ABENG & ORS v. EGOR
(2022)LCN/15952(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, August 26, 2022
CA/C/63/2014
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. CHIEF UBEM ABENG 2. MR. SUNDAY ABENG 3. CHIEF ENONA OVAT 4. MR. BOMMY ISEK OBIA (For Themselves And On Behalf Of Iva Ovat Paternal Family Of Ovonum, Obubra) APPELANT(S)
And
MR. ANTHONY EGOR RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF COMPETENCE OF AN ORIGINATING PROCESS GOES TO THE JURISIDICTION OF THE COURT
It is settled that the issue of competence of an originating process goes to the jurisdiction of the Court. Thus, where the Court lacks jurisdiction, it cannot make any order whatsoever or invoke any section of the law. See Arueze Vs Nwaukoni (2019) 5 NWLR (Pt 1666) 469 at 479. Also in Febson Fitness Centre Vs Cappa H. Ltd (2015) 6 NWLR (Pt 1455) 263 at 278, the apex Court has held that an originating process whether writ of summons, originating process or notice of appeal must be valid in order to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. And where the process is not signed by a litigant or his counsel, the process is invalid and the jurisdiction of the Court is ousted. The resultant effect is that the unsigned writ that ignited the action at the lower Court which culminates to this appeal is incompetent and the jurisdiction to entertain the suit before it. In other words, the purported trial and decision arrived at by the lower Court is a nullity and all the orders made therein are null and void. Issue one is resolved in favour of the appellants.
The consequence of resolving this issue in favour of the appellants invariably means that it would be unnecessary to resolve the remaining issues canvassed before us as the lower Court had no legal authority in entertaining the suit in the first place. PER SHUAIBU, J.C.A.
WHETHER OR NOT AN ORIGINATING COURT PROCESS FILED BY A LEGAL PRACTITIONER WHERE A PARTY IS REPRESENTED BY ONE MUST BE SIGNED BY HIM TO INVOKE THE JURISDICTION OF THE COURT
The combined effect of Section 2(1) and 24 of the Legal Practitioners Act, a substantive law make it mandatory that an originating Court’s process filed by a legal practitioner, where a party is represented by one, must be signed by him in order to invoke the jurisdiction of the Court. In this case, there are also the clear mandatory provisions of the Rules of the trial Court requiring the signing of the originating process by the claimant or his lawyer who files the process on his behalf. See the case of OJIKUTU & ORS VS. KUTI & ORS (2021) LPELR-56231 (SC).
The writ of summons in this case was neither signed by the Respondents nor their legal practitioner who filed same on their behalf as required by law, which means that the very foundation upon which the pillar of the entire case of the respondents rested was knocked off. This, unfortunately, means that the trial Court’s jurisdiction was not activated as such the learned trial Judge labored in vain. PER ALIYU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross-River State, sitting at Obubra delivered by Hon. Justice E. I. Kofreh on 17th day of December, 2013 granting the claimant’s reliefs and dismissing the defendants’ counter-claim.
The claimant claims against the defendants jointly and severally for declaration of title to land, perpetual injunction and damages. The claimant claims in paragraphs 15 and 16 of his statement of claim as follows:
“15. The Defendants erroneously/mischievously flaunting the order of this Court in HB/MISC.6/2011 made on 05/12/2011 as awarding them title to the said land entered the land and started felling the claimant’s palm trees situate on the land threatening bloodbath if the claimant or anybody else dares to stop them from their scheme of maliciously destroying the claimant’s economic tress and farms on the land and eventually dispossessing him therefrom.
16. In furtherance to the foregoing, the Defendants between 05/12/2011 and 27/01/2012 trespassed and entered the said land and without seeking or obtaining the claimant’s consent fell fifty (50) palm trees situate on the land for tapping purpose”
And the claimant prays for the following reliefs in paragraph 18 of the statement of claim: –
“18. WHEREOF THE CLAIMANT CLAIM AGAINST THE DEFENDANTS JOINTLY AND SEVERALLY AS FOLLOWS: –
A DECLARATION that the Defendants have no right whatsoever to lay false claim to all that property piece/parcel of land known and called “Oker-Woro land” situate at Ovonum Village in Obubra Local Government Area and which parcel of land measures an area of 1.328 hectares and is more particularly delineated and survey plan number EUE/CR/6107/98 dated the 27th June 1998 with beacon stores number ECL22981, CRL23804, CRL2299, CRL22992, CRL22993, CRL22994, CRL22995, CRL22996 and CRL22997 made by Engr. E. U. Esin, M.C.I. S.M.N.I.S. (Licensed surveyor), having watched the climate exercise positive control over the said land for more than Eleven (11) years.
