ADOMI & ORS v. OKPA & ORS
(2022)LCN/16068(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, January 18, 2022
CA/C/02/2016
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. MUSA E. ADOMI, ESQ. 2. JOSEPH AYANG ETABA 3. ETABA ETABA ADOMI (For Themselves And On Behalf Of Adorni Omonu Family) APPELANT(S)
And
1. OGUNI OKPA 2. ETABA OGUNI OKPA 3. AYANG OGUNI OKPA 4. OGBE OGUNI OKPA (For Themselves And On Behalf Of Oguni Okpo Paternal Family Unit) RESPONDENT(S)
RATIO
WHETHER OR NOT A WRIT OF SUMMONS MUST BE SIGNED AND SEALED TO BE COMPETENT BEFORE THE COURT
Order 8 Rule 2(1) (2) (3) of the High Court of Cross River State (Civil Procedures) 2008 provides:
2(1) The Registrar shall seal every originating process whereupon shall be deemed to be issued.
(2) A Claimant or his Legal Practitioner shall, as presenting originating process for sealing leave with the Registrar as many copies of the process as there are Defendants to be served one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the Legal Practitioner or by 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.
There is no contention in this that the writ of summons filed by the Claimants was neither signed by the Claimant, nor by his Legal Practitioner. The Claimant/Respondent admitted this. His contention is that the failure to sign the process was a procedural error that would not have fatal effect on the process filed. Order 8 Rule 2(1) (2) and (3) of the High Court Rules referred to above makes it mandatory that the writ of summons shall be signed by the Legal Practitioner or the Claimant. In the case UTORO VS. LAWAL (2018) ALL FWLR (PT. 938) 1823, it was held that:
“where the originating process is a writ of summons, the writ to be competent must be signed by the Plaintiff or his Counsel and sealed by the Registrar, where the Respondents’ writ was properly signed, the trial Court rightly deemed same competent.”
In OMEGA BANK (NIG.) PLC VS. O.B.C. LTD. (2005) LPELR – 2636 (SC), Tobi, JSC held:
“A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.” PER BOLA, J.C.A.
WHETHER OR NOT AN UNSIGNED DOCUMENT CARRIES EVIDENTIAL VALUE
It is the law that an unsigned document carries no evidential weight. It commands no value in legal proceedings. See HARUNA & ORS VS. MAI JEGA (2018) LPELR – 46779 (CA).
In AIKI VS. IDOWU (2006) 9 NWLR (PT. 984) 47, Alagoa, JCA (as he then was) held at page 65 that:
“Where a document which ought to be signed is not, authenticity is in doubt, pleadings fall into this category of document. What for example, would it be the effect of attempting to tender a letter of employment which is unsigned. It would certainly not go in as an exhibit….” PER BOLA, J.C.A.
WHETHER OR NOT A SUIT MUST COMMENCE WITH A WRIT OF SUMMONS TO BE COMPETENT
It is trite that for a suit to be competent, it must be commenced with a valid writ of summons. In the case KIDA VS. OGUNMOLA (2006) 6 LPELR – 1690 (SC), Musdapher, JSC observed:
“…the validity of originating process in a proceeding before a Court is fundamental, as the competence of the proceeding with a valid writ of summons goes to the root of the case and any other emanating from such proceedings is liable to be set aside as incompetent and nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceeding as claimed by the learned trial judge.”
Lastly, in KENTE VS. ISHAKU (2019) ALL FWLR (PT. 393) 477, it was held that:
“The validity of the originating process in a proceeding, like originating summons, writ of summons or notice of appeal is sine qua non for the competence of the proceeding that follows or that is initiated by such process. Consequently, failure to commence a suit or appeal valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions for the exercise of the Court’s jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and determine the issue in the action or appeal. Unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or a valid initiating or originating process, it is incompetent. The proceedings in such action or appeal remain a nullity ab initio, no matter how well the proceedings were conducted. Courts do not exercise their given jurisdiction in futility.” PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This appeal is a challenge to the decision of the High Court of Cross River State, Obubra Division delivered by Hon. Justice Edem I. Kooffreh on 23rd September, 2015. Dissatisfied with the judgment of the lower Court, the Defendants/Appellants filed their Notice of Appeal on 21st day of December, 2015.
