entitle him to judgment? And
(c) Was the Respondent’s claim statute-barred?
The three (3) issues raised by the Appellant were modified and adopted by the Respondent. These three (3) issues are set down for consideration.
ISSUE ONE
This issue has to do with whether the trial Court was right to assume jurisdiction over the suit despite the fact that the Respondent nor his Legal Practitioners did not sign the amended writ of summons. The moderated issue of the Respondent aligned the issue with Order 6 Rules 1, 2(3) of the High Court (Civil Procedure) Rules 2009 Akwa Ibom State.
The learned Counsel for the Appellant canvassed that a valid writ of summons is a condition precedent to the legitimacy of the suit. He relied on the case of DEROS MARITIME LTD. VS. M. V. MSC APAPA (2015) 1 NWLR (PT. 1439) 51, 73; and KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377, 394. He submitted that in the instant case, the amended writ of summons was not signed by the Respondent or by his Legal Practitioner on his behalf.
He relied on Order 6 Rule 1, Rule 2(3) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009. He canvassed that an unsigned process has no legitimacy. He relied on the cases of KEYSTONE BANK LTD. VS. J. O. ADEBIYI & SONS (NIG.) LTD. (2015) 1 NWLR (PT. 1439) 98, 111; ONWARD ENTERPRISES LTD. VS OLAM INT. LTD. (2010) ALL FWLR (PT. 531) 1503, 1504.
He urged the Court to allow this appeal as the case before the lower Court being incompetent must be struck out.
The Respondent canvassed that Order 6 Rules 1, 2(3) do not determine the jurisdiction of the lower Court and cannot impede the same. He relied on the case of OKEREKE VS. YAR’ADUA ET AL (2008) 34 NSCQR 1370 where the Supreme Court held that jurisdiction cannot be subjected to the dictates of any statute including Rules of Court. He contended that his amended writ of summons at pages 34 – 35 of the record bears the name of his Counsel. That by writing Counsel’s name on the writ of summons it suffices to take care of the requirement of a signature and that the writ is valid. He relied on the case of S.L.B. CONSORTIUM VS. NNPC (2011) ALL FWLR (PT. 583) 1902 and relied on the dictum of Onnoghen, JSC (as he then was).
He urged the Court to resolve this issue in favour of the Respondent.
Under the 2009 Rules of the High Court of Akwa Ibom State the law requires in Order 6 Rules 1, 2(3) thereof as follows:
ORDER 6 RULE 1 –
Originating process shall be prepared by a Plaintiff or Claimant or his Legal Practitioner, and shall be clearly printed on good quality white opaque paper.
ORDER 6 RULES 2(3) –
Each copy shall be signed and stamped by the Legal Practitioner or by the Plaintiff or a Claimant where he sues in person and shall be certified after verification by the Registrar as being a true copy of the original process filed.
This provision of the Rules is very clear and straight forward. It does not require any form of construction. The provision is to the effect that every originating process shall be prepared by Plaintiff or Claimant or his Legal Practitioner and each copy shall be signed and stamped by the Legal Practitioner or by the Plaintiff or a Claimant where he sues personally and further that the process shall be certified after verification by the Registrar as being a true copy of the originating process filed.
The law is settled now that the validity of originating processes in a proceeding, like the originating summons, writ of summons or notice of appeal, is the sine qua non for the competence of the proceeding that follows or that is initiated by such process. See MADUKOLU VS. NKEMDILIM (1964) 3 NSCC 374 @ 379 – 380; KENTE VS. ISHAKU & ORS. (2017) LPELR 42077 (SC); BRAITHWAITE VS. SKYE BANK PLC (2012) LPELR 15532 (SC); OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) 19 @ 37; – where the Supreme Court re-affirmed that an initiating process whether writ of summons, originating summons or a notice of appeal must be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in dispute between them.
In the instant case the amended writ of summons is at page 35. The writ was not signed by the Legal Practitioner or the Plaintiff or the Claimant in the case. It was simply indicated that:
This writ was issued by Nkereuwem Udofia, Esq. of the Bailiff Chambers, 65, Nwaniba Road, Uyo.
There is no signature and there is no stamp of the Legal Practitioner as required by Order 6 of the Rules of the Court below.
The learned Counsel for the Respondent had at pages 5 – 6 of his brief cited the decision of the Supreme Court in SLB CONSORTIUM LTD. VS. NNPC (2011) ALL FWLR (PT. 583) 1902. I must stop here to address the half hearted and clumsy approach of the learned Counsel for the Respondent in this case in citing wrongly, a Supreme Court decision and quoting the judgment of the Supreme Court and omitting words not beneficial to his case. See his coinage of the citation: ?SLB ETC. VS. NNPC?. The case was reported widely in all the major law reports but no law report cited this case as coined by the Counsel in this case. What my Lord, Onnoghen, JSC (as he then was) said in SLB CONSORTIUM LTD. VS. NNPC (supra) is as follows:
A process prepared and filed in a Court of law by a Legal Practitioner must be signed by the Legal Practitioner and it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice?. (Underlined for emphasis).
