MRS. ABIOYE AROMIRE & ANOR v. ALHAJI RAUFU AROMIRE & ORS (2019)

MRS. ABIOYE AROMIRE & ANOR v. ALHAJI RAUFU AROMIRE & ORS

(2019)LCN/13472(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/L/685/2009

RATIO

JURISDICTION: DIFFERENCE BETWEEN SUBSTANTIVE JURISDICTION AND PROCEDURAL JURISDICTION
Jurisdictional defect that renders the adjudication incompetent ultra vires null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not being issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A-G., Kwara State & Anor. v. Alhaji Saka Adeyemo & Ors (2016) 7 SC (Pt. 11) p. 149; (2017) 1 NWLR (Pt. 1546) 210 at pp. 239-240, paras. G-A is one of the most recent decisions of this court on this distinction. Rhodes-Vivour, JSC, delivering the lead judgment in the case, stated:
Jurisdiction is a question of law. There are two types of Jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the court where a writ of summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the court where the Constitution or statute says that the court does not have jurisdiction.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER THE RIGHT OF DEFENCE TO OBJECT TO AN IRREGULARITY EX FACIE IS A WAIVABLE RIGHT
The right of the defence to object to the irregularity ex facie the statement of claim is a waivable right, being a private right: A-G., Kwara & Anor v. Adeyemo (supra); Ariori v. Elemo (1983) 1 SC 13; (1983) 1 SCNLR 1. This issue, accordingly, cannot be resolved for the appellant. I hereby resolve against [sic] it against the appellant.
See also DHL INTERNATIONAL NIG. LTD vs. ADEMOLA (2018) LPELR (46041) 1 at 8-13. The contention on the defective process under this issue is directed at the writ of summons. So the writ of summons is the pith of the issue.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

LEGAL PRACTITIONER: WHAT ENTITLES A PERSON TO PRACTICE AS A LEGAL PRACTITIONER
Now, Section 2 (1) of the Legal Practitioners Act provides:
2. (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor, if and only if, his name is on the Roll.?
Equally, Section 24 of the Legal Practitioners Act defines a legal practitioner as meaning:
a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

IT IS ONLY A PERSON QUALIFIED TO PRACTICE LAW IN NIGERIA THAT CAN ISSUE COURT PROCESSES
The legal position is now settled beyond peradventure that it is only a legal practitioner qualified to practise law in Nigeria that can issue Court processes by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners Act. This legal position has been settled since the decision in OKAFOR vs. NWEKE (supra), where it was held that for a person to be qualified to practise as a legal practitioner, he must have his name on the Roll of Legal Practitioners and that what the law provides for is that it is the name of the legal practitioner that is on the Roll and not his signature. In the circumstances of the OKAFOR vs. NWEKE case the process issued in the name of J. H. C. Okolo, SAN & Co. was set aside for being incompetent since J. H. C. Okolo, SAN & Co. was not a name on the Roll of Legal Practitioners. The decision in OKAFOR vs. NWEKE was followed by the Supreme Court in OGUNDELE vs. AGIRI (2009) 18 NWLR (PT 1173) 219 at 246-247 where a process issued in the name of Ajibola & Co. was held to be incompetent. Also in OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 at 73-75, a process issued in the name of Olujimi & Akeredolu was held to be incompetent. Furthermore, in SLB CONSORTIUM vs. NNPC (2011) LPELR (3074) 1 the Supreme Court set aside a process issued in the name of Adewale Adesokan & Co.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FILING PROCESSES IN COURT: SUCH A PROCESS MUST BE PREPARED AND SIGNED BY A LEGAL PRACTITIONER
A process prepared and filed in a court of law by a legal practitioner must be signed by the legal practitioner: SLB CONSORTIUM LTD vs. NNPC (supra) at 16. The name and signature of a person signing a court process are fundamental and indispensable. The importance of signing a court process by the legal practitioner issuing it cannot be understated. The verb ?sign? denotes the identification of a document, record, et al, by means of a signature mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. Similarly, the noun signature is defined as denoting the act of putting ones name at the end of an instrument to attest its validity: See Blacks Law Dictionary (8th ed.), ONWARD ENTERPRISES LTD vs. OLAM INTL LTD (2010) ALL FWLR (PT 531) 1503 at 1512 and AROMIRE vs. AJOMAGBERIN (2011) LPELR (3809) 1 (CA).PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE IMPORTANCE OF SIGNING IN THE ISSUANCE OF THE COURT PROCESS

So the signing of a court process is an integral part of the issuance of the court process since it is by signing that the legal practitioner authenticates and validates the process as coming from him. It is not enough to merely scribble a signature without indicating the name and designation of such a person. See AROMIRE vs. AJOMAGBERIN (supra) and PEAK MERCHANT BANK LTD vs. NDIC (2011) 12 NWLR (PT 1216) 253.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT PROCESSES: THE DUTY OF THE PERSON SIGNING ,ENDORSING OR FRANKING A COURT PROCESS