The Notice of Appeal was amended. The extant Amended Notice and Grounds of Appeal were filed on 16th March, 2021. It consists of six (6) grounds. The Records of Appeal was transmitted to this Court on 6th January, 2016. The Amended Appellants’ Brief of Argument was filed on 15th March, 2021. The Respondents’ Amended Brief of Argument was filed on 24th August, 2021. The Appellants’ Reply Brief was filed on 15th October, 2021.
SUMMARY OF THE FACTS OF THE CASE
The Claimants/Respondents’ case is that their late father Oguni Okpa acquired a parcel of land from Okongha Society of Apiapum in 1966 for the purpose of planting palms. That their late father paid the sum of £6 (Six Pounds) to the chiefs and cooked food for the community. The transaction was reduced into writing dated 13th February, 1966.
The Claimants’ late father occupied the land by planting agric palms while the Okongha Society members felled the wild palms for tapping of palm wine. The Claimants/Respondents further stated that the agric palms were felled in 1982 and replaced with new ones in 1983. That as evidence of acts of ownership of the land, the Claimants erected a-10-room building yet to be completed. The Claimants also claimed to have leased part of the land to Sunday Udenna to be used as a sand depot.
The Defendants/Appellants lay claim to the land and assert that the land was founded by their great grandfather, Ita Elork who bequeathed same to their grandfather Adomi Omonu in 1908. The Defendants gave a line of succession from Adomi Omonu to Adomi Ikpe, Obaje Ikpe, Akumuruk Eroma and Iromi Adorni. The Defendants stated that the Okongha Society had no title over land in Apiapum but only tapping rights over wild palms. It was the Defendants’ case that part of the land of their family was leased to the Claimants late father in 1966 to plant palms and to uproot same after the first harvest and when the land was needed by the Defendants/Appellants.
The Appellants formulated four (4) issues for determination in their Brief of Argument. They are:
1. Whether the Respondents were able to give credible evidence of a valid customary sale of the land in dispute from Okongha Society to the Respondents’ father in 1966, in view of the fact that the Appellants also challenged the title of Okongha Society over the said land. (Grounds 1 and 4).
2. Whether the trial judge was not in grave error to have placed heavy reliance on Exhibits 5, 6 and 9 in entering judgment in favour of the Respondents in spite of obvious contradictions and inadmissibility on evidence of Exhibit 9. (Grounds 2 and 51)
3. Whether from the pleadings and evidence adduced by both sides, the identity of the land was not an issue. (Ground 3).
4. Whether the writ of summons filed on 1st August, 2011 not having been signed by the Claimant or his legal practitioner is competent. (Ground 6).
In their Respondents’ Brief of Argument, four (4) issues were formulated as follows:
1. Whether the Respondents did establish by cogent and credible evidence their claim of title rooted on customary alienation, (Grounds 1 and 4).
2. Whether the documents admitted at the trial Court on Exhibits 5, 6 and 9 were admissible and of evidential or probative value. (Grounds 2 and 5).
3. Granted the identity of the land the subject matter of litigation was made an issue for trial, whether that identity was not established by defence. (Ground 3).
4. Within the contemplation of the rules, it was initiated, whether the originating process in HB/12/2011 was incompetent and irredeemably so. (Ground 6).
ARGUMENT OF ISSUES BY APPELLANTS
Appellant referred to the Respondents’ case which stated that their father was granted the parcel of land in dispute by the Okongha Society of Apiapum in 1966 upon payment of the sum of £6, provided food and drinks for the community. That the Respondents’ pleaded copiously this piece of evidence of customary sale in Paragraphs 8 and 9 of their Statement of Claims and mentioned Chief Irek Ibon and Jonathan Edim Irom as being present and witnessed the transaction. Equally, that there was a memorandum evidencing the transaction.
It was submitted that the Respondents did not call any of the two chiefs mentioned in Paragraph 9 of the claim. That the witnesses called by the Respondents did not witness nor were present at the transaction.
It was submitted that the payment of the sum of £6 as claimed by the Respondents was not reflected in the memorandum evidencing the customary sale. That the Supreme Court laid down the principles of a valid customary sale of land in the case of ODUSOGA VS. RICKETTS (1997) 7 SCNJ 135.
