MR. PETER OSALOR v. MRS. HULDA IWUEZE
(2019)LCN/12536(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/PH/126/2016
RATIO
JURISDICTION: WHERE ORDER IS MADE WITHOUT JURISDICTION
“It is settled law that any order or decision of Court made without jurisdiction can be set aside ex debito justitiae by the Court which made the order/decision or by a Court of concurrent jurisdiction. See Auto Import Export vs. J.A.A. Adebayo (2002) 18 NWLR Pt. 799, pg. 554 at 582 to 583; Salisu Idris Saliyim vs. Alhaji Mashi (1975) 1 NMLR 55, 58; Offodile vs. Egwuatu (2006) 1 NWLR Pt. 961. Pg. 432, paras. G-H; and Igwe vs. Kalu (2002) 14 NWLR Pt. 787, pg. 435. It is against this backdrop that I hold that the learned trial Judge was wrong in failing to set aside his judgment delivered without jurisdiction on 11th April, 2011 in suit No. PHC/1210/2005. The lower Court ought to have set the said judgment aside upon the application of the appellant. Issue 1 (one) is consequently resolved in favour of the appellant and against the respondent.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
MR. PETER OSALOR Appellant(s)
AND
MRS. HULDA IWUEZE
(Suing by her Attorney: Mr. EUGENE OLERU) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal is against the ruling of the High Court of Rivers State (henceforth to be known as lower/trial Court) per Hon. Justice M. W. Danagogo J., delivered 29th October, 2015 in suit No. PHC/1210/2005. (See pages 109 – 114 of the record of appeal).
BACKGROUND FACTS
The respondent before us who was claimant at the lower Court, had taken out a writ of summons dated and filed 15th July, 2005 and subsequently a statement of claim on 29th July, 2005. (See pages 1 – 5 of the record of appeal). The defendant who is the appellant herein did not file a statement of defence and the case proceeded to trial at the end of which judgment was given in favour of the respondent on 11th April, 2011. (See pages 21 – 27 of the record of appeal).
On 6th March, 2014 after the trial Court had delivered its judgment, the appellant filed a motion on notice dated 5th March, 2014 before the said lower Court praying it as follows:
AN ORDER setting aside the judgment delivered by the Rivers State High Court on 11th April, 2011 in suit No. PHC/1210/2005: MRS. HULDA IWUEZE vs. MR. PETER O. OSALOR and striking out the suit, the said judgment and suit being nullities.
In support of the motion is an affidavit of 9 (nine) paragraphs to which some exhibits were annexed. Filed alongside the motion was the appellant/applicant’s written address. (See pages 48 ? 86 of the record of appeal). The respondent in opposition to the motion, filed a counter affidavit of 12 (twelve) paragraphs dated and filed 6th June, 2014 alongside with their written address dated 5th June, 2014, and a further Counter Affidavit of 9 (nine) paragraphs. (See pages 87 – 105 of the record of appeal). Appellant/Applicant again filed a Further Affidavit in Reply To Counter Affidavit Filed By Claimant/Respondent on 19th June, 2015. (See pages 92 – 93 of the record of appeal). Appellant/Applicant also filed their reply on points of law to the written address of respondent filed on 6th June, 2014. (See pages 94 – 103 of the record of appeal).
The learned trial Court on 7th October, 2015 took argument of counsel in respect of the said motion on notice dated 5th March, 2014 and filed 6th March, 2014 after which it was adjourned to 29th October, 2015 for ruling. (See pages 108A – 108B of the record of appeal). The learned trial Judge struck out the application in his ruling delivered 29th October, 2015 as can be gleaned at pages 109 – 114 of the record of appeal. The ruling prompted this appeal vide the appellant’s notice of appeal dated 27th January, 2016 and filed 27th January, 2016. (See pages 115 – 121).
In compliance with the rules and practice of this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument dated 16th November, 2016, filed 22nd November, 2016 and deemed properly filed and served on same 22nd November, 2016 was settled by B.E.I. Nwofor, SAN, while the appellant’s reply brief of argument dated 14th February, 2017, filed 16th February, 2017 and deemed proper before the Court on 10th May, 2018 was settled by C. G. Onwuzuligbo, Esq. The respondent’s brief of argument dated 19th December, 2016 and filed 20th December, 2016 was settled by A. M. Ukwu, Esq. Briefs were duly adopted by the parties at the hearing of the appeal on 22nd October, 2018.