It seems to be an established principle that any person signing, endorsing or franking a court process on behalf of a firm or a senior in chambers is required to clearly state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a Clerk, Messenger or Secretary would sign processes filed in Court on behalf of counsel in chambers. Put differently, the law is now certainly trite that where court processes are signed by a legal practitioner in their partnership or firm’s names without indicating the name of the legal practitioner signing the process, such are incompetent and liable to be struck out. The name of the legal practitioner used in enrolling as a Solicitor and Advocate of the Supreme Court must necessarily be stated in the process. It must also be emphasized, for the avoidance of any doubt, that there is a gulf of legal difference between the name of a legal practitioner simpliciter and the name of a firm of legal practitioners. They are not one and the same, they are different legal entities.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SIGNATURE OF A LEGAL PRACTITIONER: WHAT IS SUFFICIENT TO CONSIDER AS A SIGNATURE OF A LEGAL PRACTITIONER
In REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE (1967) NMLR 263 the apex Court held that it is sufficient signature if the legal practitioner simply writes his own name over and above the name of the firm in which he carries out his practice. But this decision has to be properly conualised in order to appreciate the principle it established. The Court process in that matter was issued in the name of J. A. Cole & Co., a name, which like in this matter, is not on the Roll of Legal Practitioners, but the Supreme Court held that the court process was saved by the fact that even though J. A. Cole & Co. was not on the Roll of Legal Practitioners, J. A. Cole, Esq., who practises in that name wrote his name as the signature on the court process. So, it was held that the process having been signed by the name J. A. Cole, a duly registered legal practitioner, written legibly on it, saved the court process. So in that case, the name written as signature was clear and was ascribed to a legal practitioner.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DUE PROCESS UNDER THE CASE OF MADUKOLU V. NKEMDILIM

COURT PROCESSES : THE POSITION OF THE LAW AS REGARDS COURT PROCESSES THAT ARE NOT SIGNED IN ACCORDANCE WITH THE PROVISIONS OF THE LAW

The law is well settled on the effect of a court process that is not signed in accordance with the provisions of Sections 2 and 24 of the Legal Practitioners Act. See OKAFOR vs. NWEKE (supra), SLB CONSORTIUM LTD vs. NNPC (supra), FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR (9713) SC, OGUNDELE vs. AGIRI (2009) 18 NWLR (PT 1173) 219 at 246-247 and OKETADE vs. ADEWUNMI (supra) at 73-75. Such a process is incompetent: CHAWALEKS NIG. LTD vs. NDIC (2019) LPELR (46448) 1 at 16-17.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WRIT OF SUMMONS: HOW AN INCOMPETENT WRIT OF SUMMONS AFFECTS A MATTER

The action was dead on arrival, it is as though the action was never filed. There was no foundation on which any other processes could have been built. Once the writ of summons is incompetent, everything subsequent thereto is also incompetent and a nullity. It borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter. See NZONWANNE vs. IGWE (1976) LPELR (2144) 1 at 7, KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 12 and DICKSON OGUNSEINDE VIRYA FARMS LTD vs. SOCIETE GENERALE BANK (2018) LPELR (43710) 1 at 24-29.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WRIT OF SUMMONS: WHETHER AN INCOMPETENT WRIT CAN BE AMENDED SUCH THAT IT WILL NO LONGER BE INCOMPETENT
Once a writ of summons is incompetent and void, it remains incompetent and void and nothing can be added to it. Everything placed on it will have no leg to stand on and would eventually collapse. It is on the writ of summons as the foundation and substratum of a law suit that all other processes ? statement of claim, statement of defence, counterclaim and interlocutory processes are laid. Where the writ of summons is defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand. See NZOM vs. JINADU (1987) 2 SC 205, KOLADE vs. FBN PLC (2018) LPELR (44166) 1 at 17, INTEGRATED MERCHANTS LTD vs. OSUN STATE GOVERNMENT (2011) LPELR (8803) 1 at 5-7 and EWUKOYA vs. BUARI (2016) LPELR (40492) 1 at 14-15.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JURISDICTION AND COMPETENCE OF A COURT ARE INTER TWINED
The competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a court must have both jurisdiction and competence. Competence of the court is the handmaiden of the jurisdiction of the court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURTS: WHEN A COURT IS INCOMPETENT, IT CANNOT EXERCISE JURISDICTION

