YAZIDU A. ALIYU & ANOR v. ALH. MOHAMMED SANI ABDUL
(2019)LCN/12626(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/YL/162/2017
RATIO
ACTION: WHO CAN SIGN THE ORIGINATING SUMMONS
“The Courts have therefore, maintained over the years that for any originating process of the Court to be valid, it must be signed by the litigant in person or by a Legal practitioner. See Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, First Bank of Nig. Ltd v. Maiwada (2012) Vol.213 LRCN 121 at 129 R. 6; Omega Bank (Nig) Plc v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt. 607) 362.” PER SAIDU TANKO HUSSAINI, J.C.A.
APPEAL: GROUNDS OF APPEAL
“However, the law is rock solid that Grounds of Appeal are said to be the reasons why the decision is considered wrong by the aggrieved party. See ALBERT AKPAN V. BOB (2010) 43 N.S.C.Q.R. 446; AZAATSE V. ZEGEOR (1994)5 NWLR (Pt. 342) 76 at 83; OLADELE V. THE STATE (1991)1 NWLR (PT.170) P. 708 AT 718. Any ground of Appeal which no issue was distilled is deemed abandoned. See SPARKLING BREWERIES V. UNION BANK (2001)7 NWLR S.C.N.J. 334.” PER SAIDU TANKO HUSSAINI, J.C.A.
COURT AND PROCEDURE: DUTY OF THE COURT TO ACCORD MEANING
“The above Rule of Court is obedient to clarity and unambuigity. To this end, the law gives the Court the license to accord to its literal meaning without any embellishments, see OLOFU V. ITODO(2010)18 NWLR; SHETTIMA V. GONI (2011); ARDO V NYAKO (2014); IKECHUKWU V. NWOYE (2015). That is to say, on an action founded on writ of summons, a litigant or his legal representative shall:-
i. Prepare and sign such originating Court process(s) as in Form 1 to the appendix; and
ii. Such Court processes or document shall be filed at the registry of the Court for issuance and service to all parties concerned upon payment of all necessary fees.” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. YAZIDU A. ALIYU
2. ALH. ISA TUKUR Appellant(s)
AND
ALH. MOHAMMED SANI ABDUL Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of the High Court Taraba State (hereinafter referred to as ‘the Court below’) delivered on the 11th July, 2016 in Suit No.TRSJ/101/2009 granting the claim brought before it.
The respondent was the plaintiff before the Court below ‘vides’ the Writ of Summons and Statement of Claim dated the 21st August, 2009 and filed on 19th February, 2010 seeking for the reliefs contained at paragraph 45 (1) to (6) of the Statement of Claim at pages 9 to 10 of the record of appeal. The reliefs sought are as follows:
1. A declaration that the piece of land known as plot No. 3(D) road, measuring about 1196 square meters lying and situate at Anguwan Ya Mai Salla behind Presidential Annex Jalingo is the property of the plaintiff.
2. A declaration that the defendants trespassed on the land by erecting a wall fence around same without the Plaintiff’s consent or permission.
3. An order of this Hon. Court directing the Defendants to demolish the wall fence erected around the plaintiff?s land without the Plaintiff’s consent or permission.
4. The sum of N48, 595. 00 (Forty Eight Thousand Five Hundred and Ninety Five Naira) only being the cost of building materials and labour spent by the plaintiff on the land before the land was fenced around by the Defendants without the plaintiff’s consent.
As the detail of which are as follows:-
(i) Two trucks of land all costing N2200. 00
(ii) Cost of purchasing 300 pieces of 6 inches of cement blocks at the cost of N18, 000. 00
(iii) Cost of labour for erecting the foundation of plaintiff?s building plan N11, 500. 00.
(iv) Cost of cement used in lying the foundation which was refilled by the defendants N6, 800. 00
(v) Cost of 144 inches cement block N2000. 00.
(vi) Cost of additional one (1) bag of cement used N1, 700. 00.