From the 7 (seven) grounds of appeal, the appellant crafted the following 5 (five) issues for determination of the appeal:
1. Whether the learned trial Judge was right to deliver a ruling on an application which was never argued by the parties before him and left undecided the appellant’s motion filed on 6th March, 2014, which was duly argued by both parties? (Ground 1 of the grounds of appeal).
2. Whether the failure of the trial Court to determine the appellant’s motion filed on 6th March, 2014, after hearing arguments from both parties on the motion, constitute a breach of the appellant’s right to fair hearing and nullified the ruling delivered on 29th October, 2015 in this case? (Grounds 2 and 7 of the grounds of appeal).
3. Whether the learned trial Judge is right in failing to set aside the judgment delivered by the High Court of Rivers State on 11th April, 2011, in suit No. PHC/1210/2005: MRS. HULDA IWUEZE V. MR. PETER O. OSALOR being a nullity, the judgment having been founded upon, and the suit having been initiated by an originating process (writ of summons) which was signed in the name of a Law Firm rather than by a Legal Practitioner? (Ground 3 of the grounds of appeal).
4. Whether the trial Court is right in holding that the appellant opted to appeal against the judgment and that the appeal was determined? (Grounds 4 and 5 of the grounds of appeal).
5. Whether the trial Court is right in placing reliance on the Further Counter Affidavit filed on 24th July, 2015? (Ground 6 of the grounds of appeal).
The respondent on her part formulated the following (2) two issues:
i. Whether the mistake by the lower Court in mentioning the motion on notice dated 11/3/2013 but filed 12/3/2013 instead of the motion dated 5/3/2014 but filed 6/3/2014 and the Court relying on the document titled Further Counter Affidavit filed 24/7/2015 occasioned any miscarriage of justice to warrant declaring the ruling of the lower Court a nullity and breach of fair hearing? (Grounds 1, 2 and 6).
ii. Whether the learned Judge of the lower Cwas right by refusing to set aside the judgment delivered by the High Court of Rivers State on 11/4/2011 in suit No. PHC/1210/2005: MRS. HULDA IWUEZE V. MR. PETER O. OSALOR (Ground (sic) 3, 4, 5 and 7).
I have given due consideration to the foregoing issues raised by parties on both sides for determination. I am of the view that the justice of the appeal can be met by determining only issue number 3 of the appellant which issue shall now form issue number 1 (one),and issue number 2 of the respondent which shall follow as such. The appeal shall therefore be determined in that vein.
ISSUE 1 (ONE)
Whether the learned trial Judge is right in failing to set aside the judgment delivered by the High Court of Rivers State on 11th April, 2011, in suit No. PHC/1210/2005: MRS. HULDA IWUEZE V. MR. PETER O. OSALOR being a nullity, the judgment having been founded upon, and the suit having been initiated by, an originating process (writ of summons) which was signed in the name of a Law Firm rather than by a Legal Practitioner? (Ground 3 of the grounds of appeal).
Appellant in his submission hereon urged on us to follow the Supreme Court?s decision in SLB Consortium Ltd. vs. N.N.P.C. (2011) 9 NWLR Pt. 1252, pg. 317 wherein Order 26 Rule 4(3) of the Federal High Court Rules, 2000 which is in pari materia with Order 15 Rule 2(3) of the Rules of the High Court, 2010 and Order 6 Rules 1 and 2 (3) of the High Court Rules supra are mandatory provisions of the law. See also Ichie Josiah Madu vs. Humphrey Mbakwe (2008) 10 NWLR Pt. 1095, pg. 320; Ibrahim vs. Barde (1996) 9 NWLR Pt. 474, pg. 513; Monday Ogbonna vs. President of Nigeria (1990) 4 NWLR Pt. 142, pg. 124; Fred Egbe vs. M.D. Yusuf (1992) 6 NWLR Pt. 245, pg. 1; and Austin Nwana vs. Union Bank of Nig. Plc. (2003) 16 NWLR Pt. 846, pg. 218. Learned counsel for the appellant canvassed that neither the writ of summons nor the statement of claim was signed by the claimant herself nor her Legal Practitioner. Rather, that both processes which originated the suit were signed in the name of a Law Firm called ‘CHUKWUKA EMMA BOSAH & ASSOCIATES.’