The authorities seem settled that where a court is not competent, it cannot exercise jurisdiction. Therefore since the Writ of Summons in this matter is defective and incompetent, the lower court did not have the jurisdiction to entertain any aspect of the action since it was not initiated by due process of law, and the incompetent process was a feature that prevented the court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JURISDICTION: IMPORTANCE
The issue of jurisdiction is very fundamental and goes to the competence of the Court. Where a court is not competent, it is a waste of time to embark on a hearing and determination as whatever decision reached, no matter how brilliant, is a nullity since the defect is extrinsic to the adjudication. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of time for the court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the court and to the parties to do so.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

A DEFECTIVE WRIT OF SUMMONS GOES TO THE ROOT OF THE ACTION
The defective Writ of Summons went to the root of the action and the conditions precedent to the exercise of the court?s jurisdiction were not met: KIDA Vs. OGUNMOLA (supra) and BRAITHWAITE vs. SKYE BANK (2012) LPELR (15532) 1 at 7-8. It was a waste of precious judicial time for the lower court to have gone the whole hog in hearing the action initiated by the defective and incompetent Writ of Summons. The action is deserving of an order striking it out for being incompetent. In the circumstances, all the proceedings which rested on the incompetent Writ of Summons are deemed not to have taken place in law. The Latin maxim is ex nihilo, nihil fit: out of nothing, nothing comes. See MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. The incompetent Writ of Summons could not have spawned a competent trial.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

1. MRS. ABIOYE AROMIRE
2. WAHAB ONIKOYI Appellant(s)

AND

1. ALHAJI RAUFU AROMIRE
2. TAOFIK LAWAL
3. ALHAJI RAFIU KADEJO
4. AYOTUNDE OKUNUBI
5. OLADIPO OKUNUBI Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The res in dispute in this matter is property situate at No. 8 Ashogbon Street, Lagos. The Appellants and the 4th and 5th Respondents laid disparate claims to the ownership of the said property. They resorted to litigation. The 4th and 5th Respondents were Claimants in the lower Court in SUIT NO. LD/462/1991: AYOTUNDE OKUNUBI & ANOR. vs. MRS. ABISOYE AROMIRE & ORS. The Appellants were the 1st & 2nd Defendants while the 1st-3rd Respondents herein were the 3rd-5th Defendants at the lower court. The 4th & 5th Respondents commenced the action at the lower court by Writ of Summons dated 26th February 1991 which is at pages 1-1A of the Records.
The reliefs claimed by the 4th & 5th Respondents as endorsed on their 3rd Amended Statement of Claim is as follows:

WHEREON The Claimants claim against the Defendants jointly and severely [sic] the sum of N50, 000.00 (Fifty Thousand Naira Only) being general damages for trespass committed on the Claimants property situated at No. 8, Ashogbon Street, Lagos, by forcibly entering upon the land and starting

to dig the land to lay foundation for a new building thereon and also for preventing the Claimants from developing the property at a time when building materials were reasonably priced than at now when process have sky-rocketed.

The Claimants also claim perpetual injunction to restrain the Defendants their servants and or agents and workmen and privies from further trespassing on the said land.
(See page 68 of the Records)

The Appellants, being the 1st & 2nd Defendants at the lower Court, set up a counterclaim wherein they claimed the following reliefs:
1.That the 1st Defendant is the legitimate owner of the property situate, lying and known as No. 8 Ashogbon Street, Lagos, the subject matter of this suit by virtue of her relationship with Yesufu Oresanya, the original owner of the property. the 1st Defendant will rely on the Deed of Conveyance dated 5th February, 1919.
2. That the 1st Defendant is the person entitled to the grant of Certificate of Occupancy in respect of the property situate and known as No. 8 Ashogbon Street, Lagos, the subject matter of this suit.
3. That the proprietorship registered and the

Land Certificate under Title No. L06668 registered on 21st June, 1972 be set aside on the ground that it was irregularly obtained.
PARTICULARS OF IRREGULARITY.
a. The property which is a stool or chieftaincy land cannot be subject of a freehold interest under the nature and customary system of land holding in Lagos (Island in particular).
b. The Claimants title is not in any way directly traceable to Yesufu Oresanya from whom the 1st Defendant derives and is claiming title.

The parties filed and exchanged pleadings and the matter went through the crucible of a full dressed hearing at which testimonial and documentary evidence was adduced. In its judgment delivered on 27th May 1991, the lower court entered judgment for the 4th & 5th Respondents and dismissed the counterclaim of the Appellants. The Appellants were dissatisfied with the judgment of the lower Court and appealed against the same. The extant Notice of Appeal on which the appeal was argued is the 2ND Amendment of Notice of Appeal filed on 4th February 2016 but deemed as properly filed on 23rd May 2017.