(vii) The cost of watering molded blocks all N450. 00
(viii) The cost of the notice place (sic) on the land indicating that the land is not for sale which was destroyed by the Defendants N1, 500. 00
(ix) The cost of 75 pieces of 6 inches cements blocks.
5. The sum of N500, 000. 00 (Five Hundred Thousand Naira) only as general damage.
6. The cost of this action.?
The Appellant as defendant denied the claim.
In a resume, the respondent case was that sometimes in the year 2000, he applied and was granted Right of Occupancy over the land in dispute covered by certificate No. TS/GH/BL & S/LAN/169734, after payment of the necessary fees in the sum of N25, 550. 00 and receipts issued in respect thereof. In 2001, the respondent commenced development on the land by laying a foundation therein and stopped because of financial challenge until later around February, 2009 when he mobilized his site Engineer and other laborers back to the site for the continuation of the work. The 1st Appellant later came in and lay claim over the land, and requested the site Engineer to stop work and vacate the land for him. This development reached the respondent who was also invited to Jalingo Police station at the complaint of the 1st Appellant on the dispute over the ownership of the land. The respondent was detained in the Police Station at a point in time. Infuriated with the turn of event, the respondent took out a writ against the appellants and claimed jointly and severally as per paragraph 45 (1) to (6) of the Statement of Claim, at page 9 to 10 of the record of appeal.
At the trial, the respondent called 4 (four) witnesses and tendered 4 (four) exhibits. The appellants as defendants called 5 (five) witnesses and tendered 6 (six) documents which were admitted and marked as exhibits. At the close of the hearing, the Court below in a considered judgment delivered on the 11th July, 2016, found in favour of the respondent as follows:
this Court shall proceed and enter judgment for the plaintiff also in line with his reliefs 1 and 2 as pleaded. The sum of N100,000.00k is awarded against the defendants and in favour of the plaintiff as award in general damage which shall be inclusive of award as the cost of plaintiff had incurred as a result of this action.
Dissatisfied with the judgment of the Court below, the defendants, now appellants appealed to this Court vide the Notice of Appeal dated and filed on the 28th July, 2016. The Notice contain 10 (Ten) grounds of Appeal as can be found at pages 310 to 315 of the record of appeal. The said record was compiled and transmitted to this Court on the 4th October, 2017, out of time, was nonetheless deemed as properly compiled and transmitted by order of this Court granted on the 16th January, 2018. Appellants later filed their Appellants’ Brief of Argument on the 11th April, 2018 and same deemed as properly filed on the 25th June, 2018. A sole issue for determination of this Court was distilled in the brief which is as follows:
‘Whether the originating processes used to commence Suit No. TRSJ/101/2009 as well as the entire proceedings conducted therein by the trial Court together with the resultant judgment are competent in law? Distilled from ground one of the Notice of Appeal.’
The brief of argument for the Respondent filed on 9th October, 2018 was deemed as properly filed on the 24th October, 2018. 2 (two) issues were distilled for determination of Court as follows:
1. Whether the originating processes used to commence Suit No.TRSJ/101/2009 as well as the entire proceedings conducted therein by the trial Court together with the resultant judgment are competent in law?
2. Whether the Law under which suit No.TRSJ/101/2009 was commenced recognize the signing of the writ by a solicitor therein.?
At the hearing on the appeal, Mr. G.T. Ieave Esq., holding the brief of J.A. Oguche Esq., for the Appellant introduced and adopted the brief of argument and urged the Court to allow the appeal and set aside the judgment of the Court below. Mr. F. A. Ogbe (Assistant Chief Law Officer, Legal Aid Counsel of Nigeria), introduced the respondent?s brief and adopted the same by urging us to dismiss the appeal, and affirm the judgment of the Court below.
