ADEWALE DEBAYO-DOHERTY & ORS v. MR. ADEKUNLE MOGBA & ORS
(2019)LCN/13854(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/L/1028/13
RATIO
WHEN THE COMMENCEMENT OF A MATTER IN THE HIGH COURT IS AN ISSUE AT THE APPELLATE COURT
The commencement at a lower Court is the foundation of the suit while the complaint of the Respondent is on the Notice of appeal and brief which are later issues to be sorted out if the original commencement at the High Court is found to be competent. This Court in WEST AFRICAN COLLEGE OF SURGEON & ANOR v CHRISTOPHER (2018) LPELR – 44795 (CA) held thus:
“Now, the signing of the originating process of the Respondent, the Writ of Summons, by “Adubi Arowolaju & Co”. a name not on the roll of Legal Practitioners in the Supreme Court by virtue of Section 2 and 24 of the Legal Practitioners Act 1976 rendered it irredeemably and incurably incompetent and therefore, there cannot be in law any judgment on the merit on such an incompetent originating process, no matter how zealous the Court below must have been trying to do substantial justice between the parties before it. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
HOW A PROCESS PREPARED AND FILED IN A COURT OF LAW SHOULD BE SIGNED BY THE LEGAL PRACTITIONER
See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) 521. See also Madukolu v. Nkemdilim (1962) 1 All NL 587 at P. 595. In SLB Consortium Ltd v. NNPC (2011) 9 NWLR (Pt. 1252) 317 @ pp. 331-332 the apex Court per ONNOGHEN, JSC., (as he then was, now CJN), had with finality restated the law Inter alia thus:
“…A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and that it is sufficient signature if the legal practitioner simply write his own name over and above the name of his/or firm in which he carries out his practice. It has been argued that non-compliance with the provision of Order 26 Rule 4(3) supra is mere irregularity… as the same involves the procedural jurisdiction of the Court. I hold the view that the submission is misconceived on the authority of Madukolu v. Nkemdilim (supra)… the provision of the Rules of Court involved herein are, by the wordings mandatory not discretionary.” On his part @ pp. 337 – 338, his Lordship RHODES-VIVOUR, JSC, had with precision put this issue succinctly inter alia thus: “All process filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represent. Fourthly, name and address of legal firm… Once it cannot be said who signed a process it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e. the Legal Practitioner Act).”
PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
WHETHER THERE MUST BE A FULL DISCLOSURE OF IDENTITY OF PERSONS SIGNING A NOTICE OF APPEAL AND EFFECT OF NOT DOING SO
In IGBINEDION v ANITA (2018) 15 NWLR (PT 1642) 221 at 235, the Supreme Court held that there must be full disclosure of identity of persons signing a Notice of Appeal, to assist the Court to confirm that the person who signed the document is a Legal Practitioner indeed.
Nothing shows that ?Niran Owadusi? signed the writ of summons because it is not below the signature to link them. Anybody could have signed, apart from the ?Niran Owadusi?. In my view the signature on the writ of summons is not identifiable so also is the signature on the amended writ of summons which makes the writ of summons defective and liable to be struck out. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola, Osarugue Obaseki-Adejumo J.C.A.
TIJJANI ABUBAKAR, J.C.A.: I read in draft the leading Judgment rendered in this appeal by my Lord and learned brother Obaseki-Adejumo JCA. I adopt the entire Judgment as my own, and abide by all consequential orders.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. ADEWALE DEBAYO-DOHERTY
2. OLUSEGUN DEBAYO DOHERTY
3. BABALOLA DEBAYO-DOHERTY
4. KENN MOTORS
5. EXPRESS NEWSPAPER
6. REDEEMED CHRISTIAN CHURCH OF GOD Appellant(s)
AND
1. MR. ADEKUNLE MOGBA
2. MR. OJO MOGBA
3. OTUNBA TUNDE ONAKOYA
4. DENNY MOTORS
5. FIRM MOTORS
6. PRINCE & QUEEN MOTORS Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): By an amended writ of summons dated 20th December, 1999, the 1st and 2nd Respondents/1st and 2nd claimants instituted an action against the Appellants/defendants claiming:
1. A declaration that the Plaintiff is entitled to a Certificate of occupancy and/or statutory right of occupancy to all the piece or parcel of land situate, lying and being at Mile 8 on Lagos-Ikorodu Road, Off Idi-Iroko Village, Onigbongbo, Ikeja, now known as Ikorodu Road in the present Ikeja Local Government Council, in Lagos State of Nigeria, which land is more particularly described in survey Plan No. CW273/65 of 1/3/65 drawn by a licensed surveyor Adekunle Coker.
2. N10,000.00 being special and general damages for trespass committed by the Defendants, their servants and/or agents on the piece or parcel of land lying, situate and being at Mile 8 on Lagos Ikorodu Road, off Ideroko Village, Onigbongbo, Ikeja, now known as Ikorodu Road in the resent Ikeja Local Government Council in Lagos State of Nigeria, which land is more particularly described in Survey Plan No. CW.273/65 dated 1/3/65 drawn by a Licensed Surveyor, Adekunle Coker.
3. Perpetual Injunction restraining the Defendants by themselves, their servants, privies and/or agents from committing further acts of trespass on the said land.
The Appellants filed their amended statement of defence in response thereto. The Respondents then filed a reply dated 10th October, 2011. On 21st December, 2012, the trial Court delivered judgment in favour of the Respondents and awarded N100,000 general damages against the Appellants. The Appellants then filed a Notice of Appeal dated 18th January, 2013 against the judgment.