He argued that for processes filed in our Courts to be valid, they must be signed by Legal Practitioners whose names are on the Roll as having qualified to practice as Barristers and Solicitors in Nigeria. See Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L 11, Laws of the Federation of Nigeria, 2004 as interpreted by the apex Court in the case of Emmanuel Okafor vs. Augustine Nweke (2007) 10 NWLR Pt. 1043, pg. 521.
Appellant continued in submission that a legal process must be signed by a legal practitioner whose name has been enrolled at the Supreme Court as a solicitor and advocate and not by a firm of lawyers. See also Esther Thomas vs. David Mande (2007) All FWLR Pt. 361, pg. 1749; Clev Josh Ltd. vs. Tokimi (2008) 13 NWLR Pt. 1104, pg. 422; First Bank of Nig. Plc. vs. Maiwada (2012) FWLR Pt. 125, pg. 2001; and Section 76 of the High Court of Rivers State Laws, Cap 62 of 1999. Learned counsel upon the authority of Oketade vs. Adewunmi (supra) at page 74, paras. B to H, submitted that non-compliance with the requirement of the law that it is a Legal Practitioner who should sign Court processes, is not a mere technicality that can be brushed aside. See further the cases of Assurance Foreningen Skuld vs. M.V. Sealion & Anor. (2006) 5 NWLR Pt. 973, pg. 286, 297 – 298, paras. H – B; Chief Fred Ejiofor vs. Jonathan Okeke & Ors. (2000) 7 NWLR Pt. 665, pg. 363, 382, paras. A – B; and Awobotu vs. The State (1976) 4 S.C. (Reprint) 27, 50.
Appellant finally urged on us to hold that the judgment delivered by the lower Court having been founded on incompetent originating processes filed by the respondent, is a nullity and that the lower Court ought to have set the said judgment aside on the application of the appellant. Appellant equally urged on us to resolve the issue in the negative and consequently set aside the said judgment of the Court below.
In their reaction on the issue, the learned counsel for the respondent submitted that the originating processes were not signed by a law firm or claimant’s lawyer, rather it was signed in propria persona by claimant’s attorney himself. The respondent then went on to give the meaning of propria as contained in the Black’s Law Dictionary (6th Edition), pg. 792 and Black’s Law Dictionary (9th Edition), pg. 863. Respondent argued that the process was signed by a proper person, who in this case is the attorney to the claimant, a legal practitioner, or in the alternative is known as pro se. Learned counsel for the respondent contended that it is not the firm of legal practitioners that signed, rather it was signed on behalf of the principal by her agent.
He submitted that it is a disclosed agent who is revealed in the document to have signed in person. That both the writ of summons and the statement of claim clearly revealed Mrs. Hulda Iwueze, as a principal suing through an attorney known as Eugene Oleru. See Melwani vs. Five Star Ind., Vulcan Gases Ltd. vs. G.F. Ind. Gasverwertung A. G. (2001) 9 NWLR Pt. 719, pg. 610. Counsel admitted that the appellation of pp: CHUKWUKA EMMA BOSAH & ASSOCIATES shows clearly that the firm did not sign the processes since it is not a legal practitioner in law. However, that since it was signed by a proper person and agent to the claimant, then the claimant who is the principal is said to have signed it also. He argued that that is acceptable in law since a litigant can sign his own processes. Respondent urged on us to resolve the issue in the affirmative and dismiss the appeal.
I have taken note of the appellant?s reply brief which indeed is a reply brief as opposed to being a reply on points of law which it is meant to be. Be that as it may, I shall reckon with any relevant points of law raised therein.
RESOLUTION OF ISSUE 1 (ONE)
Whether the learned trial Judge is right in failing to set aside the judgment delivered by the High Court of Rivers State on 11th April, 2011, in suit No. PHC/1210/2005: MRS. HULDA IWUEZE V. MR. PETER O. OSALOR being a nullity, the judgment having been founded upon, and the suit having been initiated by, an originating process (writ of summons) which was signed in the name of a Law Firm rather than by a Legal Practitioner?