It was argued by Appellants that having challenged the title of the Okongha Society, there was every need by the Respondents to have joined the Society or members as parties in the case.
Appellants urged the Court to uphold this appeal and set aside the judgment of the lower Court.
On issue no. 2, it was submitted that the pleadings and evidence of the Respondents show that the sum of £6 was paid by the Respondents to the Okongha Society for the land. That the Respondents relied heavily on Exhibit 5 as the document evidencing the customary sale. CW2 in his evidence at Page 251 of the Records confirmed this position. That Exhibit 5 contains no such vital evidence of payment of any sum.
It was argued that Exhibit 9 was not specific as to the land that was being referred to. At paragraph 11 of the said counter affidavit of Egong Ototo the area was not described and the plan accompanying Exhibit 9 was entirety of another land that was in dispute in MB/MISC.6/92.
On issue no. 3, it was submitted that from the description of the land as given in Exhibit 5 and the pleadings in the Statement of Claim, the Respondents were at war with themselves as to the actual size and identity of the land in dispute. That the Appellant gave copious description of the land which was quite different from that given by Respondents; referred to Paragraphs 4, 6 and 12 of the Appellants’ Statement of Defence.
On issue no. 4, it was submitted that the writ of summons was neither dated nor signed by the Claimants or by their legal practitioner K. U. Ejukwa, Esq. The Registrar of the lower Court also did not seal the said writ of summons. That the totality of these is that the writ was left bare and not clothed with the necessary validity. That being the case, the lower Court lacked the requisite jurisdiction to have entertained the matter before it. Reference was made to the case UTORO VS. LAWAL (2018) ALL FWLR (PT. 938) 1823.
RESPONDENTS’ ARGUMENT OF ISSUES
On the first issue whether the Respondents did establish by cogent and credible evidence their claim of title rooted on customary alienation, Counsel submitted extensively and urged the Court to hold that the Respondents did establish by cogent evidence their claim of title rooted on customary alienation.
On the second issue, whether the documents admitted at the trial as Exhibits 5, 6 and 9 were admissible and of evidential or probative value, it was submitted that Exhibit 5 was a primary copy of the customary law memorandum evidencing the alienation of the land the subject matter to Oguni Okpa. Exhibit 6 being a receipt evidencing an assignment of a plot in the subject matter by Oguni Okpa to the CW3 and Exhibit 9 a certified true copy of Exhibit 5 clothed by a sworn declaration by one of the Appellants 22 years ago affirming both the title and root of title of Oguni Okpa to the subject matter. That the facts and events that produced and which Exhibits 5 and 9 evidenced were pleaded by the Respondents in Paragraph 7 to 9 of the Statement of Claim while the facts of Exhibit 6 were pleaded in Paragraph 13 of the Statement of Claim.
Respondents’ Counsel submitted that the documents admitted at the trial Court as Exhibits 5, 6 and 9 were admissible and of high evidential or probative value.
In respect of Count 3, granted the identity of the land the subject matter of litigation was made on issue for trial, whether that identity was not established by evidence. It was submitted that the identity of the subject matter as ascertained by the Respondents was admitted by the Appellants during trial. Counsel referred to the pleadings of the Respondents in Paragraphs 4 and 5 of the Statement of Claim where they set out facts to identify the subject matter by its situs, boundary neighbours and boundary features.
That the Respondents called evidence in proof of these facts pleaded on the identity of the subject matter. It was argued that the identity of the land the subject matter of litigation was made on issue for trial. That the identity was established in evidence.
On issue no. 4, whether the originating process in HB/12/2011 was incompetent and irredeemably so? It was argued that the complaint by the Appellants that the originating process was neither sealed by the Registrar nor signed by the Legal Practitioner or the complainant was noted for the first time by the Respondents. That the complaint was an attack on the procedural jurisdiction of the Court as provided by the rules and not on substantive jurisdiction of the Court as vested by the Constitution. He cited the case ZAKIRAI VS. MUHAMMED (2018) ALL FWLR (PT. 964) 1913, 1969 – 1971. That the Appellants’ objection was basically a challenge to the procedural jurisdiction of the Court, not a challenge to its substantive constitutional or statutory jurisdiction to entertain the suit.