Appellants’ Counsel’s Submissions on the Sole Issue:
Learned counsel to the appellant arguing the sole issue raised in his brief submitted that the writ of summons used to commence Suit No.TRSJ/101/2009 was neither signed nor dated and this, it is submitted, raises issue of the validity and or competency of the writ of summons. He argued that an Originating Court processes must be signed either personally by the party or his counsel, and any absence of signature on the Writ of Summons, renders the process invalid. He relied on Udoeboi v. Udousua (2017) 5 NWLR (Pt. 1559) 501 at 502 R. 1 which the learned counsel argued, are on all fours with facts in this appeal.
He further submitted that even when a Writ of Summons is signed, but by a law firm rather than a legal practitioner whose name is on the roll of Solicitors and Advocates of the Supreme Court, such a writ or legal process is automatically vitiated and rendered incurably defective ab initio and liable to be struck out. He also relied on the classic case of Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, followed by cases such as: First Bank of Nig. Ltd v. Maiwada (2012) Vol. 213 LRCN 121 at 129 R. 6; Omega Bank (Nig) Plc v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt. 607) 362.
Learned counsel therefore, submitted that the fate of such an unsigned ‘writ’ robbed the High Court of jurisdiction to entertain the suit let alone determine same, hence all proceedings leading to Judgment were a nullity. He relied on the following cases: Okereke v. Yar’Adua (2008) All FWLR (Pt. 430) 25 at 36 – 37 r.11; Nwankwo v. Yar’Adua (2010) 12 NWLR (Pt. 1209) 518; Anthony Tippi v. Sylvester Notani; (unreported), Appeal No. CA/YL/51/2013. He argued further relying on UAC Vs. Mcfoy (1948) 2 AC that there being no competent originating process, the trial Court acted in futility when it took proceedings leading to the Judgment appealed against. See further decision in Odom v. PDP (2015)6 NWLR (Pt. 1456) 527 at 348 para.C-D; C.O.P. Adamawa State v. Saratu (2015)3 NWLR (Pt.1446) 276 at 305, para. H-A. He urged us to allow this appeal, set aside the Judgment delivered at the trial Court and strike out plaintiff’s claim at that Court.
Respondent’s Submission on Issues:
Learned counsel to the respondent argued the two issues distilled by him together. He submitted that the writ which commenced the action at the trial Court was competent in law. He invited our attention to the Rules under which Suit No. TRSJ/101/2009 was commenced at the trial Court as the Rules of the then Gongola State High Court (Civil Procedure) Rules, 1987 which it is argued, did not provide for the signing of a writ issued under the rule, by the Solicitor or Plaintiff himself. Counsel quoted in extenso, the provisions of Order 5 Rule 2 of the said Rule. Contrary to the appellants’ counsel’s submissions, the learned respondent’s counsel further submitted that the Writ of
Summons used at the trial Court was dated the ’21st day of August, 2009′ and filed on the ’24/8/09′, and this, to him, has complied with the requirements laid down by the rules of Court for the commencement of suit including the address of the appellants. Learned counsel distinguished the Gongola State High Court (Civil Procedure) Rules 1987 under which the said Writ of summons was issued, and the Taraba State High Court (Civil Procedure) Rules 2011 currently in force which provide for the signing of each of the original process under Order 5 Rule 2(3) of the 2011 Rule. He argued that the said judgment of the Taraba State High Court in Suit No.TRSJ/101/2009 was not filed and commenced under the Taraba State High Court Rule 2011, and hence cannot be set aside.