In activating the prosecution and defence of the appeal, upon

the compilation and transmission of the Records of Appeal, briefs of argument were filed and exchanged between the Appellants and the 4th & 5th Respondents. The 1st-3rd Respondents did not file any brief of argument and also did not appear at the hearing of the appeal. The Appellants were represented at the hearing by Temitope Salami, Esq., but learned counsel for the 4th & 5th Respondents was absent. Upon being satisfied that the 4th & 5th Respondents were served with notice of hearing date, the court in keeping with the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016, treated the appeal as having been argued on their brief of argument.

The Appellants? Brief of Argument was filed on 5th April 2018 but deemed as properly filed on 18th April 2018. The 4th & 5th Respondents filed their brief on 15th April 2019 but the same was deemed as properly filed on 16th April 2019. The Appellants formulated four issues for determination, namely:
1. Whether or not the Trial Judge?s Judgment delivered on 27th May, 2009 is a nullity having been predicated on an incompetent and defective writ of summons and

statement of claim signed in the name of the Law Firm of ODUNSI & COMPANY contrary to the provisions of Sections 2 and 24 of the Legal Practitioners Act and the Supreme Court?s decisions in OKAFOR V. NWEKE [2007] 10 NWLR [PT 1043] 521 [Culled from Ground 10 of the Amended Notice of Appeal].
2. Whether the Lower Court was right when it held that there is no scintilla of evidence adduced by DW1 to support her claim that the property in dispute is stool land and thereby dismissed the counter claim of the 1st Appellant. [Culled from Grounds 1, 3, 5 and 7 of the Amended Notice of Appeal].
3. Whether the trial Court was right when it placed high probative value on Exhibits D6A-C [the purported mortgage documents] without considering the lacunas in the said document and thus held that it is too late in the day for the 1st Defendant to now challenge the execution of the mortgage documents by her father? and by so doing erroneously imported the provisions of Section 130 of the Evidence Act (pp 180 of the record) [Culled from Grounds 4,8 and 11 of the Amended Notice of Appeal].
4. Whether the trial Court properly evaluated the

totality of the evidence before it when it decided that through exhibits C2, C3, C5 and C6, the Respondents [Claimants] have established long possession thereby granting them title on the disputed property. [Culled from Grounds 2, 6 and 9 of the Amended Notice of Appeal).?

The 4th & 5th Respondents adopted the four issues as distilled by the Appellants.

The Appellants issue number one is threshold in nature. It is a challenge on the competence of the Writ of Summons, the originating process by which the action was initiated at the lower Court. The manner of resolution of the said issue will determine whether it will be necessary to consider the other issues raised, particularly the Appellants? issue number two which questions whether the decision of the lower Court dismissing the Appellants? Counterclaim is the correct decision. A resolution of the said issue number one in favour of the Appellants will mean that the action is incompetent and it will spawn the labyrinthine of whether the counterclaim, which has been held to be a separate, independent and distinct action (See OKONKWO vs. CCB (2003) 8 NWLR (PT 822) 347,

OROJA vs. ADENIYI (2017) LPELR (41985) 1 at 25-26 and OGBONNA vs. A-G IMO STATE (1992) LPELR (2287) 1 at 33), can survive in the circumstances. The said issue number one being threshold in nature will be our starting point. I will however take the liberty to tinker with the said issue number one as distilled by the Appellants in order to have it conduce to conciseness and utmost pellucidity. The formulation I find apt is:

Whether the writ of summons, the originating process in the suit is competent.?

It is on the basis of this issue that I will now consider the submissions of the Appellants and 4th & 5th Respondents.
SUBMISSIONS OF THE APPELLANTS? COUNSEL
The Appellants submit that the Writ of Summons and Statement of Claim by which the action was initiated were signed by a Law Firm instead of a Legal Practitioner and that it was therefore incompetent, fundamentally defective and did not activate the jurisdiction of the Court. Sections 2 (1) and 24 of the Legal Practitioners Act and the cases of OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521, OKETADE vs. ADEWUNMI (2010) [PT II] MJSC 31 at 34-37 and MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 were referred to.

It was opined that an originating process such as a writ of summons must be signed by a named individual who is entitled to practice as a barrister or as a barrister and solicitor in Nigeria as stipulated in Section 24 of the Legal Practitioners Act. It was asserted that the defective writ of summons did not activate the jurisdiction of the lower court and that the judgment of the lower court is a nullity. The cases of OKARIKA vs. SAMUEL (2013) 7 NWLR (PT 1352) 19, FBN PLC vs. MAIWADA (2013) 5 NWLR (PT 1348) 444, ALAWIYE vs. OGUNSANYA (2013) 5 NWLR (PT 1348) 570, SLB CONSORTIUM vs. NNPC (2011) 9 NWLR (PT 1252) 317, BRAITHWAITE vs. SKYE BANK PLC (2013) 5 NWLR (PT 1346) 1 and KIDA vs. OGUNMOLA (2006) 13 NWLR (PT 997) 337 were referred to. It was conclusively submitted that jurisdiction, being a threshold issue and the life wire of adjudication, can be raised for the first time on appeal; even at the apex court vide OLA-IYA vs. LASISI (2014) 5 NWLR (PT 1400) 269.