AN ORDER DECLARATION that the claimant is entitled to the customary right of occupancy over all that piece/parcel of land known and called “OkerWoro land” situate at Ovonum Village in Obubra Local Government Area and which parcel of land measures an area of 1.328 hectares and is more particularly delineated and verged RED in survey plan number EUC/CR/6107/78 dated the 27th June 1998 with beacon stones number CRL-22981, CRL-23804, CRL-22991, CRL-22992, CRL-22993, CRL-22994, CRL-22995, CRL-22996 and CRL-22997 made by Engr. E. U. Esin M.C.I.S.M.N.I.S (licensed surveyor) in Ovonum Village in Obubra within the jurisdiction of this Honourable Court
AN ORDER of perpetual injunction restraining the Defendants, their agents, members, staff, assigns, servants, privies etc from entering, encroaching or in any manner trespassing into the claimants piece/parcel of land known and called “Oker-Woro land” situate at Ovanum Village in Obubra Local Government Area and which parcel of land measures an area of 1.238 hectares and is more particularly delineated and verged RED in a survey plan number EUE/CR/6107/98 dated 27th June, 1998 with beacon stones number CRL-22981, CRL-23804, CRL-22991, CRL-22992, CRL-22993, CRL-22994, CRL-22995, CRL-22996 and CRL-22997 made by Engr. E. U. Esin M.C.I.S.M.N.I.S (licensed surveyor) in Ovonum Village in Obubra within the jurisdiction of this Honourable Court.
Damages assessed at N50,500,000.00 in the following order:
SPECIAL DAMAGES OF 500,000.00 only for Fifty (50) palm trees situate on the aforesaid land fell and damaged by the Defendants which at N10,000.00 per palm tree.
GENERAL DAMAGES assessed at N50,000,000.00 only for the Defendant’s acts of trespass into the claimant’s parcel of land called and known as called “Oker-Woro land” situate at Ovanum Village in Obubra Local Government Area and which parcel of land measures an area of 1.238 hectares and is more particularly delineated and verged RED in a survey plan number EUE/CR/6107/98 dated 27th June, 1998 with beacon stones number CRL-22981, CRL-23804, CRL-22991, CRL-22992, CRL-22993, CRL-22994, CRL-22995, CRL-22996 and CRL-22997 made by Engr. E. U. Esin M.C.I.S.M.N.I.S (licensed surveyor) in Ovonum Village in Obubra within the jurisdiction of this Honourable Court.”
The Defendants denied the above claim and counter claimed against the claimant as follows:-
1. A declaration that the Iva Ovat paternal family is entitled or deemed to be entitled to the customary Right of Occupancy over the expanse of land situate at and called OKEWORO Farmland bounded in the north by Awonibine paternal family land, south by the Cross-River University of Technology land, east by Awonibine paternal family land with Ogbogodo stream turning a natural boundary line between that other family land and the subject matter, and the west by Ovonum Ntem paternal family land as well as Ivarr Obo Paternal family land.
2. Perpetual injunction restraining the defendants either by himself, his privies; agents, servants, line tings, cohorts, cronies or assigns from entering, trespassing into the said land.
3. N10,000,000.00 damages by the footing of aggravated damages for malicious abuse of the legal process in the matter of the issuance of warrants on the defendants and members of their family they represent in this action.
At the conclusion of the trial, the learned trial Judge reviewed and considered the evidence adduced by the parties, made findings of facts and concluded on page 373 of the record thus:-
“The claimant has established by evidence payment of money (N50,000.00) Fifty Thousand Naira for the land in dispute (Exhibit B) and possession by planting palm plantation and other crops on the land and went further to establish his grantor’s title – (The Adun District Court’s record book) original manuscripts of the judgment on Suit No. ADC/56/2000.
So I find that the claimant herein has established better title to the land in dispute called Oker-Oworo land that the Defendant’s that the claimant’s case is stronger than the defendant’s case.
I have mentioned the Defendant’s Counter-claim in passing above, but I shall not go into it as same has failed being substantially the same with the Defendant’s Further Amended Statement of Defence”
Dissatisfied with the above judgment, the Defendants appealed to this Court through a notice of appeal filed on 4/2/2014. By leave of Court, the said notice of appeal was amended on 24/11/2014 and further amended on 6/4/2018. The further amended notice of appeal contains nine grounds of appeal.
Both parties filed and exchanged briefs. Learned counsel for the appellant formulated in his brief of argument four issues for determination while the respondents’ counsel formulated three issues in his brief for determination.
The issues formulated by both the appellants and the respondent can be narrowed down to:-
1. Whether the trial Court rightly assumed jurisdiction to hear and determine the suit culminating in this appeal, which was founded on an invalid writ of summons.
2. Whether the identity of the land in dispute was not established and/or known to the parties.
3. Whether, having regard to the facts and evidence before it, the trial Court was wrong in entering judgment for the respondent.
ISSUE ONE
Learned counsel for the appellants submitted on the first issue that by the combined effect of Orders 8 Rules 2(1) and 2 of the High Court of Cross-River State (Civil Procedure) Rules 2008, the writ of summons must be signed by either the claimant or his legal practitioner and sealed by the Registrar before it would be assumed competent. The signing and sealing of writ according to counsel constitutes a pre-condition for setting a suit in motion and where as in this case, the writ was not signed and sealed by either the claimant or his legal practitioner, the suit is incompetent and the trial Court lacks jurisdiction to entertain same. In aid, counsel relied on the decisions of Efiok Vs Govt. of Cross-River State (2011) ALL FWLR (Pt 59) 1993 at 2003, Kida Vs Ogunmola (2006) FWLR (Pt 327) 402 at 412-413 and Ministry of Works & Transports, Adamawa State Vs Yakubu (2013) ALL FWLR (Pt 694) 35.