Learned respondent’s counsel further submitted that such omission of not dating or signing of the writ has been cured by the provision of Order 2 Rule 1(1) of the Gongola State High Court (Civil Procedure) Rules 1987 Rule, which made any irregularity immaterial to nullify any proceedings or judgments. Hence, the Suit No.TRSJ/101/2009 was duly filed and commenced in accordance with the then Rules in existence at the time and same was competent before the trial Court. He further cited Section 18(1) of the Interpretation Act, Cap. I23, Laws of the Federation of Nigeria 2004, on the nature of the rule of Court which partake of the nature of subsidiary legislation with a force of law, and therefore binding on the parties before the Court. He relied on Hajag v. Hajah (2013) All FWLR (Pt. 679) p.1054 at 1075, para.G-C; Stabilini v. Vision Nig Ltd v. S.V. Ltd (2011) 8 NWLR (Pt.1249) p.265, at 276, para. A-B; Idris v. Abubakar (2011) All FWLR (Pt.557) p.733, at 748. Having complied with the provision of the law regulating the filing of cases as of then, the writ before the trial Court was proper and competent. He relied on Matanmi v. Governor of Ogun State (2004) 5 NWLR (Pt.866) p. 255 at 257. Para.A-C r.1; Tijani v. FBN Plc (2014) 1 NWLR (Pt. 1387) p. 57 at 61. Learned counsel further argued that the case of First Bank of Nig v. Maiwada (supra) cited by the appellants is not on all fours with the present case. Rather the case is supportive of the respondent’s position. He finally urged us to dismiss this appeal as lacking in merit and uphold the judgment of the trial High Court.
RESOLUTION:
I wish to commence this discourse from the angle of the Notice and grounds of Appeal being filed, the fulcrum, upon which the edifice of the entire appeal was built. The Notice of Appeal which is dated and filed on the 28th July, 2016 contain 10 (Ten) grounds as can be found at pages 310 to 315 of the record of appeal. Thus contrary to the position of the respondent at paragraph 10.0, page 3 of the respondent’s brief of argument when he postulated that the Notice of Appeal contained 8 (eight) grounds. However, the law is rock solid that Grounds of Appeal are said to be the reasons why the decision is considered wrong by the aggrieved party. See ALBERT AKPAN V. BOB (2010) 43 N.S.C.Q.R. 446; AZAATSE V. ZEGEOR (1994)5 NWLR (Pt. 342) 76 at 83; OLADELE V. THE STATE (1991)1 NWLR (PT.170) P. 708 AT 718. Any ground of Appeal which no issue was distilled is deemed abandoned. See SPARKLING BREWERIES V. UNION BANK (2001)7 NWLR S.C.N.J. 334.
In the instant appeal, out of the ten (10) grounds of Appeal, the Appellant?s only sole issue for determination is hinged on the Ground No.1.
It follows willy-nilly, that the other remaining grounds 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the Notice and Grounds of Appeal where no issue was distilled by either of the parties, are deemed abandoned. Therefore, I agree with the submission of the learned respondent’s counsel though, on the remaining 9 grounds (and not 7 as wrongly canvassed in his brief) for having been abandoned. Consequently, the said grounds 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the Notice and Grounds of Appeal are hereby struck out.
There is now left, only 1 (one) ground of appeal, that is, Ground 1. Although, the respondent formulated two issues for determination by adopting the appellants’ sole issue and formulated additional one, the law guiding formulation of issues has it that for an issue for determination to be competent, each issue must relate to at least one of the valid grounds of appeal. Any issue not derived from a ground of appeal, is incompetent and Court cannot make finding on it. See UNITY BANK PLC V. BOUARI (2008)2 SCNJ; WAEC V. ADEYANJU (2008)4 SCNJ 167; NWANKWO V. EDCS U.A. (2007)2 SCNJ 89; MIL. ADMIN FOR EKITI STATE V. ALADEYELU (2007)5 SCNJ 1.
It also therefore, follows that the two issues distilled on behalf of the respondent cannot be said to be competent in the light of the above authorities and the fact that only one ground of appeal endured and survived in this appeal. Consequently, the two issues distilled by counsel on behalf of the respondent are incompetent, and therefore struck out.
I shall now proceed to determine this appeal on the lone surviving issue and ground presented by counsel on behalf of the appellants, the undoubted owners of the appeal.
The issue is as follows:
Whether the originating processes used to commence Suit No.TRSJ/101/2009 as well as the entire proceedings conducted therein by the trial Court together with the resultant judgment are competent in law? Distilled from ground one of the Notice of Appeal.