By the provisions of Order 6 Rules 1 and 2(3) of the High Court of Rivers State (Civil Procedure) Rules, 2010:
1. Originating process shall be prepared by claimant or his Legal Practitioner, and shall be clearly printed on good quality white opaque paper.
2. (3) Each copy shall be signed and stamped by the Legal Practitioner or by 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.
Under Order 15 Rule 2(3) of same High Court of Rivers State (Civil Procedure), 2010:
Pleadings shall be signed by a Legal Practitioner or by the party if he sues or defends in person.
From the foregoing provisions, two persons stand out as those statutorily empowered or enabled to sign a writ of summons and or pleadings as the case maybe and those persons are either the claimant himself/herself if he/she sues in person or his/her Legal Practitioner. The word ‘shall’ as used in the provisions, connote command or imperativeness, leaving no room for discretion.
A look at the writ of summons herein, copy of which is as contained at pages 1 and 2 particularly at page 2 of the record of appeal, shows that the signature thereon precedes the following:
PP: CHUKWUKA EMMA BOSAH & ASSOCIATES
REDEMPTION CHAMBERS
NO. 278 PH/ABA EXPRESSWAY
PORT HARCOURT.
By PP: CHUKWUKA EMMA BOSAH & ASSOCIATES as it appears above, it is obvious that the writ was neither signed by the claimant nor by a legal practitioner.
It is as clear as crystal that the said writ of summons on the face of it was signed. However, the signature which sits right on top of the appellation ‘CHUKWUKA EMMA BOSAH & ASSOCIATES’ with the prefix: ‘PP’, is indicative of the fact that it was signed on behalf of the said ‘CHUKWUKA EMMA BOSAH & ASSOCIATES’. This is to say that the process was in the first place signed by proxy as opposed to its being signed by the claimant in person or by a legal practitioner. ‘CHUKWUKA EMMA BOSAH & ASSOCIATES’ is neither the name of the claimant on record nor of a legal practitioner; rather it is the name given to a firm of lawyers. The firm being an inanimate object with some corporate connotation, can neither own a signature nor can it sign one. Therefore the contention of the claimant/respondent that the signature on the writ of summons belongs to her attorney is neither here nor there. The attorney through whom the respondent has sued is known as and referred to as ‘MR. EUGENE OLERU.’ (See the names of the parties as stated on the face of the processes, particularly the writ of summons). Whilst MR. EUGENE OLERU can own and sign signature, ‘CHUKWUKA EMMA BOSAH & ASSOCIATES’ as I already noted, is incapable of owning and signing any signature. Although MR. EUGENE OLERU being human can own and sign signature, yet he is not qualified to prepare and sign such Court processes as the writ of summons and statement of claim, unless it is shown that he was enrolled in the Roll of the Supreme Court of Nigeria to practice law.
There is however, nothing on record to show that he is so enrolled. In any event, the signature on the writ of summons in question does not even belong to the said MR. EUGENE OLERU. A fortiori, the firm names ‘CHUKWUKA EMMA BOSAH & ASSOCIATES’ having equally not been enrolled in the Roll of the Supreme Court, lacks the capacity to practice law and so cannot sign originating processes either directly or by proxy. See the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 which provides that:
2(1) Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only if, his name is on the roll.
Section 24 supra has defined a Legal Practitioner as:
A person entitled in accordance with the provisions of this Act to practice as a Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office or proceeding.
See also the authorities of SLB Consortium Ltd. vs. NNPC (2011) 9 NWLR Pt. 1252, pg. 466; Okafor vs. Nweke (2007) 10 NWLR PT. 1043, pg. 521; Shell Petroleum Development Co. of Nig. Ltd. vs. Prince Ray C. Elewa (decided but unreported in Appeal No. CA/PH/18/2011); Peak Merchant Bank Ltd. vs. NDIC (2011) 12 NWLR Pt. 1261, pg. 253; Sunday Adeneye vs. Alhaji Bukar Yaro (2013) 3 NWLR Pt. 1342, pg. 625; Uwazuruike vs. A.G., Federation (2007) 8 NWLR Pt. 1035, pg. 1; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 at 348; Oketade vs. Adewunmi (2010) 8 NWLR Pt. 1195, pg. 63.