It is pertinent to state here that learned counsel for the respondent did not join issues with the appellants’ Counsel on this point, despite the fact that the said issue was distilled from ground eight of the Further Amended ground of appeal. The implication is that he has conceded to the argument therein. Where the respondent fails to address any reply to an issue raised in and argued in the appellant’s brief, such a respondent will be regarded as having conceded not only to the issue so raised by the appellant but also to the legal arguments canvassed under it. See F.M.C.T Vs Eze (2006) ALL FWLR (Pt 323) 1704 at 1717 and Guinness Nigeria Plc Vs Nwoke (2001) FWLR (Pt 36) 981.
Reverting back to the issue of non-signing and sealing of the writ of summons that ignited the suit which culminate to this appeal, the provision of Order 8 Rules 2(1) and (3) of the High Court (Civil Procedure) Rules of Cross-River State, 2008 explicitly provides that originating process shall be prepared by a claimant or his legal practitioner and shall be clearly printed on white paper of good quality. Rules 2(2) and (3) thereof reads:-
“(2) A claimant or his legal practitioner shall on presenting any originating process for sealing leave with the Registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.
(3) Each copy shall be signed 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.”
In the case at hand, the writ of summons which originated the suit at the lower Court, can be seen at page 3 or the record. Material to our present argument at page 3 thereof, it was stated:-
“This writ was issued by Innocent C. Ovat Esq. (Phone No. 0803-707-9600) of Innocent C. Ovat & Co (courage chambers) whose address for service is close “A” Plot 96, Mekenge Layout, off Mekenge street, Akim Calabar Municipality, Agent for ——- of ——— Legal Practitioner for the said claimant who resides at Ovonum Village in Obubra Local Government Area of Cross-River State (mention the city, or town or district and also the name of the street number of the house of the claimant’s residence, if any)”
From the above, it is clear that the writ in issue was neither signed by the claimant nor his legal practitioner. It is settled that the issue of competence of an originating process goes to the jurisdiction of the Court. Thus, where the Court lacks jurisdiction, it cannot make any order whatsoever or invoke any section of the law. See Arueze Vs Nwaukoni (2019) 5 NWLR (Pt 1666) 469 at 479. Also in Febson Fitness Centre Vs Cappa H. Ltd (2015) 6 NWLR (Pt 1455) 263 at 278, the apex Court has held that an originating process whether writ of summons, originating process or notice of appeal must be valid in order to confer jurisdiction on a Court to adjudicate between the parties on the subject matter in dispute. And where the process is not signed by a litigant or his counsel, the process is invalid and the jurisdiction of the Court is ousted. The resultant effect is that the unsigned writ that ignited the action at the lower Court which culminates to this appeal is incompetent and the jurisdiction to entertain the suit before it. In other words, the purported trial and decision arrived at by the lower Court is a nullity and all the orders made therein are null and void. Issue one is resolved in favour of the appellants.
The consequence of resolving this issue in favour of the appellants invariably means that it would be unnecessary to resolve the remaining issues canvassed before us as the lower Court had no legal authority in entertaining the suit in the first place.
On the whole, the appeal succeeds per force and it is accordingly allowed. The decision of the lower Court delivered on 17/12/2013 is hereby set aside and suit no HB/3/2012 filed before the lower Court is struck out for want of jurisdiction.
Parties are to bear their respective costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance, the lead judgment delivered by my learned brother Shuaibu, JCA and I agree completely with his reasoning and conclusion and have nothing useful to add. I too allow the appeal and abide by the consequential orders contained therein.
BALKISU BELLO ALIYU, J.C.A.: My learned brother Muhammed Lawal Shuaibu, JCA has availed me with the draft of the judgment just delivered. I agree with him that the jurisdiction of the trial Court was not activated for it to legally determine the suit of the Respondents.
The combined effect of Section 2(1) and 24 of the Legal Practitioners Act, a substantive law make it mandatory that an originating Court’s process filed by a legal practitioner, where a party is represented by one, must be signed by him in order to invoke the jurisdiction of the Court. In this case, there are also the clear mandatory provisions of the Rules of the trial Court requiring the signing of the originating process by the claimant or his lawyer who files the process on his behalf. See the case of OJIKUTU & ORS VS. KUTI & ORS (2021) LPELR-56231 (SC).
The writ of summons in this case was neither signed by the Respondents nor their legal practitioner who filed same on their behalf as required by law, which means that the very foundation upon which the pillar of the entire case of the respondents rested was knocked off. This, unfortunately, means that the trial Court’s jurisdiction was not activated as such the learned trial Judge labored in vain.
For this reason and the fuller reasons in the lead judgment, I too allow this appeal and set aside the judgment of the trial Court. I abide by all the consequential orders made in the lead judgment.
Appearances:
C. A. C. Efifie, with him, R. S. Ubana For Appellant(s)
S. O. Ijoma For Respondent(s)