The complaint of the appellants is on non-compliance with the Rules of the High Court of Taraba State on the ‘signing of Writ of Summons’ on filing. It is trite that Rules of Court are part of the machinery of justice made by the Courts to regulate their proceedings and they are designed to assist in obtaining justice with ease, certainty and dispatch.
True to the respondent’s argument contained at paragraph 11.1 of page 6 of the respondent’s brief, they partake of the nature of subsidiary legislation by virtue of Section 18 (1) of the Interpretation Act Cap. I23 Laws of the Federation of Nigeria 2004, and consequently have the force of law which must be obeyed by parties. See Hajaig v. Hajaig (2013) All FWLR (Pt. 679) p.1054 at 1075, para.G-C; Stabilini v. Vision Nig Ltd v. S.V. Ltd (2011)8 NWLR (Pt.1249) p.265, at 276, para.A-B; Idris v. Abubakar (2011) All FWLR (Pt.557) p.733, at 748; Duke v. Akpabuyo Local Gov.t. (2005)19 NWLR (Pt.959) 130; Agip (Nig.) Ltd v. Agip Petroli Int.l. & Ors (2010)5 NWLR (Pt.1187) 348.
The Courts have therefore, maintained over the years that for any originating process of the Court to be valid, it must be signed by the litigant in person or by a Legal practitioner. See Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, First Bank of Nig. Ltd v. Maiwada (2012) Vol.213 LRCN 121 at 129 R. 6; Omega Bank (Nig) Plc v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt. 607) 362.
However, a Legal Practitioner is defined under Section 24 of the Legal Practitioners Act Cap. L11, Laws of the Federation of Nigeria 2004, as follows:
“Legal Practitioner means 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 proceedings.”
The Act is silent as to who is a Barrister or a Barrister and Solicitor, but the qualifications for enrollment as a Barrister and Solicitor is provided under Section 7 of the Act as follows:
Subject to the provisions of this section, a person shall be entitled to have his name enrolled if and only if:
i. He has been called to the BAR by the Body of Benchers; and
ii. He produces a certificate of his Call to the Bar to the Registrar.”
The question under consideration is, who then prepared, signed and issued the Writ of Summons under consideration? I have taken a careful look at the Writ as found at page 1 to 2 of the record of appeal, it appears to me that it was definitely not prepared, signed and issued by the litigant. The portion of the endorsements to the Writ contained at page 2 of the record is reproduced hereunder, thus;
‘This Writ is issued by Yahuza Abdullahi ESQ., of YAHUZA ABDULLAHI & CO.
From the face of the above excerpt, it is glaringly clear that the Writ was prepared, though, unsigned and issued by one ‘Yahuza Abdullahi Esq., of Yahuza Abdullahi & Co.’, and who could possibly, have been a legal practitioner within the meaning of Section 24 of the Legal Practitioners Act, notwithstanding the legal implication of absence of signature on the processes. It is to be noted that there exist a thin line between this particular appeal and the cases cited and relied upon by the Learned Appellants’ counsel such as: Okafor v. Nweke (2007)10 NWLR (Pt.1043) 521, First Bank of Nig. Ltd v. Maiwada (2012) Vol.213 LRCN 121 at 129 R. 6; Omega Bank (Nig) Plc. v. OBC Limited (2005); A.G. Abia State v. Agharanya (1999)6 NWLR (Pt. 607) 362.