The Counsel for the Respondent removed ‘/or’ from that quotation to give it a different meaning. That is very sad. The law has been well settled that the originating process must conform to every condition precedent and the law before it can be valid. The Supreme Court has in many cases settled the issue of signing originating processes that we should not have to confront it any more but it looks as if our Legal Practitioners are not learning as is required in the legal and noble profession of the law. In the recent case of WILLIAMS & ANOR. VS. ADOLD STAMM INT’L LTD. (2017) LPELR 41559 (SC), Kekere-Ekun, JSC held:
”There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a Legal Practitioner whose name appears on the roll of Legal Practitioners and who is entitled to practice as a barrister and solicitor as provided for in Sections 2 and 24(2)(1) of the Legal Practitioners Act Cap. 111 LFN 2004 is incompetent and liable to be struck out. See OKETADE VS. ADEWUNMI (supra); OKAFOR VS. NWEKE (supra); F.B.N. PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 1433. In S.L.B. CONSORTIUM LTD. VS. N.N.P.C. (2011) 9 NWLR (PT. 1252) 317 @ 331 B ? 332A, this Court affirmed its earlier decision in REGISTERED TRUSTEES OF APOSTOLIC CHURCH LAGOS AREA VS. RAHMAN AKINDE (1967) NMLR 263 and held that a process prepared and filed in Court by a Legal Practitioner must be signed by the Legal Practitioner, and it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice”.
In the case of KENTE VS. ISHAKU & ORS. (2017) LPELR 42077 (SC), Eko, JSC pronounced on the effect of failure to commence a suit with a valid originating process as follows:
”Consequently, failure to commence a suit or appeal with a valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions precedent for the exercise of the Court’s jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and determine the issues in the action or appeal. See KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997); BRAITHWAITE VS. SKYE BANK PLC (2012) LPELR 15532 SC.
It cannot be over-emphasized that unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it is incompetent. See MADUKOLU VS. NKEMDILIM (supra). The proceedings in such action or appeal remain a nullity ab initio, no matter how well the proceedings were conducted. See TIMITIMI VS. AMABEBE 14 WACA 379. Courts do not exercise their given jurisdiction in futility.”
In the instant case, the process is the writ of summons. Order 6 of the Rules of High Court of Akwa Ibom 2009 makes it a condition precedent that a writ must be signed and sealed by a Legal Practitioner or Plaintiff/Claimant. This condition was not met and objection was raised. The lower Court overruled it and continued with the hearing of the case. Over the years our judicial landscape is laid with emphatic pronouncements of the Supreme Court about the fundamentality of jurisdiction and the need for it to be addressed early if raised. In the case of ATTORNEY GENERAL OF KWARA STATE & ANOR. VS. ALHAJI SAKA ADEYEMO & ORS. (2016) LPELR 41147 (SC), Rhodes-Vivour, JSC held:
”Jurisdiction is the authority, given to the Court by the Constitution, legislation to decide matters that come before it. Jurisdiction is a threshold issue. So once raised it must be resolved quickly. It is so fundamental in that if a Court hears a case in which it has no jurisdiction, no matter how well the case was conducted and decided, it would be declared a nullity. See MADUKOLU VS. NKEMDILIM (1962) 2 NSCC PAGE 374; A. G. LAGOS STATE VS. HON. JUSTICE L. J. DOSUNMU (1989) 3 NWLR (PT. 111) PAGE 552; DANGANA & ANOR. VS. USMAN & 4 ORS. (2012) 2 SC (PT.111) PAGE 103; NURTW & ANOR. VS. RTEAN & 5 ORS. (2012) 1 SC (P7 11) PAGE 119.
Jurisdiction is so fundamental and so it may be raised in the trial Court or Court of Appeal or in the Supreme Court for the first time. See USMAN DAN FODIO UNIVERSITY VS. KRAUS THOMPSON ORGANIZATION LTD. (2001) 15 NWLR (PT. 736) PAGE 305”.
In the instant case, the amended writ of summons taken out to commence this suit at the lower Court was not signed and sealed by the Legal Practitioner representing the Respondents as required by the law. It follows therefore that the originating process used is fundamentally defective. The jurisdiction of the Court below was therefore not activated. The suit is incompetent and it must be struck out. Issue One is therefore resolved in favour of the Appellant.
With the resolution of Issue One the other two issues left have become academic. They are therefore discountenanced.
From the foregoing, it is certain that this appeal succeeds and it must be allowed. Appeal is accordingly allowed. The defective writ and the suit at the Court below is hereby struck out along with the decision in Suit No. HU/205/2010 delivered on the l3th day of May, 2015.
The Respondent is to pay a cost of N100,000.00 to the Appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree with the view expressed by His Lordship, Adah, JCA in the judgment just delivered, to the effect that the instant appeal is meritorious. I too hereby allow the appeal, and set aside the decision of the Akwa Ibom State High Court in suit No. HU/205/2010, delivered on May 13, 2015 by E. H. Isangedighi, J.
Accordingly, the suit in question is hereby struck out for being incompetent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree
Appearances:
Emmanuel Ekpenyong, Esq.For Appellant(s)
N. Onwugharam, Esq. with C. E. Eban, Esq.For Respondent(s)