SUBMISSIONS OF THE 4TH & 5TH RESPONDENTS? COUNSEL
The submission of the 4th & 5th Respondents is that the decision of the

lower court was based on the Amended Statement of Claim which is at pages 66-68 of the Records and that the said Amended Statement of Claim was signed by a registered Legal Practitioner. It was opined that it was not correct for the Appellants to contend that the judgment was based on an incompetent and destructive writ of summons and statement of claim. It was further submitted that the Appellants had reacted to the Amended Statement of Claim by filing their Amended Statement of Defence and Counterclaim and were consequently estopped.

RESOLUTION OF ISSUE NUMBER ONE
The 4th & 5th Respondents seem to labour under the misconception that the process which the Appellants challenge is the Statement of Claim, on the basis of which they contend that the Amended Statement of Claim is not defective. No. The challenge under this issue is to the Writ of Summons, the originating process by which the action was commenced. Indeed, if the challenge was to the Statement of Claim, the Appellants would have been deemed to have waived their right to challenge the same, having participated fully at the proceedings at the lower court. This is because a statement of

claim is not an originating process and any objection to its competence must be made in a timely manner, otherwise the defect would have been condoned. The legal position is drastically different where the defective process is an originating process. Hear my Lord, Eko, JSC, speak to the legal position in this regard in HERITAGE BANK LTD vs. BENTWORTH FINANCE NIGERIA LTD (2018) 9 NWLR (PT 1625) 420 at 434-435:
… an irregular process is a process not issued in accordance with the prescribed practice. It is however pointed out that whether the irregularity renders the process void or merely voidable depends on types of irregularity. The law is settled, as this court pointed out in Braithwaite v. Skye Bank Plc (supra) at page17; Nigerian Army v. Samuel (supra) at 486; Thomas v. Maude (2007) All FWLR (Pt. 361) 1749; FBN v. Uwada (2002) 2 NWLR (Pt. 805) 485; an irregularity affecting an originating process is a fundamental irregularity that goes to the roots. The statement of claim, I must point out, is not such an originating process.
?Jurisdictional defect that renders the adjudication incompetent ultra vires null and void is the substantive

jurisdiction because such jurisdictional issue is extrinsic to the adjudication: Madukolu v. Nkemdilim (1962) 2 SCNLR 341. When want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the court allows it to adjudicate in the matter. That is why it is extrinsic. When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process, having not being issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A-G., Kwara State & Anor. v. Alhaji Saka Adeyemo & Ors (2016) 7 SC (Pt. 11) p. 149; (2017) 1 NWLR (Pt. 1546) 210 at pp. 239-240, paras. G-A is one of the most recent decisions of this court on this distinction. Rhodes-Vivour, JSC, delivering the lead

judgment in the case, stated:
Jurisdiction is a question of law. There are two types of Jurisdiction: 1. Jurisdiction as a matter of procedural law. 2. Jurisdiction as a matter of substantive law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the court where a writ of summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the court where the Constitution or statute says that the court does not have jurisdiction.?
The facts of this case, particularly on this objection, are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of Legal Practitioners, the appellant as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the statement of claim was called after the statement of defence joining issues with the defective statement of claim was filed. Judgment of the trial court, based on the evidence elicited from

the statement of claim, was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective statement of claim. The appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defence to object to the irregularity ex facie the statement of claim is a waivable right, being a private right: A-G., Kwara & Anor v. Adeyemo (supra); Ariori v. Elemo (1983) 1 SC 13; (1983) 1 SCNLR 1. This issue, accordingly, cannot be resolved for the appellant. I hereby resolve against [sic] it against the appellant.?
See also DHL INTERNATIONAL NIG. LTD vs. ADEMOLA (2018) LPELR (46041) 1 at 8-13. The contention on the defective process under this issue is directed at the writ of summons. So the writ of summons is the pith of the issue.
Now, Section 2 (1) of the Legal Practitioners Act provides:
2. (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor, if and only if, his name is on the Roll.?
Equally, Section 24 of the Legal Practitioners Act defines a

legal practitioner as meaning:
a person entitled in accordance with the provisions of this Act to practise as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings.?
The legal position is now settled beyond peradventure that it is only a legal practitioner qualified to practise law in Nigeria that can issue Court processes by virtue of the provisions of Sections 2 (1) and 24 of the Legal Practitioners? Act. This legal position has been settled since the decision in OKAFOR vs. NWEKE (supra), where it was held that for a person to be qualified to practise as a legal practitioner, he must have his name on the Roll of Legal Practitioners and that what the law provides for is that it is the name of the legal practitioner that is on the Roll and not his signature. In the circumstances of the OKAFOR vs. NWEKE case the process issued in the name of J. H. C. Okolo, SAN & Co. was set aside for being incompetent since J. H. C. Okolo, SAN & Co. was not a name on the Roll of Legal Practitioners. The decision in OKAFOR vs. NWEKE was followed by the Supreme Court in