With nothing on record disclosing the status of MR. EUGENE OLERU (attorney of the respondent) to be a legal practitioner, he cannot be seen to sign such a fundamental legal process as the writ of summons. Not even as an agent of the respondent can MR. EUGENE OLERU sign an originating process. This is because there is no provision in the rules of the Court permitting that it be signed by the claimant?s agent, save where he is the legal practitioner who prepared the process. Where the claimant sues in person he/she shall sign, otherwise his/her legal practitioner shall sign.
The writ of summons on record bears neither the signature of the claimant/respondent nor of her counsel. Being the foundation of suit No. PHC/1210/2005, any defect in the writ of summons such as non-signing by the proper person or signing by an un-named or unknown proxy as has happened herein, renders the entire suit and every action taken thereon incompetent and of no effect or value. Suit No. PHC/1210/2005 is obviously not initiated by due process of law and upon fulfillment of the condition precedent which condition is that the said writ of summons shall be signed by the claimant if suing in person or by a legal practitioner. See CBN vs. S.A.A. Nig. Ltd. (2005) 3 NWLR Pt. 911, pg. 52; and Madukolu vs. Nkemdilim (1962) 1 All NLR 587, 595 or (1962) 2 SCNLR 341.
A faulty and incompetent writ of summons cannot sustain any action since one cannot put something on nothing and expect it to stand. The lower Court was on that premise robbed of the jurisdiction to entertain suit No. PHC/1210/2005 ab initio.
It is settled law that any order or decision of Court made without jurisdiction can be set aside ex debito justitiae by the Court which made the order/decision or by a Court of concurrent jurisdiction. See Auto Import Export vs. J.A.A. Adebayo (2002) 18 NWLR Pt. 799, pg. 554 at 582 to 583; Salisu Idris Saliyim vs. Alhaji Mashi (1975) 1 NMLR 55, 58; Offodile vs. Egwuatu (2006) 1 NWLR Pt. 961. Pg. 432, paras. G-H; and Igwe vs. Kalu (2002) 14 NWLR Pt. 787, pg. 435. It is against this backdrop that I hold that the learned trial Judge was wrong in failing to set aside his judgment delivered without jurisdiction on 11th April, 2011 in suit No. PHC/1210/2005. The lower Court ought to have set the said judgment aside upon the application of the appellant. Issue 1 (one) is consequently resolved in favour of the appellant and against the respondent.
Issue 2 (two) is in the event of all that I have said above rendered otiose and of no legal value. Wading into it will only amount to academic exercise and nothing more.
Having come to the inevitable conclusion that the whole proceedings up to the resultant judgment of 11th April, 2011, were anchored on a faulty foundation, the window open to this Court in its appellate jurisdiction is to invoke the provisions of Section 15 of the Court of Appeal Act, 2004 and do what the lower Court failed to do.
Accordingly, the said judgment and everything relating to or resulting therefrom is a nullity. It is on this premise that I hereby set aside and or strike out the judgment of the lower Court in suit No. PHC/1210/2005, delivered 11th April, 2011 given that same was reached ultra vires and without jurisdiction.
This appeal is meritorious and therefore succeeds.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, CORDELIA IFEOMA JOMBO-OFO JCA gave me the opportunity of reading the lead judgment before it was delivered. The appeal succeeds as the judgment of the lower Court amounts to a nullity.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the Judgment delivered by my learned brother, CORDELIA IFEOMA JOMBO-OFO JCA. My learned brother in the lead judgment picked issue 3 canvassed by the Appellant which touches on the jurisdiction of the lower Court to hear and determine suit No. PHC/1210/2005 same having been commenced by a faulty Writ of Summons. The said Writ of Summons which is the originating process was not signed by the claimant or her legal practitioner contrary to the provisions of Order 6 Rules 1 and 2 (3) of the High Court Rivers State (Civil Procedure) Rules, 2010. My learned brother in lead judgment methodically dissected the submissions by counsel on this issue and thoroughly evaluated the evidence adduced before the lower Court and reached the inevitable decision that the originating process that commenced suit PHC/1210/2005 was faulty ab initio. I agree with and adopted the reasoning and conclusion contained in the lead judgment and also allow this appeal.
Appearances:
O. O. Komolafe, Esq.For Appellant(s)
D. O. Ezaga, SAN with him, Messrs E. J. Onoyiwe and A. M. UkwuFor Respondent(s)