While in those cases cited particularly Okafor v. Nweke (supra), it was the originating appeal processes wrongly signed by a law firm such as ‘J.H.C. Okolo SAN & CO.’, who is neither a legal practitioner on the roll nor the litigant competent to prepare and sign Court process that was in issue and such originating processes wrongly signed in the name of the law firms, were therefore, declared incompetent. In the case of this appeal before us, the signature is completely absent on the Writ which has the name of ‘Yahuza Abdullahi Esq., of Yahuza Abdullahi & Co.’ appeared on the endorsement thereto. These differences notwithstanding, the implication of such an omission is so fundamental that target to castigate the case or appeal arising therefrom as being incompetent. This therefore, take us to the next question, that is, what then is the legal implication of a document or process, in this case, the Writ of Summons not signed by the purported maker, ‘Yahuza Abdullahi Esq. of Yahuza Abdullahi & Co.’ Order 5 Rule 1 (1) of the Taraba State High Court (Civil Procedure) Rules 2011, which is the relevant procedural law in force, provides as follows:
‘A writ of summons shall be issued by the Registrar, or other officer of the Court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff’s Solicitor by completing Form 1 in the Appendix to these rules, but the Registrar or other officer as aforesaid, where the applicant for a writ of summons is illiterate, or has no solicitor, may dispense with a written application and instead himself record full particulars of an oral application made and on that record a writ of summons may be prepared, signed and issued.’
Underline for emphasis.
The above Rule of Court is obedient to clarity and unambuigity. To this end, the law gives the Court the license to accord to its literal meaning without any embellishments, see OLOFU V. ITODO(2010)18 NWLR; SHETTIMA V. GONI (2011); ARDO V NYAKO (2014); IKECHUKWU V. NWOYE (2015). That is to say, on an action founded on writ of summons, a litigant or his legal representative shall:-
i. Prepare and sign such originating Court process(s) as in Form 1 to the appendix; and
ii. Such Court processes or document shall be filed at the registry of the Court for issuance and service to all parties concerned upon payment of all necessary fees.
Unless and until the above conditions are satisfied, an action will not be said to have properly commenced before the Court.
Regrettably, no evidence of compliance to the above rules of Court regulating filing of processes were shown to have been complied with at the Court below. The record of appeal, which speak for itself, clearly display this fundamental omission on the side of the Learned respondent’s counsel when he prepared and filed the suit without signing or endorsing the writ as a fundamental requirement of law.
In view of the above finding, the foundation case of the respondent, that is, the writ of summons is hereby declared incompetent, and the entire proceeding arising therefrom are also incompetent.
This appeal is meritorious and same is allowed. The proceedings leading to the judgment at the Court below in Suit No. TRSJ/101/2009 is struck out being incompetent.
Ordered accordingly.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment in this appeal, just delivered by my learned Brother, Saidu Tanko Husaini, JCA.
I am at one with His Lordship’s line of reasoning and the conclusion reached that this appeal is imbued with merit.
The Writ of Summons which was purportedly issued by the Respondent at the trial Court was fundamentally defective, not having been duly signed by a legal practitioner, in defiance of the mandatory provisions of the Rules of practice of the trial Court as well as the Legal Practitioners Act, 2004. I agree ‘in toto’ with the position of the learned counsel for the Appellants that, the said defect in the originating process of the Respondent robbed the trial Court of the requisite jurisdiction to adjudicate upon the action of the Respondent. Consequently, the entire proceedings of the trial Court, in the action, leading to the judgment being appeal against amount to a nullity and are liable to be set aside by this Court. See the cases of: (1) Madukolu v. Nkemdilim (1962) LPELR-24022(SC); (2) Adetayo v. Ademola (2010) LPELR-155(SC); (3) C.P.C. v. Ombugadu (2013) LPELR-21007(SC) and (4) Mcfoy v. U.A.C. (1962) A.C. p.152.
It is for the above and fuller reasons laid out in the leading judgment that I strike out the action of the Respondent at the trial Court in Suit No. TRSJ/101/2009 for being incompetent and concomitantly set aside the judgment of the trial Court, in the suit, delivered on 11th of July, 2016.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned Brother, Saidu Tanko Husaini JCA. The writ of summons which is the originating process having not been signed, the suit was incompetent and is also struck out by me.
Appearances:
J. A Oguche, Esq. with him, G. T. Ieave, Esq.For Appellant(s)
F. A. Ogbe, Esq.For Respondent(s)