OGUNDELE vs. AGIRI (2009) 18 NWLR (PT 1173) 219 at 246-247 where a process issued in the name of Ajibola & Co. was held to be incompetent. Also in OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 at 73-75, a process issued in the name of Olujimi & Akeredolu was held to be incompetent. Furthermore, in SLB CONSORTIUM vs. NNPC (2011) LPELR (3074) 1 the Supreme Court set aside a process issued in the name of Adewale Adesokan & Co.
A process prepared and filed in a court of law by a legal practitioner must be signed by the legal practitioner: SLB CONSORTIUM LTD vs. NNPC (supra) at 16. The name and signature of a person signing a court process are fundamental and indispensable. The importance of signing a court process by the legal practitioner issuing it cannot be understated. The verb ?sign? denotes the identification of a document, record, et al, by means of a signature mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. Similarly, the noun ?signature? is defined as denoting the act of putting one?s name at the end of an instrument to attest its validity: See

Black?s Law Dictionary (8th ed.), ONWARD ENTERPRISES LTD vs. OLAM INT?L LTD (2010) ALL FWLR (PT 531) 1503 at 1512 and AROMIRE vs. AJOMAGBERIN (2011) LPELR (3809) 1 (CA). So the signing of a court process is an integral part of the issuance of the court process since it is by signing that the legal practitioner authenticates and validates the process as coming from him. It is not enough to merely scribble a signature without indicating the name and designation of such a person. See AROMIRE vs. AJOMAGBERIN (supra) and PEAK MERCHANT BANK LTD vs. NDIC (2011) 12 NWLR (PT 1216) 253.
It seems to be an established principle that any person signing, endorsing or franking a court process on behalf of a firm or a senior in chambers is required to clearly state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a Clerk, Messenger or Secretary would sign processes filed in Court on behalf of counsel in chambers. Put differently, the law is now certainly trite that where court processes are signed by a legal practitioner in their partnership or firm’s names without indicating the name of the legal

practitioner signing the process, such are incompetent and liable to be struck out. The name of the legal practitioner used in enrolling as a Solicitor and Advocate of the Supreme Court must necessarily be stated in the process. It must also be emphasized, for the avoidance of any doubt, that there is a gulf of legal difference between the name of a legal practitioner simpliciter and the name of a firm of legal practitioners. They are not one and the same, they are different legal entities.
The Writ of Summons in this matter is shown on page 1A of the Records to have been taken out by ?ODUNSI & COMPANY, Solicitors for the Plaintiffs, 11 ONAYADE STREET, JIBOWU ? IKORODU ROAD, LAGOS.? It is not disputed that this is a firm name which is not on the Roll of Legal Practitioners. There is a signature above the name of the firm, but the signature is indecipherable that it cannot be ascribed to belong to any name of a legal practitioner on the Roll of Legal Practitioners.
In REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE (1967) NMLR 263 the apex Court held that it is sufficient signature if the legal practitioner

simply writes his own name over and above the name of the firm in which he carries out his practice. But this decision has to be properly conualised in order to appreciate the principle it established. The Court process in that matter was issued in the name of J. A. Cole & Co., a name, which like in this matter, is not on the Roll of Legal Practitioners, but the Supreme Court held that the court process was saved by the fact that even though J. A. Cole & Co. was not on the Roll of Legal Practitioners, J. A. Cole, Esq., who practises in that name wrote his name as the signature on the court process. So, it was held that the process having been signed by the name J. A. Cole, a duly registered legal practitioner, written legibly on it, saved the court process. So in that case, the name written as signature was clear and was ascribed to a legal practitioner. Recently, in WILLIAMS vs. ADOLD/STAMM INT’L (NIG) LTD (2017) LPELR (41559) 1 at 15-17 the apex court per 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 LPA 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. ln 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 Akindele (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.
On page 14 of the applicant’s written address, at the bottom of the page, the handwritten name, LADI WILLIAMS appears above two names, Chief Ladi Rotimi Williams, SAN and Chris I. Eneje? the name LADI Williams, though handwritten, is very clear and legible. The respondents are not contending that Chief Ladi