The Writ of Summons of the substantive action was filed on 1st August, 2011. The originating process is on Pages 1 and 2 of the Record of Appeal. It is crystal clear that the writ of summons was neither signed by the Counsel to the Claimant nor by the Claimant page 2 of the writ bears no signature. It is the originating process in respect of the substantive matter.
Order 8 Rule 2(1) (2) (3) of the High Court of Cross River State (Civil Procedures) 2008 provides:
2(1) The Registrar shall seal every originating process whereupon shall be deemed to be issued.
(2) A Claimant or his Legal Practitioner shall, as presenting originating process for sealing leave with the Registrar as many copies of the process as there are Defendants to be served one copy for endorsement of service on each Defendant.
(3) Each copy shall be signed by the Legal Practitioner or by 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.
There is no contention in this that the writ of summons filed by the Claimants was neither signed by the Claimant, nor by his Legal Practitioner. The Claimant/Respondent admitted this. His contention is that the failure to sign the process was a procedural error that would not have fatal effect on the process filed. Order 8 Rule 2(1) (2) and (3) of the High Court Rules referred to above makes it mandatory that the writ of summons shall be signed by the Legal Practitioner or the Claimant. In the case UTORO VS. LAWAL (2018) ALL FWLR (PT. 938) 1823, it was held that:
“where the originating process is a writ of summons, the writ to be competent must be signed by the Plaintiff or his Counsel and sealed by the Registrar, where the Respondents’ writ was properly signed, the trial Court rightly deemed same competent.”
In OMEGA BANK (NIG.) PLC VS. O.B.C. LTD. (2005) LPELR – 2636 (SC), Tobi, JSC held:
“A document which is not signed does not have any efficacy in law. As held in cases examined, the document is worthless and a worthless document cannot be efficacious.”
Pronouncing an Exhibit ‘M’ a document not signed tendered in the lower Court, the Court of Appeal in CAKASA (NIG.) LTD & CO. VS. AINA & ANOR (2016) LPELR 42044 (CA) held as follows:
“Exhibit ‘M’ being an unsigned document remains a worthless paper that is devoid of any probative value. An unsigned document is incapable of being used by a Court to resolve facts that are disputed in an action. This settled position of the law has been restated in a plethora of decisions of the apex Court and this Court also including but not limited to GARUBA VS KWARA INVESTMENT Co.(2005) 5 NWLR (pt. 917) 160 @ 176… Although admitted as evidence by the trial Court. Exhibit ‘M’ carries no weight and is incapable of supporting the 2nd Respondent’s averment and contention that he had the mandate of the 1st Appellant to sell the disputed land to the 1st Respondent.”
It is the law that an unsigned document carries no evidential weight. It commands no value in legal proceedings. See HARUNA & ORS VS. MAI JEGA (2018) LPELR – 46779 (CA).
In AIKI VS. IDOWU (2006) 9 NWLR (PT. 984) 47, Alagoa, JCA (as he then was) held at page 65 that:
“Where a document which ought to be signed is not, authenticity is in doubt, pleadings fall into this category of document. What for example, would it be the effect of attempting to tender a letter of employment which is unsigned. It would certainly not go in as an exhibit….”
In respect of originating processes, the Court has 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 ALIYU VS. ABDUL (2019) LPELR – 46987 (CA); OKAFOR VS. NWEKE (2007) 10 NWLR (PT. 1043) 521; FIRST BANK OF NIG. VS. MAIWADA (2012) VOL. 213 LRCN 121 @ 129.
Now to an issue that is on all fours with the present issue in this appeal. In the case UGBOMAH VS. ALLANAH & ORS (2018) LPELR – 44832 (CA), the Court of Appeal held as follows:
“The writ of summons in this case is on pages 1 and 2 of the Record of Appeal. There is typewritten endorsement on page 2 of the record as follows:
THIS WRIT was issued by E. N. Kanu, Esq., who allegedly issued the writ but did not sign it. The law is now settled that an originating process, such as writ of summons and a notice of appeal, must be signed by the litigating party or a Legal Practitioner on his behalf…”
It is trite that for a suit to be competent, it must be commenced with a valid writ of summons. In the case KIDA VS. OGUNMOLA (2006) 6 LPELR – 1690 (SC), Musdapher, JSC observed:
“…the validity of originating process in a proceeding before a Court is fundamental, as the competence of the proceeding with a valid writ of summons goes to the root of the case and any other emanating from such proceedings is liable to be set aside as incompetent and nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceeding as claimed by the learned trial judge.”