Subsequently, the Appellants also filed a motion dated 17th May, 2013 seeking a setting aside of the entire proceedings and the judgment of 21st December, 2012 on the ground that the writ of summons and statement of claim were signed in a firm?s name, that is, in the name of ?Niran Owadusi & Co., and that it rendered the entire proceedings incompetent and was fatal to the jurisdiction of the Court.
The trial Court dismissed the application in a ruling dated 18th October, 2013 on the ground that the Court was functus officio and that the application was therefore an abuse of Court process.
The Appellants being dissatisfied with the said ruling filed a second Notice of Appeal dated 21st October, 2013 against the said ruling.
The Appellants filed 3 issues for determination in a brief filed on 16/2/17 deemed on 23 /5/17 settled by Cecilia Remilekun Coker, (Miss) of Seyi Sowemimo & Co. thus:
1. Whether the action is competent, having been commenced with a writ of summons signed in a firm name.
2. Whether the Court was right in holding that the Defendants/Appellants had failed to satisfactorily establish the identity of their land and consequently had failed to put up a sustainable defence to the action.
3. Whether the claimants established a better title to the land in dispute.
The 1st Respondent filed its brief on 18/7/17 and it was settled by Chief M.A. Agbamuche of Agbamuche & Agbamuche wherein he filed a preliminary objection and submitted two issues for determination thus:
1. Whether in fact the action in the Court below was commenced by a writ of summons signed in a firm?s name therefore rendering the action incompetent.
2. Whether the Learned trial Judge in the Court below was right after considering all the circumstances in the post judgement proceedings, to refuse to set aside the judgment of 21st December, 2012.
The other Respondents did not file any process.
The preliminary objection of the 1st Respondent is at page 3 of its brief and it is to the effect that the Notice of Appeal dated 21st October, 2013 has no foundation that is no record of Appeal and so ought to be struck out. He argued that there is no Appellants? brief of argument in support of the Notice of Appeal that is part of the record of appeal at pages 445 ? 448.
The 1st Respondent further argued that the Appellants brief of argument dated 15/2/2017 is in support of the 2nd Notice of Appeal dated 21st October, 2013 which is not part of the record of appeal and he urged this Court to deem the Notice of Appeal dated 18th January, 2013 as abandoned and dismiss same pursuant to the Order 7 (6) & 19 (10) of the Court of Appeal Rules, 2016 and that this also means that the Notice of Appeal dated 21st October, 2013 cannot rely on the record of appeal in respect of another Notice of Appeal and that the Notice of Appeal dated 21st October, 2013 should therefore be struck out.
Appellants, in its reply brief argued on the incompetence of the originating process filed at the lower Court and that the whole trial is a nullity for lack of jurisdiction. He urged this Court to set aside the judgment of the lower Court.
Before I proceed, it should be noted that issue 1 in the Appellants? brief which is also issue 1 in the 1st Respondent?s brief is actually a preliminary objection which goes to the jurisdiction of this Court to take the appeal and it is an issue which can be raised at any time and stage and also be raised suo moto by the Court. This issue is so fundamental that unless settled this Court cannot examine the 1st Respondent?s preliminary objection on the Notice of Appeal.
This Court had this to say in the case of FATOKI v AKINTOLA & ANOR (2018) LPELR – 45142 (CA) about the practice and procedure of signing Court process(es) and the effect of a writ of summons signed in the name of a law firm:
“My perusal of the record of appeal deemed filed and served on 21/9/2015 resulted in the discovery of two Writs of Summons filed on the 25/7/2005 and 17/6/2008 both issued and endorsed in the name of “A. Ajibola & Co” and “A. Ajibola Esq.” respectively as contained on pages 8-8A and 9-9A of the Record of Appeal. The first Writ of Summons being the initiating process in this matter while the second having at its foot note as AMENDED 17TH DAY OF JUNE, 2008 PURSUANT TO ORDER OF HON. JUSTICE AWOLALU DATE THE 17TH DAY OF JUNE, 2008. It is not in contest that the Writ of Summon dated and filed at the lower Court on 25/7/2005 was the process that kick started the action in Suit No: HED/23/2005 and also not in doubt that amendment was sought of same which brought about the Writ of Summon of 17/6/2008, 3 years later. A Court of law will have jurisdiction to hear a matter if the case comes before it initiated by due process of law among other ingredients determining the jurisdiction of the Court. See the cases of A. U. Abba Tukur v. The Govt. of Taraba State (supra) and Dr. Ekeozu v. Ogbasi (supra) cited by the Appellant’s Counsel. The question here is whether the amendment sought and obtained on the 17/6/2008 has rectified the defect in the initiating process to the effect of assuming jurisdiction by Court of trial to proceed with the proceedings in the matter. In an effort to answer this question Femi Sarumi Esq., submitted that where a Writ of Summons is not properly signed, the Suit is not validly initiated and the Court is robbed of jurisdiction to try such matter. But M. A. Shittu Esq., in reliance to the decision in the Unity Bank Plc v. Denclag Ltd (supra) submitted that the defect in the initiating Writ of Summons can be rectified by amendment as done in this case by the trial Judge on 17/6/2008; which gave him the jurisdiction to proceed with the matter to conclusion. He referred to and relied on unreported decisions of this Court in Appeals Nos: CA/I/90/2006 and CA/AK/157/2013. I am of the opinion that where a provision of law has clearly and unambiguously provided for a particular act or situation, the Courts have a