Rotimi Williams, SAN is not the same person as LADI WILLIAMS who signed the process or that the person who signed the process is not a legal practitioner whose name is on the roll of legal practitioners entitled to practice law in Nigeria. I am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll.?
Therefore on the state of the authorities, it seems that where the name of a legal practitioner is clearly and legibly written as signature over a firm name, it would serve to save the process. However, in this matter, the signature scribbled above the firm name cannot be deciphered as any discernible name, what more being the name of a legal practitioner on the Roll of Legal Practitioners. Breviloquently, the signature on the Writ of Summons is not sufficiently legible in order for it to be ascertained whether the signatory is a legal practitioner or not as the Roll of Legal Practitioners contains names and not signatures.
In AROMIRE vs. AJOMAGBERIN (supra), the process in that case was issued in the name of Kayode Sofola, SAN. Somebody signed on behalf of Kayode Sofola, SAN.

The person who signed did not indicate his name and designation and this Court held that the court process, which was signed by an unknown person for Kayode Sofola, SAN, was incompetent. Equally, in PEAK MERCHANT BANK LTD vs. NDIC (supra) the court process in that case was issued in the names of Babajide Koku, Esq. and L. O. Iluyomade, Esq. The person who signed the process was not indicated and this Court held that the process was incompetent. Given the settled state of the law, the poser in this matter remains, who is the signatory of the Writ of Summons on page 1A of the Records? Is the signatory a legal practitioner? There is no way it can be ascertained if the signature belongs to a legal practitioner as the signature is not legible. By Sections 2 (1) and 24 of the Legal Practitioners? Act, only a legal practitioner can sign court processes. The importance attached to the signing of a court process is such that where it cannot be said who signed a court process; the court process is incurably bad. A signature without the name of the counsel appending the signature is incurably bad – per Rhodes-Vivour, JSC in SLB CONSORTIUM LTD vs. NNPC (supra).<br< p=””

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As laid down in MADUKOLU vs. NKEMDILIM (1962) 2 NSCC 374 at 379-380, a court is competent, inter alia, when the case comes before the Court initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. The substantive provisions of Sections 2 and 24 of the Legal Practitioners? Act are such that in order for a case to be initiated by due process of law, the court process must have been issued and signed by a legal practitioner. Since the person who signed the Writ of Summons, the originating process in this matter is unknown, the process is incurably bad. The law is well settled on the effect of a court process that is not signed in accordance with the provisions of Sections 2 and 24 of the Legal Practitioners Act. See OKAFOR vs. NWEKE (supra), SLB CONSORTIUM LTD vs. NNPC (supra), FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR (9713) SC, OGUNDELE vs. AGIRI (2009) 18 NWLR (PT 1173) 219 at 246-247 and OKETADE vs. ADEWUNMI (supra) at 73-75. Such a process is incompetent: CHAWALEKS NIG. LTD vs. NDIC (2019) LPELR (46448) 1 at 16-17.

Now, this brings us to the labyrinth I alluded to earlier. How does the incompetence of the Writ of Summons affect the Appellants? Counterclaim? Would the Counterclaim as a separate independent and distinct action survive in the diacritical circumstances of this matter? It seems to me that a counterclaim, though separate, independent and distinct, in the sense that it is considered separately, draws its validity from the existence of a main claim; for if there is no main claim there will be no counterclaim to a non-existent main claim. I will elucidate further. The Counterclaim in this matter is subjoined to the Amended Statement of Defence which was filed in answer to the Amended Statement of Claim filed pursuant to the incompetent Writ of Summons. The virus of incompetence afflicting the Writ of Summons necessarily connotes that the statement of claim anchored on it is equally incompetent; being incompetent, the statement of defence which carries the counterclaim like a hunchback or kyphosis, is equally afflicted by the same virus of incompetence.
?The defect in the Writ of Summons goes to the root of the proceedings and renders the same void ab initio. The

action was dead on arrival, it is as though the action was never filed. There was no foundation on which any other processes could have been built. Once the writ of summons is incompetent, everything subsequent thereto is also incompetent and a nullity. It borders on the issue of jurisdiction and the competence of the court to adjudicate on the matter. See NZONWANNE vs. IGWE (1976) LPELR (2144) 1 at 7, KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 12 and DICKSON OGUNSEINDE VIRYA FARMS LTD vs. SOCIETE GENERALE BANK (2018) LPELR (43710) 1 at 24-29.
Once a writ of summons is incompetent and void, it remains incompetent and void and nothing can be added to it. Everything placed on it will have no leg to stand on and would eventually collapse. It is on the writ of summons as the foundation and substratum of a law suit that all other processes ? statement of claim, statement of defence, counterclaim and interlocutory processes are laid. Where the writ of summons is defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand. See NZOM vs. JINADU (1987) 2 SC 205, KOLADE vs. FBN PLC (2018) LPELR (44166) 1