Lastly, in KENTE VS. ISHAKU (2019) ALL FWLR (PT. 393) 477, it was held that:
“The validity of the originating process in a proceeding, like originating summons, writ of summons or notice of appeal is sine qua non for the competence of the proceeding that follows or that is initiated by such process. Consequently, failure to commence a suit or appeal valid originating process is a fundamental error. It goes to the root of the action or appeal since the conditions for the exercise of the Court’s jurisdiction would not have been met to place the suit or appeal before the Court for the exercise of its jurisdiction to hear and determine the issue in the action or appeal. Unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or a valid initiating or originating process, it is incompetent. The proceedings in such action or appeal remain a nullity ab initio, no matter how well the proceedings were conducted. Courts do not exercise their given jurisdiction in futility.” It is crystal clear that the writ of summons filed by the Respondent in the lower Court is devoid of the Claimant/Respondent’s signature and that of his Legal Practitioner either. The writ of summons is therefore invalid worthless, incompetent, of no probative value and weightless. No foundation of proceeding can be laid or placed on the invalid process. It deprives the Court of any jurisdiction to adjudicate on the action. The proceedings of the lower Court and its judgment in respect of the matter become an exercise in futility. The proceeding and decision crumble like a pack of cards.
Flowing from the above, this Court cannot proceed to determine other issues raised by the parties in this appeal Appellants’ issue no. 4 and Respondents’ issue no. 4 in respect of the validity of the writ of summons having been resolved in favour of the Appellant. This Court no longer has jurisdiction to determine this appeal on its merit.
Consequently, the proceedings and judgments of the lower Court built on an invalid originating process are equally held null and void.
In conclusion, the Writ of Summons HB/12/2011 between MR. OGUM OKPA & ORS. VS. MUSA E. ADOMI, ESQ. & ORS before the High Court of Justice, Obubra, Obubra Division, Cross River State is hereby struck out.
Parties to bear their respective costs.
CROSS-APPEAL
The Respondent in the main appeal cross-appealed the Cross-Appellants filed their Notice of Cross-Appeal in this Court on 10th July, 2020. The Cross-Appellants’ Brief of Argument was filed on 24th August, 2021. The Cross-Respondents’ Brief of Argument was filed on 5th October, 2021.
The Cross-Appellants’ Brief of Argument donated an issue for determination which is:
Upon the admitted exclusive possession of the land, the subject matter by the Cross-Appellants, the proven entry with cross-appeal by the Cross-Respondents and the consequent damages occasioned on the Cross-Appellants, whether it was not inappropriate for the learned trial judge to fail or neglect to award damages.
The Cross-Respondents distilled an issue for determination in their Brief of Argument. It is:
Whether the Cross-Appellant proved special damages.
This Court had earlier held that the writ of summons filed in the lower Court was neither signed by the Claimants nor by their Legal Practitioner thereby rendering the originating process an incompetent and invalid one. This Court equally held that the proceedings built on the writ and judgment reached thereby were nullity in the circumstance.
This cross-appeal emanates from these invalid proceedings and decision of the lower Court. The proceeding and judgment having been nullified and the writ of summon struck out, this cross-appeal cannot survive in the circumstance. It cannot be predicated on judgment that is held invalid. This Court has no jurisdiction to consider the cross-appeal on its merit. The cross-appeal is struck out.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Samuel A. Bola, JCA and I agree entirely that the validity of the originating process in a proceeding, like Writ of Summons is fundamental and thus any defect therein is fatal to the case. Consequently, the proceedings and judgment built on an invalid process as in the instant case, is null and avoid. I also strike out the defective Writ of Summons for being incompetent.
Appearances:
O.N. Agbor For Appellant(s)
K.U. Ejukwa For Respondent(s)