at 17, INTEGRATED MERCHANTS LTD vs. OSUN STATE GOVERNMENT (2011) LPELR (8803) 1 at 5-7 and EWUKOYA vs. BUARI (2016) LPELR (40492) 1 at 14-15. The conflating of the foregoing is that the foundation on which the Appellants? counterclaim ought to rest is non-existent. It was non-existent ab initio. Therefore, just as there was no competent main claim for the lower Court to adjudicate on, there was also no competent counterclaim to be adjudicated upon. Accordingly, the Appellants issue number two dealing with whether the lower court was right in the decision to dismiss the counterclaim is futile and ineffectual.
The competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intertwined. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a court must have both jurisdiction and competence. Competence of the court is the handmaiden of the

jurisdiction of the court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED & ORS (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a court is not competent, it cannot exercise jurisdiction. Therefore since the Writ of Summons in this matter is defective and incompetent, the lower court did not have the jurisdiction to entertain any aspect of the action since it was not initiated by due process of law, and the incompetent process was a feature that prevented the court from exercising jurisdiction: MADUKOLU vs. NKEMDILIM (supra).
The issue of jurisdiction is very fundamental and goes to the competence of the Court. Where a court is not competent, it is a waste of time to embark on a hearing and determination as whatever decision reached, no matter how brilliant, is a nullity since the defect is extrinsic to the adjudication. In the words of Obaseki, JSC in OLOBA vs. AKEREJA (1988) 3 NWLR (PT 84) 508 at 520:
If a Court or tribunal is not competent to entertain a matter or

claim or suit, it is a waste of time for the court to embark on hearing and determination of the suit, matter or claim… There is no justice in exercising a jurisdiction where there is none. It is injustice to the law, the court and to the parties to do so.
The defective Writ of Summons went to the root of the action and the conditions precedent to the exercise of the courts jurisdiction were not met: KIDA Vs. OGUNMOLA (supra) and BRAITHWAITE vs. SKYE BANK (2012) LPELR (15532) 1 at 7-8. It was a waste of precious judicial time for the lower court to have gone the whole hog in hearing the action initiated by the defective and incompetent Writ of Summons. The action is deserving of an order striking it out for being incompetent. In the circumstances, all the proceedings which rested on the incompetent Writ of Summons are deemed not to have taken place in law. The Latin maxim is ex nihilo, nihil fit: out of nothing, nothing comes. See MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. The incompetent Writ of Summons could not have spawned a competent trial.

The originating Writ of Summons and all other processes flowing therefrom, having been found to be fundamentally defective, are hereby struck out for being incompetent and incapable of initiating the proceedings, thereby robbing the lower Court of the jurisdiction to hear and determine the action as initiated. See SLB CONSORTIUM vs. NNPC (supra) and ADEWUNMI vs. OKETADE (2010) 3 SCNJ 368.
Concomitantly, this issue number one must indubitably be resolved in favour of the Appellants. The Writ of Summons is incompetent. In the light of all the above and since this Court does not act in vain, there is no further need to consider the other issues raised in the appeal as they have been rendered hypothetical and/or academic. See NIGERIAN ARMY vs. SAMUEL (2013) LPELR (20931) (SC). In a summation, the appeal therefore succeeds and the action at the lower Court in SUIT NO. LD/462/1991 is hereby struck out for being incompetent. The parties are to bear their respective costs of this appeal.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to react in advance the lead judgment of my

learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA and I am in agreement with the judgment. A writ of summons that is defective goes to the root of the action and its effect as stated in TONY EDIKE & ORS v. DR. INNOCENT ANI (2014) LPELR -24511 (CA) thus;
In my view, the validity of the originating processes in a proceeding before a Court is fundamental as it challenges or touches on the competence of the originating processes which is a condition sine qua non to the legitimacy of any suit. Therefore, failure to commence proceedings with a valid writ of summons goes to the root of the case and any order made on or emanating from such proceeding is liable to be set aside as incompetent and nullity. It clearly border on the issue of jurisdiction and competence of the Court to adjudicate on the matter. Such issue being one on jurisdiction, can be raised at any time, even at the address stage as in the instant case or even for the first time in an Appellate Court including the Supreme Court. See UBA PLC V. ADEMOLA (2009) 8 NWLR (PT. 1142) 664. per SANUSI, JCA (PP. 15 – 16, PARAS. – B)
Flowing from the above, I too join my learned brother in

granting the appeal, the appeal succeeds and the decision of the lower Court is hereby struck out.
I also abide by the order as to costs in the lead judgment.

TOBI EBIOWEI J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother. UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with the reasoning and conclusion of my learned brother and i have nothing to add.

Appearances:

Temitope Salami, Esq.For Appellant(s)

For Respondent(s)

Appearances

Temitope Salami, Esq.For Appellant

AND

For Respondent